Standard Oil Co.

In the Matter of STANDARD OIL COMPANY INDIANA)' and OIL WORK- ERS INTERNATIONAL UNION In the Matter of STANDARD OIL COMPANY (INDIANA) i and OIL WORK- ERS INTERNATIONAL UNION In the Matter of STANOLIND OIL AND GAS COMPANY and OIL WORKERS INTERNATIONAL UNION In the Matter of STANOLIND OIL AND GAS COMPANY and OIL WORKERS INTERNATIONAL UNION Cases Nos. C-880, ,C-881, and R-805, R-806.-Decided July 31, 1940 Jurisdiction : petroleum products refining and distributing industry. Unfair Labor Practices In general: responsibility of employer for acts of supervisory employee without authority to hire or discharge. The doctrine of respondeat super tor is applicable to subsequent activities of employee who was a management representative under an employee repre- sentation plan which provided that such representatives "shall be selected by the Management from those designated as belonging to management Interference, Restraint, and Coercion: surveillance. Company-Dominated Unions: successor organizations formed after validation of the Act and following dissolution of employee representation plans-participa- tion in formation of: suggesting formation-participation in administration: attendance at meetings-contribution of support: furnishing office services and facilities ; meeting place ; bulletin boards; permitting employees to circulate petitions on company time; creating impression that wage increases have been derived through collective bargaining-interference : exhibiting union prefer- ence, giving misleading explanation of rights under the Act-i nclicia of domi- nation: recognition as to one organization without proof of authority; lack of opportunity for employees to register approval or disapproval of agreements made by labor organization with employer ; submission of proposed contract expressly providing for retention of existing hours, wages, and working condi- tions; provision in bylaws for very small annual clues, disregard of provision in its bylaws requiring monthly membership meetings ; similarity in structure and function between disestablished employee representation plan and succes- sor unaffiliated labor organization and between such successor and unaffiliated labor organizations at other plants of same employer ; intimate knowledge of i The correct corporate name of this respondent is Standard Oil Company. 25 N L. R B., No. 122 - 1190 STANDARD OIL COMPANY INDIANA ) activities and affairs of unaffiliated labor organization on part of supervisory em- ployee, gained in part by consultation with officers of such labor organization and transmitted to one of employer's executives in prompt and detailed written reports ; appearance of unaffiliated labor organization at one plant of employer concurrently with appearance of similar labor organizations at several other plants of same employer. Disci imination: charges of, dismissed : - Remedial Orders,: cease maintaining surveillance; disestablishment and abro- gation of contract as to one of the dominated labor organizations-ordered; disestablishment of the other dominated labor organization ordered, although employer had not granted it recognition and had not entered into any contract with it. Investigation and Certification of Representatives : existence of questions:-re- fusal to accord recognition to union ; dispute as to appropriate unit ; contract with r'epr`esentative which is not a free choice of the employees, no bar to; employer-dominated representative excluded from ballots ; elections necessary, to be held at such time as the Board shall in the future direct. Evidence 'of union request for exclusive recognition is not necessary to the existence of a question concerning representation. Units Appropriate for Collective Bargaining : (1) production and maintenance employees at Casper, Wyoming, refinery, excluding supervisory, office and clerical employees; (2) non-supervisory production and maintenance employees in the gas-plant department at the Salt Creek field in Wyoming, including those who check and maintain the pipe lines connecting the wells and the com- pression plants and those who gather drip gasoline, but excluding clerical employees, gang pushers and head roustabouts. Prior'determination of the appropriate unit by the Petroleum Labor Policy Board under other legislation is not conclusive. Mr. David C. Shaw, for the Board. Mr. G. R. Hagen, of Casper, Wyo., and Mr. R. J. Fellingham and Mr. A. L. Green, of Chicago, Ill., for the respondent, Standard Oil Company. Mr. G. R. Hagens, of Casper, Wyo., and Mr. Donald Campbell, Mr. Guy H. Woodward, and Mr. C. H. March, of Tulsa, Okla., for the respondent, Stanolind Oil and Gas Company. Mr. B. J. Schafer, of Washington, D. C., for the Union. Mr.,Williezm B. Cobb, of Casper, Wyo., for the Standard Asso- ciation. I , Mr. D. W. Ogilbee and Mr. Harold I. Bacheller, of Casper, Wyo., for the Stanolind Association. Mr.'Louis Newman, of counsel to the Board. 1192 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD DECISION ORDER AND DIRECTION OF ELECTIONS STATEMENT OF THE CASES Upon charges and amended charges 2 duly filed by Oil Workers In- ternational Union, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint dated January 12, 1938, against Standard Oil Company, Casper, Wyoming, and Stanolind Oil and Gas Company, Midwest and Grass Creek, Wyoming, herein called the respondents,3 alleging that the re- spondent, Standard, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7)' of the National Labor Relations Act, 49 Stat. 449, herein called the Act, and that the respondent Stanolind, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), and (3) and Sec- tion 2'(6) and (7) of the Act., On October 30, 1937, the Union also filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri) two petitions alleging that questions affecting commerce had arisen concerning the representation of employees of the respondents, and requesting investi- gation and certification of representatives pursuant to Section 9 (c) of the Act. OnJanuary 4, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Rela- tions Board Rules and Regulations-Series 1, as amended, ordered an investigation and authorized the Regional Director for the Twenty- second Region 4 to conduct such investigation and to provide for appropriate hearings upon due notice. ? On July 3, 1937 , a charge against Stanolind Oil and Gas Company was filed with the Regional Director for the Seventeenth Region (Kansas City, Missouri ). On August 13, 1937, an amended charge was filed with the same Regional Director On October 20, 1937, a charge against Standard Oil Company was also filed with the Regional Director for the Seventeenth Region. By orders dated November 16, 1937, the Board , acting pursuant to Article III, Section 37 (c), of National Labor Relations Board Rules and Regulations-Series 1, as amended, transferred both these proceedings to the Twenty-second Region . On December 10, 1937 , an amended charge against Stanolind Oil and Gas Company was filed with the Re- gional Director for the Twenty-second Region All the charges and amended charges were filed by Oil Workers International Union "The respondents are hereinafter sometimes referred to individually as "Standard" and "Stanolind," respectively * By orders dated November 16, 1937 , the Board , acting pursuant to Article III, Section 10 (c) (3), of National Labor Relations Board Rules and Regulation"-Series 1, as amended. had transferred both these proceedings from the Seventeenth Region to the Twenty -second Region. STANDARD OIL COMPANT ' (INDIANA) 1193 On January 4, 1938, the Board issued an order consolidating all four proceedings for the purpose of hearing. Copies of the complaint and of notices of hearing in the consolidated proceedings were duly served upon the respondents and the Union, and upon Standard Em- ployees Collective Bargaining Association, herein called the Standard Association, and Stanolind Employees Collective Bargaining Asso- ciation, herein called the Stanolind Association; labor organizations alleged in the complaint to have been dominated, respectively, by Standard and by Stanolind. With respect to the unfair labor practices, the complaint. alleged in substance: (1) that the respondent Standard has since April 24, 1937, dominated,and interfered with the formation and administra- tion of the Standard Association and has contributed support to it; and (2) that the respondent Stanolind (a) has since April 24, 1937, dominated and interfered with the formation and administration of the Stanolind Association and has contributed support to it, and (b) discharged two employees, Edward O. Randall and Henry J. Stump, on March 17 and June 8, 1937, respectively, because they joined and assisted the Union. On January 22, 1938, the respondents filed separate answers to the complaint:' 'E'a'ch respondent in its answer denied: (1) that it-had engaged in the alleged unfair labor practices, and (2) that the alleged unfair labor practices affected commerce within the meaning of the Act.7 In addition, the answer filed by Stanolind admitted the dis- charges of Randall and Stump, but alleged affirmatively that "the immediate cause" of these discharges was "the failure on the part of each of them to exercise proper care of and supervision over company property." 8 There were also filed on January 22, 1938: (1) two motions by the Standard Association requesting leave to intervene in the representa- tion proceeding concerning Standard and in both unfair labor prac- tice proceedings, and to file an "answer and cross-petition" in each; and (2) two motions by the Stanolind Association requesting leave to file an "answer and cross-petition" in the representation proceeding concerning, Stanolind and in both unfair labor practice proceedings. The Stanolind Association later also filed a separate motion for leave 8 The Associations are hereinafter sometimes referred to as the intervenors 6 Each of the respondents , on January 22, 1938, also filed an "answer" to the Union's petition for investigation and certification of representatives These "answers" were with- drawn by the respondents during the course of the healing In its "answer" to the petition in the representation proceeding, Standard specifically admitted "that the question concerning representation in this case is one which affects commerce within the meaning of the National Labor Relations Act " 8 At the hearing, the Trial Examiner granted a motion by counsel for the Board to strike from the complaint the last sentence of paragraph "IX" thereof There was no objection to this amendment, and it was stipulated that the answers filed by the respondents and the intervenors should stand as answers to the complaint as so amended. 1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to intervene in the unfair. labor practice proceedings. The motions of both Associations for leave to intervene in the unfair labor practice proceedings ,requested intervention -for 'the sole purpose, of contesting the allegations of domination by the respondents. Pursuant to notice, a hearing on, the consolidated proceedings was held at Casper, Wyoming, from January 24 through February 18, 1938, before Charles A. Wood, the Trial Examiner duly designated by the Board. The intervenors' motions to intervene and to file answers to the complaint were granted by the Trial Examiner.9 Each intervenor then filed an answer in which it denied the company domination, interference, and support alleged in the complaint. The Board, the respondents, and the intervenors were represented by counsel, the Union by one of its officers, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon` the issues- was afforded all parties. During the hearing various motions were made by the respondents and the intervenors to dismiss the complaint and the Union's petitions for investigation and certification of representatives and to exclude or strike certain evidence, particularly evidence of events which occurred prior to April 24, 1937, or to the effective date of the Act. These mo- tions were denied by the Trial Examiner, and his rulings are hereby affirmed. Other rulings on motions and on objections to the admis- sion of evidence were also made by the Trial Examiner during the course of the hearing. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. By order dated September 19, 1938, the Board transferred the un- fair labor practice proceedings to itself, in accordance-with Article IT, Section 37, of National Labor Relations Board Rules and Regula- tions-Series 1, as amended; ordered that no Intermediate Report be issued by the Trial Examiner in those proceedings; and directed that Proposed Findings of Fact, Proposed Conclusions of Law, and Pro- posed Order be issued, pursuant to Article II, Section 38 (d), of said Rules and Regulations. On May 18, 1940', the Board issued its Pro- posed Findings of Fact, Proposed Conclusions of Law, Proposed Order, and Proposed Direction of Elections, copies of which were duly served on the parties. On June 28,1940, pursuant to an extension e While the record is not entirely clear , it appears that the Trial Examiner also per- mitted the intervenors to file cross-petitions in the representation proceedings, and it is evident from the record that the intervenors participated fully in the hearing with respect to the representation proceedings as well as with respect to the unfair labor practice pro- ceedings . The Trial Examiner apparently refused to permit the intervenors to file "cross- petitions" in the unfair labor practice proceedings, and the intervenors voluntarily withdrew their "answers" to the Union's petitions in the representation proceedings upon the Trial Examiner's assurance that they were not necessary under the Board 's procedure. STANDARD OIL COMPANY (INDIANA) 1195 of time granted by the Board, both respondents and the Standard Asso- ciation filed their exceptions to the proposed decision; on July 1, 1940, the Stanolind Association filed its exceptions. No exceptions were filed by •the Union. On July 18, 1940, each respondent submitted to the Board a brief in support of its exceptions. ' Pursuant to notice duly served on all the parties, a hearing was held before the Board in Washington, D. C., on July 23, 1940, for the pur- pose of oral argument. Both respondents were represented at and participated in the hearing; the Associations and the Union did not appear. The Board has considered all the exceptions to the Proposed Find- ings of Fact, Proposed Conclusions of Law, Proposed Order, and Pro- posed Direction of Elections, and the briefs submitted by the respond- ents in support of their exceptions, and finds the exceptions to be with- out merit except as they are consistent with the findings of fact, con- clusions of law, order, and direction of elections set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Standard Oil Company is an Indiana corporation, having its prin- cipal offices in Chicago, Illinois, and Whiting, Indiana. Together with some 30 subsidiary and affiliated corporations, it constitutes an inte- grated, nation-wide organization for the production, transportation, processing, and marketing of crude petroleum and petroleum prod- ucts. One of its subsidiaries is the respondent Stanolind Oil and Gas Company, a Delaware corporation having its principal offices in Tulsa, Oklahoma .110 Standard and its subsidiaries in 1936 had approximately 32,000 employees. During the same, period they produced more than 261/2 million barrels of crude oil, purchased more than 581/2 million barrels of crude oil, processed approximately 743/4 million barrels of crude oil, transported more than 941/2 milion barrels of petroleum and petro- leum products in owned pipe lines and tank ships, and marketed almost 933/4 million barrels of petroleum and petroleum products. These and other operations, which were carried on in almost all the States, pro- duced total receipts of over $400,000,000. Products of the group were marketed in 38 States and the District of Columbia, and constituted approximately 8.6 per cent of the country's entire domestic consump- tion of petroleum products. 11 Standard owns 84 5 per cent of the voting stock of Stanolind The remaining 15 5 per cent of Stanolind's voting stock is owned by Pan American Southern Corporation , which is an almost whollyowned subsidiary of Standard 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Transportation of petroleum and petroleum products produced, pur- chased, manufactured and sold by Standard and its subsidiaries was in part accomplished by a national network of more than 8 ,000 miles of pipe line owned by different units of the group , including a main trunk line extending from Ranger , Texas, to refineries in Kansas, Missouri, Illinois, and Indiana. In addition, Standard owns and operates on the Great Lakes four tank steamers , one tank barge, and one ocean-going tug which supply five lake bulk terminals in Wisconsin and Michigan ; and Pan American Petroleum and Transport Company, a subsidiary of Standard , owns and operates one tank steamer and a number of tugs and barges serving 10 ocean and river terminals. Manufacturing of petroleum products is carried on in 12 refineries scattered through the country, including 6 in Indiana , Illinois, Mis- souri, Wyoming, and Kansas owned and operated by Standard, and 6 in Georgia , Maryland , Texas, Louisiana, and Utah owned and oper- ated by subsidiaries of Standard . Among the manufacturing prop- erties of the group are also 13 casinghead gasoline 'plants in Oklahoma, Texas, Louisiana , and Wyoming owned and operated by Stanolind. The products made and handled by Standard and its subsidiaries are marketed through more than 4,000 bulk or wholesale distributing plants which in turn supply more than 37,000 retail outlets as well as direct consumers. Standard itself is engaged principally in refining and marketing. Its refinery at Casper, Wyoming, is the only property of the Company involved in the present proceedings . Approximately 90 per cent of , the crude oil and all the casinghead gasoline used by the Casper re- finery in its operations are purchased from Stanolind and transported to Casper from the Salt Creek field in Wyoming in pipe lines owned and operated by Stanolind . Of the petroleum products manufactured by Standard in the State of Wyoming," approximately 60 per cent is distributed to points outside the State. Stanolind is one of the two principal petroleum-producing subsid- iaries of Standard,' 2 although it also engages in other operations." Among the oil-producing fields which Stanolind owns or in which it operates are the Salt Creek, Grass Creek, LaBarge, Hamilton Dome, and Bair fields in Wyoming, and the Elk Basin field which lies partly in Wyoming and partly in Montana . Stanolind produces in Wyo- 'i The refinery at Casper uses approximately 80 per cent and the refinery at Greybull, Wyoming, approximately 20 per cent of the total amount of crude oil required for Stand- ard's manufacturing operations in Wyoming. 12 The other is Pan American Production Company , a wholly-owned subsidiary of Pau American Petroleum & Transport Company, which is a subsidiary of Standard 13 Stanolind admits in its answer that it is engaged also in maintaining and operating pipe lines , in purchasing and selling oil and gasoline, and in operating gas compression plants and refineries , and that its operations are carried on in six different States It denies, however, that any of its operations are so conducted as to constitute interstate commerce. STANDARD OIL COMPANY (INDIANA) 1197, ming a daily average of 68,679 gallons of casinghead gasoline which it sells and delivers to Standard within the State. Stanolind also pro-, duces and purchases, in Wyoming, ,a daily average, of 17,156 bara•ells of crude oil, all of which'is sold and delivered within the State to various other oil companies and the bulk of which (78.8 per cent) is so sold and delivered to Standard.14 The crude oil and casinghead gaso- line so purchased and, received by Standard from Stanolind are manu- factured into petroleum products by Standard in Wyoming,15 and 60 per cent of these petroleum products are distributed by Standard to points in other States.16 Stanolind also purchases in the LaBarge field a daily average of 1,000 barrels of crude oil, which it moves to the Opal station in Wyoming and which it there sells to another Standard subsidiary, Utah Oil Refining Company. This crude oil is shipped: by. Utah, Oil, Refining Company to its., refinery at Salt Lake City, Utah.17 II. THE ORGANIZATIONS INVOLVED Oil Workers International Union 18 is a labor organization affili- ated with the Committee for Industrial Organization," herein called the C. I. O. It admits to membership all persons working in the production, transportation, refining, and marketing of natural gas and petroleum products and in allied industries. The Standard Employees Collective Bargaining Association is an unaff=iliated labor organization admitting to membership all employees of the respondent Standard at its Casper, Wyoming, plant, except those having power to employ, discharge, or discipline. The Stano- lind Employees Collective Bargaining Association is an unaffiliated labor organization admitting to membership "all employees of the 14 Another Standaid subsidiary , Utah Oil Refining Company, is the purchaser of 6 4 per cent of the crude oil sold and delivered by Stanolind in Wyoming 16 Standard's manufacturing operations in Wyoming are conducted at two refineries, one at Casper and the other at Greybull All the casinghead gasoline and 90 per cent of the crude oil used by the Casper r efinery are supplied by Stanolind and are transported to Casper in pipe lines owned and operated by Stanolind See also footnote 11, supra 16 This was stipulated at the hearing by counsel for both respondents In addition, Stand- ard admitted in its answer to the complaint : (1) that a preponderant portion of the petroleum products manufactured at the Casper refinery is transported to points outside the State of Wyoming, and (2 ) that a preponderant portion of oil from the Salt Creek field produced or handled by Stanolind is manufactured into gasoline and lubricating oils that are then trans- ported to points outside the State of Wyoming 17 The facts as to the Wyoming operations of Standard and Stanolind were stipulated at the hearing by counsel for both respondents The Trial Examiner subsequently remarked that "the stipulation is drawn up as a matter of intrastate activities of respondents Stano- lind and Standard " We do not construe this to mean that the stipulated facts are to be stripped of whatever probative value they may otherwise have in establishing that the operations of the respondents constitute "comneice" within the meaning of 'Section 2 (6) of the Act Until June 1937 , the Union was known as International Association of Oil Field, Gas Well and Refinery Workers of America Now the Congress of Industrial Organizations The Union became an affiliate of the C. 1 0 in 1935. 11,98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stanolind Oil and Gas Company or its subsidiaries, excepting such employees as have been designated by the Management as having the power to employ, discharge or discipline." 20 The Industrial Relations Plan and the Casper Joint General Com- mittee of the respondent Standard Oil Company, and the Employees Representation Plan and the Rocky Mountain Joint Divisional Com- mittee of the respondent Stanolind Oil and Gas Company were unaffiliated labor organizations. They were dissolved on April 26 and May 3, 1937, respectively, as appears below 21 III. THE UNFAIR LABOR PRACTICES A. Interferencd with, domination and support of the Standard Asso- ciation by the respondent Standard Oil Company 1. The Industrial Relations Plan . The Plan was adopted at the Casper plant of the respondent, Standard, in the fall of 1919. It is undisputed that the Plan was introduced by Standard on its own initiative and without any attempt to poll the employees for an expression of their desire to make the Plan effective as to them. In structure the Plan was a typical company-sponsored employees', representation plan. It established a Department of Industrial Rela -tions under the management of a Director. Section I of Part A of the Plan delegated to the respondent's Director of Industrial Relations "the administration of the company's labor policies, includ- ing the supervision of the carrying out of the Plan of Representation of Employees, as herein provided." Provision was also made for an Assistant Director of Industrial Relations at each of the respondent's refineries or other properties, and the Department was given supervision over the respondent's re- lations with its employees. Each refinery or other property of the respondent was divided "according to departments and natural di- visions," and the employees in each of these departments or divisions were entitled to elect representatives in proportion to their number. Any employee in the respondent's service for one year or, more,' who was 21 years old and an American citizen, was qualified for nom-, illation and election as a representative, but only for the division in which he was employed. Only those employees who had been in 20 This is the provision contained in the constitution of the Stanolind Association. In practice, no attempt had been made by the Association prior to the hearing herein to obtain membership outside the employees in the Salt Creek field in Wyoming Neither of the two Plans made any provision for membership, but each placed some limitations on the eligibility of employees to participate in the election of representatives to the Joint General Committee and the Rocky Mountain Joint Divisional Committee, respectively. STANDARD OIL COMPANY (INDIANA) 1199 the' respondent's service for at least 60 days prior to nominations were entitled to vote for representatives. , Employees having the power to hire, discharge, or discipline were not eligible to act as representatives and were not qualified to vote. Nominations and elections were to be held annually during the month of October under the supervision of the Director of Industrial Relations. In the event of a tie, seniority in the respondent's employ immediately preceding the election was to determine the nominee elected. At each of the respondent's refineries or other properties at which- the Plan was adopted, there was to be formed a-Joint General'Coni- inittee on Industrial Relations (hereinafter referred to as Joint- Gen-eral Committee or J. G. C.) composed of all the employee or elected representatives and a number of representatives appointed by the management not in excess of the number of elected representatives. Each J: G. C. was empowered- to appoint subcommittees for the transaction of business, on each of which the management was to have representatives not exceeding in number the elected representa- tives. J. G. C. meetings were to be presided over alternately by an employee representative and a management representative, and could be attended by the Director of Industrial Relations or an ,Assistant Director. 'A quorum at J. G. C. or subcommittee meetings corisisted of a majority of the elected representatives and a majority of-the appointed representatives. Regular meetings of each J. G. C. and its subcommittees were to be held monthly at a time and place ar- ranged by the Assistant Director of Industrial Relations after a con- ference with the elected representatives. Special meetings could be called upon decision of the J. G. C. or of the Assistant Director of Industrial Relations and the elected representatives. Each J. G. C. was empowered to "make 'to the management any recommendations which in its judgment are deserving of consideration." Representa- tives received compensation from the respondent at the regular rates of pay for time spent in attending meetings. In addition to the various Joint General Committees, there was also an Annual Joint Conference in Chicago attended by Plan representatives and by the respondent's president, the chairman of its Board of Directors, and such other officers of the respondent as they designated. The pur- pose of the Annual Joint Conference was to permit presentation of reports by the several Joint General Committees and discussion of matters of common interest. Grievances of employees were required to be presented, either in person or through the aggrieved employee's J. G. C. representative, first to the employee's foreman, then to the superintendent of his de- partment, and then to the Assistant Director of Industrial Relations. Any grievance not-settled within a reasonable time could be referred 1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD either by the management or by the employee, through his representa- tive, to the J. G. C. by written request. If no satisfactory settlement vwas.made by the, J, G. C., the grievance, could be referred-to the.presi=. dent of the respondent for adjustment. An appeal from the presi- dent's decision could be taken to the Secretary of Labor at Washing- ton, D. C. With respect to the representation of employees, the Plan could be amended by petition signed by 2/3 of the elected representatives and by the Director of Industrial Relations, subject, however, to the ap- proval of the respondent's Board of Directors. The Plan also pro- vided that the cost of its administration was to be borne by the respondent. After the Plan had been put into effect by Standard at its Casper refinery, representatives were selected and a Joint General Committee organized. The Casper J. G. C. consisted of 5 elected and-5-'appointed representatives. Elections of employee representatives were held from time to time on company time and property, and all expenses incident thereto were borne by the respondent. The names of the officials or employees appointed to act as representatives of the management were never released until after the names of the elected representatives were known, and ordinarily the appointed representatives were the fore- men or department heads of the employees elected as representatives to the same J. G. C. Regular meetings of the J. G. C. were held on the third Tuesday of every month, and two chairmen selected respectively by the appointed representatives and by the elected representatives alternated in presiding. These meetings were also attended by the Assistant Director of Industrial Relations of the Casper plant and by a secretary provided by the respondent. When he thought it necessary or', ad=visable, the plant manager also was present. , A.,summary or digest of each J. G. C. meeting was prepared by the Assistant Director of Industrial Relations and, after approval by the chairmen of the appointed and elected representatives; was mimeographed by the re- spondent and posted on bulletin boards in the plant. Matters coming before the J. G. C. were first referred to a subcommittee, the function of which was to obtain whatever information was necessary and sub- sequently to report to the J.G. C., usually with a recommendation as to the action which it thought should be taken. There were several such -subcommittees of the J. G. C., each composed of two elected and two appointed representatives. Meetings of a subcommittee were held at the call of its chairman with permission from the Assistant Director of Industrial Relations. In accordance with the provisions of the Plan, J. G. C. representatives received compensation at their regular rates of pay for working time spent on Plan activities. For non- working time so spent, J. G. C: representatives were paid at the rate 'I , I STANDARD OIL CODZPANI (INDIANA) 1201 of time and a half. Representatives were also paid at their regular rates for time spent in attending the Annual.Joint Conference in Chi- cago, in addition to which all expenses incurred by representatives in attending the Annual Joint Conference, were also borne by the respondent. In 1935, out of deference to the Act, the iespondent discontinued the Annual Joint Conference. The respondent then also discontinued the practice of paying J. G. C. representatives for non-working time spent on Plan activities. In substance, ho-Ni ever, the Plan and the J. G. C. continued in operation at the Casper refineryl,after the effective date of the Act and, until April 26,1 1937, without appreciable change or modification. The activities of the Casper J. G. C. from the fall of 1933 until its dissolution in April' 1937 are reflected in the record by the minutes ,of the meetings, both regular and special, held by it during that period. We believe that the record, including the minutes of these meetings, establishes beyond a doubt that the Plan and the J. G. C. in their opera- tion at the respondent's Casper plant served as a means for airing employee grievances rather than securing genuine collective bargain- ing, for preventing the respondent's employees from engaging ef- fectively in concerted activities for their mutual aid and welfare, and for imposing upon then the respondent's unilateral decisions as to their terms and conditions of employment. Indeed, as an examiiia- tion of tine provisions of the Plan reveals, the J. G. C. had no power to commit the management in any way. Split or tie votes, which, were not infrequent in the J. G. C., invariably meant that the view espoused by the elected representatives had lost. There is, evidence that in no case involving a split or tie vote were the contentions of the employee representatives adopted when the matter was subsequently referred to the management. Even when the J. G. C. was unanimous in its vote, it could only recommend action to the management, and these recom- mendations were not infrequently rejected by the management. Re- quests by the elected representatives, who apparently realized their ineffectiveness in furthering the interests of their constituents, for leave to meet with each other before meetings of the J. G. C. and to consult with elected representatives in other plants of the respondent prior to Annual Joint Conferences, were refused by the respondent. Even machinery expressly incorporated in the Plan for the protection of the employees was left unused, so complete was the respondent's domina- tion of the Plan and its Joint General Committees. For example, the provision for final appeal to the Secretary of Labor at Washington, D. C., was used only twice during the entire 18 years of the Plan's existence' at the Casper plant, and then only in 1934 and in 1936 after the beginning of effective union organization and, in one case, only after the effective date of the Act. 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Termination of the Plan and dissolution of the Casper J. G. C. were announced at a special J. G. C. meeting held at Casper on April 26, 1937, pursuant to call issued by the management. At this dissolution meeting, there was read a communication from Edward G. Seubert, president of the respondent, which opened with the state- ment that "The Standard Oil Company . . . in the year 1919, with ,the cooperation of its employees made effective an `industrial relations plan."' This communication further stated, in part, that "Recent legislation sustained by the courts 22 apparently indicates that the present plans will not be permitted to remain operative. The princi- pal legal objections seem to be that the plans were originally proposed by the company and it appoints half the representatives and the en- tire expense is borne by the company." This was only a partial statement of the illegal attributes of the Plan and the Casper J. G. C. In structure and in operation, as well as in origin, the Plan and the J. G. C. were merely part of the industrial relations policies adopted by the respondent for the purpose of governing its relations with its large body of employees. As was characteristic of employee represen- tation plans generally, the J. G. C. served primarily as a means for presentation of employee grievances to the respondent. Represen- tatives elected pursuant to the Plan did not in any sense mirror the concerted desires of the employees they "represented." Indeed, the Plan contained no provision either for membership or for general meetings, and thereby for all practical purposes made it impossible for the respondent's employees to control the elected representatives or even to formulate and convey to their representatives any state- ment of their common needs. It was understood by everyone that the Plan had been brought into being by the respondent and was dependent for its continued existence upon the respondent's partic- ipation, sponsorship, and material support. Even if the respondent's domination of the Plan and the J. G. C. had not made impossible any serious attempt to change their character, such a change could have been accomplished only, with the consent and approval of the re- spondent, itself. In operation the Plan was merely a means: for con- "Veying 'to the respondent's employees its unilateral decisions as to their terms and conditions of employment, and was used by the re- spondent, particularly after the beginning of union organization in 1933, as an instrument for dissipating and restraining incipient ef- forts by its employees at self-organization and at independent con- certed action. We find that the respondent dominated and interfered with the formation and administration of the Plan and the Joint General Committee at its Casper refinery and contributed financial as This was undoubtedly a reference to the decisions of the Supreme Court of the United states handed down April 12, 1937, sustaining the constitutionality of the Act Nattional Labor Relations Board V. Jones & Laughlin Steel Corp, 301 U S 1. and companion cases STANDARD OIL COMPANY (INDIANA) `1203 and-other support to them, both prior and subsequent to the effective date of the Act and until April 26, 1937. We make no finding that the respondent's activities with respect to the Plan and the J. G. C. constitute unfair labor practices within the meaning of the Act, because no such allegation has been made in the complaint. It would be impossible, however, to make any in- telligent judgment as to the respondent's relationship with the Standard Association subsequent to April 24, 1937, if the respond- ent's activities prior to that date were isolated from what occurred thereafter. Our findings as to the .Plan and the Casper J. G. C. are material to a realistic appraisal of the significance of events after April 24, 1937.23 2. Formation and recognition of the Standard Association The letter of April 24, 1937, from the respondent's president, Seu- bert, to the respondent's employees was, as we have pointed out above, read at the' J. G., C. dissolution meeting of April 26,' 1937. After stating that the Joint General'Committees were invalid -under the Act and, therefore, could not be continued in operation, the letter proceeded to inform the respondent's employees as follows : The law prohibits the management from dominating or in- terfering with the formation or administration of any-employees bargaining association. The law in no manner prohibits the employees from forming an organization or an association which they believe desirable, through which to deal with the management. Any employee or group of employees is at liberty to select representatives to propose and discuss with the management any method or plan for collective bargaining and thereupon the management appears to have the right to discuss with such rep- resentatives such plan or modifications thereof until an agree- ment is reached. In the event a'plan of bargaining satisfac- tory to the proposing employees and the management is worked out, it would, of course, be highly desirable that such plan be afterward agreed to by a majority of all employees. The management feels it should point out that negotiations between the employees and the management concerning pro- 21 That antecedent events in which unfair labor practices have their roots are material to a consideration of the unfair labor practices may no longer be doubted. National Labor Re- lations Board V. Pennsylvania Greyhound Limes, 303 U S . 261, 268-70; National Labor Re- lations Board v Pacific Greyhound Lanes, 303 U S 272 , 273; National ' Labor Relations Board v. Newport News Shnpbuildang & Dry Dock Co , 308 U . S 241 ; National Labor Relations Board v. The Falk Corp , 308 U. S . 453; National Labor Relations Board V H. B 'Fletcher Go, 108 F . (2d) 459, 464-5 (C. C. A 1 ), cert den , 60 S Ct 716. 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cedure for collective bargaining may be carried on during work- ing hours without loss of time or pay. When a plan of bar- gaining has been agreed upon, the management may confer with employees under that Plan during working hours without loss of time or pay to such employees, but under the law the management is prohibited from contributing other financial sup- port to bargaining organizations of employees. So far as it can legally do so the management will cooperate to the end that the minimum of expense is incurred by employees in negotia- tions or operations of such plan as may be agreed upon. While this decision of your management terminates the opera- tion of the employees representation plans, it in no way at this time affects the policies of your company set forth as a part of or in connection with the employees representation plans except as above stated. Certain of these policies have been set forth as part of the employees representation plans and these policies will until further notice be continued. Following the reading of Seubert's letter at the J. G. C. dissolution meeting, several of the appointed and elected representatives and the Assistant Director of Industrial Relations, B. V. Osborn, who was also present, spoke briefly. The remarks made by the appointed rep- resentatives who spoke were laudatory of the J. G. C. and its accom- plishments. Osborn not only praised the J. G. C., but also stated, according to the minutes of the meeting, that "th,e Wagner labor rela- tions act was passed to meet a need over the nation, and was not de- signed to dispense with the Industrial Relations Plan of the Standard Oil Co. The Industrial Relations Plan was striving for the same tnds for the employees of our company that the National Labor Act ,.ppears to desire for the employees over the nation." 24 The evening of the following day, Tuesday, April 27, 1937, a meet- ing was held at which formation of the Standard Association was begun. The meeting was called to order by John A. Lytle, one of the respondent's employees whose duties we discuss below. After Lytle had explained the purpose of the meeting, J. C. Zolnoski and,B. A. Schirk, two other employees, were elected, respectively, temporary chairman and temporary secretary. Zolnoski then delivered a short talk, stating that the J. G. C. had been discontinued and that the em- ployees could form an unaffiliated local organization. Zolnoski also praised the J. G. C. and its accomplishments, and then appointed a .committee of 7 men, including Lytle, to draft bylaws for the proposed organization. The respective merits of a local organization and of an 24 Italics supplied STANDARD 611. COMPANY (INDIANA) - 1205 affiliated organization such as the Union were then discussed, with Edward H. Fischer, a member of the Union, arguing for union affilia- tion, and Lytle and another employee, Carboneau, arguing for a local unaffiliated organization. This meeting of April 27, 1937, had been preceded by preliminary activity in the respondent's plant. During working hours on April 27 there was circulated in the plant a petition which summarized the letter of April 24 from the respondent's president, Seubert, including the statements therein contained that employees could lawfully form an association through which to deal with the management and that employees ^i ere free to select representatives to propose and discuss with the management any method or plan for collective bargaining. The petition urged the respondent's employees to organize their own collective bargaining association, and solicited the signatures of those who desired to join such an asspci ition. There was also circulated in the respondent's plant the same day a petition substantially similar to the first, but ending with a call for a mass meeting to be held that evening. Both these petitions were subscribed "A Committee of Employees." Among the employees who signed the second of these petitions were H. G. Holstein, whose name appeared first among the signatures, Schirk, Lytle, M. W. Sanders, L. E. Hussion and Harry A stin.25 The record is not specific as to when and by whom these petitions were prepared. Sanders first testified that he prepared the first petition and part of The second, that he used a company typewriter and materials, and that he did the work on company premises, but that he did so on his own initiative and without aid from anyone representing the respondent. On cross-examination, he amended his testimony by admitting that he had prepared all of the second petition, and then further changed his story by stating that the first petition had been prepared not by himself but by several men, in- cluding Lytle, Holstein, and himself. Lytle, on the other hand, could not recall even that a petition was circulated on April 27, 1937, and disclaimed having had any part in arranging for the meeting. Sanders further admitted upon cross-examination that he, Lytle, and Holstein spent a substantial part of April 27 in discussing the dissolution of the J. G. C., the question of what was to take its place. and the preparation of the first petition. Sanders, who has been employed by the respondent in a clerical capacity for 12 years, was on April 26, 27, and 28, 1937, working in the employment office, wlfere his superior vas A. V. Forbes, the respondent's office manager aiid a former management representative to the J. G. C. Osborn, ilussion is private secretary to R E Beard , manager of the respondent 's plant. The . 25 status of the other men as employees of the respondent is discussed below. 283036-42-vol. 25-77 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent's Assistant Director of Industrial Relations, was ad- mitted by Sanders to have been in and out of Sanders' office all day on April 27,° but Sanders testified that Osborn was not consulted. On cross-examination, however, Sanders admitted that,he probably had spoken to Osborn and also to Roy Traylor, the respondent's Assistant Safety Director, the afternoon of April 26, after Sanders had heard of the dissolution of the J. G. C.; that he had also spoken to Traylor the morning of 'April 27, and that the conversation "might" have been concerned with the dissolution of the J. G. C.; and that a good part of the first petition was taken from Seubert's letter of April 24, some of it verbatim, though he was unable to explain how that had happened. Sanders could not remember whose suggestion it was that a petitioni be used to ascertain the attitude of the men towards formation of an association, but he was sure that it was neither Osborn nor Traylor. Lytle and Holstein, the two men who took part in the day-long discussion with Sanders on April 27, 1937, were also clerical em- ployees. Lytle was cashier of the Casper plant, handling all incom- ing and outgoing cash, collecting bills, and'doing other related work. While he had no supervision over other employees of the respondent, he was paid on a monthly basis and had his office in the same room with A. V. Forbes, office manager, and C. A. Hughes, assistant office manager. Holstein, who had been Lytle's predecessor in office, was at the time of the events here discussed working on the respondent's pay roll. Sam Work, a. pay-roll clerk in the office of the respond- ent's Casper plant, testified, that Holstein was his superior and had complete charge of the pay-roll work. The respondent's plant man- ager, R. E. Beard, testified on the other hand that Holstein, though employed in pay-roll work, was only a clerk. Regardless of their supervisory or non-supervisory status, Sanders, Holstein, and Lytle. were easily accessible to the respondent's supervisory officials at the Casper plant, including Forbes, who had been a mangement repre- sentative to the J. G. C. and was completely familiar with its opera- tions, and Osborn, who also had an intimate knowledge of the J. G. C. To this roster of clerical employees who were active in the forma- tion of the Association may be added the name of B. A. Schirk, purchasing office clerk, who acted as temporary secretary of the Association from the start and whose activities will be noticed below. An example of the manner in which the petitions of April 27 were- circulated in the respondent's plant and signatures solicited appears in the activities of Harry Astin. By his own admission, Astin had a copy of the second petition on his desk in the blanket department, and he conceded that he "may have" asked some of the inen to sign. There is testimony that Astin was blanket-room fore- STANDARD OIL COMPANY (INDIANA) 1207 man, having supervisory functions. This was denied on behalf of the respondent, but Astin himself stated that the number of men working under him varied from 2 to 12, depending upon the amount of work to be done in the blanket room; and the respondent's plant manager, Beard, who denied generally that Astin had supervisory status, stated on cross-examination that Astin had power to recom- mend discharge or discipline. Beard also admitted that Astin to a certain extent directed the activities of the other men in the blanket room and that Wiederhold, foreman of the paraffin-treating department, looked to Astin as the man responsible for seeing that the work of the blanket room was done. We find that" Astin is a supervisory, employee for whose action in soliciting signatures for the Association the respondent is responsible. , Astin explained at the hearing that he had been given the.peti- tion by one of the office men, whose identity he could not remember, in the room in which Forbes, Hughes, and Lytle worked. At the time he was handed the petition, Astin was requested to sign it and to see if any of the men working under. him would also sign. After Astin had done what he could,' he 'returned the petition to the room in which he had obtained it, leaving it at the window behind which John Lytle worked. Upon cross-examination as to this incident, Astin stated that he merely used a little "horse sense" in choosing John Lytle's window as the place at which to leave the signed petition,' and that he thought Hughes or Lytle would know to whom the petition should be given. Hughes did not testify at the hearing, and Lytle, though he testified, did not deny Astin's Story. Lytle did deny, however, having discussed the question of an independent organization with either of his superiors, Forbes and Hughes. He also denied having played any part in arranging the initial meeting of April 27. In view of Sanders' testimony as to his discussions with Lytle and Holstein on April 27 and of Lytle's own admission that he did discuss the question of an independent organization with "all the boys during working hours" on April 27, we cannot credit Lytle's denial of participation in the, preliminary arrangements of the Association. His lack of credibility ''in this respect also impugns the truth of his claim that Forbes and Hughes were not consulted at any stage of the proceedings. ' That the respondent's local management at Casper was, aware of the circulation of petitions in the plant and of the solicitation of signatures on behalf of theiAssociation cannot be, doubted. At the hearing, the respondent's plant manager, Beard, first denied having known on, April 27 or 28, 1937, of these activities on, behalf of the Association in the plant. It subsequently appeared, however, that 1208 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD on April 29, 1937, Beard wrote to H. F. Glair, the respondent's general manager of manufacturing with offices in Chicago, stating that "there has) been, as you know, considerable activity among) our employees relative to future plans for bargaining with the com- pany." In the same letter, Beard informed Glair : "Certain, groups are circulating various petitions and what not in an effort to deter- mine what plans they might wish to follow in bargaining with the company. * * * Employees are talking to each other as indi- viduals and in such cases no doubt presenting arguments and se- curing signatures from time to time." Beard then admitted, upon cross-examination, that on. April 27 or 28, 1937, he heard that peti- tions were'being circulated in the plant, though he had "no specific evidence" of solicitation. - On April 29, 1937, representatives of the Union conferred with Beard, protested the circulation of petitions and the soliciation that was going on in the plant, and asked either that it be discontinued or that the Union be granted like privileges. On May 4, 1937, after he had conferred with Glair in Chicago by telephone, Beard posted a notice in the plant which stated, in part: Employees will not be permitted to contact other employees on the plant concerning labor relations or other questions uncon- nected with duty during working hours. Beard testified that, in addition to posting the notice of May 4, he instructed all supervisors to forbid circulation of petitions and solici- tation of membership in the plant and to refrain from stating their opinions and otherwise influencing the men with respect to the forma- tion of any labor organization. As to the effect of the notice posted by Beard on May 4, 1937, Sanders testified, and we find, that by that date a majority of the Association's petitions had already been signed.26 In any event, despite the notice posted by Beard and the instructions given by him to the supervisory personnel, solicitation within the plant continued to such an extent that the Union again protested to Beard on May 10, 1937. Instances of solicitation on behalf of the Association in the plant continued to occur during the summer of 1937. The initial meeting of April 27, 1937, was followed by a series of meetings of the bylaws committee appointed by Zolnoski and by the preparation of a constitution or bylaws for presentation to a general meeting of employees. It will be remembered that Lytle had been named by Zolnoski as a member of the bylaws committee. Lytle, apparently on his own initiative, arranged for participation 26 We interpret this testimony to mean that the Association , on May 4 , 1 937, had sub. stantially completed its canvass of the respondent 's employees. STANDARD OIL COMPANY' (INDIANA) 1209 in the committee's work by H. L. Miner, another employee of the respondent, despite the fact that Miner had not been named a member of the committee. A substantial part of the drafting of the bylaws was done by Miner, though the final draft was apparently prepared by Lytle. The committee itself met on April 28, 29, and 30 and May 1, and the bylaws were then submitted to an, attorney, for ex- amination. On Tuesday, May 4, 1937, a second general meeting was held, at which the proposed bylaws as prepared by the committee were read and were adopted as presented, with the exception that eligibility for membership was limited to employees of the respond- ent at its Casper plant, excluding those having the power to employ, discharge,'or discipline.-- The bylaws as thus adopted included' a somewhat ambiguous senior- ity provision.211 Though this did not, of course, commit the respondent in any.way to recognition of seniority rights, H. L. Miner admitted at the, hearing that the seniority provision was regarded as a "selling- point" for the Association. This "selling point" was not neglected, for copies of the bylaws were mimeographed and distributed to the` respondent's employees for their examination. Despite the seniority provision in the bylaws, however, and despite recognition of the As- sociation by the respondent and the execution by the respondent and the Association of a master contract on September 9, 1937, and of a number of subsidiary agreements thereafter, no agreement on seniority had been negotiated between the Association and the respondent at the time the hearing was held. The bylaws also provided that "any policy, rule or regulation in effect at the termination of the Industrial Relations Plan, not in con- flict with the Association's purpose or policies, shall remain in force until changed by agreement." 2,9 Voluntary termination of employ- ment with the respondent automatically terminated membership in the Association. The affairs of the Association were, under the bylaws, to be "controlled and managed by a Board of Nine (9) Directors... ." A membership fee of $1.00 and annual dues of $2.00, beginning Janu- a'' As drafted, the bylaws provided that membership in the Association should "be open to any employee of the Standard Oil Company of Indiana or its subsidiaries , excepting such employees as designated by the management as having the power 'to employ, discharge or discipline " Mercer, a supervisory employee of the respondent Stanolind, was present at the meeting of May 4, 1937, and spoke briefly. Three other Stanolind employees also attended. We discuss below the reason for the presence of these men at this meeting. 23 The provision read as follows . "Seniority shall be recognized in that the oldest em- ployee in consideration of Company service shall be entitled to the best job that they are capable of doing, after a reasonable opportunity to learn the work "Seniority shall be recognized in such cases as shutdowns , lay-offs, promotions or demo- tions, provided that no schedule now in effect shall be disturbed." (Bylaws, Article II, Section 1, paragraph C) 21 This provision, like the one on seniority, dealt with terms and conditions of employ- ment, matters usually dealt with in a contract between the employer and a labor organiza- tion, not in the instiument goveimng the stiuctute and internal operation of it labor organization 1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ary 31, 1938; were provided for in the bylaws:30 Eligibility for elec- tion as a director or as a representative of the Association was limited to members in good standing for t year who were American citizens at least 21 years of age. The "independent" organization thus established at the respondent's Casper plant by the adoption of bylaws at the meeting of May 4, 1937, was not an isolated phenomenon. On May 28, 1937, the secretary of the Standard Association, B. A. Schirk, wrote to the Assistant Di- rectors of Industrial Relations at four of the other plants of the respondent 31 and to employees of three of the respondent's subsidiaries,. including the respondent Stanolind, requesting each of the addressees to deliver the enclosed communication "to some officer of the local bargaining agency at your Plant, if the employees have some such organization at the present time." The enclosure in each letter was a request for aid in organizing. the Standard Association at the Casper plant. The purpose of this correspondence is made amply evident by some of the statements contained therein. Thus, in his covering letter to each Assistant Director, Schirk requested that, if there were no local bargaining agency'at the plant of the addressee, the enclosure be directed "to someone who is not in sympathy with the C. I. O. and who might be interested in forming an independent organization of employees, who would operate same themselves and not affiliate with a national set-up." If the addressee could not "place the enclosed letter in the hands of someone who would be favorable toward a local set-up, aside from any outside influence," he was to "destroy the enclosed letter and so advise me." 32 In reply to these letters, Schirk received identical replies from the four Assistant Directors of Industrial Relations, all of whom regretted 20 At the time of the hearing no attempt had as yet been made to begin collection of annual dues from the members of the Association tt It is explained that Schirk obtained the names of these Assistant Directors of In- dustrial Relations not from the respondent but from an issue of the Stanolind Record, a monthly magazine published and distributed to its employees by the respondent Standard 32 The "enclosed letter" is of sufficient interest to be set forth here at length : - As we are at present organizing a local independent organization (Standard Employees- Collective Bargaining Association ) for the purpose of collective bargaining, whereby we will not need to affiliate with a National Organization , we hereby inquire if the employees of your Plant have as yet presented a working agreement to, the Management of your Plant? If you have perfected your by-laws ; have gained recognition ; have presented, or are working on a proposed working agreement , we would appreciate whatever assistance you - could lend us at this time Would you be so kind as to favor us with a copy of your by-laws and if possible , a copy, of your working agreement? We have presented the Management of the Casper Plant with a tentative working agreement and as soon as we have a definite answer as to what it is worth , will be glad to send you a copy of same Whatever you may suggest to assist us along the lines of organization will be greatly appreciated . As a matter of suggestion , it is the thought of many of our members , that we should work toward the organizing of the entire Standard Oil Co. (Ind) into one organiza- tion and then to unite with other Oil Companies for the purpose of forming an institution for Oil Workers and to have same financed by the Oil Industry. It would be similar in plan, but different in application , to the old method inasmuch as the Secretary of Labor would be the final Judge in all disputes. Would greatly appreciate an early reply. STANDARD OIL COMPANY (INDIANA) 1211 their inability to cooperate as requested because of the possibility that such cooperation might be interpreted as an- unfair labor practice within the meaning of Section 8 (2) of the Act. On June 5 Schirk wrote to former J. G. C. representatives at various, plants of the re- spondent in substantially the same vein as the enclosure originally contained in each of his letters to the Assistant Directors o£Industrial Relations. In these letters, Schirk was in one respect more explicit than in his original letters. After suggesting the possibility of-includ- ing all employees of the respondent Standard, and its subsidiaries in one organization "independent of all outside authority," Schirk added a postscript explaining that by "all outside authority" he meant "Com- mittee for Industrial- Organization." - These letters were more pro- ductive of results than the first group, and resulted in steady corre- spondence between Schirk and officials of local "independent" orgaini- zations formed or being formed at other properties of the respondent Standard. The leaders of the Standard Association at the respondent's Casper refinery were apparently fully informed of developments along similar lines at other refineries. On July 19, 1937, a mimeographed notice bearing the names of the Standard Association's directors and mem- bership committee members was issued. The notice stated that its purpose was to inform all Casper employees of.what had been done at other refineries of the respondent in the way of forming organiza- tions "independent of outside influence." It pointed out that all the respondent's refineries except that at Casper already had "working agreements" with the respondent. It added that "the Casper Refinery is the ONLY REFINERY in the Indiana Organization who failed to draft the old elected members of the Joint General Committee to form a new organization,33 for the purpose of COLLECTIVE BARGAIN- ING with the MANAGEMENT after ,the termination of the Joint General Committee, which was brought about by the Wagner Labor Act." Facts and figures were given as to the membership and activities of the collective bargaining associations at the respondent's main office in Chicago and at the refineries at Sugar Creek, Neodesha, Wood River, Texas ,City, and Whiting. As appears below, the respondent eventually entered into a so-called procedure agreement with each of the associations organized at its various plants and other properties. These agreements were all sub- stantially similar, if not identical, and as each was executed it became a further argument for execution of similar agreements at the remain- ing plants of the respondent. Despite a provision in the Association's bylaws that regular meetings of the members were to be held on the first Tuesday of every month, 81 The reason for this was that "the old elected members " of the Casper J. G. Cl were members of the Union. 1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD there was no meeting of the Association's membership between June 7 and September 8, 1937. Membership meetings were held on those dates and on May 7, May 17, and May 24 prior thereto. In addition, the Directors of the Association met frequently. It will be useful to indi- cate what took place at two or three of these meetings. At the member- ship meeting held on Tuesday, May 7, 1937, nine Directors were. nominated and elected. Among the Directors so elected were H. L. Miner; B. A. Schirk, to whose activity in the preliminary stages of the Association's organization we have already referred; and William Frerichs, who, it was admitted by the respondent's plant manager, Beard, occasionally acted as a shift foreman. Even at this early stage, the impress of the disestablished J. G. C. on the Association began to reveal itself. For example, the nominee who received the largest num- ber of votes for the office of director was as a hatter of course elected chairman of the Association's Board of Directors.34 At another meeting held Monday, May 10, 1937, the directors ap- pointed a membership committee, of which Sanders was designated chairman, and a publicity committee, of which Lytle was designated chairman. At a directors' meeting held May 15, 1937, it was voted that H. L. Miner deliver a talk at the membership meeting to be held May 17, outlining the purpose of the Association and the possibilities of collective bargaining outside of a national organization. Miner there- upon wrote a paper which he read at the membership meeting of May 17 and which was given publicity in the Casper Herald-Tribune the following day. The paper opened with a statement that it proposed to give the purpose, objectives, policies, and procedure of the Association, but that it was not yet possible to give them in detail, "as this must naturally come after a conference with the management." It denied rumors that the Association was "a company organization revamping the former industrial relations plan." The Industrial Relations Plan was described as sound, except in two respects: (1) retention by the management of unrestricted control of its employees, and (2) the requirement of company approval of amendments, which made the Plan absolutely subject to company control. The methods of organized labor were characterized as not applicable to the oil industry. Part of the preamble of the Act was set forth at length and was followed by the declaration that: "Recent activities of certain organizers within the past year has [sic] proved that their method has not only inter- rupted the, free flow of commerce but has deprived labor of millions of dollars in wages, besides the dues they have paid, and have im- paired the industries in which they worked, such as the shipping and "The person thus designated was Robert A Ross At a meeting of the Board of Di- rectors held the following day, Satuiday , May 8 . Ross resigned from the chairmanship for personal reasons. He was then elected vice chairman, and William V Ellms was elected chairman in his place STANDARD. OIL CObMPANT (INDIANA) 1213 auto industries, and have done considerable property damage, a few have lost their lives and many have, been injured, and had it not been for the heroic efforts of certain public officials, might have grown into civil war." "Unionism" was described as breeding "continuous agita- tion." To prevent these results and to exclude "racketteering" from the oil industry, the paper suggested that there be created a "National oil code, somewhat on the general plan of representation of the Old Industrial Relations Plan, after the jokers are taken out. Capitol [sic] and labor both to have representatives of their own choice at the -plants of all companies, at the head offices of the companies, and also at Washington, D. C. * * * All costs of administration of the code to be borne by the oil industry. This will mean a slight change in the law, but we believe this will soon be accomplished." . Miner insisted at the hearing that he prepared this article without any aid whatsoever and that it was typewritten by a public stenog- rapher for whose services Miner, himself, paid. Despite Miner's in- sistelice that the ideas expressed in the article were his own, he was sufficiently vague as to their meaning, when questioned in that respect at the hearing, to indicate either lack of understanding or evasive- ness on his part. The suggestion in the article that some code arrange- ment be worked out, "the cost of which should be borne by "the oil industry,'? is particularly interesting in view of the similar suggestion contained in Schirk's letters of May 28 and June 5, referred to above, and a comment to the sane effect by Chairman Ellms at the meeting of May 17. Immediately after the election of directors of the Association at the meeting of May 7, 1937, it was voted to notify the respondent of the Association's formation and to request recognition of the Association as bargaining agent for its members. Accordingly, on May 10, 1937, six of the nine directors of the Association cofiferred with Beard and left with him a written request for recognition. Beard had appar- ently been forewarned, for he telephoned Glair in Chicago earlier oil May 10 that he expected a visit from Association representatives. After the conference, Beard immediately wrote Glair what had been said at the conference, including the request for recognition of the Association, and asked for Glair's advice as to what reply should be made. On May 13 Glair replied to Beard's letter and advised him. to extend recognition to the Association as requested, but to do so orally since written recognition "might be misconstrued." Beard immedi- ately telephoned Ellms, the Association's chairman, to that effect. The record does not show that the respondent at that time had any information as to how many or what employees the Association represented. Thereafter, the respondent notified the Association that no contract' could be negotiated until the Association represented a majority of 1214 DECISIONS' OF-NATIONAL LABOR RELATIONS BOARD the employees. The Association then communicated with the Board's Kansas City Regional Office and was told that a controversy as to representation was prerequisite to an election of representatives. On June 24, therefore, the directors of the Association again conferred with Beard and requested recognition by the respondent of the Asso- ciation as the exclusive bargaining, agency for all employees at the Casper refinery. This request for recognition was entirely pro forma and was made solely for the purpose of,creating a controversy which would serve as a basis for a petition for an election to be filed with the Board. As Beard's letter to' Glair of the same date reveals, no evidence of its membership was submitted by the Association in sup- port of its request for exclusive recognition, and Beard understood that the respondent was expected to deny the request in order to create a controversy.36 While the record does not indicate the respondent's specific answer to this request from the Association, recognition of the Association as exclusive bargaining agent for the Casper em- ployees was not at that time extended by the respondent. No further attempt to obtain recognition seems to have been made by the Association until August 10, 1937, when it presented to Beard a written request for recognition as "the exclusive bargaining agency for all eligible employees of the Casper Plant." This request stated that the Association had a .total membership of 342 among approxi- mately 647 Casper employees who, the Association understood, were eligible to become members. The number of eligible employees in the plant was apparently computed from a list of employees then in the possession of B. A. Schirk, -the Association's secretary. Schirk at first testified that this was only a partial list, but later admitted that it "might" have been complete. He explained that he had obtained this list from the then chairman of the Association's membership com- mittee, M. W. Sanders, but was unable to say where Sanders had got- ten it. Sanders was employed by the respondent as a clerk and, dur- ing the spring and summer of 1937, alternated between the employ- ment office and the accounting office and also performed some services for the Assistant Director of Industrial Relations, Osborn. Though Sanders testified at the hearing, he gave no explanation of how he happened to have the list which Schirk claims to have obtained from him. It will be remembered that Sanders prepared the Association petitions which were circulated in the respondent's plant on April 27, 1937, and thereafter; that he admitted discussing dissolution of the Plan with the respondent's Assistant Director of Industrial Relations, Osborn, and Assistant Safety Director, Roy Traylor ; that extended discussion of the Plan's dissolution and of what was to take its place 85 That the request of June 24 for exclusive recognition was made only in order to create a controversy appears also from the minutes of the meeting of the Association'si board of directors on June 23, 1937. "STANDARD OIL COMPANY ('INDIANA) 1215 was engaged in by Lytle, Holstein, and Sanders on April 27, 1937, in Sanders' office; and that Osborn was in and out of Sanders' office con- tinually that-day. The mystery surrounding' the Association's' acqui- sition and use of a list of the respondent's Casper employees was heightened, by Schirk's inability at the hearing to remember who told him in August of 1937 how many of the employees so listed were in- eligible for Association membership. Immediately upon receiving the Association's request of August 10, Beard telephoned Glair in Chicago and then wrote to Glair con- firming the earlier telephone conversation. He informed Glair that he had questioned Ellms during the conference as to how many of the members of the Association were on the respondent's private pay roll.36 Ellms did not have this information available at the confer- ence, but promised to have Schirk supply it to Beard as soon as possible. In his letter to Glair, Beard also stated 'that the' Casper plant then had approximately 600 employees on the regular or hourly pay roll and 97 employees on the private pay roll. Of the latter, 44 had been ineligible to participate in elections of representatives to the old Joint General Committee, leaving 53 of those on the 'private pay roll who, as Beard put it, were potentially eligible for member- 'ship in' a labor organization. With respect to these 53, Beard- ,re-minded Glair that "there is of course the possibility that the Labor Board might exclude some of these because their duties might be considered of a supervisory nature." By August 13, 1937, Beard had been advised by the Association of its membership among the employees on both the private and regular pay rolls, and he at once telephoned this information to Glair. The following day, August 14, Beard confirmed the telephone conversa- ,tion in writing, 'repeating the information that the Association had 354 members, of whom 35 were on the private pay roll. He pointed out in his letter that the Association had a majority' (1) of all non- 'supervisory employees in the plan, (2) of the employees on the regu- lar pay roll, and (3) of the employees on the private pay roll. Glair promptly replied on August 17 that, in view of the information con- tained in Beard's letter, arrangements had been made' for Dr. O. E. Bransky, assistant general manager in Chicago of the respondent's manufacturing department, "to proceed to Casper to discuss the matter of recognizing the Association as the sole bargaining agency of the Casper employees and other related matters with representatives of the association." Glair requested Beard to advise Ellms that Bransky would be in Casper on Thursday, August 19, and suggested that the ,conference begin at 8,: 30 a. in. on that date. 88 The respondent's private pay roll is comprised of those employees who are paid on a monthly or salary basis , rather than on an hourly basis . The private pay roll includes, among others, all the supervisory personnel and also the laboratory , office and clerical employees. 1216 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Bransky actually arrived at Casper the evening of Wednesday, August 18, 1937. On the morning of August 19, he and Beard met with Ellnis in Beard's office as arranged. Upon request by Bransky for proof of the Association's membership claim, Ellms produced the stubs of the membership cards issued by the Association. Ellms' at that time claimed a total membership in the Association of 363 em- ployees, and he gave Beard a signed and sworn statement to that effect. At the hearing Beard and Bransky testified that Bransky examined the membership stubs produced by Ellins. Upon cross- examination, however, Bransky admitted that he did not, on August 19, 1937, count the stubs submitted by Ellms or check the names ap- pearing on them to see whether they were the names of employees on the respondent's pay roll or whether the names were authentic signa- tures of the men in question.37 All he did was to look at some of the stubs to satisfy himself "as to the system whereby they gathered their members." He accepted at face value Ellms' assertion as to the number of members the Association had. Bransky's explanation at the hearing for this implicit confidence in Elhns' claim was that, on the basis of his experience with employees of the respondent, he had "learned to trust then as to their statements being honest and sincere." The morning conference on August 19, 1937, lasted an hour, or perhaps less. When Ellms left that morning he took with him the stubs of the Association's membership cards. After lunch, Beard and Bransky met in a room at the main office with Ellms and most of the other directors of the Association. Bransky had by that time been informed by Beard that there were 660 employees in the Casper plant eligible for membership in the Association, so he at once advised the Association's directors that the Association was recognized by the respondent as the exclusive bargaining agency for all but the supervisory employees in the Casper plant. 3. The contract of September 9, 1937, and the establishment of the Conference The question of developing a bargaining procedure was raised at'the very first conference which the representatives of the Associa- tion had with Plant Manager Beard on May 10, 1937. As Beard, explained in his letter of the same date to Glair in Chicago : The prime concern of this group seemed to be that they wished to get some procedure started whereby they could start develop- ing with the Management some agreement relative to procedure ' There is testimony in the record which tends to establish that at least some of the names appearing on the stubs of the Association 's membership cards were written not by the men in question but by Schirk and others who were soliciting members for the Association. Membership cards were apparently issued, at least on occasion, without payment of the membership fee required by the Association 's bylaws STANDARD OIL COMPANY (INDIANA) 1217 to be followed in dealing with the Management. They particu- larly asked if the company would designate some representative who would work with them in developing a tentative bargaining procedure which, when developed, could be referred to their con- stituents and to the Management for approval. At the hearing Beard admitted that the inquiry by the representa- tives of the Association at the conference of May 10, 1937, as to the possibility of developing a bargaining procedure between the Associa- tion and the respondent, was couched in language similar to that appearing in a paragraph of the letter of April 24, 1937, from the respondent's president, Seubert, to the respondent's employees.38 On May 13, 1937, Glair replied to Beard in a letter in which, after noting that the Association representatives had "verbally brought up the question of entering into an agreement relative to procedure," he advised Beard to inform the Association "that the Management is perfectly willing to discuss such an agreement, and it will be in that agreement where the Company will make a definite, commitment as to recognition, exclusive or otherwise." 31 That these instructions from Glair were promptly conveyed to the Association appears from the minutes of the Association meeting of Monday, May 17, 1937, which indicate that Chairman Elims there announced "that it appears to be necessary that we present a working agreement to the company as soon as possible . . " Apparently no time was lost by the Association in complying with Glair's suggestion, for the minutes of a directors' meeting held May 20, 1937, indicate that there was some discussion "of a skeleton work- ing agreement, as drawn up by Mr. Ellms" and that a copy of the agreement was given to H. L. Miner to "enlarge on certain points and endeavor to formulate more detailed points to ' be incorporated in an agreement." When the directors again met the following Sun- day, May 23, 1937, Miner apparently had made whatever improve- ments he had in mind, for it was decided at that meeting "to read proposed agreement as drawn up by Mr. Miner, at regular meeting $8 The sixth paragraph of that letter began as follows Any employee or group of employees is at liberty to select representatives to propose and discuss with the Management any method or plan for collective bargaining and thereupon the Management appears to have the right to discuss with such represen- tatives such plan or modifications thereof until an agreement is reached 39 The remaining two paragraphs in Glair's letter of May 13 to Beard read as follows I think it safe to tell them that if they care to submit an agreement, the Management will be glad to give it consideration and be willing to enter into a discussion with them coucernrng the terms that the Company is willing to agree to in order to come to an understanding on an agreement. I will shortly be able to give you definitely our ideas as to what an agreement should contain but, in as much as these representatives of the Association have suggested that an agreement be iiiade, it is well to let them follow that up by submitting a tentatr\ e form of an agreement 1218 DECISIONS•`_OF-NXTIONAL- LABOR RELATIONS, BOARD to be held,on Monday evening, May 24." At the hearing Miner testi- fied that the proposed agreement was prepared entirely `by himself, that he completed its preparation about May 15 or 16 , that he then submitted it to the directors, and that it was finally approved by the members of the Association at a meeting held May 17, 1937. Upon further examination; lie stated that the approval of the mem- bership was given at a meeting held June 7, 1937. The actual date of such approval is fixed by the minutes of the Association?s meetings as May 24, 1937. Chairman Ellms at that meeting preceded his reading of the proposed working agreement with a statement that many of the men at the plant believed. "that the, Board of Directors , were attempting to railroad the business of the organization, and asked that 'anyone should feel free to get up and present his ideas whether for or against any proposed action." He then read the proposed agreement . There was some discussion. and it was then moved that the "working agreement be tabled for the present , at least until the men had a chance to study the agree- ment before being presented to the Management." The motion was defeated. It was then voted that any reference in the proposed agreement to the old Joint General Committee or to the Industrial Relations- Plan be deleted and that the proposed agreement then be presented to the management. On May 27, 1937, Ellms presented the proposed agreement, to Beard, together with a short letter requesting "the opportunity, at your earliest convenience, to discuss this agreement if so desired by the Management." Since the agreement as so submitted was never adopted and played no important part in the subsequent relation- ship between the respondent and the Association, there is no necessity, for setting forth its provisions . It will suffice to say that the agree- ment proposed no changes in the then existing wages and conditions of employment , but on the contrary specifically provided for their continuing in force "until changed by agreement." The proposed agreement was promptly forwarded by Beard to Glair in a letter dated 'May 27, 1937 . In this letter, Beard called- Glair's attention to the fact that the proposed agreement made no provision for the handling of grievances. He advised Glair, how- ever, that Ellms, upon presenting the agreement , had said that while this problem had not yet been worked out "it was the general opinion of the Association members that the plant would, be divided into di- visions and members elected therefrom in a manner very similar to that formerly used for the Joint General Committee ." Glair replied promptly, advising ' Beard by letter of June 1, 1937, that under Sec- tion 9 ('a) of the Act the respondent could enter into an agreement with the Association only if it represented a majority of the em- STANDARD 0IL^ CO-NIPANY -(INDIANA').,x`_'±'3L 1219. ployees; otherwise, the Association could only present grievances for consideration by the management 40 -: There followed a period of some 21/2 months, during which the members of the Association met only once, during which the direc- tors of, the Association met infrequently (e. g., between July 9 and August 30, 1937, there were no meetings of the board of directors), and during which the efforts of the Association were directed pri- Inarily, if not solely, towards achieving majority membership. - The attitude of the respondent towards attempts by the Union during the same period of some 2 or 21/2 months to act as a collec- tive bargaining representative was in sharp contrast with the close cooperation between it and the Association. On June 5, 1937, the Union presented to Beard a series of requests as follows: (1) that the men be paid on July 2 or 3, rather than on July 5, 1937; (2) that the men be permitted' to make up working time lost because of holi days; (3) that the men be given the maximum number of hours of work per week permitted under the code regulating the oil indus- try, whenever that was possible; (4) that an increase in pay of 10d per hour be granted.to men employed in the common labor classifi- cation; (5) that the inen work no more than 36'hours per week; (6) that all future increases in pay be made on the basis of a flat rate per hour, rather than on a percentage basis, in order that the, differentials between different classes of employees not be further widened; and (7) that provisions for vacations with pay and for sick benefits be raised to a level comparable with that of-other com- petitive oil companies. Beard immediately transmitted these re- quests to Glair in Chicago, and the latter replied by',lettet dated June 14, 1937, in which -he instructed Beard to meet with the Union as representative of a minority group, since no majority bargaining agency had yet been designated at -the • Casper plant, and to convey to the Union "verbally" the respondent's reply to the requests. In effect, this reply was a denial of all the requests except the first, viz ,' thiit the pay day scheduled for July 5, 1937, be advanced to July 2_ or 3. Even this concession, though eventually granted, was an- nounced by A. V. Forbes, the office manager at the Casper refinery, and the respondent's employees were given no indication that the advance in the date of the pay day was in response to a request from the Union. The respondent's answer to the .Union's requests was onveyed by Beard to Fischer on June 17 and June 23, 1937. Beard yin .each occasion immediately notified Glair in Chicago of what had taken place, at his conference with Fischer. 40It was this L efusal by • the respondent to enter into any agreement with the Association without proof of Its majority representation of Casper employees which led the Association to Investigate the possibility of having an election held by the Board and to present the, pro forma request for recognition of June 24, 1937 , to which we have referred above. 1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 17, 1937, the Union presented Beard with a written request for "a blanket wage increase of 150 per hour for all em- ployees' in every classification, to become effective September 1, 1937.1' The request reiterated the Union's opposition to percentage raises, and asked for an answer within 10 days. A similar request was pre- sented by the Union at the same time to each oil refinery in or neap Casper, Wyoming. Beard telephoned Glair and, on August 18, wrote to him; enclosing a copy of the Union's written request.41 The respondent's reply to the Union's request of August 17 was given by Beard on August 27 to Sam Work, a member of the Union's Workman's Committee, which had signed the Union's request. Work was told that the respondent had recognized the Standard Associa- tion as the sole collective bargaining agency for its Casper employees and that it therefore could not deal with the Union with respect to questions such as wages. On August 30 or September 1, 1937, Beard repeated this statement to Fischer, chairman of the Union's Work- man's Committee; then and thereafter Beard refused to meet with the Workman's Committee as such or to give the Union a written reply, to its request. As we have pointed out above, the Association on August 10, 1937, made written request of the respondent for recognition as ex- clusive bargaining agency for all employees at the Casper plant. Such recognition was extended by the respondent through Bransky early-on the afternoon of August 19, 1937. The Association represent- atives and, Bransky and Beard then immediately proceeded to the "negotiation" of a contract. Negotiations continued through Thurs- day and Friday, August 19 and 20, and the following Monday and Tuesday, August 23 and 24, 1937,42 though the reason for this ex- tended discussion between the conferees does not appear from the record.43 Admittedly there was no discussion or negotiation be- tween the conferees with respect to the proposed agreement which had been submitted to the respondent by the Association on May 27; 1937, or with respect to wages, hours, and working conditions. On August 24; 1937, the parties came to an agreement. The role played by Bransky deserves mention. By his own acl- lnission,,he had had no training or experience in the field of labor, relations and had never, prior to the summer of 1937, represented 41 in the lame letter, Beard mfoi med Glen that L %l Johnston superintendent of the Sirichii i-iefinery at Parco, had advised Beard by telephone that he had received a similar request, from the Union Beard continued- `I have not iet had an opportunity to deter mine whether the white Eagle and Texas have been appioached along similar lines " 42 For the time spent by them im'conferring-with Bransky and Beard from august 19 to 24 1937, the representatives of the Association were paid at their usual rates -13Bransky insisted at the hearing that the conferences were marked by arguments andrbv differences of opinion' bet«een himself and Association iepiesentatives but could not recall tvhat.they,were - - STANDARD OIL COMPANY (INDIANA) 1221 the respondent in its dealings with any labor organizations. His initial assignment to this kind of work was given him by his im- mediate superior, Glair, after the latter had negotiated agreements covering the respondent's Wood River and Whiting refineries. Bran- sky was then given a copy of the Wood River contract by Glair and was instructed to proceed to the respondent's Neodesha refinery and negotiate a contract with the local organization which had there been formed. This was followed by a similar assignment at the respondent's Sugar Creek refinery, after which Bransky came to Casper. Bransky brought with him to Casper copies of three or four of the contracts which had previously been 'negotiated at.the other refineries. His authority in the negotiations was strictly lirri- ited: he was to ascertain whether the Association had as members a majority of the employees at the Casper plant and, if it did, he was to recognize it as the exclusive bargaining agency and discuss with its representatives the making of a contract similar to those already negotiated at other refineries of the respondent. He had no authority to bargain with respect to wages, hours, and working conditions, or even to sign for the respondent any contract negotiated in accordance with his instructions. The net result of the 4 clays of conferences between the Association representatives and Bransky, as the latter himself admitted at the hearing, was acceptance by the Association of the form of contract used at the other refineries of the respondent and presented to the con- ferees by Bransky. In substance, the form of contract to which the representatives of the Association agreed on August 24,1937, provided for recognition of the Association as the exclusive collective bargain- ing agency for the employees at the Casper refinery, and for a proced- ure for dealing with "questions upon which employees desired con- sideration." The procedure thus established included a "Conference" consisting of not more than 5 representatives of the Association and an equal or smaller number of representatives of the management. The Conference was to meet regularly once each month, and was em- powered to arrange its own procedure and to appoint subcommittees. There was to be a secretary of the Association representatives and a secretary of the management representatives. Questions raised by employees were to be referred first to the representative of the divi- sion in which the complaining employee worked, and the representa- tive was to attempt to settle the question through conference with the appropriate department head. Any question not so adjusted in 10 days could be referred to the Conference, which was to give "prompt atten- (ion to questions presented to it" and to "endeavor to settle such ques- tions satisfactorily." Each question settled by the Conference was to be incorporated into an agreement to be signed by the respondent 2830-16-42-vol 25--78 1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Association. Any question not settled by the Conference could be referred in writing to the respondent's president for consideration and, if not settled by him within 30 days, could then be referred to the Conciliation Service of the Department of Labor. The agreement was to remain in effect for one year, and thereafter from year to year unless terminated by either party on 30 days' written notice prior to Sep- tember 9 of any year. So far as it went, the Casper agreement was substantially identical with the prior agreements which had been negotiated at the Whiting, Wood River, and Sugar Creek refineries. Not only were all of these similar in substance, but they were also almost identical in phrase- ology. The only substantial difference. between° the Casper agreement and the other agreements was that the latter contained additional provisions that (1) employee representatives were to be paid at their regular rates for working time spent in conferring with the manage- ment; (2) the Association was not to strike and the respondent was not to lock out members of the Association during the life of the con- tract; and (3) the existing policy with respect to seniority and service was to be continued. These or similar provisions were omitted from the Casper agreement because the representatives of the Standard Association felt that, since the agreement was one on procedure, it ought not to include any provisions dealing with matters other than procedure. It is clear from the record, however, and we find, despite` the testimony of H. L. Miner to the contrary, that the conferees under- stood on August 24,1937, that the omitted provisions would be adopted- by the Conference as soon as the contract had been signed and the, Conference organized pursuant thereto. Immediately upon the conclusion of the negotiations on August 24, 1937, Beard and Osborn, the respondent's plant manager and Assistant Director of Industrial Relations at Casper, wrote to their respective superiors in Chicago, Glair and J. W. Curry, notifying them of the successful termination of the negotiations. Beard, in his letter, also recommended that the respondent, while entitled to as many as five representatives in the Conference established by the agreement, use only three representatives for normal purposes. He suggested that these three representatives be Ray Conkling, general foreman of the heavy-oils department, A. V. Forbes, office manager, and J. C. Wark- ley, master. mechanic. All three of these men had been management representatives to the last Joint General Committee prior to dissolu- tion of the Plan. Conkling and Forbes had been associated with the Joint General Committee at the Casper plant for a long time, Forbes practically from the start in 1919. Beard, in his letter, also suggested the names of five or six men to act as alternates for the three manage- ment representatives, pointing out that all of the men suggested had - STANDARD OIL COMPANY '(INDIANA) • e 1223' bad some experience, and three or four'of them considerable experi- ence, with the Joint General Committee under the old Plan. Osborn's letter to Curry referred to "the'one question that is being-referred to Mr. Seubert," the respondent's president." On August 30, 1937, Seubert wrote to Ellms, chairman of the Asso- ciation; enclosing two signed copies of the form' of contract agreed upon by the Association and Bransky and Beard. He requested that one of the two copies be signed by the proper representatives of the Association, dated as of then, and returned to him. Seubert's letter continued as follows : - In this connection, it is my understanding that the clauses refer- ring-to- pay, for employee representatives while conferring with the management, and to strikes and lockouts which were left out' of the bargaining agreement, will be taken up and agreed to at the first regular conference. ' ' One copy of the agreement was accordingly-signed by the directors of the Association on September 9, 1937, dated accordingly, and returned to Seubert. On the evening of September 8, 1937, there was a general member- ship meeting of the Association at which Seubert's letter of August 30 and the proposed procedure agreement between the Association and the respondent were read. H. L. Miner, who read the proposed agree-, ment at' the September 8 meeting, insisted at the hearing that the agreement was presented to the membership for their consideration and approval. The minutes of that meeting, however, while they show that the agreement was read, contain no indication that any opportunity for general consideration and approval, by vote or other- wise, was offered. In view of Miner's inability to give any explana- tion for this alleged omission from the minutes, and in view also of the unreliability which marks Miner's testimony in other respects, we find- that no vote of the Association membership on the, agreement was taken'., At the same meeting of September 8, 1937, the Association divided the various departments of the Casper plant into five groups or divi- sions, each of which then proceeded to elect a representative to the Conference. Among the five representatives so elected were J. C. Zolnoski and John Lytle. As we have pointed out above, Lytle was cashier of the Casper plant, having his office in the same room with the respondent's office manager and assistant, Forbes and Hughes Zolnoski, as well as Lytle, had been extremely active in the early stages of the formation of the Association, and had acted as temporary chair- man at the, early meetings. He had formerly been an elected repre s* Osborn's letter-also contained a postscript as follows : "Dr. Bransky and Mr Beard are now on their way to Greybull to work out a similar nutter" 1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sentative to the old Joint General Committee. , Three of the repre- sentatives elected by the Association were, in their employment with the respondent, subordinates of the three Conference representatives appointed by the respondent. At the first regular meeting 45 of the Conference held September 21, -1937, it was agreed that the Association representatives were to be paid at their regular rates for working time spent in conferring with the management. A written agreement to that effect was signed the same day. At the same meeting, the management representatives insisted upon action by the Conference on an agreement covering strikes and lockouts, pointing out that it had been understood such an agreement, as well as one on pay for Association representatives, would be reached at the first regular meeting. The Conference then adjourned until the next day, to permit the Association representatives to caucus. The following morning the Conference again convened, and the Association representatives repeated their desire to postpone any agreement on strikes and lockouts pending presentation of a coin- plete "working" agreement. Their insistence was met with a re- minder that the Conference had agreed that "All questions shall be presented to the Conference as individual subjects, and each subject shall be handled and reported upon separately." The Association representatives thereupon capitulated, and the Conference agreed that there would be no strike or lockout during the period of the contract of September 9, 1937. A written agreement to that effect was signed the same day on behalf of the respondent and the Association. With respect,to the third of the three items included in the pro- cedure agreements signed by the respondent at its other refineries but excluded from the Casper agreement, viz., seniority, the record shows that at the time of the hearing the Association and the respondent had as yet come to no agreement. At the regular Conference meet- ing held November 46, 1937, the question of seniority was raised by the Association representatives, through John Lytle. One of the management representatives, Conkling, "explained in a general way that each situation must be handled individually", and stated some of the considerations applicable in making these individual decisions. At the next regular meeting of the Conference, held December 21, 1937, the Association representatives "advised there was nothing further to be considered at this time, and the subject should be closed." At the-hearing, it was admitted by witnesses for the respondent and the Association that no agreement on seniority had yet been made and that no change had taken place in the respondent's policy on seniority since the signing of the agreement of September 9, 1937. 45 This was preceded by three special meetings of the Con,fei ence , which we discuss below. STANDARD OIL COMPANY (INDIAN A) 1225 Certain "agreements'' in addition to those on strikes and lockouts and pay for representatives were, however, arranged through the Conference at meetings held prior to the hearing herein. ' On October 19, 1937, it was agreed at a meeting of the Conference that the re- spondent would deduct Association dues from the wages'of employee members who signed individual authorizations to that effect. At the same meeting of the Conference, it was also agreed that employees would not be required "to offset from their regular scheduled hours such time as they put in on overtime work." 46 On the same day, October 19, 1937, written "agreements" to the same effect were signed on behalf of the Association and the respondent. The "agreement" on the check-off of Association dues provided that the respondent would discontinue the practice as to any employee who submitted-a written request to that effect. At the Conference meeting of November 16, 1937, it was agreed that the Association should be permitted to put up 44 bulletin boards in the respondent's plant at the `Association's expense and to post on these bulletin boards copies of the minutes of Conference meetings and also notices approved by the management. An "agreement" to that effect, was signed the same day. Prior to the hearing herein, the Association had arranged with the respondent to purchase, at the price of 59¢ each the bulletin boards formerly used by the Joint General Committee. Each of the so-called "agreements" thus consummated subsequent to September 9, 1937, was executed by R. E. Beard, on behalf of the respondent, and by W. V. Ellms, on behalf of the Association. The wording of each of these "agreements" was ostensibly worked out by Forbes for the management and Lytle for the Association, but it is conceded that in every case the wording was that offered by the re- spondent. It also appears from the record that "agreements" on a number of the same subjects were consummated at other refineries of the respondent,47 and that in every such case the phraseology of the "agreement" was substantially similar to, if not identical with the phraseology of the "agreement" on the same subject consummated at the Casper plant. - "The Union had for some time been urging the respondent to require that overtime work be offset by deduction of an equivalent number of hours from the regularly scheduled num- ber in order that available work would be divided among as many employees as possible, instead of having some men work overtime while others were deprived of their full number of working hours. "For example , a check-off "agreement" between the respondent and the Standard Oil Employees Association at the whiting refinery was signed on August 28. 1937 . At Wood River, the respondent and the standard Oil Employees Association of Wood River signed "agreements" providing for a check -off and that oveitune work not be set off against regular working hours. Similar "agreements" were signed at the Sugar Creek refinery by the respondent and the Refinery Employees Independent Union of Sugar Creek 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . Some attempt was made at the hearing to establish that the "agree- ments" signed by the Association and the respondent subsequent to -September 9, 1937, were presented to the membership of the, Asso; ciation for their consideration and approval. H. L. Miner, for ex- ample, at first insisted that this was so; but subsequently in his testi- mony, he admitted that such consideration and approval do not appear in the minutes of membership meetings of the Association, and he also revealed that he had not attended any membership meetings since early in October of 1937. Upon further examination as to the extent to which whese "agreements" represented action by the Association as a group , he was unable to state even whether each of these "agree- ments" was approved by all of the Association's directors. John Lytle, though he was secretary of the Association representatives and purported to act for the Association in the drafting of its "agreements''-' with the respondent, admitted at the hearing that he had l'lever at- tended any membership meeting of the Association. The Association's chairman, Ellms, who signed each of the "agreements" with the re- spondent subsequent to September 9, 1937, also insisted at first that rank and file approval was obtained, but later revised his testimony to say that such approval was obtained only as to two of the "agreements," viz, the one dealing with strikes and lockouts and the one dealing with pay for time spent by representatives in conferring with the manage- ment. Even as to these two, Ellms was compelled to concede that no indication of membership consideration and approval apears in the minutes of the Association's meetings. No explanation was offered either by Ellms or by Miner for these alleged omissions from- the minutes. We find that' all these "agreements," with one exception .41, were reached and executed without any opportunity on the part of the -members of the Association to express their, approval or dis- approval. On subjects as to which the Association representatives and the management representatives were not in agreement, the Association was unable to make any headway.49 The best example of this is the request for a wage increase which was presented to the Conference at its very first business meeting. We have pointed out above that 4B On October 4, 1937, at a membership meeting of the Association, the respondent's offer of a general wage increase of 3¢ per hour was accepted by the members present. we there- fore exclude from our finding the "agreement" between the respondent and the Association on this subject. It should be noted, however, that the minutes of the Conference meetings held prior to the hearing herein contain no indication that a written "agreement" as to this wage increase was ever signed by the respondent and the Association 49 We have already referred to the Association 's inability to obtain from the respondent any commitment on seniority, despite the seniority provision which had been written into the Association's bylaws and despite the fact that the question of seniority was raised more than once at meetings of the Conference There were other subjects which were marked "closed" by the Conference because the management did not approve the views of the representatives of the Association a ' . 'STANDARD OIL- COMPANY- (-INDIANA) 1227 the Union, on August 17, 1937, had presented the respondent's man- agement at Casper, as well as the managements of other refineries in the Casper area, with a written request for an increase in, wages of 15¢ per hour. On September 10, 1937, the day following the execu- tion of the procedure agreement by the Association and the day on which the first meeting of,the Conference was held, the Association representatives presented the respondent's plant manager, Beard, with a written "petition" for "an increase in rate of 100 per hour for hourly paid employees and a proportionate increase for private pay- roll employees." 50 On September 13, 1937,. Conkling, chairman of the management representatives, requested a special meeting of the Conference for the purpose of discussing the Association's "petition." A. special meeting was accordingly called and held the same day, September 13. The management representatives at the.special meet- ing argued against the proposed wage increase on the grounds that the respondent had been liberal in the matter of adjusting wages and salaries, that conditions did not warrant any such increase, that sta- tistics published by the United States Department of Labor indi- ci ted that earnings of employees at the Casper plant had kept pace with living costs, and that the proposed increase at the Casper plant 'would place'it at a competitive disadvantage 'as compared with other plants of the respondent and would result in curtailment of oper- ations. The management representatives then offered an increase of '3¢ per hour in all houily rates, effective September 1, 1937, and ad- justment of the private pay roll as of the same date to correct any inequalities which might arise as a result of the increase in hourly rates. The Conference adjourned until the following day, September 14,, when the Association representatives produced a written rejec- tion-of the management's offer as inadequate and, with respect to the proposed review of the private pay roll, vague and indefinite. Conkling then' inquired whether the Association representatives wanted to make any counterproposal, and the -latter indicated that they might accept an increase of 5¢ per hour in the hourly pay roll and-a corresponding increase of all private pay-roll salaries of less than $3000 per year, both effective September 1, 1937. The minutes of the Conference meeting of September 14 then state that "a caucus "The Association 's petition referred to "the increase in the cost of living" and to "the Increased earnings of the Company," and requested that the proposed increase be made retroactive to September 1, 1937 The Union's request of August 17, 1937, had stated that, "due to living costs having advanced" and because "the accumulated corporate earnings are large enough ," the request was justifiable The Union's request was that the wage increase "become effective September 1, 1937." It should also be noted that, prior to September of 1937, it had been the respondent's consistent policy , contrary to the -Union's persistent opposition , to grant wage increases on a percentage basis . Even in its request of August 17, 1937 , the Union reiterated its position that any Increase granted be on a fiat hourly basis, since the percentage basis had the effect of "widening the differential between the lower and higher paid employees." 1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the management by Company representatives developed that the counterproposal of the Association could not be accepted, and upon reconvening the Association representatives were so informed by 'Mr. Conklmg." The Association representatives then withdrew their counterproposal, leaving their original, request in effect. On September 24, 1937, in accordance with the procedure agreement of September 9, 1937, the Association mailed an "appeal" to the re- spondent's president, Seubert, in Chicago. The "appeal" set forth what had happened and asked that Seubert grant at least the increases specified in the counterproposal which had been made by the Associa- tion. Complaint was made in the "appeal" that the counterproposal had been "flatly refused" by the management representatives so quickly after its presentation that "not enough time had elapsed for anyone to give consideration to anything." 51 Seubert replied by letter dated October 1, 1937, in which he stated that he felt the offer which had been made by the management representatives was "fair and reasonable" and that the Association's counterproposal was not "warranted at this time." He repeated the offer which had been made by the manage- ment representatives and indicated his willingness, as a special dis- pensation, to make the effective date of the increases September 1, 1937, provided he received written acceptance of the offer by Friday, October S, 1937. On October 5, 1937, Ellms, as- chairman of the Association, wrote to Seubert accepting his proposal. Similar increases in pay had then already been put into effect at the respondent's Whiting refinery as of August 16, 1937, and at the Wood River and Sugar Creek refin- eries as of September 1, 1937. 'The operations of the Conference were governed by rules adopted at the first meeting, held September 10, 1937. It was there agreed that regular meetings would be held on the third Tuesday of every month in the conference room in the respondent's main office building. The chairman of the Association representatives (Zolnoski) and the chair- man of the company representatives (Conkling) were to alternate in presiding at meetings. Matters referred to the Conference were to be designated "subjects" and were to be numbered consecutively. Each matter was to be presented as an individual subject and was to be handled and reported upon separately. An order of business =was adopted, and it was agreed that subcommittees be appointed for sub- jects requiring joint investigation. The order of business thus adopted was the same as that which had been followed at the monthly meetings of the old Joint General Committee; and the practice of alternating 61 Another paragi aph of the "appeal" read as follows : "Another point to give consideration to is the fight between a certain organized labor' group in this vicinity, and our own organization . This was brought up tin our conference but for reasons, which will be obvious to you, was not mentioned in the minutes -I am attaching to this appeal a copy of e circular which was distributed , just a few days ago which will give you some idea of their insidious methods " [Italics supplied ] STANDARD OIL COMPANY (INDIANA) 1229 chairmen, of using subcommittees to investigate "subjects," and of handling grievances or questions submitted to the joint body as sepa- rate and individual "subjects" was a faithful copy of the practice which had -formerly- been followed by the Joint General Committee in con- ducting its business.," Despite the agreement of September 9, 1937, between the respondent and the Association and the consequent establishment of the Confer- ence, the Union continued to function. On November 26, 1937, Fischer conferred with Beard and requested that the Union be permitted by the 'management to-present grievances of its members. After con- ferences and correspondence with Glair in Chicago, Beard informed Fischer shortly after December 15 that the Union's request would not be granted. The respondent took the position that its prior recog- nition-,of the Association as the exclusive collective bargaining agency ea It may be infei red, from the fact that the contract of September 9, 1937 . was entitled "Agreement No 1-Method of Procedure for Collective Bargaining" and from the fact that subsequent "agreements" between the respondent and the Association on "subjects" brought before the Conference were numbered consecutively, that the respondent at the time the procedure agreement was signed anticipated that the Conference would adopt and use the same "subject" method of handling problems as had the old Joint General Committee It will be noticed that the very first "subject" brought before the Conference, viz, the Association 's icquest for a wage increase , which was discussed at the first busi- ness meeting of the Conference on September 13, 1937 , was numbered "2 " Further light on the respondent 's conception of the functions and methods of the Con- ference is provided by correspondence between Curry and Glair in Chicago and Osboin and Beard in Casper , subsequent to the successful conclusion of the "negotiations" of August 19-24, 1937 On August 26, 1937, for example, Curry wrote to Osborn with respect to two problems which lie expected to arise in connection with the functioning of the Conference. With respect, first, to the problem of whether Osborn was to attend meetings of the Conference , Curry referred to another letter from Glair to Beard in which the latter was instructed by Glair that the Association representatives were to make the decision as to whether or not Osborn should attend meetings. In explanation, Glair stated' We ate taking this position because it seems that if the management had the right to request someone who is not a member of the Confeience to sit in Conference meet- ings, the employees night be expected to feel that they were entitled to a similar concession. Apparently the respondent felt and understood that the employees , in their selection of representatives to speak for them at meetings of the Conteience , were limited to persons selected in accordance with the provisions of the Association 's bylaws and of the agree- ment of September 9, 1937 Glair's letter also instructed Beard that the "same position should be taken with regard to Mr. Krajicek at Greybull With respect to a second piobleiir which Curry felt might arise, viz , the designation of subjects considered by the Conference, he instructed Osborn in his letter of August 26 that such subjects be nunibeied consecutively , that Osborn set up a card index of all Conterence subjects "similar to that which you had in the past," and that Osborn furnish Curry with complete information on all Conference subjects Subsequent correspondence between Curry and Osborn indicates that Curry's instruc- tions were followed and that lie was kept fully informed In a letter dated November 16, 1937, Curry reprimanded Osborn for failing to give the Chicago office the reference to the pages of the minutes of Conference meetings at which subjects were discussed Curry pointed out that "under our old system" the Chicago office had been given not only a statement of the action taken on any given subject, but also a "reterence to the date and page of the matters in which the action took place " Curry indicated that he wanted this'saine procedure followed in Osborn's reports of the activities of the Conterence On December 13, 1937, in another letter to Osborn, Curiy made clear what he meant by "our old system " as meaning the practice "which was followed under the old JGC plan " 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for all employees at the Casper plant prevented it, under the Act, from permitting a bargaining agency selected by a minority of the employees to present grievances on behalf of its members . Only six months be- fore, in June 1937, the respondent's position on the same question had been quite different. Faced at that time with the necessity for taking some action on the proposed working agreement which had been sub- mitted by the Association, Glair wrote Beard 'that the respondent could not enter into an agreement with the Association if it did not repre- sent a majority of the employees , but that "any minority group of employees may at any time present grievances to the Management." 4. Conclusions After some 17 years of operation under the complete domination of the respondent and with its constant support, the Industrial Relations Plan and the Casper Joint General Committee were summarily dis- solved by the respondent within approximately 2 weeks after the con- stitutionality of the Act had been sustained by the Supreme Court on April 12, 1937. It was evident, however, from the letter of April 24, 1937, in which the respondent 's president, Seubert, announced the ter- mination of the Plan and the J. G. C., and from the remarks delivered by the management representatives at the J. G. C. dissolution meeting of April 26 , 1937, that the respondent still regarded the Plan as a most desirable kind of organization for its employees . Praise of the Plan and the J. G. C. marked both the letter of April 24 and the meeting of April 26; indeed, the letter expressly stated that the policies set forth in the industrial Relations Plan would continue in effect except in so far as the letter otherwise indicated. ' In addition , the letter of April 24 in effect suggested and invited formation of an association by the respondent 's employees , and fur- nished them with a blueprint of the course to be followed in doing so. Briefly stated, the letter advised the respondent's employees that, while it could not interfere with the formation of an association, they were entirely free to form one; that they could select representatives to dis- cuss with the respondent a plan for collective bargaining ; that any such plan . agreed upon by these representatives and the respondent ought then to be approved by a majority of the employees ; that nego- tiations looking towards establishment of a procedure for collective bargaining could be conducted during working hours without loss of time or pay to the employee representatives ; that conferences between the respondent and employee representatives pursuant to any bargain- ing plan agreed upon could also be held without loss of time or pay to the latter ; and that the respondent, while it was prohibited by the Act from contributing any other financial support to an association of its employees, would cooperate to the fullest extent with any such asso- STANDARD -OIL COMPANY I (INDIANA) 1231 ciation in minimizing the expense of negotiating and operating a'col- lective bargaining plan. '• The results which followed upon publication of the letter were rea- sonably to have been expected. The day after the reading of the letter at the J. G. C.- dissolution meeting, there appeared in` the re- spondent's Casper plant petitions urging formation of an "independ- ent" organization to represent the respondent's employees for collec- tive bargaining purposes. The petition took two forms, one of which closely followed and, indeed, summarized the statements made in Seu- bert's letter of April 24 regarding the freedom of employees to organ- ize an association of their own. A certain amount of mystery sur- rounds the preparation of the petitions. Thus, it is not entirely clear who participated in their preparation, who made the decision to cir- culate them, and who suggested that the gist of, Seubert's letter be reproduced. It does appear, however, that the petitions were pre- pared in the respondent's, plant on a typewriter and with materials belonging to it, and that they were widely circulated in the plant dur- ing working hours. The one employee who admittedly was involved in the preparation of the petitions, M. W. Sanders, discussed the disso- lution-of the Plan with the respondent's Assistant Director of Indus= trial Relations and Assistant Safety Director, Osborn and Traylor; on the afternoon of April 26 and the morning of April 27. Sanders' preoccupation with the problem was' shared on April 27 by Holstein and Lytle, the respondent's pay-roll clerk and cashier, who apparently spent most of the day discussing the natter with Sanders in the latter's office. Osborne was in and out of that office all day on, April 27. We cannot believe, Sanders' denial of any participation by Osborn or Traylor either in 'the decision to form an association or in the deter- mination of the methods to be used, and we infer and find that they did so participate. This legitimate inference of interference and support by the respondent at that crucial stage in the proceedings is strengthened by the participation of Astin, the blanket-room foreman, in the circulation of the petitions and the solicitation of signatures, and by the failure of the respondent's plant manager, Beard, to pro- hibit the activities in the plant until May 4, when the promoters of the Association had ' substantially completed their canvass of the re- spondent's employees. That the petition which Astin circulated in his department was obtained by him from an unidentified office man in the room occupied at least in part by the respondent's office manager, assistant office manager, and cashier, Forbes, Hughes, and Lytle, and was returned by him to the same room, is further evidence that super- visory employees of the respondent and clerical employees within easy reach of these supervisory employees were the wellspring of the movement to organize the Association. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The first meeting of the new group was held the evening of April 27, the day after dissolution of the J. G. C. The temporary officers elected at that,meeting symbolized the underlying purposes of the movement. Zolnoski, the temporary president and a former elected representative to the J. G. C., began his tenure of office with a talk in praise of the J.- G. C.; Schirk, the temporary secretary, very soon gave unmis- takable evidence of his unyielding opposition to the C. I. O. Like Sanders, Holstein, and Lytle, Schirk was a much more active partici- pant in the affairs of the Association that its titular head, Zolnoski, and was a clerical employee, to whom the supervisory employees at the Casper plant had easy access. Zolnoski's first official act was the appointment of a committee to draft bylaws for the proposed organization. Characteristically, a clerical employee, Lytle, was made a member of the committee and was perhaps most active in its work. Indeed, the bylaws ostensibly drafted by the committee were largely written by Lytle and another employee, H. L. Miner, who, though not appointed by, Zolnoski, was asked by Lytle to join In the committee's work. Appointed the evening of April 27, the committee completed its task of drafting bylaws by May 1; and the bylaws as thus drafted, were, adopted with unimportant amendments at a general meeting held May 4. No time was lost by the leaders of the Association in developing the scheme outlined for them in Seubert's letter of April 24. On May 10, 1937, at the very first conference which representatives -of the Association had with the respondent's plant manager, Beard, they raised the question of working out with the respondent some plan or procedure for bargaining. This was the second step, after forma- tion of an association, which Seubert's - letter of April 24 had sug- gested, and this was the primary concern of the Association repre- sentatives at the conference of May 10. They then also requested recognition of the Association as bargaining agent for its members. This request was promptly granted, though the Association sub- mitted no evidence of the character or extent of its membership and though the respondent presumably had no information as to that. With respect to bargaining procedure, however, the respondent had apparently not yet come to any final decision, and accordingly the Chicago office instructed Beard at Casper to have the Association prepare and submit a tentative form of contract covering procedure, which the respondent would then be willing to discuss. At a meet- ing of the Association on May 17, the chairman announced that it was apparently "necessary" for the Association to submit a contract to the respondent. Within a week thereafter, a proposed "working agreement" had been prepared, and on May 24 it was approved at a general meeting of the Association, after a motion to table its con- STANDARD OIL COMPANY (INDIANA) • 1233 sideration in order to give the members an opportunity to study it had been defeated. The proposed contract, which did not suggest any changes in the then existing terms of employment at the respond- ent's plant, was presented to Beard on May 27 by the Association's chairman, Ellms. Upon presenting the contract, Ellms told Beard that the Association leaders contemplated establishment of a system of division representatives similar to that which, had obtained under the old J. G. C. This conception of the Association as essentially a continuation of the methods and purposes of the Joint General Committee, rather than as a new and different instrument for genuine collective ac- tion' on the part of the employees, -appeared in other ways. For example, on July 19, 1937, the Association distributed or posted mimeographed notices detailing the membership and activities of similar organizations at other plants of the respondent. These no- tices somewhat reproachfully stated that the Casper plant was the only one which had failed to use the old J. G. C. elected represent- atives for the purpose of organizing a new association. Similarly, a paper alleged to have been prepared by Miner, which was read at the Association meeting on May 17,, endorsed the old Industrial Relations Plan as sound. In addition, Miner's' paper characterized the methods of organized labor as not applicable to the oil industry, and attacked "unionism" as breeding "continuous agitation." We believe the record shows that the Association was not the spontaneous outgrowth of the uninfluenced desires of the respond- ent's employees at Casper. We axe. supported in, that belief by the fact that the Association was not an isolated phenomenon unique to the Casper plant but only, one of a number of similar, if not identical, organizations which concurrently appeared at many of the plants and properties of the respondent. This was not unknown to the leaders of the movement at the Casper plant. The Associa- tion's temporary secretary, Schirk, early began a constant if`not voluminous correspondence with officials of the' associations, at other plants. This correspondence served, from the point of view of the associations, as a means of exchanging helpful information and of bolstering each other in their respective campaigns to become the recognized bargaining agents for the employees ' at the various plants, from the point 'of view of the respondent,, it served to sim- plify the problem of coordinating the activities of these associa- tions and molding them in the same form. This leveling and co- ordinating process achieved ultimate success, as we point out below, in the negotiation of substantially similar contracts between the respondent and each of the associations. 1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Having been informed by the respondent that a contract was impossible until it had achieved majority membership, the Asso- ciation devoted its entire energy for a period of 2 to' 21/2 months during the summer of 1937 towards increasing-its membership list. The only event ' of consequence during this period was the pro forma request by the Association on June 24 for recognition as the exclusive bargaining agency for all Casper employees. The circumstances under which this request was made are only further evidence of the close cooperation 'which marked the relationship between the Association and the respondent. It was understood by everyone, including the 'respondent's plant 'manager, Beard, that the request was being made solely for the purpose of having it refused by the respondent in order that a controversy concerning representation might be created which would serve as a basis for a petition by the Association requesting the holding of an election by the Board. No evidence of membership was either submitted by the Association or requested by the respondent. While the, pro- jected request for an election was apparently abandoned by the Asso- ciation, the respondent played its expected part, since recognition of the Association was not at that time granted. •• By August 10 the Association had managed to obtain the necessary ,majority. Its realization and claim that it had reached Majority status was based on a list of the respondent's Casper employees which the Association's secretary, Schirk, then had in his possession. The record fails to explain how this list came into the Association's pos- session and, absent any such explanation, we infer and find that the, list either was furnished by the respondent or was obtained by one of the Association's leaders whose position made access to the pay- roll records possible without the open cooperation of the respondent.53 After Beard had ascertained for the respondent that the Association's claimed majority existed not only in the hourly paid classifications but also in the private pay-roll classifications; a conference with repre- sentatives of the Association was promptly arranged at which it was recognized as the exclusive collective bargaining agency for all the employees at the Casper plant. ss Holstein , Sanders , Lytle and Schirk were all clerical employees . More specifically, Holstein was a pay -roll clerk, Lytle was plant cashier, and Sanders was employed in a clerical capacity during the summer of 1937 in the employment and accounting offices Sanders was then also chairman of the Association' s membership committee, and it was from him that Schirk says lie obtained the list. There is no showing, and it is intrinsically quite unlikely, that the respondent' s pay-roll records were taken outside the plant, so the not inconsiderable task of copying several hundred names was problably done on the premises That this could have been accomplished without somehow being noticed by one or more of the supervisory employees at the plant is highly improbable. It is signifi- cant , in this respect, that Schirk was unable or unwilling to state at the bearing who advised the Association in 1937 as to which' persons on the pay roll should, •because of their supervisory status, be excluded from the appropriate unit in determining whether the Association had a majority. Schirk did not deny that such advice was given STANDARD OIL COMPANY ,(INDIANA) 1235 The respondent was represented at this conference by Bransky, an officer from the main office in Chicago. The celerity with. which Bransky extended recognition is noteworthy. In response to a re- quest from Bransky for proof of the Association's alleged membership, the Association representatives produced the stubs of the member- ship cards which had theretofore been issued. Bransky did not count these stubs, nor didhe attempt to ascertain whether the names, appear- ing on them were authentic signatures or were even the actual names of employees of the respondent. Relying entirely upon the assertion of the Association representatives, Bransky extended exclusive recog- nition, and the conferees iminediately proceeded to discussion of a contract. Though the negotiations continued for some 31/z days, they were not at any time concerned with wages, hour's, or other conditions of employment. No pretense was made at discussing the contract which had been submitted by the Association some 21/2 months pre- viously. The nature of these conferences of August 19-24, the details of which do not appear in the record, is best illustrated perhaps by the character of ,the so-called representative of the respondent. Bransky had had no prior experience in industrial relations, except for the "negotiation" at. two other plants, of the respondent of con- tracts which faithfully followed the,pattern of contracts which had previously been "negotiated" at other plants by Bransky's superior. Glair. Copies of these contracts were brought to Casper by Bransky, whose authority was strictly limited to extending recognition to the Association and discussing the making of a contract similar in form. Restricted as he was by these instructions, Bransky could not have engaged in genuine collective bargaining even had the Association representatives wanted to do. so. As might have been expected, how- ever, from the nature of the Association, its representatives made no attempt to bargain for any of the objectives usually sought by bona fide labor organizations. The net result of the conferences was ac- ceptance by the Association representatives of the form of contract which had been brought to Casper by Bransky. Two or three pro- visions of the earlier contracts were omitted from the Casper con- tract, but it was understood by the conferees that such provisions would be agreed upon at the first regular meeting of management and employee representatives after execution of the contract. In contrast with the cooperation between, the respondent and the, Association during the entire period from early in May until the signing of the contract in September 1937, was the attitude of the respondent towards the Union. A series of requests made by the Union on June 5, 1937, were with one exception denied by the re- spondent. The one exception, viz., the request for advancement of the pay day following the Fourth of July, was granted in such a 1236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manner as to prevent the Union from being credited by the respond- ent's employees for the action taken. On August 17, 1937, the Union requested, a general wage increase. This was denied by the respond- ent on the ground that, having recognized the Association, it could not deal with the Union with reference to matters such as wages. In addition, however, the Union's request was countered with a re- quest for a somewhat smaller increase made by the Association the day following the signing of its contract with the respondent. That no time might be lost in counteracting the effect of the Union's re- quest for and the respondent's denial of a wage increase, the Asso- ciation's request was taken up at a special meeting between manage- ment and Association representatives held within 3 clays after the formalities of organization had been accomplished. In November of 1937, a request by the Union that it be permitted to present griev- ances on behalf of its members was denied by the respondent on the ground that a collective bargaining agent, the Association, had been designated by a majority of the Casper employees and had been rec- ognized by the respondent as their exclusive representative. In June of the same year, while considering the proposed "working agreement" submitted by the Association, the respondent had taken the position that a minority bargaining representative could at any time present grievances on behalf of those employees who had desig- nated it to act for them. The contract between the respondent and the Association, which was executed on behalf of the Association on September 9, 1937, established a so-called Conference consisting of five Association rep- resentatives and five or less representatives of the respondent. The Association representatives, as provided in its bylaws, were elected according to divisions in substantially the same manner as had been the employee representatives to the old Joint General Committee. The bylaws, it will be remembered, also contained the meaningless seniority provision which was used as a "selling point" in persuad- ing the respondent's employees to accept the Association, and a provision for continuing the rules and regulations in effect at the time the Industrial Relations Plan was discontinued. Both of these provisions were curious in that they ostensibly dealt with conditions of employment, rather than with matters of internal structure of, the Association. Continued employment by the respondent was made a condition for eligibility to act as a director or representative of the Association, and it was explicitly provided in the bylaws that the affairs of the Association were to be controlled by its board of nine directors. Dues were fixed by the bylaws at $2.00 per amitun.;^4 °, A dominated labor organization's annual dues of $3 00 were said, in Titan Metal Mfg Co v National Labor Relations Board, 106 F (2d) 254. 259 (C. C. A 3), cert. denied 60 S Ct 260, "to speak rather of the `good clean fun of the lodge meeting than of the grimmer pattern of the strike benefit." STANDARD OIL COMPANY (INDIANA) 1237 The provision in the bylaws conferring upon the Association's directors the power to manage its affairs was fully observed in prac- tice. Thus, despite the requirement that regular membership meet- ings be held monthly, the meetings in July and August of 1937 were dispensed with presumably because they were regarded as unneces- sary by the directors. When the members of the Association did meet, they were given no opportunity to participate even in major decisions . The most flagrant example of the unrestrained control ex- ercised by the Association's directors over its affairs was the execu- tion of the contract of September 9, 1937 , without the express ap- proval of the general membership , despite the fact that a meeting of the members was held on September 8, 1937, the day preceding the signing of the contract. Similarly, no attempt was made by the directors of the Association to obtain membership approval of "agreements " made by the Associa- tion and the respondent subsequent to September 9, 1937. The Asso- ciation was committed in writing on matters such as strikes , overtime, check-off of dues, and pay of Association representatives for working time spent in conferring with the management, without any oppor- tunity on the part of the members of the Association to express their wishes. There is room for serious doubt even as to whether all the directors of the Association were aware of the making of the "agree- ments" on these subjects or ever gave formal approval to them. There can be no doubt that these agreements were drafted by the re- spondent and that they were identical with agreements on the same subjects entered into by the respondent and organizations of its em- ployees at its other plants. As appears above, it was understood on August 24, 1937, when the conferees agreed on the form of contract between the respondent and the Association, that the provisions dealing with strikes and lock-outs and with pay for employee representatives, which had been omitted at the request of the Association representatives, would be agreed upon at the first regular meeting of the Conference established by the contract. This understanding was subsequently carried out as planned. Indeed, the agreement on strikes and lock-outs was adopted at an adjourned session of the first regular meeting of the Conference, despite the fact that the Association representatives wanted to post- pone action until a comprehensive "working agreement" could be prepared. On the other hand, the provision on seniority which was omitted from the contract of September 9, 1937, and which the re- spondent had no interest in adopting, never reached the form of an agreement between the respondent and the Association, despite the fact that it was discussed at more than one Conference. This amenability of the Conference to the respondent's wishes was not surprising, in view of its faithful similarity to the old Joint Gen- 283036-42-vol 25-79 1238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eraf Committee. The three Conference representatives designated by the respondent were all former management representatives to the J. G. C. and, indeed, were selected as Conference representatives be- cause of their previous experience with the J. G. C. Each of the three management representatives under the Conference plan, as under the J. G. C., was the superior of one of the employee or Association representatives. The central idea of a periodic joint meeting between employee and employer representatives was retained, and the manner of selection of these representatives was the same. The similarity was carried so far that the Conference even adopted the same order of business and the same methods of procedure or functioning as had been followed by the old J. G. C. The respondent, itself, insisted upon the adoption by supervisory employees at its plants of the same mech- anisms which had been used in connection with the Joint General Committee. ' As a matter of fact, the respondent not only insisted upon this after the creation of the Conference scheme but apparently anticipated, even before the contract of September 9, 1937, was exe- cuted, that the old methods and procedures would be adopted. The bulletin boards formerly used by the Joint General Committee were purchased from the respondent by the Association at a nominal price and were, by solemn "agreement," to be used for precisely the same purpose, viz., the posting of minutes of Conference meetings and of other matter approved by the management. It is not surprising, then, that the Conference, like the Joint General Committee which it reincarnated, was not only unable to obtain any real concessions from the respondent but at once became in fact a weapon used by the respondent to'oppose the Union and to impose its wishes on the employees. Too much stress cannot be laid upon the amazing speed with which the Association, on September 10, 1937, the very day after the execution of its contract with the respondent, pro- duced and submitted a petition for a wage increase. Nothing could have served the respondent better in allaying possible restlessness among its employees arising out of the denial of the Union's request for an increase, or in establishing the Association and the Conference on a firm basis, than this remarkably prompt action for the benefit of the employees. This apparent solicitude on the part of the Association for the employees' welfare was matched by the cooperation of the management representatives who, on September 13, requested a special meeting of the Conference, which was held the same day, for the pur- pose of considering the Association's request for an increase. There, however, the cooperation of the management representatives and the simulated strength of the Association representatives both disappeared. The upshot of the whole affair was the granting of an increase of 3 cents per hour, in accordance with the wishes of the respondent;=an increase accepted by the Association representatives after an "appeal" I STANDARD OIL COMPANY (INDIANA) 1239 had been taken to the respondent's president without avail. It is not, without meaning that the Association's "appeal" to the respondent's president was based at least in part on a discreet reference to the "fight" then going on between the Association and a "certain organized labor group." There can be no question that the reference was to the only, other labor organization then active among the respondent's employees,. viz., the Union, and that the respondent fully understood that the, Association was asking for the support of the respondent in excluding the Union. That the increase of, 3 cents per hour was a definitely planned part of the respondent's general program appears from the fact that a similar, increase had previously been put into effect by the respondent at other plants. In brief, the formation of the Association was suggested and invited by the respondent, was patterned after the blueprint furnished by the respondent's president in his letter of'April 24, 1937, and was accom- plished primarily by clerical employees, who were easily accessible to, supervisory plant officers and consulted with them. Organization, activities of the Association were carried on in the plant without any. effective intervention by the plant manager and, indeed, with the active aid of one of the foremen. Cooperation between the respondent and the developing Association, coupled with concurrent hostility on the part of the respondent toward the'Union, resulted in the establishment of the kind of organization desired by the respondent and originally suggested by its president. Recognition of this organization as the exclusive bargaining agency was granted almost immediately upon its claiming majority membership and without any attempt on the part of the respondent to verify the claim. Recognition was followed by "negotiation'l-of a so-called procedure agreement which, in substance and effect, reestablished the machinery of the old Joint General Com- mittee for the handling of employee grievances. The Association dif- fered from the old Industrial Relations Plan only in that it made provision for employee membership. In all other important respects' it was a faithful reproduction, begotten by the respondent's wishes and nurtured on the traditions formed by more than 17 years of operation of the Joint General Committee. Thus formed, the Association de- veloped into the same powerless organization which the J. G. C. had been, as responsive to the wishes of the respondent as it was unre- sponsive to the desires and needs of the respondent's employees. Within less than 6 months after the disestablishment of the Industrial Relat ions Plan and the Joint General Committee, there had been estab- lished at the respondent's Casper plant a facsimile of the dis- established system as faithful as was humanly possible without obvious violation of the Act. WVe find that the respondent Standard Oil Company, dominated and' interfered with the formation and administration of the Standard. 1240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees Collective Bargaining Association, and contributed sup- port to it, and is continuing to dominate, interfere with, and support said Association; and that the respondent thereby interfered with, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act." B. The respondent Stanolind Oil and Gas Company 1. Interference with, domination and support of, the Stanolind Association a. The Employees Representation Plan The respondent Stanolind , was organized in 1931. In 1932, when the assets of the Midwest Refining Company were purchased by Standard and Stanolind and divided between them , Stanolind began operating in the Salt Creek field in Wyoming. While the record is not clear on this point, Stanolind 's Employees Representation Plan, as Cf. Matter of Republic Steel Corp . and Steel Workers Organizing Committee, 9 N. L. R. B 219, enf'd as mod., Republic Steel Corp. v. N. L. R. B, 107 F. (2d) 472 (C. C. A. 3), cert. granted , 60 S. Ct. 1072 ; Matter of H E. Fletcher Co. and Granite Cutters' Interna- tional Association of America, 5 N. L. R. B. 729 , enf'd, N. L. R. B. v. H. E. Fletcher Co, 108 F. ( 2d) 459 (C. C. A. 1), cert denied, 60 S. Ct. 716 ; Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. R. B. 654, enf'd, N. L. R. B . v. The Falk Corp , 308 U S. 453, rev'g 106 F. (2d) 454 (C. C A 7) and aff'g 102 F ( 2d) 383 (C. C. A. 7) ; Matter of American Manu- facturing Company; Company Union of the American Manufacturing Company; The Col- lective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and Textile Workers' Organizing Committee, C. I. 0., 5 N. L. R. B 443, enf'd as mod., N. L. R. B. v. American Mfg. Co , 106 F (2d) 61 (C C. A 2), enf'd as mod, 60 S Ct 612; Matter of The Texas Company and Oil Workers International Union, Locals Nos. 367 and 228, 17 N. L R . B. 843 , enf'd, The Texas Co v N L R B, June 19, 1940 (C. C A. 5) ; Matter of Continental Oil Company and Oil Workers International Union, 12 N. L R. B. 789 , enf'd as mod , Continental Oil Co. v. N. L. R. B., June 14, 1940 (C C. A. 10) ; Matter of Westinghouse Electric & Manufacturing Company and United Electrical, Radio and Machine Workers of America, Local # 410, 18 N L R B 300, enf'd, West- inghouse Electric it Mfg. Co. v N. L. R B, June 10, 1940 (C C A. 2) , Matter of Swift and Company, a corporation and Local No. 530 , United Packing House Workers Industrial Union, affiliated with the Committee for Industrial Organization, 11 N L R B 809, enf'd as mod, N. L. R B v Swift it Co, 108 F (2d) 988 (C. C A. 7) ; Matter of Brown Paper Mill Company, Inc, Monroe, Louisiana and International Brotherhood of Paper Workers, affiliated with the American Federation of Labor , 12 N L R' B 60, enf'd, N L R. B. v Brown Paper Mill Co., 108 F. ( 2d) 867 (C C. A. 5) ; Matter of Swift it Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No 300, 7 N. L. R -B. 269, enf'd as mod , Swift it Co v. N. L R B., 106 F. (2d) 87 (C C A. 10) ; Matter of E I. du Pont de Nemours it Company, Belle, W. Va and District 50, Chemical Division, U. M. W. of A., affiliated with the Congress of Industrial Organizations, 24 N. L. R. B 019; Matter of Phillips Petroleum Company and Oil Workers Interna- tional Union, Local No 212, 23 N L R B 741; Matter of Continental Oil Company, a corporation and Oil Workers International Union No 231, 22 N L. R B 61; Matter of Firestone Tire and Rubber Company of California and United Rubber Workers of America, Local 100, 22 N L. R. B 580; 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; Matter of Swift and Company and United Packing House Workers Local - Industrial Union No. 874 through the Packing House Workers Organizing Com- mittee (C I 0 ), 21 N. L R. B. 1169; Matter of The Baldwin Locomotive Works and Steel Workers Organizing Committee, 20 N L R B 1100 STANDARD OIL COMPANY (INDIANA_) 1241 hereinafter referred to as the Plan, was apparently already function- ing at some of Stanolind's other properties in 1932. There is also some indication in the record that the Plan began to function in the Salt Creek field the same year that Stanolind began its operations there. In June 1933 the Union began an organizing campaign in the Salt Creek field, which resulted in the formation of Local 233 in October of that year. This activity on the part of the Union was followed by corresponding activity on the part of the respondent Stanolind, in revitalizing and "improving" the Employees Representation Plan. The Pfau was discussed at safety meetings in the field, which. em- ployees of the respondent were expected to attend. The virtues of the Plan were explained and urged upon the employees, and the "revised" Plan was put into effect by the respondent without consult- ing its employees or even contrary to the expressed wishes of some of them. The prime mover in these activities on behalf of the Plan was D. A. Clemme, who was then in charge of personnel and safety in the respondent's Rocky Mountain Division, including the Salt Creek field. The first election of representatives under the "revised" Plan was held in October 1933. The Plan itself was a fairly typical joint conference scheme, simi- lar in many ways to the Industrial Relations Plan of the respondent Standard, discussed above. Adoption of the Plan was "authorized" by Stanolind's board of directors. Supervision of the Plan was vested in the respondent's personnel department, "in order to insure that the policies of this company, as they pertain to the relations of the employees and the Management of this company, are carried out. . . ." The head of this department was the Personnel Super- visor, and Assistant Personnel Supervisors were appointed for vari- ous divisions, districts, or fields "to aid in the supervision" of the Plan. The Plan's purpose, as stated, was to provide a means whereby representatives elected by the employees and representatives ap- pointed by the management could confer on "mutual problems." The conclusions and recommendations resulting from such confer- ences were "subject to final approval by the Management." The Plan provided for a Joint Divisional Committee in each of the divisions of the respondent's operations, and also for a Joint General Com- mittee. These Joint Committees were composed of representatives elected by the employees and an equal number of representatives ap- pointed by the respondent. The appointed representatives were "se- lected by the °Management -from those designated as belonging to Management." In each Joint Divisional Committee, the appointed representatives selected a chairman from among themselves and the elected representatives selected a chairman from among themselves. 1242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These chairmen alternated in presiding over meetings of the Commit- tee, which were held quarterly. The respondent's Assistant Person- nel Supervisor in each division acted as secretary of his division's Joint Divisional Committee and arranged the time and place for each meeting of the Committee . The elected representatives of each Joint Divisional Committee elected from among themselves representatives to the Joint General Committee, and the respondent designated an equal number of management representatives to the Joint General Committee. A regular meeting of the Joint General Committee was held once each year , usually in February , at the respondent's general offices in Tulsa, Oklahoma. The respondent's Personnel Supervisor and Assistant Personnel Supervisors could attend any of the regular or special meetings of the Joint Divisional Committees or the Joint General Committee. Joint Divisional Committees were authorized to create subcommittees wherever necessary, and the Assistant Personnel Supervisors were entitled to attend meetings of any such subcommittees . A quorum for either a Joint Divisional Committee meeting or a Joint General Committee meeting consisted of one -half the elected representatives and one-half the appointed representatives . For time spent in at- tending meetings of a Joint Divisional Committee or the Joint Gen- eral Committee, representatives received compensation at their regular rates plus traveling expenses. Questions raised by employees were required to be presented first to the immediate supervisor , then to the next ranking member of the management, and then to the Assistant Personnel Supervisor. Dis- putes not thus settled could then be referred in writing , either by the employees or by the management, to a Joint Divisional Committee. Upon notification from the Assistant Personnel Supervisor that a written statement of a matter in dispute had been submitted to him, the chairmen of the appointed and elected representatives respectively designated an appointed representative and an elected representative to act as a subcommittee to investigate the dispute and to prepare a report. This report was presented at the next meeting of the Joint Divisional Committee , which was empowered to "take such action on the report and make such recommendations to the Management as it deems necessary and adequate to effect an adjustment." The man- agement's "reply" to any such recommendation was transmitted di- rectly to the employees concerned, as well as to the Joint Divisional Committee. If the action taken by the -management did not result in settlement of a dispute, it could be presented to the Joint General Committee for its consideration and recommendation to the manage- ment. Matters not settled by the Joint General Committee could be referred to the respondent's president for adjustment and, if this proved unsatisfactory, "a conference may be held between the lPresi- , STANDARD OIL COMPANY (INDIANA) 1243 dent or some official designated by him and elected representatives to consider the best method Of settlement, but the decision of the Presi- dent shall be final." In September and October of each year, employees of the respond- ent nominated and elected representatives to their respective Joint Divisional Committees. For the purposes of these elections, each division or section of the respondent's operations was divided into- voting districts fixed by the management.56 The employees in each voting district were entitled to elect a number -of representatives in proportion to their own number. Company officials and employees having the power to hire, discharge, or discipline were designated as belonging to the management and were ineligible to vote at elections, or to act as elected representatives. Employees not "belonging to the Management" who had been employed by the respondent for at least 60 days were eligible to participate in elections in the voting district in which they were employed. To be eligible for election as a representative, an employee had to be a voter employed in the district from which nominated, at least 21 years of age, a citizen of the United States, and continually employed by the respondent for at least one year. The elections were conducted by officials selected by the Per- sonnel Supervisor and pursuant to methods agreed upon by the Joint General Committee and the Personnel Supervisor. In addition to the Joint Divisional Committees and the Joint Gen- eral Committee, an Annual Joint Conference was also provided for by the Plan. The stated purpose of this Annual Joint Conference was to provide an opportunity for making reports "covering the work of the year" and for discussing "matters of common interest." Amendments of the Plan required agreement of the respondent's Personnel Supervisor and two-thirds of the elected representatives of the Joint General Committee, and the approval of the respondent's board of directors. All expenses connected with the operation of the Joint Divisional Committees and the Joint General Committee and of their subcommittees were borne by the respondent. The Joint Divisional Committee established for the respondent's Rocky Mountain Division functioned primarily as a means for pres- entation of employees' grievances. Even in that capacity, it' func- tioned only with the constant support and intervention of the re- spondent. Thus, in June 1934, an election held by the Petroleum Labor Policy Board at the request of Local 233 of the Union to determine whether the respondent's employees in the Salt Creek field wanted to be represented by Local 233 or by the Joint Divisional Committee 60 For example , the State of Wyoming , which was part of the respondent's Rocky Moun- tain Division , was divided into seven districts , as follows : The gas plant, the electric plant , two producing districts , the mechanical-maintenance departments, miscellaneous, and the LeBarge-Opal pipe line 1244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was won by the latter by the narrow margin of some 18 votes in a field of approximately 400 men, only after the respondent-had un- equivocally expressed its preference for the Committee. A wage in- crease granted by the respondent in May 1934, prior to the election but after the Union bad filed its petition with the Petroleum Labor Policy Board, was subsequently credited by Clemme, in a statement made at a safety meeting, to the efforts of the Plan and the Joint Divisional Committee; the increase in fact merely anticipated publication of an order by the Secretary of the Interior directing a retroactive in- crease in wages paid under the N. R. A. Petroleum Code. Just prior to the holding of the election in June 1934, Clemme and the respondent's president, F. O. Prior, engaged in an outspoken campaign on behalf of the Plan. Prior delivered speeches supporting the Plan and appealing to the respondent's employees to support it. Clemme, like Prior, used required meetings of the respondent's employees as opportunities for praising and supporting the Plan. After the election, there was a substantial decrease in the Union's membership among the respond- ent's employees, though it continued in existence as an organization. It is apparent from the record that the respondent had no desire or intention of engaging in true collective bargaining with its em- ployees through their representatives. On the contrary, the record discloses that the Plan and the Rocky Mountain Joint Divisional Committee were used by the respondent as a means for discouraging its employees in their first efforts at collective action. In the middle of November 1935, Local 233 of the Union invited the elected Plan representatives at Midwest, Wyoming, to join with the Workman's Committee of the Local in arriving "at an understanding of what we' should ask the Company for in regard to wages, hours and working conditions." On November 27, 1935, a meeting of the respondent's employees was held at the Union Hall in Edgerton, Wyoming, which the elected Plan representatives were asked to attend. This was fol- ]owed by a meeting on December 27, 1935, at the same place, of the elected Plan representatives and the members of the Workman's Com- mittee of Local 233. As a result of these meetings, a series of requests was formulated and a joint committee consisting of three elected Plan representatives and three members of the Union was appointed to present the joint program to the respondent. On January 7, 1936, the joint committee made written request of the-respondent for a conference with its representatives "for the purpose of effecting a collective agreement governing wages, hours and working conditions." On January 9,1936, the joint committee met with R. B. Hamilton, the respondent's district superintendent, and his assistant, Johnson. Hamilton stated that he had no authority to bargain collectively with that or any other committee, and that he doubted whether the re- STANDARD OIL COMPANY (INDIANA) 1245 spondent would recognize the committee at all. Beyond a discussion of the proposed transfer by the respondent of Humphrey , one of the Union's officers, nothing was accomplished at this meeting . On Jan- uary 21 , 1936, the joint committee again met with representatives of the respondent, this time with the manager and superintendent of the Rocky Mountain Division, Cullen and Bechtel . Cullen stated that he had no authority to bargain with the committee and would not enter into any agreement with it. When the committee inquired who had authority to bargain, Cullen replied that he imagined it'would be the respondent's board of directors. The series of jointly formulated requests was then taken up with Cullen , who refused to, agree on any of the requests or on any procedure for bargaining , conceding only that he would meet with the committee and correct any abuses that might arise in the field. Cullen also rejected a proposal that he reply in writing to questions submitted by the committee , stating that doing so might put the respondent on record as agreeing with the committee on certain points. There was also some discussion of the Humphrey case and of other cases involving alleged discrimina- tion against Union members. The joint committee made no progress in obtaining either recognition from the respondent or consideration of any of its requests.57 Among the requests made by the joint committee had been one for a wage increase of 121/2 per cent to 171/2 per cent for all employees, depending upon their then rate of, pay. On December 17, 1935,58 a special sleeting of the Rocky Mountain Joint Divisional Committee was held at Midwest, Wyoming. The only business transacted at this special meeting was consideration and preparation of a petition to the respondent for a wage increase of 121/2 per cent for all em- ployees in the Rocky Mountain Division .'"' At the hearing, the re- 54 This is in sharp contrast with the treatment accorded the Stanolind Association in the fall of 1937, when it took up with the respondent a grievance of one of its members, Henry T. Coleman . This incident is discussed below 68 This was after the Union 's invitation for joint action had been extended to the elected Plan representatives and after the meeting of Stanolind employees on November 27, at which formulation and presentation of a joint program were considered 60 This action by Stanolind' s Rocky Mountain Joint Divisional Committee should be compared with the action taken by the Standard Association in September 1937 when a somewhat similar situation existed at Standard 's Casper plant. As we have pointed out above, Standard's refusal on August 27, 1937, to deal with the Union on its previ- ously submitted request for a general wage increase was followed on September 10, 1937, the day immediately after the execution of the contract in which Standard extended exclusive recognition to the Standard Association , by a petition for a wage increase filed by the Standard Association. On September 13, 1937, a special meeting of the Confer- ence then newly established under the contract of September 9, 1937 was called and held, for the sole purpose of considering the petition . The purpose of this petition and special meetmg,,of the Standard Association in September 1937 was the same as the purpose of,, the similar action by Standolind's Rocky Mountain Joint Divisional Committee in Decem- ber 1935, viz., to make independent collective action by employees, whether through the Union or otherwise, seem unnecessary, and at the same time to enhance, the value of the dominated labor organization in the eyes of the employees. 1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent's Assistant Personnel Supervisor, Eckwall,°0 testified that the meeting of December 17, 1935, was the only special meeting held by the Joint Divisional Committee during his tenure in office as Assist- ant Personnel Supervisor at Midwest. Despite the extraordinary nature of the Joint Divisional Committee's action, the petition pre- pared at the special meeting of December 17,1935, did not evoke a reply from the respondent before the next regular meeting was held on February 10, 1936. Eventually the respondent granted a wage in- crease effective April 1, 1936, but the record does not show what the increase was or what part, if any, the Joint Divisional Committee played after February 10 in obtaining it. More significantly, the rec- ord contains no evidence of any further attempt by the Union and the elected Plan representatives to join forces thereafter in bargaining collectively for Stanolind's employees in the Salt Creek field. The Employees Representation Plan and the Rocky Mountain Joint Divisional Committee continued in operation until May 3, 1937. On April 12, 1937, the Supreme Court of the United States had sustained the constitutionality of the Act, both in general and as applied to manufacturing operations." Shortly thereafter, the respondent's directors and executive officers, including the Assistant Personnel Supervisors, met in Tulsa for a discussion of the respondent's labor relations policy. Following this conference and under date of April 28, 1937, letters were sent by C. S. Sanders, the respondent's general superintendent at Tulsa, to all superintendents in the field and by W. R. Colvin, the respondent's Personnel Supervisor at Tulsa, to all Assistant Personnel Supervisors calling special meetings of all Joint Divisional Committees, to be held on May 3,1937, and enclosing printed copies of a letter from the respondent's president, F. O. Prior, to be read at these special meetings. The letter from Prior read in part as follows : 'Recent legislation sustained by the courts apparently indicates that the present plan will not be. permitted to remain operative. The principal legal objections seem to be that the plan was originally proposed by the company and it appoints half the rep- resentatives and the entire expense is borne by the company. The management therefore regretfully announces that it has no option other than to discontinue bargaining through the Joint Divisional Committees and the Joint General Committee, and accordingly a copy of this statement has been sent to the re- spective Joint Divisional Committees for immediate communica- tion to the members of those Committees. 00 Eckwall was the successor in office of D. A. Clemme, the Assistant Personnel Super- visor and Safety Director whose activities in promoting the Plan we have already noticed Eckwall replaced Clemme in 1935. u' National Labor Relations Board v. Jones & Laughlin Steel Corp, 301 U. S. 1, and companion cases. STANDARD OIL COMPANY (INDIANA) 1247 A special meeting of the Rocky Mountain Joint Divisional Committee was accordingly held on May 3, 1937, and Prior's letter was read. The Employees Representation Plan and the ',Rocky Mountain Joint Divisional Committee thereupon ceased to function. The activities of the respondent, Stanolind, in dominating and supporting its Plan and the Rocky Mountain Joint Divisional Com- mittee, like the activities of the respondent Standard, in dominating and supporting its Plan and the Casper Joint General Committee, are not the subject of specific allegations in the complaint. We there-, fore make no finding that they constitute unfair labor practices within the meaning of the Act. However, our findings as to these activities of the respondent Stanolind, like our findings as to the similar activi- ties of the respondent Standard, in connection with its Plan, are material to our consideration below of the relationship between the respondent and the Association which succeeded the Plan 62 Wej therefore state our conclusions as to Stanolind's Employees Repre- sentation Plan and Rocky Mountain Joint Divisional Committee, though their similarity to Standard's Plan and Casper Joint General Committee make it unnecessary for us to elaborate these conclusions. Stanolind's Plan, like Standard's, was admittedly initiated by the respondent 83 and thereafter remained in operation only with the respondent's continued support and participation. In each case, the Plan was an integral part of the respondent's industrial-relations policy and was operated as part of the respondent's Industrial Rela- tions or Personnel Department. The Rocky Mountain Joint Divi- sional Committee, like the Casper Joint General Committee, was es- sentially a method for presentation of 'grievances, rather than a mechanism for genuine collective bargaining. Elected representatives to both Committees were the choice of their "constitutents" only within the eligible limits imposed by the Plans and controlled by the respondents. They could not and did not reflect the collective wishes of the employees'they "represented," because those employees were given no opportunity to meet and act as a group for the purpose of considering and formulating their joint needs and desires and com- municating them to their "representatives." The utter dependence of the Employees Representation Plan upon Stanolind's continued par- ticipation and support, like the similar dependence of the Industrial Relations Plan upon Standard's continued participiitioli and support, was understood by employer and employee alike. Amendment of the Plan during its existence, though only a remote possibility in view of °' See footnote 24, supra. Prior's letter of April 26 , 1937, which was almost identical with the letter of April 24, 1937, from Standard 's president , Seubert, also opened with the admission that in 1919 Standard "made effective an `Industrial Relations Plan' . . Prior's letter also .11 admitted that a "similar plan was extended to practically all employees of the [ Standard] company and its subsidiary companies " 1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Plan's complete domination by the respondent, could in any event have been accomplished only with the respondent's consent. The only- attempt made by the elected representatives undsr the Plan to engage in true'collective bargaining based upon concerted action by the em- ployees was met, in December 1935 and January 1936, first by a refusal on the part of Stanolind to bargain with the joint committee of Plan and Union representatives and, second, by hurried action on the part of the Joint Divisional Committee looking towards an increase in wages for employees in Stanolind's Rocky Mountain Division. We find that the respondent Stanolmcl, dominated and interfered with the formation and administration of the.Employees Representa- tion Plan and the Rocky Mountain Joint Divisional Committee and contributed financial and other support to them prior and subse- quent to the effective date of the Act and until May 3, 1937. b. Formation and administration of the Stanolind Association As we have stated above, Stanolind's Employees Representation Plan and the Rocky Mountain Joint Divisional Committee were dis- solved at special meetings held May 3, 1937, pursuant to call issued by the management. Letters of instructions were sent by the re- spondent to the appropriate supervisory employees at its various properties notifying them of the meetings to be held on May 3 and specifying 'how the meetings were to be conducted. There were two such letters, both dated April 28, 1937, one from the respondent's general superintendent in Tulsa, Sanders, to all superintendents in the field, and the other from the respondent's Personnel Supervisor in Tulsa, Colvin, to all Assistant Personnel Supervisors in the field. Sanders' letter to the field superintendents notified them that the special meetings-of the Joint Divisional Committees were being called for the purpose of reading an announcement of the discontinuance of the Employees Representation Plan. The superintendents were instructed to keep a detailed record of all questions or comments of employees and to transmit this record to Sanders in-Tulsa, "so that the management here may handle them on a uniform basis for the whole Company." Superintendents were advised that the respond- ent could not interfere "with any action the employees themselves may take in forming an organization of their own, nor can it pay any expense in connection with the forming or functioning of such or- ganization. . . ." The letter, however, pointed out that employees ".may meet to form an organization of their own," though not on company time and pay, and that employees who wanted a meeting place could be furnished one by the respondent so long as no expense to the respondent was involved. Employees were also to be per- mnitted to borrow ballot boxes which the respondent already had, if STANDARD OIL COMPANY (INDIANA) 1249 they wanted to use these ballot boxes for an election, but any such election would have to be held on employees' time and not on com- pany time. Superintendents were also told that, "if the employees have formed an organization or if they wish to meet with the manage- ment to confer on matters of collective bargaining, this may be done on company time without loss of pay." Colvin's letter to the Assistant Personnel Supervisors stated that the special meeting of each of the Joint Divisional Committees "should be held in the regular manner" and that, after disposition of regular business, "a copy ^f the attached announcement should be given to the chairman of the ,elected representatives and he be asked to read it for the benefit of the meeting." The chairman of the elected representatives at each meeting was also to 'distribute copies of the announcement to the representatives present, after which "the Employees Representation Plan will have been discontinued." The Assistant Personnel Supervisors were then to announce "that you will continue to handle personnel and safety problems in your divi- sion, the same as in the past" and that, while the Plan had been discontinued, "the broad, general policies stated in the Plan are still being adhered to by the Management and the procedure for handling suspensions and discharges will continue to be operative." Antici- pating future events, Colvin's letter pointed out that the management was free,,upon request, to discuss with employees "a procedure for collective bargaining,'' and stated that if a request for such discus- sion were made the management would send a representative to the division from which the request came. Echoing Sanders, Colvin also advised his Assistant Personnel Supervisors of the employees' right to form an organization of their own and of the extent to which the respondent could cooperate by giving employees a meeting place, permitting them to borrow ballot boxes for the purpose of holding elections, and paying employees for working time.spent in conferring with the management "on matters of collective bargain- ing." Colvin's letter concluded with the admonition that, after each Assistant Personnel Supervisor had made "all the, statements and explanations as contained in this letter," he and every appointed representative were to retire from the meeting. However, the elected representatives were to be permitted to continue their meeting, if they so desired, without interference. The special meeting of the Rocky. Mountain Joint Divisional Com- mittee took place as scheduled. In accordance with the instructions issued by the respondent, the Committee first disposed of its regular business. This included the reading of three letters from the manage- ment, to the following effect: (1) That hourly paid employees would, k 1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effective May 1, 1937, become entitled to sick leave with pay up to 2 weeks each year; (2) that overtime work would, effective May 1, 1937, be compensated at the rate of time and a half; and (3) that all hourly paid employees were receiving an increase in wages of 6 cents per hour, effective as of April 1, 1937.134 After the regular business of the Committee had been disposed of, the Assistant Personnel Supervisor, Eckwall, read the letter of April 26, 1937, from the respondent's president, Prior, "terminating the Employees Representation Plan in accordance with recent legislation." Prior's letter, as we have already stated, was almost identical with the letter from E. G. Seubert, president of the respondent Standard, which was read at the meetings of the Joint General Committees at which Standard's Industrial Relations Plan was dissolved. Seubert's letter has been set forth above, and we here only summarize identical Points made in the letter from Prior : (1) That the Plan had been "fair" .and beneficial to all"; (2) that the management was prohibited by law `from dominating or interfering with the formation or administra- tion of any employees' bargaining association," but that there was no prohibition against formation by employees of "an organization or an association which they believe desirable through which to deal with the management"; (3) that the employees could select representatives "to propose and discuss with the management any method or proce- dure for collective bargaining," and that the management could en- gage in such discussion "until an agreement is reached"; (4) that, if a satisfactory "plan of bargaining" were worked out, it would be "highly desirable" to have it agreed to by a majority of the em- ployees; (5) that negotiations with respect to procedure for collective bargaining could be carried on during working hours without loss of time or pay; (6) that, "so far as it can legally do so," the manage- ment would cooperate in minimizing expenses incurred by employees in negotiation or in operation of any plan agreed upon; and (7) that, while operation of the Employees Representation Plan was termi- nated, the policies of the respondent set forth "as a part of or in connection with the Employees Representation Plan" were in no way affected. . After Eckwall had read Prior's letter at the dissolution meeting of May 3, 1937, he withdrew from the meeting in accordance, with the in- -structions he had received from Tulsa. Contrary to those instructions, however, the appointed representatives did not leave with Eckwall. The testimony as to what occurred after adjournment of the meeting a On February 12, 1937, the respondent had announced a wage increase of 6 cents per hour, effective as of February 1, 1937 Requests for further increases and bonuses there- after submitted by the various Joint Divisional Committees had been denied by the respondent, prior to the announcement made at the May 3 meetings STANDARD OIL COMPANY (INDIANA) 1251, of May 3 is conflicting. Earl D. Ensley, an employee of the respondent and a former elected representative under. the Plan, testified that he and other elected representatives who began to leave the meeting after adjournment were called back by J. S. Mercer, chairman of the ap- pointed representatives and assistant plant foreman at the respondent's Salt Creek electric plant, who told them that some kind of organization had to be formed to bargain with the management, that "the boys at the Casper refinery" had already begun forming an organization, and that it might be a good idea to see what they had. Accordingly, several men were designated to attend a meeting of the Standard Association, which was then in process of organization at the Casper refinery of the respondent Standard. Among the men so designated was Ensley, who testified at the hearing that he was selected by R. J. Findley, a manage- ment representative who was Ensley's superior and collection foreman at the respondent's gas plant in the Salt Creek field. Ensley also testi- fied that he told Findley at the time that he saw no necessity for an organization, to which Findley replied that there had to be some way of bargaining with the management and "we should get some kind of an organization together to keep the C. I. 0. out." Findley denied at the hearing that he had made these remarks or that he had instructed Ensley on May 3, 1937. to attend the meeting at Casper. He admitted, however, that someone at the May 3 meetmg, perhaps Mercer, had sug- gested attendance at the Casper meeting and that management repre- sentatives took part in the discussion that day of what was to take the place of the disbanded Employees Representation Plan. Findley also admitted having spoken to Ensley on May 3, 1937; though unable to recall the subject of the conversation, he was positive that it was not Ensley's proposed trip to Casper. In view of Findley's admissions, and of his lapse of memory as to what he said to Ensley, we find that Ensley is entitled to credence and that his version of what occurred is true.. We further find with respect to the events of May 3, 1937, without detailing the conflicting evidence in the record, that there was an ex- tended discussion of the formation of an organization to take the place of -the Employees Representation Plan and to prevent the C. I. 0. from organizing the respondent's employees; that at least five management representatives participated in that discussion; 65 that a committee of representatives, including Mercer and Brunk, was appointed to attend a meeting of the Standard Association at Casper, Wyoming; and that the purpose of their attendance was to ascertain what was being G5 J 8 deicer, C C Wainer, Al. L Brunk , R. G Findley , and E. L. minion. 1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD done at Casper, with a view towards adapting it to the circumstances existing in the Salt Creek field .66 At the hearing, the respondent took the position that the appointed representatives were not part of management, and that it is therefore not responsible for what they may have said or done. This conten- tion was emphasized with respect to J. S. Mercer and M. L. Brunk, both of whom appear again in our findings as to the formation of the Stano]ind Association. It appears from, the record that Mercer is one of two assistant plant foremen at the respondent's electric plant in the Salt Creek field, and that he is among those employees of the re- spondent who are listed on the private pay roll. The private pay roll is made up of clerical, supervisory, and other employees who are paid on a monthly basis, as distinguished from the non-supervisory pro- duction employees, who are paid on an hourly basis. It is contended that Mercer is not a supervisory employee, because he has no power to hire, discharge, or discipline other employees. As we have held before, this is not determinative of an employee's status as super- visory or non-supervisory.67 J. F. Cullen, manager of the respond- ent's Rocky Mountain Division, admitted at the hearing that Mercer, in the absence of the foreman of the'electric plant, Ruhley, exercised supervisory powers. R. G. Findley, collection foreman in the gas- plant department, stated at the hearing that he knew Mercer had a supervisory job. R.'B. Hamilton, the respondent's district superin- tendent in charge of the Salt Creek field, included Mercer in a group of employees whom he regarded as being "right on the dividing line" between supervisory and non-supervisory. In addition, it appears that Mercer was chairman of the appointed representatives to the Rocky Mountain Joint Divisional Committee prior to the dissolution of the Employees Representation Plan. The Plan in terms provided that "the appointed representatives shall be selected by the Manage- ment from those designated as belonging to management. . . ." 68 Of necessity, then, the appointed representatives were part of manage- ment, and the respondent may not now disavow responsibility for what 86 Despite the vagueness of the testimony given by witnesses for the respondent, Stano- lind, with respect to the events which followed immediately after adjournment of the meeting of May 3, 1937, Eckwall, the respondent's Assistant Personnel Supervisor, was able on May 4, 1937, to write to his superior in Tulsa, W. R. Colvin, that "after the meeting was adjourned, about twenty-five or thirty of the Stanolind employees held a meeting and appointed a committee of six, consisting of Mr. Tilton, Mr McClung, Mr. Ensley, Mr Mercer, Mr Ziehlsdorff, and Mr. Brunk, to meet with the employees of the Standard Oil Company at Casper tonight, May 4, to see what kind of a plan they had started, and also draft some kind of a plan to be submitted at a mass meeting of Stanolind employees later this week " It is also interesting that on May 3, 1937, the respondent's district superintendent, R B Hamilton, was told by the appointed representative from Casper, C. C Warner, that it looked as if the employees were going to organize it new plan 7 Matter of Indiana & Michigan Electric Company and International Brotherhood of Elec- trical Workers, Local B-9, 20 N L R B 989, and cases cited at 1009, footnote 22 66 Italics supplied STANDARD OIL COMPANY l INDIANA ) 1253 they'said and did. Apart from his status as an appointed representa- tive, Mercer was an employee with supervisory duties for whose activi- ties the respondent is therefore responsible , and we so find. Brunk, another of the management representatives who participated in the discussion of May 3, 1937, is assistant manager of the respond- ent's water station at Casper, Wyoming, and operates the station dur- ing one shift. Findley and Kiriion, in addition to being management representatives under the Plan, were also foremen . We find that all three of these men are supervisory and that, by virtue of their posi- tions and of their former status as management representatives, they are part of management and are properly regarded as spokesmen for the respondent'6° As appears below, Mercer and Brunk were fully aware of their rela- tionship to the management during the period of formation of the Stanolind Association . Neither of them was called as a witness at the hearing. On May 4, 1937, the day following the dissolution meeting of the Joint Divisional Committee, Ensley was told by his-superior, Findley, that the 'Standard Association was meeting at Casper that night. Ensley and another employee of the respondent 70 were taken from Midwest to Casper by Mercer in the latterJJs automobile. There they were met by Brunk, who said that any talking by the Stanolind dele- gation would have to be clone by "the boys," since Mercer and Brunk could have nothing to do with it because of their positions. The Stanolind employees then attended the meeting of the Standard As- sociation, at which the chairman announced their presence. Despite the remark which Brunk had made, Mercer spoke at the meeting. Without revealing his supervisory status, he praised the Standard Association, predicted that it would be of great benefit to the em- ployees, and stated that some of their bylaws might perhaps be adopted for use in the field. After the meeting, Ensley was taken back to Midwest by Mercer in his automobile, along with the same third person. During the trip, Ensley said that he would take no part in starting an organization and asked Mercer why he did not start one . Mercer replied that he could not have anything to do with such an organization because of- his supervisory position. Ensley was apparently regarded as a potentially useful leader among the respondent's employees, for he was asked, on two occasions im- mediately following the Casper meeting of May 4, 1937, to take an active part in organizing the Association. One of these two requests 80 The record does not show the position of C. C . Warner, the fifth appointed representative who took part in the discussion of May 3, 1937 . As is indicated above , we find that his designation by the respondent as an appointed representative is sufficient to make the respondent responsible for his activities 70 Probably an employee named Dean Vreeland , although the record is not clear. 283080-42-vol 25-80 1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was made a day'or two after May 4, when Ensley had a conversation with C. A. Walter and A. H. Ziehlsdorff, two employees of the re- spondent who were the moving spirits in the early stages of forma- tion of the Stanolind Association. Ensley was asked by them to attend a meeting which was to be held for the purpose of organizing the Association. He refused to do so, telling Ziehlsdorff and Walter that he did not think the attempt to organize the Association would be successful, and reminding them that there had been a great deal of argument at the May A 4 meeting of the. Standard Association at Casper. To this Walter replied that there had been too many men present at the Casper nmeeting, and that the way to go about forming the Association was "to get a small'bunch and rush it through." At approximately the sane time, Ziehlsdorff spoke to Earl D. Cates, an employee of the respondent and a former elected repre- sentative under the Plan, and told hun that an Association had been formed and that Ziehlsdorff wanted Cates to represent the pipe-line department. This was the department which Cates had represented under the Plan. Subsequently, on June 11, 1937, when representa- tives to a temporary council of the Association were selected, Cates was chosen to represent the pipe-line department. During the evening of May 4 or 5, 1937, Ziehlsdorff also spoke to another employee of the respondent, Robert Davis. Ziehlsdorff called on Davis at his home, inquired as to how Davis "felt" about unions, told him that the Employees Representation Plan had been dissolved, and asked him if he would act as chairman of a meeting to be held on May 8 for the purpose of organizing an association. Davis had had no previous experience with labor organizations, and was unable at the hearing to explain why Ziehlsdorff had -come to him. Subsequent testimony by Davis at the hearing, however, re- vealed that he knows Eckwall, the respondent's Assistant Personnel Supervisor, "very intimately." The Stanolind employees who attended the meeting at Casper on May 4, 1937, brought back with them mimeographed copies of the constitution and bylaws of the Standard Association. With these as a model, Ziehlsdorff and Walter prepared a proposed constitution for what they called "Stanolind Employees' Organization." Even the initiation fee and annual clues were carried over from the constitution of the Standard Association to the proposed constitution for the Stanolind organization. Some attempt was made at the hearing to show that the bylaws were the product of a committee of former elected Plan representatives, but the record is silent as to how the committee was created , who its members were, and when or by whom it was decided that a constitution should be drafted by such a com- mittee. Actually the record shows, and we find, that the proposed STANDARD OIL COMPANY (INDIANA) 1255 constitution was drafted by Ziehlsdorff and Walter. A stencil of the proposed constitution was prepared by, Walter on a company typewriter, and copies were made on a company mimeograph machine. Though Davis was to act as chairman at the meeting of May 8, he took no part in the activities of Ziehlsdorff and Walter prior to the meeting and was apparently not even informed of what was happen- ing. Davis, himself, testified at the hearing that Ziehlsdorff and Walter were to a large extent the "organizing brains" of the Stano- ]ind Association, and that they at the start directed the policies of the Association. Davis also testified than all he was expected to do was to -act as chairman at meetings and maintain order, and that the only part 4he,-played in the early stages of the Association was to appoint a committee to draft a proposed agreement with the respondent. Like Zolnoski, the temporary chairman of the Standard Association in its formative phase, Davis was merely a figurehead who had little knowledge, much less control, of what was being done. In May 1937 and prior thereto, C. A. Walter was a clerk in the personnel office of the respondent at Midwest, Wyoming. His ilnme- diate superior was Eckwall, the respondent's Assistant Personnel Supervisor. His duties were those of an assistant to Eckwall, and all of Eckwall's correspondence with Colvin until July 20, 1937, when Walter was transferred, bears Walter's initials. Prior to May 3, 1937, approximately 25 per cent of Walter's time had been spent in work connected with the administration of the Employees Repre- sentation Plan. Walter also was an officer of the Benefit Association to which the respondent's employees in the Salt Creek field belonged, and did a substantial amount of work for it. At,the hearing, Robert Davis testified that during the summer of 1937 he learned that some of the respondent's employees had questioned the advisability of hav- ing Walter act as an officer of the Association, since he was so closely connected with the respondent's personnel department. Davis him- self saw no reason for disqualifying Walter on that account, but on July 20, 1937, Walter was transferred by the respondent from the personnel office to the production office, although he continued to be active in the Association. Ziehlsdorff had been an elected representative under the Em- ployees Representation Plan. He has been employed by-the-re- spondent at clerical work since 1933, and since February 1937 has been assigned to the main office, where his duties consist of handling pay rolls and held rentals. He and Walter, at least prior to Walter's transfer to the production department, occupied the same office. The proposed constitution prepared by Ziehlsdorff and Walter stated that the object of the Association was to provide "a means by which 1256 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD representatives of the employees may confer with representatives of the management." Like the constitution of the Standard Associa- tion, the proposed constitution of the Stanolind Association contained a seniority provision. Membership in the Association was to be open "to all employees of the Stanolind Oil and Gas Company or its sub- sidiaries,71 excepting such employees as have been designated by the management as having the power to employ, discharge or discipline." 72 Provision was made for a "representation council" consisting of repre- sentatives "elected by the employee members of the various employ- ment groups" in the Salt Creek field. The council was empowered to designate a chairman, vice chairman, secretary, and treasurer. A detailed "method of bargaining" was set forth at length. Election of representatives to the council was to take place semi-annually, on the basis of a number of voting districts. Any vacancy in the office of representative was to be filled by the person who, at the last preceding election, had received the next largest number of votes in the district represented by the vacant office .73 Amendment of the constitution could be effected by a vote of two-thirds of the members of the iouncil. The proposed constitution, as prepared by Ziehlsdorff and Walter, was presented at a meeting held May 8, 1937, and there accepted with certain minor changes. The meeting was attended by 19 men, of whom 9 had formerly been elected representatives under the Em- ployees Representation Plan. At the hearing Ziehlsdorff testified that it was essentially a,meeting of former elected representatives and other employees invited by them.74 Davis acted as chairman of the meeting, and Walter as secretary. Ziehlsdorff read the constitution of the Standard Association and then the proposed constitution for the Stanolind organization. Some changes were made in the proposed constitution as read, and it was then adopted. The only other occur- rence of note at this meeting was' an extended discussion "as to the advisability of abandoning the representative council idea and con- ducting all business in open meetings." The suggestion was rejected, and Davis commented at the hearing that the reason for this rejec- tion was that "you can't discuss those questions" in an open meeting of members, since there would be too much discussion and too many different ideas. 71 It will be remembered that the constitution of the Standard Association , as originally drafted , contained a similar provision on eligibility for membership 72 Italics supplied . This provision , similar to a provision in the constitution of the Standard Association , gave the respondent power, within limits , to fix eligibility for membership in the Association 73 Under the Employees Representation Plan, the same method of filling vacancies in the office of representative had been used 74 Indeed, the minutes show that Earl D Ensley , former elected representative who did not attend , was marked "absent." STANDARD OIL COMPANY (INDIANA) 1257 On May 10, 1937, Eckwall wrote to Colvin in Tulsa, enclosing a copy ,of the minutes of the meeting of May 8 and- a copy of the constitution "adopted by the members of this meeting, and which will be further discussed at an open meeting of all employees to be held in the Peake Gymnasium, on Thursday evening, May 13th." An open meeting was subsequently held at Peake Gymnasium, as stated by Eckwall in his letter, though not until May 22, 1937. Although the regular charge for use of the gymnasium for meeting purposes was $25, its use by the Association without charge was arranged through J. O. Dart, a field superintendent for the respondent who was also a'member of the school board at Midwest, Wyoming.. Davis again acted as chairman, and Walter as secretary. The name "Stanolind Employees Collective Bar gaining Association" was adopted, and the proposed constitution was read by Ziehlsdorff. With some amendments, the constitution was adopted as proposed. Application blanks were then circulated and filled out by some 56 employees of approximately 280 who were present. At this meeting, or at an earlier meeting which Ziehlsdorff testified was held on May 15 but of which no minutes appear in the record, three ,or more head roustabouts were present. Ziehlsdorff could not remem- ber at the hearing who they were, but was "pretty positive" that J. S. Mercer was not among those present. As subsequently appears, head roustabouts were among the classes of employees later excluded from eligibility for membership in the Association, after an Association committee had consulted with the respondent on that question. Eckwall's correspondence with Colvin reveals that another meeting of the Association, scheduled for June 4, 1937, was postponed for a week because of weather conditions. Despite the postponement of the meeting, Eckwall forwarded a complete report to Colvin on what was done by the approximately. 50 employees who did not learn of the postponement in time. Eckwall reported, in part, that the "Various departments were generally represented, surprising to note was the attendance of seven men from the Gas Plant." The report was dated June 5, 1937, the day immediately following the postponed meeting. On June 11, 1937, the postponed meeting was held at the Midwest Community Hall. No charge was made by the respondent for the Association's use of Community Hall, which it owned. All subsequent open or general meetings of the Association were similarly held at Community Hall, without charge. Similarly, all meetings of the council of the Association, on and after June 14, 1937, were held in Scout Hall at Midwest, which was also owned by the respondent, with- out charge to-the-Association. Midwest is a company town, and there is testimony in the record to the effect that it is the only centrally located and, therefore, the most convenient meeting place in the Salt Creek field, and that it was customary for employee organizations to 1258 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD meet on company, property witaiout charge. On the other hand, it appears from the record that the town of Edgerton, which is only two or three miles from Midwest, was not entirely company-owned and that the Union held its meetings there in a rented hall without apparent inconvenience. Present at the meeting of June 11, 1937, in addition to approximately 75 or 80 Stanolind employees, were Schirk, Miner, and Pierson of the Standard Association at Casper. Schirk advised the meeting that a majority'of employees at Standard's Casper refinery had "signed up" with the Standard Association. Short talks were also delivered by the Standard Association representatives "as to the sentiment of the Casper Standard employees," and a copy of the proposed agreement which had been prepared by the Standard Association was read. The meeting then proceeded to elect a representative from-each of 12 departments to forma, temporary council.75 Of the representatives so elected, 6 were former elected representatives under the Employees Representation Plan.76 After the election of representatives, a motion was made and carried "to accept present by-laws subject to future revision." The very next day, June 12, 1937, Eckwall wrote Colvin a 2-page,, single-space, typewritten report of the meeting of the Association. The information so forwarded by Eckwall was complete and de- tailed, including even some points which do not appear in the -minutes of the meeting. For example, after stating the number of persons present at the meeting, Eckwall informed Colvin that "Check up' of lists circulated to obtain members revealed that there were over 200 members, practically all of whom have paid the $1.00 enrollment fee." The letter then stated the gist of the talks deliv- ered by the representatives of the Standard Association, and gave the names of the men elected to the temporary council of the Stanolind Association. Then followed a series of questions which the letter states- were answered at the meeting,' although this does not appear in the minutes. Among these were questions as, to the necessity ft,r incorporation and as to whether investigation of grievances by com- mittees of the Association could be conducted on company time. A question "as to where the dividing line is to be between employees and management was not definitely answered, as no such information -%v-as available." Another item in- Eckwall's letter which does not appear in the minutes of the meeting was to the effect that the coun- 75 Two representatives were elected from the gas plant department , making a total of 13 representatives. 70 These six were : A L Misner, B C. Tate, E E. Freeman , C. A. Pearl, E. D. Cates, A. H. Ziehlsdorff. Cates, it will be remembered , was the man who, on May 5 or 6, 1937, was told by Ziehlsdorff that the latter wanted him to act as representative from the pipe line department on the council of the Association . The department which Cates, on June 11, 1937, was elected to represent was the pipe Line department STANDARD OIL COMPANY (INDIANA) 1259 cil was instructed to formulate "a working agreement to be pre- sented to the Management in the near future." Immediately following the meeting of June 11, 1937, the tem- porary council met and elected Robert Davis chairman, Ziehlsdortf vice chairman, and Walter secretary-treasurer. This meeting, too, was reported by Eckwall to Colvin in the letter of June 12; which stated further that the council, in addition to electing officers, had' considered the question of the line between employees and manage- ment and had decided that it should be voted on by the members, but that the council would recommend that the district superin- tendent and the department heads be the only employees not eligible for membership. This does not appear in the minutes of the council meeting. Colvin, on June 22, 1937, replied to Eckwall's letter of June 12 and referred to the fact "that there was some confusion as to who 'is to 'be considered Management and who is to be considered em- ployee." Colvin reminded Eckwall that this problem had been discussed with Eckwall in Tulsa, and that Eckwall was supposed to have been furnished with a copy "of the classifications of Man- agement and employee." Colvin further pointed out that "In most fields the 'general rule has been that those who have the right to hire and fire are considered Management." Eckwall's report to Colvin on June 12, 1937, was apparently pre- mature, at least with respect to some of the' action which the council allegedly had taken, for on June 14, 1937, the council of the Associa- tion met and at that time voted to favor "acceptance of members up to Foreman and Department Heads." At the same meeting, a committee' consisting of Ziehlsdorf£, Freeman, and Paden was ap- pointed "to draw up a draft of a Working Agreement to be presented to the Company." The committee promptly invited Walter to join in its work, and it is evident from the record that Walter was prin- cipally responsible for the proposed agreement which was drafted. At the hearing, Walter testified that the proposed contract was pre- pared by him between July 2 and July 16, 1937, but the minutes of the meetings of the Association show that at least a partly com- pleted working agreement was presented to a meeting held on June 18, 1937, only 4 days after appointment of the drafting committee. Walter admitted at the hearing that the proposed contract was type- written by him in the respondent's personnel office and that copies of it were made on a mimeograph machine belonging to the re- spondent. He gave contradictory testimony as to what documents were used by him as models in the preparation of the proposed contract, first stating and then denying that he ' used two other working agreements, one between the respondent Standard, and a 1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective bargaining association at one of its plants, and the other between the respondent Stanolind, and a collective bargaining as- sociation at one of its properties. Ziehlsdorff testified that the source material used in drafting the proposed contract was the proposed working agreement of the Standard Association, but both he and Walter claimed that a printed copy of an agreement between the 'Chicago, Burlington & Quincy Railroad and an organization of its employees was also used as a model. On all the evidence, and in view of the admitted availability of copies of agreements between both respondents and organizations of their employees and of the close cooperation between the Standard Association and the Stano- lind Association, we find that the proposed contract drafted by Walter was modeled principally upon the proposed contract which had previously been prepared on behalf of the Standard Association at Casper, Wyoming. At the Association meeting of June 18, 1937, at which the partially completed proposed contract was considered, there was also some dis- cussion as to the eligibility of gang pushers and head roustabouts for membership in the Association. A committee,, consisting of Misner, Campbell, and Scott, was, appointed "to contact the man- agement to determine their attitude as to the admission of gang pushers and head roustabouts to membership." On June 28 Eckwall wrote to Colvin, in reply to the latter's letter of June 22, with re- spect to the dividing line between management and employees. Eck- wall explained that the confusion on that question "is not between employees and management, but is among the employees themselves, who are undecided as to just how far to go in accepting member- ship." Eckwall further informed Colvin that "some of the employees disagree - as to the classification of head roustabouts as Management . . .," but that "in all probability the matter will be settled to the satisfaction of the employees at the July 2nd meeting, when it is planned to hold a vote on the question . . . ." On June 30, 1937, Colvin replied that "it should be explained to the repre- sentatives who are organizing the plan in Salt Creek, that it is to their interest that 'no one classified as Management be taken into their plan at this time." Colvin's letter continued as follows : It would be far better if the employees organized their group and only included those classified as employees so that there would be no question by the Labor Relation Board that it was an employee plan and was not dominated in any way by those --classified as Management. ' I would suggest that you and Mr. Hamilton discuss this prob- lem with some of the employees who will attend the meetinq on July 2, if this letter reaches you in time." [Italics supplied.] STANDARD OIL COMPANY (INDIANA) 1261 As Eckwall had advised Colvin, the question of head roustabouts and gang pushers was brought up at an open meeting of the Associa- tion held July 2, 1937. The committee which had previously been appointed reported that, "after contacting the Management, they were of the opinion that Head Roustabouts and Gang Pushers should be regarded as members only after the organization was completed." Later in the meeting a motion was made and carried "to table the discussion in regard to gang .pushers and Head Roustabouts until after reaching an agreement with the Management, and that they be accepted as suspended members until that time." At the same meeting of July 2 the proposed working agreement, this time apparently in complete form, was presented and discussed, and three minor changes were made. It was also agreed at this meeting that annual dues from members should not become due and payable until 60 days after "the acceptance of the agreement." On July 9 Eckwall wrote to Colvin enclosing,a mimeographed copy of the proposed working agreement, as it had been discussed at the meeting of July 2. Eckwall told Colvin that the agreement was not "a finished product" in that it had still to be accepted by the members at their July 16 meeting, but that very little change "is anticipated." The next open meeting of the Association was held July 17, 1937. The proposed working agreement was again discussed and, with one minor change, was adopted. The temporary council was at the same meeting requested to serve until such time as an agreement with the respondent was reached. This having been accomplished, the general membership of the Association did not again meet until January 6, 1938, despite the provision in the Association's constitu- tion that membership meetings be held monthly. The proposed agreement, after submission to an attorney for cor- rection, was mailed by Walter to the respondent's Tulsa office on August 21, 1937. In his covering letter, Walter advised the respond- ent that the Association had a membership of 216, and requested a conference with a representative of the respondent for the pur- pose of discussing the agreement. As thus submitted, the proposed agreement stated its purpose to be "to provide a means by which the Employees may confer with the Management." It expressly pro- vided that hours, wages, overtime pay, vacation schedules, sick leave, leaves of absence, and the insurance plan were to continue unchanged. There was a provision on seniority and a provision covering the method to be followed by the council of the Association in taking up grievances of its members with the respondent. Members of the council and of subcommittees investigating grievances were to be compensated by the respondent at their regular rates of pay for time spent in council or committee work. 1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 13, 1937, there having yet been no reply from the respondent to the letter forwarding the proposed agreement, the coun- cil of the Association met and decided again to suggest to the respond- ent a conference for the purpose of discussing the agreement. On September 20, Eckwall informed Colvin of this meeting of the council, and also reported that the Association was not having much success in its membership campaign. On October 1 Eckwall wrote Colvin that he had had a talk with C. A. Walter that morning, that Walter had "seemed quite put out" because the management had not replied to the Association's letter of August 21, and that Walter had said that "the committee thought the management should give them some kind of an answer so they would have something to go to the men with in trying to get new members and they did not feel as though they should go ahead until they did get an answer." On October 8 Eckwall again wrote Colvin that Walter had "`voiced his disapproval" of the management's failure to reply to the Association's letter of August 21, and informed Colvin that Walter had told him that "the majority of the men in the field know that an agreement has been submitted to the management and none of them will join until they see what kind of an answer they receive." Less than' a week thereafter, on October 14, 1937, the re- spondent's president, F. O. Prior, and one or two of its supervisory personnel in the Rocky Mountain Division met with an Association committee at Midwest, Wyoming. Prior informed the committee that the respondent had not replied to the Association's letter of August 21, 1937, because the Association did not represent a majority of the men in the field, but that the respondent would be glad to meet with the representatives of the Association when it did obtain a majority. Prior also stated that the employees in three or four other divisions of the respondent had formed collective bargaining asso- ciations and had obtained agreements with the respondent. Thereafter and until the hearing in the present proceeding, the council of the Association was occupied almost exclusively with the problem of obtaining majority membership. At a meeting on Octo- ber 26, 1937, after discussing the necessity and the means of obtain- ing a majority, the council considered a request by H. T. Coleman, stock clerk in the commissary department at Midwest, for an in- crease in wages. The council voted to accept the case and to post- pone the holding of an open meeting of the Association's membership until after settlement of the case. On October 28 Coleman presented the council with a written petition stating his complaint. A com- mittee of the council, after having consulted with Coleman's immedi- ate superior, J. Al. Hooley, submitted a written report to the council at a meeting held November 1, 1937, in which they concluded that Coleman's petition was justified. The council thereupon voted to STANDARD OIL COMPANY (INDIANA) 1263 take the matter to the management, the minutes of the meeting indi- cating that they regarded the case as a possible "talking point" for the Association, which would be helpful in obtaining majority mem- bership if the petition were granted. On November 3, 1937, the same committee ,of the council requested a conference with R. B. Hamil- ton, the respondent's district superintendent at Midwest. On Decem- ber 8, 1937, Hamilton notified the council committee in writing that Coleman's salary was being raised as of December 1. The successful termination of the case was reported by the committee to the council at a meeting held December 6, 1937,74 and the council at once voted to hold an open meeting during the first week of January 1938. On January 3, 1938, the council again met and discussed several matters, including methods of increasing membership and the agenda for the open meeting scheduled for January 6. Minutes of meetings of the Standard Association were also discussed. These minutes rf meetings of the, Standard Association were also read at the open meeting of- January 6, 1938, along with a report on the collective bargaining association at the respondent's plant at Ellinwood, Kansas. The remainder of the meeting of January 6 was taken up ] argely with a discussion of the problem of increasing the membership. Another open meeting of the Association was held January, 14, 1938, and was also taken up almost entirely with a discussion of increasing the Association's membership. It was reported at this meeting that one of the arguments advanced by employees against joining the Association was that "there was nothing behind the organization," and that this argument "was refuted by reference to the case of Mr. Coleman." The secretary, Walter, also reported that a, list of Association members and of eligible non-members had been prepared for use by those soliciting membership. These lists, dated January 14, 1938, were labeled, respectively, "Membership List" and, "Eligible Non-members." Each list con- tained the names, alphabetically arranged, of the employees of the respondent falling within the named categories. The lists were pre- pared by Walter and were duplicated on a ditto machine belonging to the respondent. Walter explained at the hearing that he obtained the names which appeared on these lists from the membership roster of the Benefit Association, and also that he was familiar with the respondent's pay roll because of the nature of his employment. Charles A. Pearl, who is employed by the respondent to manage the pool hall maintained at Midwest for use by the respondent's employees, "The committee ' s written report on the Coleman case, dated January 3 , 1938, indi- cates that the committee met with Hamilton on November 5, 1937, and that Coleman's raise was held up until December only because the wage adjustment board in Tulsa, to which the petition had to be referred , did not meet until the 20th of the month. 1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted at the hearing that copies of these lists of Association mem- bers and non-members were kept in the pool hall by him.78 That the lists were effective instruments for recruiting appears from the fact that membership in the Association increased from approximately 210 on January 14 to approximately 260 on January 21, 1938, after a comparatively long period during which the Association had been able to make no appreciable headway in augmenting its membership list. The Association meeting of January 14, 1938, was, as usual, reported by Eckwall to Colvin in a letter dated January 17, in which Eckwall stated that 85 members had attended the meeting and that the Asso- ciation then claimed a membership of 228.1° That the management was not unaware of the Association's efforts to increase its member- ship to a majority appears from the last paragraph of Eckwall's letter of January 17, in which he stated with respect to the meeting of January 14 that "the major part of the business conducted was the report on members and the appointment of a committee to make special efforts to increase their membership to a substantial majority by our next meeting, which is scheduled for February 11, 1938." This was not the only aspect of the Association's activities which was known to the respondent. In a series of weekly letters or reports to Colvin,80 starting April 16, 1937, Eckwall displayed a detailed and intimate acquaintanceship with the formation and growth of the Asso- ciation and an unflagging interest in the activities of the Union in the Salt Creek field."' Indeed, these reports, in themselves, furnish an almost complete picture of the formation and administration of the Association. The earliest of the reports show that the action of the Supreme Court in sustaining the constitutionality of the Act ' on April 12, 1937, was followed by repeated inquiries by employees of the re- spondent as to the effect of the Court's action upon the Employees Representation Plan. These inquiries, as appears above, received no. ambiguous answer in Prior's letter of April 26, 1937, and in what 78 In May or June of 1937, Pearl had also kept in the pool hall copies of the petition then being circulated by the Association. Pearl denied at the hearing that he actively solicited members for the Association in the pool hall , but admitted that copies of the petition "lay on the counter" there , that he did talk to some of the men about these peti- tions, and that "a lot" of these petitions were there signed. 70 The Membership List dated January 14, 1938, actually listed 211 names 80 Copies were usually also directed to J. F. Cullen and R. B. Hamilton , respectively division manager and district superintendent for the respondent. Si Until approximately July 20, 1937, these letters were typewritten for Eckwall by C. A. Walter, the Association's secretary-treasurer, who must, therefore have known that the respondent was fully informed of every action taken by the Association As we have pointed out above, Walter was transferred from the personnel office to the production office approximately July 20, 1937, after some expression of feeling by members of the Association against having a man so closely connected with the respondent's personnel office act as an officer of the Association STANDARD OIL COMPANY (INDIANA) 1265 occurred at and after the Joint Divisional Committee meeting of May 3, 1937. As another of Eckwall's earlier reports indicates, a further answer to these inquiries was given by the respondent's district superintendent, Hamilton, on Thursday, April 29, when he refused to grant a request by a Union committee that notices be signed by him and posted on the respondent's bulletin boards an- nouncing that employees were free to join any labor organization of their own choice. This refusal by Hamilton was perhaps not unrelated to the knowledge subsequently displayed by Eckwall as to the first steps taken in forming the Association. On May 7, 1937, after formation of the Association had begun but prior to any formal announcement thereof, Eckwall wrote Colvin that a meeting was to be held on May 8 and that "Copies of 'the organization plan of the Standard Oil Company (Indiana) employees at the Casper re- finery have been obtained and will be used as a basis in perfecting an organization plan. It is then proposed that this plan will be offered to the employees at an open mass meeting to be held about Wednesday, May 12th. Word has been circulated throughout the field as to what is being done and discussions overheard indicate that the majority will favor an independent organization, such as is suggested." The reports following that of May 7, 1937, displayed the same prompt and detailed knowledge on Eckwall's part not only of deci- sions made and action taken by the Association but also of the plans and intentions of the Association's officers and committee members. Although the weekly date for Eckwall's reports to Colvin presum- ably did not always coincide with his receipt of information, it is apparent from these reports that Eckwall's news-gathering service was quick as well as accurate. Thus, the reports dated May 14, May 28, June 5, June 12, and October 15, 1937, and January 7, 1938, each contained information as to events of the day immediately preceding. The report of May 14 contained information as to an Association meeting of May 13; the report of May 28 contained information as to a meeting of the Association's membership committee held May 27; the reports of June 5 and June 12 have already been described above; the report of October 15 informed Colvin that the Associa- tion's council had expressed dissatisfaction with a conference held the preceding day, October 14, with the respondent's president, Prior; and the report of January 7, 1938, contained information as to an Association meeting held January 6. - It is also evident from Eckwall's reports to Colvin that he was not only promptly but also completely informed of the Association's ac- tivities and progress. He knew, for example, not only how many em- 1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees joined the Association from time to time but also how these new members were distributed among the several departments or divi- sions in the Salt Creek field.82 When the Association sought legal advice as to its bylaws and the proposed working agreement drafted by it, Eckwall knew that it had been done, that subsequently there was some delay in action by the Association on the proposed contract be- cause the lawyers to whom it had been submitted were out of town, and that these lawyers finally suggested certain changes in the word- ing of the contract which were adopted by the Association. When meetings of the Association were postponed because of conflicting dates or lack of a quorum or weather conditions, Eckwall knew about it and so informed Colvin. He also knew when the Association's temporary council was. elected, when meetings were held by it, and when sub- committees on membership and on the preparation of a working agree- ment were appointed. The steps taken in the preparation of the working agreement which was finally submitted by the Association to the respondent are reflected in Eckwall's reports to Colvin.83 When a number of men found that they would be unable to attend the Asso- ciation meeting of July 16, at which final approval was to be given to the proposed working agreement, and therefore. informed the Asso- ciation's secretary in advance that the proposed agreement was satis- factory to them, Eckwall knew about it and forwarded the informa- tion to Colvin. The fact that employees of the respondent in fields other than the Salt Creek field corresponded with the Association with a view towards becoming members was known to Eckwall, as were the attendance at Association meetings, the action taken at these meetings, and even the extent to which the leaders of the Association were or were not satisfied with progress being made. Eckwall's reports also show that he was kept currently informed as to the Association's plans for the future. He knew in advance, for example, when meetings were to be held and what action was scheduled to be taken at these meetings. The plans of the membership com- mittee for increasing the membership of the Association were brought to Eckwall's attention. Projected action by the Association's coun- cil was known to Eckwall before it was taken. When the subcommit- tee on the preparation of a proposed working agreement had met several times, Eckwall knew not only that the meetings had been held but also that the committee would have a tentative proposal ready for presentation at a cetrain meeting of the council to be followed by a meeting of the Association's membership. On one occasion, 82 New membership was usually fatuly evenly distributed among all the departments except the gas plant department 83 Eckwall, himself, admitted at the hearing that he knew of almost eN ery step which was taken by the Association in the preparation of the proposed working agreement STANDARD OIL COMPANY (IN DIANA) 1267 Eckwall even knew that the Association's chairman, Davis, was going to try to persuade the council'to take certain action."' It also appears from Eckwell's reports to Colvin that the Stanolind Association, on at least one occasion, communicated with the Standard Association for the purpose of arranging attendance at one of its meetings of a representative from the Standard Association. One special report, dated October 4, 1937, shows that Eckwall deliberately canvassed employees in a number of the respondent's fields other than the Salt Creek, field for the purpose of determining their senti- ment as to an "independent" collective bargaining organization, and that at the Elk Basin and Frannie fields votes were taken among the employees for the same purpose85 Indeed, Eckwall's intense interest= in labor matters and particularly in "independent"' organizations went so far as to lead hint to keep himself informed on the parallel efforts of employees of the continental Oil Company in forming an organization of their own." Information contained in Eckwall's less frequent reports with re- spect to the activities of the Union in the Salt Creek field was char- acterized by the same freshness and detail as was the information with respect to the activities of the Association. For example, notice of a meeting held by the Union at Edgerton on August 10, 1937, was transmitted by Eckwall to Colvin by means of a telegram and a special report both dated the same day. A meeting held by the Union on September 17, 1937, was reported by Eckwall to Colvin by letter dated September 20. These reports as to the union meetings of August 10 and Septem- ber 17 gave Colvin in detail the number of persons present,87 the names of the persons who spoke, and the gist of the speakers' remarks. Eckwall also reported as to other meetings held by the Union, as to the presence and activities of C. I. O. officers and organizers in the 84 Eckwall's report of October 8 stated that "Davis, chairman of the committee to or- ganize the Stanolind Employees Baigainuig Association, is going to try to convince the members of his committee they should put on a campaign to increase their membership to a majority. He states some of the members of the committee want to wait for an answer from the management to their letter of August 21, 1937, before they go ahead and do any more work on organizing " 85 According to Eckwall,_the employees at the Grass Creek field were almost evenly divided between the Union and an "independent" organization Bd Eckwall's reports show that the leaders in the movement to organise it collective bar- gaining association for the employees of the Continental Oil Company attended meetings of the Stanolind Association and confcried with the secielaiy of the Stanolind Association, Walter, for the purpose of securing information and advice Eckwall's repoi is show a knowledge of the meetings of the Continental employees, of their progress from time to time, and even of their opinions. For a discussion of the character of this parallel move- ment among the employees of the Continental Oil Company. see platter of Continenial.Oil Company and Oil Worl,eis International Union, 12 N L R B 789. enf'd as mod , Conti- nental Oil Co v N. L R 11 , June 14, 1940 (C C A 10) 87 Eckwall, in each instance, was able to state not only the total number in attendance but also the numbei of Stanolind employees present 1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Salt Creek field, and as to the success or lack of success of these activities. Even matters such as remarks made by C. I. O. members in the field, meetings held or participated in by the Union as far away as Cheyenne, Wyoming, and Craig, Colorado, and the forma- tion of State-wide central units by the C. I. O. were not too trivial or remote for Eckwall to notice. On a number of occasions, however, Eckwall reported to Colvin that he had had "no reports" during the preceding week as to activities of the C. I. O. It is impossible to believe that such prompt and complete informa- tion - of the Association's current progress and plans or of the Union's activities was casually or accidentally obtained by the re- spondent. Eckwall at first denied at the hearing that the respondent maintained surveillance over the activities of its employees or that he himself ever discussed the Association's affairs with any of its officers and members. Confronted with some of his letters to Colvin, Eckwall was then compelled to admit at least one conversation with the Association's chairman, Robert Davis. Eckwall contended, how- ever,- that his admittedly complete information of the activities of the Association came from anonymous letters, reports, and other papers that were left on his desk at irregular intervals during a somewhat extended period of time. None of these alleged papers or letters were produced at the hearing, Eckwall testifying that they were in each case destroyed by him as soon as he had read them. It was also testified at the hearing that employees of the respondent frequently,and openly discussed the affairs of both the Association and the Union in the club house and pool hall at Midwest, and that Eckwall could have overheard these conversations." The chairman of the Association's council, Davis, at first also de- nied at the hearing having given Eckwall any information as to the Association. Upon further examination, however, Davis admitted that he had told Eckwall his plans on a number of occasions, though "not always"; that he knows Eckwall "very intimately"; and that Eckwall was in the habit of visiting him in the field and eliciting from him information about the Association and its activities. Eck- wall also denied at the hearing having obtained any information from his secretary, C. A. Walter, who was also secretary-treasurer of the Association, but Walter admitted that he discussed "the matters" of the Association with Eckwall "in a general way," and Eckwall se In Matter of The Press Go , Inc and The Gannett Company, and Tri-City Newspaper Guild of Albany, Troy and Schenectady, New York, 13 N L R B. 630, a sunilai attempt was made to explain frequent and detailed reports made by supervisory employees as to the activities of a union, on the ground that union matters were frequently discussed at the respondent's office without concealment The Board held that this explanation was not credible, in part because each of the reports was usually written the morning following the meeting of the union and was quite detailed The Board theieupon inferred and found that the information contained in the reports had been obtained by espionage STANDARD OIL COMPANY ' INDIANA) 1269 himself stated that he and Walter knew practically everything about each others work because of their proximity in the office and the interrelation of their respective jobs. In view of Eckwall's partial admissions , the testimony of Davis and Walter, and the speed and detail with which Eckwall was abl to report to Colvin, we cannot credit Eckwall's denials or the ex- planations which have been offered of the manner in which he secured his information . We find that the activities of the re- spondent's employees in connection with both the Association and the Union were under constant surveillance , and that the information thus obtained iN as promptly reported to Eckwall and by him for- warded to Colvin . We further find that Eckwall himself systemat- ically gathered information with respect to the Association and -the Union, and that this was in part accomplished by constant con- sultation with Davis and Walter, the Association 's chairman and secretary. On the very vital question of the Association's finances , the re- spondent had an even more direct and reliable source of information. For the convenience of its field employees in opening and main- taining accounts with the Wyoming National Bank in Casper, Wy- oming, the respondent permits its cashier at Midwest to make de- posits for employees . A bank account for the Association was accordingly established at the Wyoming National Bank through the respondent's cashier sometime in July 1937, and subsequent deposits have also been made through the same channel . The respondent has thereby been enabled to keep itself informed of the Association's financial position since its inception. The record contains other evidence , not only of knowledge on the part of the respondent as to the activities and plans of the Associa- tion's council , but also of the cooperative relationship between the respondent and the Association . For example , in May or June of 1937, membership petitions were prepared by the Association's sec- retary-treasurer, Walter, on a typewriter in the respondent's per- sonnel department and were mimeographed on a machine belonging to .the respondent. Despite the fact that lie had prepared them, Wal- ter was unable to remember at the hearing when these petitions were circulated ; but the Association's nominal chairman , Davis, testified that he 'believed they were prepared after the Association meeting of May 22, 1937.- Davis, though chairman of the Association, did not know whose decision it was to circulate petitions and could not recall Walter's ever having been instructed by the Association to prepare them . Admittedly , however, copies of the petition were made available to the respondent 's employees at the pool hall in Midwest, and signatures were there solicited by C. A. Pearl, the 283036-42-vol. 25-81 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee who operated the pool hall . Subsequently, about the mid- dle of July 1937, copies of the membership petition bearing the names of those employees of the respondent who had by then been per- suaded to sign were duplicated on a ditto machine belonging to, the respondent. The relationship between the respondent and C. A. Pearl, whose position in the pool hall at Midwest gave him a peculiar advantage in approaching the respondent 's employees on behalf of the Associa- tion, is worth mentioning . Pearl had been elected a representative under the Employees Representation Plan in 1933 , 1934, and 1935. In 1936 Pearl was a candidate for reelection as a Plan representative, but was defeated by Humphrey, who was also an officer of the Union. When Humphrey subsequently left the respondent's employ, Pearl, who had received the next largest number of votes in the election which Humphrey had won, was notified by his foreman , Icinion, in accordance with the provisions of the Plan , that he was to take Humphrey's place as elected representative . In December 1935 Pearl had been elected a vice president of the Union , an office into which he was to be inducted in January 1936. Humphrey had been elected president of the Union at the same election . In January both Humphrey and Pearl were notified by the respondent that they were being transferred from the electrically operated pumping stations at which they were then working to stations at the edge of the Salt Creek field operated by gas engines . This was apparently an unde- sirable change in the nature of their work. Humphrey's proposed transfer w,ts protested by the Union , and was postponed ostensibly because his wife was then about, to have a baby . He subsequently left the respondent's employ voluntarily. Pearl's membership in the Union was admittedly known to at least one supervisory employee of the respondent , but the respondent contends that Pearl was trans- ferred only because a pumper with experience in operating gas en- gines was needed. It was also claimed at the hearing that the trans- fer was made with the understanding that Pearl would be reassigned to an electrically operated station as soon as another gas engineer could be broken in and as soon as an electric station became available. No such retransfer was ever made . Prior to his employment by Stanolind in the field, Pearl had been employed for 21/2 years in a supervisory capacity by the Midwest Refining Company at its Casper plant. Pearl testified at the hearin g that he had been notified of his proposed transfer before he was elected an officer of the Union, but it is evident from the record that this was an obvious attempt at falsification on Pearl's part. By his own admission , Pearl was very active in the formation of the Association , and it was after this activity on his part in behalf of the Association that the respondent, STANDARD OIL COMPANY (INDIANA) 1271 during the summer of 1937, placed him in charge of the club house and pool hall in Midwest. There Pearl continued his efforts for the- Association, circulating membership petitions, soliciting signatures and, in January 1938, bringing to the attention of the respondent's employees the lists of Association members and of eligible non-mem- bers which had been prepared by Walter. That the respondent's cooperation with the Association continued right up to the beginning of the hearing in the present proceeding appears from the fact that post-card notices of the Association meet- ing of January 14, 1938, were prepared by Walter, Ziehlsdorff, and Brown on the respondent's premises and were duplicated on a ditto, machine belonging to the respondent. c. Conclusions The formation and administration of the Stanolincl Association in the Salt Creek field paralleled in many ways the formation and admin- istration of the Standard Association at Standard's Casper refinery. Both stemmed from a history of employer domination and support of ajoint -conference scheme which purported to represent employees for collective bargaining purposes but which in fact served as an instru- ment for imposing on those employees the employer's unilateral deci- sions as to wages, hours, and working conditions and for discouraging the initial attempts of these employees at self-organization and con- certed action. Prior's letter of April 26, 1937, like Seubert's letter of April 24, contained both an unambiguous invitation to the employees to whom, it was addressed to organize an "independent," unaffiliated labor or- ganization and an easily read chart of the steps which. the respond- ent believed desirable in the formation of such an organization. The meaning of the general statement in Prior's letter, that the respondent would cooperate so far as it legally could in minimizing the expenses- attendant upon the formation and administration of an "independent" collective bargaining association, was given specific illustration in the letters of April 28, 1937, from Sanders and Colvin to the supervisory personnel in the field. These letters explicitly stated some of the ways in which the respondent felt it could or could not legally cooperate with employees engaged in forming or administering a local collective- bargaining association. These letters, like Prior's and Seubert's, were, instinct with approval and anticipation of the formation of an organ- ization conforming with the suggestions made in the letters. In dissolution, as in operation, the Employees Representation Plan, was the obvious recipient of the respondent's favor. The final meet- ing of the Rocky Mountain Joint Divisional Committee on May, 3, 1937, could not have been better designed to impress the, respondent's 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees with the value to them of the kind of joint-conference scheme embodied in the Plan which the respondent was thus belatedly bandoning. The creation of such an impression was the inevitable :and foreseeable result of marking the demise of the Plan with the read- ing of communications from the management announcing the granting of sick leave, overtime pay, and a wage increase for all hourly paid -employees . Taking full advantage of the effect of these announce- ments and of the reading of Prior's letter, the management repre- sentatives at the May 3 meeting , led by J. S. Mercer, urged the elected representatives to form an organization which would take the place of the Employees Representation Plan and at the same time keep the C. I. 0. out. At the suggestion and with the help of management representatives , a committee composed in part of elected representa- tives attended the meeting of the Standard Association held at Casper the evening of May 4, 1937. The spirit which animated the movement to organize the Associa_ tioi, is epitomized in the statements made by Walter and Ziehlsdorff during the first two or three days following the dissolution meeting of the Joint Divisional Committee. Walter, it will be remembered, remarked to Ensley that the way to organize the Association was to get a "small bunch" of men and "rush it through." Ziehlsdorff's talks with Cates and Davis make it quite evident that he sought their help in carrying out an already formulated plan of which they had no need to know the details, rather than their interest in a projected labor organization to be formed with the support and cooperation of other employees . The reason for Ziehlsdorff's invitation to Cates, who was a former elected representative under the Employees Repre- sentation Plan, is perhaps clarified by the nature of the meeting of May 8, 1937, at which 9 of the 19 men present also were former elected Plan representatives . Indeed, this was admittedly and essen- tially a meeting of former Plan representatives , attended also by other employees selected and invited by the ex-representatives. The dominant figures in the formation of the Association were C. A. Walter and A. H. Ziehlsdorff . Walter was employed by the respondent as assistant or secretary to Assistant Personnel Super- visor Eckwall . Prior to May 3, 1937 , Walter had spent a substantial part of his working time on matters connected with the Employees Representation Plan and the closely allied Benefit Association. He and Ziehlsdorff worked in the same office at Midwest. Ziehlsdorff, who was a former elected representative under the Employees Repre- sentation Plan ,and therefore familiar with its operations , was also -a clerical employee, and his duties consisted in large part of working on the respondent's pay roll. By virtue .of the nature and place of their employment, both Ziehlsdorff and Walter were easily acces- STANDARD OIL COMPANY (INDIANA) , 1273 sible to the respondent's supervisory employees in the Salt Creek field; and the evidence shows that Eckwall, and Walter not only worked together but also consulted each other with respect to affairs of the Association. This virtual participation by the respondent in the formation of the Association was followed by further interference and support by the respondent in the administration of the Association after formal organization had been completed. Membership petitions were pre- pared on company typewriters and were circulated on company prop- erty. The constitution or bylaws of the Association were stenciled and mimeographed on company machines. One of the early meetings of the Association was attended by several head roustabouts, a classi- fication of employees subsequently, on advice of the respondent, ex- cluded from membership because of their supervisory status. Indeed, the entire question of where to draw the line between those eligible and those ineligible for membership was in effect submitted to the respondent for decision, and was settled by the Association in accord- ance with the respondent's suggestion. The proposed working agree- ment submitted by the Association to the respondent in August of 1937 was typewritten on company premises, and was mimeographed on a company machine. Lists of Association members and of eligible non-members prepared by Walter in January 1938 were duplicated on a ditto machine belonging to the respondent, and were made available for examination by employees and for use by Association member- ship solicitors in the club house and pool room operated by the re- spondent at Midwest. The employee in charge of the club house was. C. A. Pearl, a former officer of the Union who had changed his allegiance after a disadvantageous transfer by the respondent and who had then been rewarded by assignment to the club house. Meet- ings of the Association and of its council were held in Peake Gym- nasium, Community Hall, and Scout Hall at Midwest, without cost to the Association. When the officers of the Association, particularly Walter, com- plained to the respondent's Assistant Personnel Supervisor, Eckwall, about the respondent's failure to reply to the Association's letter of August 21, 1937, and explained that, employees in the field were with- holding decision on whether to join the Association until they knew what action the respondent would take with respect to the proposed working agreement submitted by the Association, the respondent's president, Prior, met with the Association's council in the Salt Creek field and assured them that the only reason for the respondent's silence was the Association's lack of majority membership in the field. Prior also told the council that the respondent would be glad to deal with the Association and to discuss the making of a contract with it as soon as it achieved majority membership. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To demonstrate its worth as a collective bargaining representative and thereby overcome the reluctance of employees to become members, the Association took up the Coleman case. We think it evident that the council of the Association was interested in the case primarily because they felt that its successful conclusion would serve as a "talk- ing point" in soliciting members: It is not unreasonable to infer chat the respondent, too, was aware of the importance to the Association of "winning" the case. In any event, the respondent cooperated fully in permitting the Association to present the case and in considering it thereafter. In contrast with its refusal to recognize and deal with the joint committee of Plan representatives and union members in January 1936, the respondent cud not so much as question the status ,of the Association or its right to act as a bargaining representative for.-one of the respondent's employees. The case was successfully .concluded early in December 1937 by the respondent's granting a wage increase for Coleman, and the council of the Association there- upon immediately fixed a date for the next open meeting of the Association. Subsequently, at the Association ineetnng of January 14, 1938, it was reported that arguments advanced by employees for not joining the Association were "refuted by reference to the case of Mr. Coleman." Any doubts as to the respondent's role in the formation and admin- istration of the Association which might be left by the other evidence are set at rest by the series of weekly and special reports on Associa- tion affairs sent by Eckwall to Colvin. Their promptness, accuracy, and detail, and the knowledge which they displayed of plans for the future as well as of past events, can be explained only on the basis of close and continuous contact between Eckwall and the leaders of the Association. Internal evidence contained in the reports and testi- mony given at the hearing justify the inference that this contact took the form of friendly and constant-exchange of information and advice as to the Association's plans and progress between Eckwall and the Association's president and secretary-treasurer, Davis and Walter. Davis knew Eckwall "very intimately," and it is admitted that he willingly answered Eckwall's questions as to the Association's affairs. Walter was Eckwall's secretary, and we cannot believe that lie would have been permitted to typewrite Eckwall's reports to Colvin if he had not otherwise been completely cognizant of the part being played by Eckwall or if he had not been entirely sympathetic with the re- spondent's purpose. The substance and tenor of the reports to Colvin create the feeling that Eckwall regarded himself and the leaders of the Association as being engaged in a joint enterprise to carry out the wishes of the respondent. Eckwall's friendly relationship with Walter and Davis was not the only source of information which the respondent had. The manner STANDARD OIL COMPANY (INDIANA ) - 1275 in which the bank account of the Association with the Wyoming National Bank at Casper was established and maintained gave the respondent complete knowledge of the Association's finances. Eckwall, apparently as a matter, of course, canvassed the respondent's ,employees in several of the outlying fields to determine their senti- ment towards an "independent" organization such as the Stanolind Association. At the Elk Basin and Frannie fields, votes were taken among the employees for the purpose of determining their prefer` ence. In addition, Eckwall promptly and completely reported to Colvin the activities of the Union and its members both in the field .and elsewhere, though these reports as well as the Union's activities were apparently spasmodic. Eckwall's reports as to the Union, like his reports as to the Association, could have been based only upon constant surveillance of the activities of the respondent's employees, and we have so found. The organization which appeared in response to the wishes and activities of the respondent was, in effect, the nucleus of a scheme similar to that which had presumably been discarded with the dis- establishment of the Employees Representation Plan and its Joint Divisional Committees. The spade work required in organizing the Association was done by Walter and Ziehlsdorff, both of whom were fully acquainted with the structure and operation of the Employees Representation Plan. Ziehlsdorff had been an elected Plan repre- sentative, and Walter had spent a substantial part of his working time on affairs of the Plan. The group to which Walter and Ziehls- dorff first appealed for aid in establishing the Association consisted of other former elected Plan representatives and men selected by them to attend the initial meeting. It was this small group of men, accustomed to and familiar with a company-dominated joint-confer- ence scheme, which first approved the constitution or bylaws' which had been prepared by Walter and which determined the character of the new organization. The constitution, endowed with the pres- tige of endorsement by this group of former elected representatives and their friends, provided for a "representation council," the mem- bership of which was to be selected by somewhat the same method that had been used in selecting representatives under the Employees Representation Plan. A suggestion that the council idea be aban- doned in favor of conducting all business of the Association at open meetings of its members was rejected by this same group of former elected representatives and their friends, largely for fear that the suggested change would produce "too many different ideas." The lead thus set by the selected group which, upon invitation, attended the initial meeting of May 8, 1937, was naturally followed by the membership of the Association, which subsequently approved the 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bylaws substantially as .drafted and which, on June 11, 1937, elected a temporary council of 13, of whom 6 had formerly been elected representatives under the Employees Representation Plan. This trend toward establishing what was essentially a continuation of the joint conference scheme which had been the essence of the Em- ployees Representation Plan was carried still further in the proposed working agreement , which was drafted primarily by Walter and which was submitted by the Association to the respondent on August 21, 1937. This proposed working agreement unmistakably contem- plated the establishment of a joint conference scheme calling for periodic meetings between representatives of the Association and representatives of the respondent. Inevitably the manner of the Association's conception and the nature of its organic structure resulted in an organization without vital connection between its leadership and its membership. Walter and ZiehlsdorfF were obviously and admittedly the dominant figures in the Association . They drafted its constitution , arranged for the first meeting, prepared membership petitions , became officers of the Association as soon as a council had been selected, and drafted the proposed contract which was submitted to the respondent in August of 1937. So strong was their hold on the organization that, for a period of almost 6 months following' July 17,. 1937, the provision of the constitution requiring monthly meetings of the members was disregarded and the Association functioned entirely through its council and officers. It is not surprising that the proposed contract submitted for the Association specifically provided that hours , wages, overtime pay, vacation schedules , sick leave, leaves of absence, and the insurance plan then in force were to continue without change. Nor is it surprising that, when the Coleman case was taken up by the council of the Association in October of 1937 , the procedure followed was so similar to the procedure which had been followed by the elected representatives under the Employees Representation Plan in presenting grievances to the management. The similarity between the events at Standard's Casper refinery and the events at Stanolind 's Salt Creek field subsequent to the ter- mination of the respondents' Plans in May 1937, and the cooper- ative relationship between the Standard Association and the Stanolind Association , were not haphazard . Seubert's letter of April 24, 1937, and Prior's letter of April 26, 1937, were practically identical. At Midwest, as at Casper, termination of the Plan was followed within a day or two by the first step towards organizing an "independent" local bargaining association . In each case formation of the new organization was not - only led but also controlled by a very small group of clerical employees who were easily accessible to the re- STANDARD OIL COMPANY (INDIANA) 1277 spondent's supervisory personnel. At both Casper and Midwest, one of these clerical employees was closely associated with the re- spondent's personnel office, while another" was familiar with the pay, roll because of his work and could, without open assistance from or collusion with the respondent, obtain',useful information from the pay-roll records., The close connection between the respondent and the leaders of the Association was even more apparent at Midwest than it was at Casper, since Walter was secretary to Eckwalf, the respondent's Assistant Personnel Supervisor, whose very job it was to manage labor relations in that field. At both places petitions for membership were prepared and circulated on company premises. The constitution of each of the Associations was prepared primarily by one of the clerical employees who led the organization, and both constitutions contained some provisions dealing not with internal structure but with matters such as seniority which might well seem attractive to the average employee. After completion, of the formalities of organization, each Associa- tion instituted a prompt and continuing campaign for majority mem- bership, punctuated only by the preparation of a proposed working agreement to be submitted to the respondent. Such a proposed agree- ment was prepared for each Association by one of the clerical em- ployees who led the organization, and was submitted to the appro- priate respondent. This much accomplished, the leaders in each case found it convenient to dispense with meetings of the membership for a substantial period of time, despite a constitutional provision for monthly meetings. The constitution and proposed working agree- ment of each of the Associations would, if taken together, have estab- lished what was in effect a joint conference scheme similar in most major respects to the disestablished Plan which they succeeded. Each Association, after drafting and submitting its proposed work- ing agreement, occupied itself almost entirely with the problem of increasing its membership, and sooner or later used for this purpose a list of employees' names which it would have been difficult to obtain without the consent or at least the knowledge of the respondent. In the case of the Standard Association, the campaign for member- ship was eventually successful and was at once rewarded with exclu- sive recognition and the "negotiation" of a "procedure agreement" which, in effect, reestablished the old joint conference system. In the case of the Stanolind Association, the membership campaign had not, at least prior to the.hearing herein, resulted in majority mem- bership, and there had been no formal recognition extended by the- respondent, Stanolind, and no written contract executed. In major outline, however, the events at Midwest were merely a truncated par- allel of the events at Casper. 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that the respondent, Stanolind Oil and Gas Company, dominated and interfered with the formation and administration of Stanolind Employees Collective Bargaining Association and con- tributed support to it, and is continuing to dominate, interfere with, and support said Association ; 80 and that the respondent thereby, and by maintaining surveillance over the activities of its employees, inter- fered with;, restrained, and coerced its employees in their exercise of the rights guaranteed in Section 7 of the Act. ' 2. The alleged discriminatory discharges a. Edward O. Randall Randall was employed by the Midwest Refining Company 90 and by the respondent, Stanolind, from October 10, 1925, until March 17, 1937, as a resident pumper at Station No. 109 in the Salt Creek field. During this entire period, Randall was never laid off or seriously disciplined in any way. He was a charter member of the Union, having joined upon its organization in 1933, and held various minor offices from time to time, including that of trustee during the 11/2 years preceding his discharge on March 17, 1937. His interest and participation in Union activities was known to the respondent. It also appears from the record that Randall is the father-in-law of Gail Parrish. an em- ployee of the respondent who was also a charter member and, later, a temporary officer of the Union. On March 16, 1937, Randall's son, Edward James Randall, and Claude Johnson, son of another employee of the respondent employed in the gas-plant department at the Salt Creek field, were seen near Randall's lease gathering up junk pipe in a truck which had been borrowed by them from a former employer of the Randall boy. Two of the respondent's supervisory employees, C. E. Johnson and W. O. Blenkarn, when notified that pipe was being loaded on a truck not belonging to the respondent, drove out to Randall's station and found the loaded truck standing within a short distance of Randall's house. The Randall and Johnson boys were taken into custody by the sheriff almost at once, but were released after a conference in Johnson's office at Midwest and were never prosecuted. Randall attended the conference in Johnson's office that afternoon and also had a talk with the respondent's district superintendent, R. B. Hamilton, the 89 See footnote 54, supra. 90 Stanolind, as we have already pointed out, succeeded the Midwest Refining Company in 1932 in its operations in the Salt Creek field. For many purposes, Stanolind computed the seniority of those of its employees who had formerly been employed by the Midwest Refining Company as beginning with the initial date of their employment by Midwest STANDARD OIL COMPANY (INDIANA) 1273 following morning at the latter's request. On the afternoon of March 17 Randall was informed by his foreman that he was discharged. It is the respondent's-position that Randall was discharged because he knew of the attempted theft of company property by his son, and that the discharge had no connection whatsoever with Randall's Union activity. Some attempt was also made at the hearing to justify Randall's discharge on the ground that he should have known what his son was doing and that, if he did not know, lie was not properly discharging his duties as a resident pumper 91 The point most earnestly pressed by the respondent, however, is that Randall, on the afternoon of March 16, 1937, admitted that lie had given the boys permission to pick up discarded pipe and sell it, an admission which it is claimed was corroborated by statements made by Randall's son and his friend, Claude Johnson, when they were accosted by Johnson and Blenkarn that afternoon. Testimony as to these alleged statements was given by Johnson and Blenkarn and denied by Ran- dall, and his son :it the hearing."Z Minutes of meetings held on April 12, April 17, May 13, and May 31, 1937, between representatives of the respondent and representatives of the Union for the purpose of discussing the Randall case contain no indication that Randall's alleged admission was advanced by the respondent at any of these meetings as an explanation for his discharge. Supervisory employees of the respondent who attended these conferences testified, however, that the minutes were incomplete and that Randall's admission was mentioned at least once during the course of the conferences. In support of its position, the respondent adduced evidence at the hearing tending to establish that a resident pumper is responsible for company property on his station, that stealing had become prevalent, in the Salt Creek field prior to the Randall incident, and that such stealing almost disappeared following Randall's discharge. On the other hand, it appears that March 16, 1937, was one of Randall's days off and that a resident pumper's responsibility, at least in his absence ,from the station, is transferred to the relief man or shift-breaker performing the resident pumper's duties. It also appears that the pipe loaded by the boys was junk having a value of not more than approximately $15 or $20; that this was the only case in which the respondent had. ever had occasion to discharge an employee because of theft or attempted theft by a member of his family; that no disciplinary action was taken by the respondent against Claude 91 It also appears from the record that Randall had on two occasions during the year and a half preceding his discharge been guilty of spilling oil out of the storage tanks on his station. It is clear, however, that these spills bad nothing to do with his discharge and that they cannot be relied upon as justification. 92 The Trial Examiner stated for the record, during the course of the hearing, that lie regarded the demeanor on the stand of both Blenkarn and Rnndall's son as unsatisfactory. 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joluison's father,- who was not a member of the Uiiion; and that Randall's place was taken by a non-union man named Davis', who was much younger and had less seniority in the field than Randall. We are not without doubt as to the motives which actuated the respondent in discharging Randall. However, the evidence that the discharge was due to Randall's Union membership and activities is hot conclusive, and we are persuaded against drawing inferences un- favorable to the respondent because the record discloses no apparent reason for the respondent's singling out Randall from among other members of the Union for discriminatory discharge. There is no showing that Randall was more active or more conspicuous as a Union member than other employees of the respondent. On the present record, we are not convinced that the activities of Randall's son on March 16, 1937, were not the reason for Randall's discharge by the respondent on the following day. We find that the evidence does not sustain the allegations of the complaint that the respondent discharged Edward O. Randall because of his Union mem- bership and activities. - b. Henry J. Stump Stump has worked in the oil industry since 1922. having been em- ployed by the Midwest Refining Company, the respondent, Stanolind, and other oil companies. The termination of employment notice pre- pared by the respondent when Stump was discharged contained the entry, "Date Employed-December 10, 1925." 3" Stump was discharged on the morning of June 8, 1937, while employed as a pumper on the night shift in the respondent's Grass Creek field in Wyoming. Stump l-, as a charter member of the Unioll in the Salt Creek field, having joined in September 1933. He was extremely active in solicit- ing members for the Union and in serving on Union committees. He was a delegate to and first vice president of the Oil Workers Council of the State of Wyoming, and in June 1934 was a delegate to the national convention of the Union. In 1935 he was a nieniber of the Workman's Committee of the Union's local in the Salt Creek field, and in December 1935 he was elected a trustee of the Union for a 5-year term. He was also active from time to time in organizing employees of companies other than Stanolind, including the employees of the respondent, Standard, at its Greybull, Wyoming, refinery, and occa- sionally extended his organizing activities to persons employed outside the oil industry. It is admitted that his Union - membership and activities were known to the,respondent. g' There is conflicting testimony as to whether the respondent reprimanded Claude John- son's father for the part played by his son in the attempt to gather and sell pipe lying on property of the respondent, 91 This date undoubtedly includes Stumps sere ice with the respondent's predecessor in the Salt Creek field, Midwest Refining Company STANDARD OIL COMPANY (INDIANA) 1281 Stump testified at the hearing that in February or March 1934, Field Sitperintendeiit Ralph Hendrickson spoke to him two or three times about the Union and his interest in it, and that approximately 2 weeks later he was demoted from pumper to roustabout. Hendrickson ad- mitted having spoken to Stump, but placed the conversation in January or February 1934, some 2 months prior to Stump's demotion in April of that year. Hendrickson also denied having expressed any opposltioin to the Union in these conversations. Stump further testified that, dur--- ing the summer of 1935, the Union took up with the respondent a-, grievance on his behalf and that, in October 1935, Assistant District,. Superintendent Johnson mentioned this grievance to Stump and toldi him that there would be no further advancement for him in the field Testimony of a similar conversation with Production Foreman Graham was also given by Stump at the hearing. The statements thus at- tributed by Stump to Johnson and Graham were denied by them at the hearing. Stump's employment by the respondent was marked by com- paratively frequent transfers from job to job and from field to field. There is some indication that perhaps two or three of these transfers coincided with and interrupted periods of active organizing work by Stump. The inference arising from those coincidences is countered by explanations of Stump's transfers offered by the respondent. Stump's last transfer prior to his discharge took place on January 9, 1936, when he' was sent from the respondent's Elk Basin field to its Grass Creek field, ostensibly for the reason, as stated in the transfer of employment notice: "Experienced pumper needed" at Grass Creek. ,Until May 1937 Stump worked part time as relief pumper and part time as roustabout. In Nay he was given full-time employment as a pumper, which meant a small increase in his earnings.95 At that time Stump was spending a substantial part of his leisure time in promoting a dance that was to be held at Greybull, Wyoming, the evening of June 5 for the purpose of introducing the Union to persons there employed in the oil industry., Stump was chairman of the committee managing the dance and was busily engaged in selling tickets and obtaining the necessary publicity. His activities in connection with the dance were known to the respondent. On June 1 or 2, 1937, Stump was informed by his superior, Moore, that he was to be transferred to a night pumping job. Stump testi- fied at the hearing that his proposed transfer to night work was objectionable to him at the time because the consequent necessity for his sleeping during the day, would interfere with his efforts, to make the forthcoming C. I. O. dance successful, and that he reluc- ec At the time of this change in his duties , Stump was assigned to the pumping of light oil There is some evidence in the record that Stump's superior , Stanley Moore , was aware, at the time that pi oduction of light oil was shortly thereafter to be curtailed or discontinued. 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tantly accepted the transfer only because he was told it was the only available job. Moore denied at the hearing that the transfer to night work was made against Stump's wishes. In any case, Stump began work on his new assignment on the evening of June 4, 1937. .Sometime early in the morning of June 8, one of the tanks under 'Stump's care, into which oil was being pumped, ran over. The Tespondent contends that this spill was due to neglect on Stump's part and that he was, therefore, discharged a little later in the morning of the same day. The evidence as to the circumstances pre- 'ceding the spill, like the evidence as to the circumstances preceding the discharge of Randall, is voluminous-and, to a large extent, repe- titious and conflicting. It appears that on June 7, sometime during the day, Moore or the day pumper, Fred McGee, or both, adjusted the engine operating the pump which fed the tank that later over- flowed so as to increase its number of strokes per minute, and thereby speeded up the rate at which oil was pumped from the well into the tank. Moore and McGee both testified at the hearing that they in- formed Stump, before he went on duty the evening of June 7, that the engine had been speeded up. This was denied by Stump, who also claims that when he gauged the tank in question during the early part of his tour of duty he found it being filled at the same rate as on preceding nights. Stump also testified that he found the belt on the engine in question slipping when he examined it at about 9 p. in. on June 7, and that he thereupon fixed it to eliminate the slipping. There is testimony that, when an engine or pump is speeded up, it is not unusual for its belt to begin slipping a little; but it also appears that the same engine or pump had given trouble on one or two other occasions, so that there was no reason for Stump to regard the slipping of the belt as a reason for investigating fur- ther into the operation of the pump. The respondent contended that, regardless of whether Stump was informed by Moore or Mc- (Gee of the change in speed of operation of the pump, he should have noticed when he gauged the tank in question that it was filling ,up more rapidly than usual; that he should have realized or cal- 'culated, in view of the tank's capacity, that it would overflow after Be went off duty at 4 a. in. and before the day pumper came on duty, if the flow of oil continued; and that he should have switched the flow -of oil to an empty tank which could accommodate it until the day pumper began work that morning. On the other hand, Stump contends, and it is not impossible, that the tank, when he first gauged it that night, was filling at the usual rate; that the rate of produc- tion was subsequently increased when he fixed the slipping belt; and that it was this increase in the rate of production of oil, rather than .any miscalculation on his part, which resulted in the spill. If STANDARD OIL COMPANY (INDIANA) 1283 Stump's version of the events of that night is accurate, however, the increased speed at which oil was being pumped into the tank should have become apparent to him when he gauged the same tank later that night after he had fixed the pump.9° The record also contains conflicting testimony as to the amount of oil which was spilled. The termination of employment notice covering Stump's discharge states that 150 barrels of oil were spilled. It appears from other evidence that this figure is grossly inaccurate, and varying estimates were made at the hearing as to the actual amount of oil that was spilled. 117''e find, on the basis of all the evidence, that not more than approximately 25 or 30 barrels of oil was lost as a result of the spill. There is also conflicting testimony as to whether the oil so spilled could have been salvaged, the re- spondent's position being that oil of the kind that was spilled could not be recovered and rendered suitable for sale except at prohibitive cost, whereas other testimony tends to establish that all but approxi- mately 5 barrels of the spilled oil could have been used. Some of the respondent's witnesses at the hearing also emphasized the fact that, in December 1935, Stump spilled some oil while em- ployed at the Elk Basin field and that, in January 1936, just before his transfer from the Elk Basin field to the Grass Creek field, Stump broke a pipe-line seal with which employees of the respondent were not supposed to tamper. Since three of the-respondent's supervisory employees 97 testified at the hearing that the spill at Grass Creek was the only reason for Stump's discharge, we give no weight to the earlier spill and to the pipe-line incident in our determination of the case. Some attempt was made by the respondent at the hearing to establish the existence of a general rule that discharge is the penalty for permitting a tank to spill over. There is evidence, however, that even if there was such a rule in effect, either at the Grass Creek field or elsewhere, it was enforced only where a spill was due to the fault or negligence of the employee involved. It was on this basis that the respondent explained the absence or laxity of disciplinary action in other cases in which oil was spilled by employees. Two or three of these cases involved employees who were members of the Associa- tion or active in its behalf, but there was no attempt to contradict the respondent's explanation that in each of these cases the employee involved was not at fault or there was doubt as to his fault. Stump also claimed at the hearing that his work was praised by his superiors from time to time, and particularly by Stanley Moore 90 He admitted, however, that he did not inspect the pumping station or the tank after 1 a. m that morning, being occupied elsewhere in other duties until his quitting time. There is conflicting testimony as to whether these other duties should have prevented his inspection of the pumping station and tank, and there is also testimony that a competent pumper gauges his tanks just before going off duty 07 Cullen, Bechtel , and Moore. 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on the morning of June 8, when- Stump was discharged. According to Stump, Moore at that time told him that his work was entirely satisfactory. This was denied by Moore at the hearing. It is also claimed that Stump's position, after his discharge, was taken by a non-union employee of the respondent, James Blackburn. For the respondent it was explained that Stump had taken Blackburn's place when he began his night pumping, and that Blackburn was merely returned to the job when Stump was discharged. Stump's extraordinarily active participation in the affairs of the Union establishes a stronger basis than there was in the Randall case for believing that the respondent was motivated by Union mem- bership and activity rather than by any other reason in 'exercising its power to discharge. On the other hand, the reason advanced for Stump's discharge is more convincing than that advanced for Randall's discharge; the record shows that Stump actually spilled some oil and that the spill might perhaps have been due to care- lessness on Stump's part. In any case, regardless of the merits of the respondent's position that the spill was caused by, Stump's negli- gence, the record does not convince us' that the respondent could not or did not honestly believe that Stump had improperly dis- charged his duties. We find that the evidence does not sustain the allegations of the complaint that Henry J. Stump was discharged by the respond- ent because of his Union membership and activities. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondents set forth in Section III A 2, 3, and 4 and Section III B 1 b and c above, occurring in connection with the operations of the respondents described in Sec- - tion I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and between the United States and foreign'countries and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. , V. THE REMEDY Having found that the respondents have engaged in unfair labor practices within the meaning of the Act, we shall order them to cease and desist therefrom and, in order to effectuate the policies of the Act, to take certain affirmative action designed to- dissipate the effects of the unfair labor practices. We have found that the respondent, Standard, dominated and interfered with the formation and administration of the Standard Association and contributed support to it. The continued existence STANDARD OIL COMPANY (INDIANA) 1285, and recognition of the Association as a collective bargaining agency, established as it was by unfair labor practices and dominated and maintained as it has been and is by the respondent, would thwart the purposes of the Act and render ineffectual an order directing the i espondent merely to cease and desist from engaging in unfair labor practices. In order to free the employees of the respondent from such domination and interference and the effects thereof, which con- stitute'a continuing obstacle to their exercise of the rights guaranteed in Section 7 of the Act, we shall order the respondent, Standard, to withdraw all recognition from the Standard Association as the rep- resentative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and to disestablish the Association as such representative.95 For the same reasons, we shall also order the respondent, Standard, to cease giving effect to its contract with the Standard Association or to any modification, continuation, extension, renewal, or supplement thereof, or to any other agreement or agreements with the Standard Associa- tion which may now be in effect."" We have found that the respondent, Stanolind, dominated and interfered with the formation and administration of the Stanolind Association and contributed support to it. However, formal recog- nition of the Association as a collective bargaining agency for the respondent's employees had not as yet been granted by the respondent at the time of the hearing. Nevertheless, the respondent's domina- es N. L. R B. Y. Pennsylvania Greyhound Lines, 303 U S 261, rev'g 91 F. (2d) 178 (C. C. A. 3), and enf'g Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Man- agement Company, corporations and Local Division No 1063 of the Amalgamated Associa- tion of Street, Electric Railway and Motor Coach Employees of America, 1 N. L. R B. l; N. L. R B v. Pacific Greyhound Lines, 303 U. S. 272, rev'g in part 91 F (2d) 458 (C. C. A. 9), and enf'g Matter of Pacific Greyhound Lines, Inc. and Brothei hood of Loco- motive Firemen and Enginemen, 2 N L R B. 431; Newport News Shipbuilding CC Dry Dock Co v. N. L R. B, 308 U. S 241, rev'g in part 101 F. (2d) 841 (C. C A. 4), and enf'g Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L. R B. 866 nN L R B v. Stackpole Carbon Co., 105 F. (2d) 167 (C. C. A 3), cert denied 308 U S 605, enf'g as mod Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No 502, 6 N L R. B 171 ; N. L R B v H. E. Pletcher Co., 108 F. (2d) 459 (C. C. A 1), cert. denied 60 S Ct. 716, enf'g Matter of H E Fletcher Co and Granite Cutters' International Association of America, 5 N. I, B B 729 ; Cudahy Packing Co v N. L. R. B., 102 F. (2d) 745 (C C A 8), cert denied 308 U. S. 565, enf'g as mod. Matter of The Cudahy Packing Company and Packinghouse Workers Local In- dustrial Union No. 62, affiliated with the Committee for Industrial Organization, 5 N. L R B. 472 Cf. American Mfg. Co. v N. L R B , 60 S. Ct 612, aff'g as mod N. L R B V American Mfg Co , 106 F (2d) 61 (C C A 2), enf'g as mod Matter of American Manufacturing Company; Company Union of the American Mann factoring Com- pany, The Collectiae Bargaining Committee of the Brooklyn Plant of the American Manu- facturing Company and Textile lVoiiers Organizing Committee, C. 1. 0., 5 N. L. R. B. 443; National Licorice, Co. v. N. L R B , 60 S Ct, 569, aff'g as mod N L R. B. v National Licorice Co., 104 F. (2d) 655 (C C. A 2), enf'g as mod. Matter of National Licorice Company and Bakery and Confectionery Workers International Union of America, Local Union 1105, Greater New York and Vicinity, 7 N. L. It B 537 28 30 3 6-42-vol 25--82 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, interference, and support make the Stanolind Association as incapable of acting as a bona fide collective bargaining agency as is the Standard Association. Even in the absence of recognition such as was given the Standard Association, the continued existence of the Stanolind Association, despite the cease and desist provisions of our Order, would make impossible the uninhibited exercise by the em- ployees it purports to represent of their right to self-organization and to bargain collectively through representatives of their own choosing. We shall, therefore, order the respondent, Stanolind, to refuse to recognize the Stanolind Association as the representative of any of the respondent's employees for the purposes of collective bargaining, and completely to disestablish the Stanolind Association as such representative. VI. THE QUESTIONS CONCERNING REPRESENTATION A. Standard Oil Company We have found, in Section III A 3 above, that the respondent, Standard, in August 1937, refused to deal with the Union on its request for a wage increase, on the ground that the Standard Asso- ciation had been recognized as the exclusive representative for col- lective bargaining purposes of the employees at the Casper refinery. In the contract of September 9, 1937, this recognition of the Asso- ciation by the respondent was given formal expression. Thereafter, in November or December 1937, the respondent refused to permit the Union to present grievances on behalf of its members because of the prior recognition of the Association. In its petition and at the hearing, the Union took the position that it represents the respondent's Casper employees, having obtained from a majority of them signed cards authorizing the Union to act as their representative for collective bargaining purposes. The re- spondent denies that the Union is authorized to represent the Casper employees. That the Union has never requested recognition as exclusive collec- tive bargaining representative for the respondent's Casper employees is immaterial. Such a request would clearly have been denied by the respondent and is in any event unnecessary to the existence of a ques- tion concerning representation.700 Since we have found that the Asso- ciation is a company-dominated labor organization, the respondent's recognition of and contract with the Association cannot affect the con- troversy. For the same reason, the petitions circulated by the Asso- 100 See Matter of Lawson Manufacturing Company and Defenders of America, Pittsburgh Chapter No 2, 19 N L R B 756, and cases cited' STANDARD OIL COMPANY ( INDIANA) 1287 ciation in January 1938 repudiating any prior authorizations given by the signers to the Union cannot be permitted to determine the exist- ing dispute as to which, if any, labor organization is entitled under the Act to represent the respondent's employees.'01 We find that a question has arisen concerning the representation of the respondent's employees at its Casper, Wyoming, refinery. B. Stanolind Oil and Gas Company In November 1937 two representatives of the Union, F. T. Frisbey and Calloway, called on L. L. Bechtel, superintendent of the respond- ent's Rocky Mountain Division, at the latter's office in Casper, Wyo- ming, and informed him that the Union represented a majority of the employees in the respondent's gas-plant department in the Salt Creek field. There is testimony in the record that the Union at that time had authorization cards signed by 60 or 70 of the employees in that department, in which something more than 100 men are employed. No proof of the Union's claimed authority to represent the employees in the gas-plant department was then requested by Bechtel, who told the Union representatives that he did not regard anything less than the entire Salt Creek field as a unit appropriate for collective bar- gaining purposes. At the hearing, the respondent contested the claim made by the Union in its petition that it is entitled, under the Act, to represent employees of the respondent for collective bargaining purposes, on the ground in part that the employees whom the Union claims to repre- sent do not constitute an appropriate unit for collective bargain- ing purposes.112 We find that a question has arisen concerning the representation of employees of the-respondent in the Salt Creek, Wyoming,'field. VII. THE EFFECT OF THE QUESTIONS OONCFi`RNING REPRESENTATION UPON COMMERCE WWW10_ find that the questions concerning representation which have arisen, occurring in connection with the operations of the respondents described in Section I above, have a.close, intimate, and substantial relation to trade, traffic, and commerce among the several States and between the United States and foreign countries and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 101 See Hatter of Lennox Furnace Co, Inc and Syracuse Federation of Labor, 20 N L R B 962, and cases cited. 202 The respondent also contends , inter alga, that the question concerning representation does not affect commerce 1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VIII. THE APPROPRIATE UNITS A. Standard Oil Company The Union contends that the production and maintenance employees at the respondent's Casper refinery, excluding all office, clerical, and supervisory employees, constitute an appropriate collective bargaining unit. The only difference of opinion which appears in the record is with respect to office and clerical employees, whose inclusion in the appropriate unit is urged primarily by the Standard Association. Since we have found that the Association is company dominated and since we are ordering its disestablishment, we give its views no weight in making our decision as to the appropriate unit. We have frequently held that, under ordinary circumstances, office and clerical employees in an industrial plant have problems and inter- ests sufficiently different from those of production and maintenance employees to warrant exclusion of the former from the appropriate unit."' In the present proceeding this difference in interests between the two groups is reflected in the respondent's use of two pay rolls, one for its hourly paid production and maintenance employees and another, known as the private pay roll, for its supervisory, office, clerical, laboratory, and other non-production employees who are paid on a monthly salary basis.'°' We are also persuaded by the fact that the only bona fide labor organization involved excludes generally from its membership all employees occupying supervisory, office, or clerical positions, and disclaims any desire to represent such employees at the respondent's Casper refinery. We find that all production and maintenance employees of the re- spondent at its Casper, Wyoming, refinery, excluding supervisory, office, and clerical employees, constitute a unit appropriate for the pur- poses of collective bargaining, and that such unit will insure to these employees of the respondent the full benefit of their right to self- organization and to collective bargaining and otherwise effectuate the policies of the Act. B. Stanolind Oil and Gas Company ,The Union's position is that the employees in the respondent's gas-plant department in the Salt Creek field constitute a unit appro- 103See Mattes of Foote Brothels Gear and Machine Ooiposatson and United Ogee and Psofesssonal Workers of America, No. 24, 14 N L R. B 1045 , 1065, and cases cited. 101 The respondent , itself, apparently had serious doubts prior to the proceeding -herein as to whether the private-pay-roll employees should or would be included in the Caine collective bargaining unit as the hourly paid employees In August 1937 , after it had been informed of the Standard Association 's majority membership, the respondent made a point of ascertaining that the Association had majority membership among -private- pay-ioll employees separately, before extending recognition to the Association as exclusive collective bargaining representative for all the employees at the Casper refinery STANDARD- OIL COMPANY (INDIANA) 1289 priate for collective bargaining purposes. In addition to the employees engaged in the operation of the booster stations and compression plants, the Union,includes in this category the men who check and maintain the pipe lines connecting the wells and the compression plants, the men who gather drip gasoline, and all other non-supervisory employees carried out the respondent's gas-plant department pay roll. The respondent contends that all employees in the Rocky Mountain Division, which covers several States, would be the most appropriate unit, but that a unit composed' of all its employees in the Salt Creek field would also be appropriate."" It opposes designation of the gas- plant department in the Salt Creek field as a separate unit, largely on the ground that the functions discharged by the gas-plant depart- ment are an integral part of the entire production process in the field and that all, departments in the field are dependent upon each other for continued operation. This interrelationship, it is claimed, permits and requires the frequent transfer of men from department to department, and separation of, the gas-plant department from the rest of the field would impede this interchange of men and create friction and dissatisfaction. The departments into which the respondent's Salt Creek operations are divided are said to be arti- ficial lines established only for convenience in accounting. It is pointed out that the entire field participated in the election conducted during the summer of 1934 by the Petroleum Labor Policy Board. With respect to the last of these contentions, we need state only that the Petroleum Labor Policy Board in 1934 was acting under legislation other than the Act -which we administer and that the reasons for its action at the time do not appear'in the record. What- ever the purpose for the establishment of departments in the Salt Creek field, it demonstrates at least that the respondent has found it possible and practical to treat the employees in the gas-plant department and other departments as separate units. The interde- pendence of the departments may be conceded, but it does not follow, and the respondent's witnesses gave no reasons for believing, that designation of one of the departments as a separate bargaining unit v,,ould make more difficult the transfer of men to and from other de- partments. Besides, while transfers in and out of the gas-plant de- partment are not uncommon, the respondent's division manager, Cullen, admitted at the hearing that the gas-plant men "usually" remain gas-plant men. While all non-supervisory production and maintenance employees in the Salt Creek field are eligible for membership in the- Union, its members at the time of the hearing were concentrated in the 105 we disregard the contentions of the Stanohnd Association as to the appropriate, unit, since we have found that the respondent dominated and interfered with the formation and administration of the Association and contributed support to it. 1290 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD gas-plant department. The Union makes no argument that the entire field may not properly be regarded as a single appropriate unit; on the contrary, it affirmed at the hearing its intention to proceed with its membership campaign throughout the field. It asks, however, that the gas-plant department be designated at this time as an appropriate unit. The Union is the only bona fide labor organization involved in the proceeding, and there is no substantial reason for believing that designation of the gas-plant department as a separate unit will create any practical difficulties, either, in the respondent's operations in the field or in the determination or functioning of a collective bargaining agency. We believe, therefore, that the Union's request with respect to the bargaining unit, should be granted. To hold otherwise would, in effect, mean denial of the benefits of the Act to the employees in the gas-plant department until union organiza- tion embraces the entire field.100 Our decision, however, should not be regarded as precluding enlargement of the appropriate unit if subsequent events and proceedings warrant it. Some question is raised as to the status of head roustabouts and gang pushers. There can be little, doubt that the former, despite their lack of power to hire employees, have supervisory duties. Gang pushers are subordinate to head roustabouts, but each pusher, in the words of the respondent's assistant district superintendent, Johnson, has authority "to supervise a job that has probably been lined out to him by the head roustabout and he may have one, two, three or four men working under him in the absence of the head roustabout." It is also of some significance that a committee of the Stanolind Associ- ation, after conferring with representatives of the respondent in June 1937 on the question of the status of head roustabouts and gang pushers, recommended that both these categories of employees be excluded from membership in the Association, at least until organi- zation of the Association had been completed and recognition granted by the respondent. We hold that gang pushers and head roustabouts are supervisory employees. In the absence of any indication from the Union that its policy of excluding supervisory employees is not applicable to minor officials such as gang pushers and head rousta- bouts, we shall not include them in the appropriate unit. We find that all non-supervisory production and maintenance employees in the respondent's gas-plant department at the Salt Creek field in Wyoming, including those who check and maintain the pipe lines connecting the wells and the compression plants and those who 100 See Hatter of R 0 A Communications, Inc and Anieiican Radio Telegraphists' Association , 2 N L R. B. 1109, 1115 Matter of Burton -Dixie Corporation and Mattress, Spring d Bedding Workers Local 185 of Upholsterers International Union of North America, affiliated with the A F of L . 21 N L R B 289, at p 292 STANDARD OIL COMPANY (INDIANA) 1291 gather drip gasoline, but excluding clerical employees, gang pushers, and head roustabouts, constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to these em- ployees of the respondent the full benefit of their right to self -organi- zation and to collective bargaining and otherwise effectuate the policies of the Act.- IX. THE DETERMINATION OF REPRESENTATIVES At the hearing, the Union indicated that it was seeking not certifi- cation on the basis of the record but the holding of an election among the employees of each respondent in an appropriate, unit. Ac- cordingly the Union did not produce its signed authorization cards but relied in each case on oral testimony of substantial membership or representation among the employees concerned. We find that the questions which have arisen concerning representation can best be resolved by elections by secret ballot. We have found that both the Standard Association and the Stano- lind Association are company-dominated labor organizations not capable of serving as bona fide collective bargaining agencies for em- ployees of the respondents. We shall, therefore, make no provision for inclusion of their names on the ballots to be used in the elections. Since the respondents have, by engaging in unfair labor practices, interfered with the exercise by their employees of the rights guaran- teed them by the Act, we shall not now set the date or dates for the elec- tions. We shall hold the elections, however, upon receipt of informa- tion from the Regional Director that the circumstances permit free choice of representatives unaffected by the unlawful acts of the respondents. Concurrently with our determination of the date or dates for the elections, we shall specify the date or dates on the basis of which eligibility to vote in the elections will be determined. Upon the basis ' of the above findings of fact and upon the entire record in the case, the Board makes the following : CoNCLusIONS OF` LAW 1. The Industrial Relations Plan of the respondent, Standard Oil Company, the Joint General Committee at the Casper, Wyoming, refinery of the respondent, Standard Oil Company, the Employees Representation Plan of the respondent, Stanolind Oil and Gas Com- pany, and the Rocky Mountain Joint Divisional Committee of the respondent, Stanolind Oil and Gas Company, were labor organiza- tions, within the meaning of Section 2 (5) of the Act. 107 Cf Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. R B. 789, 815-6, enf'd as mod., Continental Oil Co. v. N. L. R. B., June 14, 1940 (C C. A 10) 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Oil Workers International Union, Standard Employees Collec- tive Bargaining Association, and Stanolind Employees Collective Bargaining Association are'-labor organizations, within the,meaning of Section 2 (5) of the Act. 3. By dominating and interfering with the formation and admin- istration of Standard Employees Collective Bargaining Association and by contributing support to it, the respondent, Standard Oil Com- pany, has engaged in and is engaging in unfair labor practices, within the,meaning of Section 8 (2) of the Act. 4. By dominating and interfering with the formation and adminis- tration of Stanolind Employees Collective Bargaining Association and by contributing support to it, the respondent, Stanolind Oil and Gas Company, has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (2) of the Act. 5. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents, Standard Oil Company and Stanolind Oil and Gas Com- pany, have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce; within the meaning of Section 2 (6) and (7) of the Act. 7. The respondent, Stanolind Oil and Gas Company, has not en- gaged in unfair labor practices, within the meaning of Section 8 (3) ,of the Act. 8. Questions affecting commerce have arisen concerning the repre- sentation of employees of the respondents, Standard Oil Company and Stanolind Oil and Gas Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 9. All production and maintenance employees of the respondent, Standard Oil Company, at its Casper, Wyoming, refinery, excluding supervisory, office, and clerical employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 10. All non-supervisory production and maintenance employees in the gas-plant department of the respondent, Stanolincl Oil and Gas Company, at the Salt Creek field in Wyoming, including those who check and maintain the pipe lines connecting the wells and the com- pression plants and those who gather drip gasoline, but excluding clerical employees, gang pushers, and head roustabouts, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. STANDARD OIL COMPANY (INDIANA) 1293 ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant.to Section 10 (c) of the National Labor Relations, Act, the National Labor Relations Board hereby orders as follows: A. That the respondent; Standard Oil Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Standard Employees Collecti°°ve LL Bargaining' Association or with the formation or administration of any other labor organi- zation of its employees, and from contributing support to Standard Employees Collective Bargaining Association or to any other labor organization of its employees; (b) Recognizing Standard Employees Collective Bargaining Asso- ciation as the representative of any of the respondent's employees at its Casper, Wyoming, refinery for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work ; (c) Giving effect to its contract of September 9, 1937, with,Stand- ard Employees Collective Bargaining. Association, or to any modifi- cation, continuation, extension, renewal, or supplement thereof, or to any other agreement or agreements with Standard Employees Collective Bargaining Association now in effect; (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 concerted activities for the purposes of collective bargaining or other mutual aid or 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) Withdraw all recognition from Standard Employees Collec- tive Bargaining Association as the representative of any of the re- spondent's employees at its Casper, Wyoming, refinery for the pur- pose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and completely disestablish Standard Employees Collective Bargaining Association as such representative; (b) Post immediately in conspicuous places at its Casper refinery, and maintain for a period of at least sixty (60) consecutive 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 subparagraphs 1 (a), (b), (c), and (d) of paragraph A of this Order; and (2) that the respondent will 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the affirmative action set forth in subparagraph 2 (a) of para- graph A of this Order ; (c) Notify the Regional Director for the Twenty-second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. B. That the respondent, Stanolind Oil and Gas Company, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Stanolind Employees Collective Bargaining Association or with the formation or administration of any other labor organiza- tion of its employees, and from contributing support to Stanolind Employees Collective Bargaining Association or to any other labor organization of its employees; (b) Maintaining surveillance upon the activities of its employees in connection with Oil Workers International Union, or any other labor organization; (c) 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 purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Taking the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Refuse to recognize Stanolind Employees Collective Bargain- ing Association as the representative of any of the respondent's employees in the Salt Creek, Wyoming, field for the purpose of deal- ing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work, and com- pletely disestablish Stanolind Employees Collective Bargaining Association as such representative; (b) Post immediately in conspicuous places on all property owned or operated by- the respondent throughout the Salt Creek field in Wyoming, and maintain for a period of at least sixty (60) consecu- tive 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 subparagraphs 1 (a), (b), and (c) of paragraph B of this Order; and (2) that the respondent will take the affirmative action set forth in subparagraph 2 (a) of paragraph B of this Order; (c) Notify the Regional Director for the Twenty-second Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. STANDARD OIL COMPANY (INDIANA) 1295 AND IT IS FURTHER ORDERED that the complaint, in so far as it alleges that the respondent, Stanolind Oil and Gas Company, has engaged in unfair labor practices within the meaning of Section 8 (3) of the Act, be, and it hereby is, dismissed. DIRECTION OF ELECTIONS By virtue of and pursuant to the, power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigations authorized by the Board to ascertain representatives for the purposes of collective bargaining with Standard Oil Company, Casper, Wyoming, and Stanolind Oil and Gas Company, Midwest, Wyoming, separate elec- tions by secret ballot shall be conducted at such time or times as the Board shall hereafter direct, under the direction and supervision of the Regional Director for the Twenty-second Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 9, of said Rules and Regulations : 1. Among all production and maintenance employees of the re- spondent, Standard Oil Company, at its Casper, Wyoming, refinery, employed by the respondent during a pay-roll period which the Board will hereafter specify, excluding supervisory, office , and clerical employees, to determine whether or not they desire to be represented by Oil Workers International Union for the purposes of collective bargaining. 2. Among all non-supervisory production and maintenance em- ployees in the gas-plant department of the respondent, Stanolind Oil and Gas Company, at the Salt Creek field in Wyoming, employed by the respondent during a pay-roll period which the Board will here- after specify, including those who check and maintain the pipe lines conecting the wells and the compression plants and those who gather drip gasoline, but excluding clerical employees, gang pushers, and head roustabouts, to ,determine whether or not they desire to be represented by Oil Workers International Union for the purposes of collective bargaining. AIR. WILLIAM M. LEISERSON took no part in the - consolidation of the above Decision , Order and Direction of Elections.