The Texas Co.

In the Matter of THE TEXAS COMPANY and OIL WORKERS INTER- NATIONAL UNION, LOCALS No. 23 AND 254 Case No. C-1477.-Decided August 24, 1940 Jurisdiction : oil industry. Unfair Labor Practices In General: employer's responsibility for acts of supervisory employees. Company-Dominated Union: formation after validation of Act of successor or- ganization similar in structure, personnel, and purpose to predecessor found company-dominated; failure of respondent to sever relationship with successor- participation in formation of: suggesting organization; soliciting members- contribution of support to: furnishing materials and facilities-indicia of domina- tion: restricted opportunity for employees to select representatives and officers: no provision in articles of Association for membership or dues. A labor organization's use of company facilities, time, and property constitutes company support, although it takes place without the Company's express permission, where the labor organization's activities are such that they must have been known to the Company's supervisory personnel and where the Company makes no effort to forbid such activities or to contradict publicly the inference of company approval arising therefrom. Remedial Orders : disestablishment of company-dominated unions. Mr. Alba B. Martin, for the Board. Mr. 0. J. Dorwin, of New York City, and Mr. J. H. Pipkin, of Houston, Texas, for the respondent. Mr. W. J. Trombley, of Port Arthur, Texas, for Local No. 23. Mr. Louis Newman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon a second amended charge duly filed by Oil Workers Inter- national Union, Locals No. 23 and 254, herein collectively called the Union, the National Labor Relations Board, herein called the Board, by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued its complaint dated August 18, 1939, against The Texas Company, Port Arthur, Texas, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor 26 N. R. L. B., No. 111. 1059 1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Copies of the complaint and accom- panying notice of hearing were duly served upon the respondent and the Union.'. . With respect to the unfair labor practices, the complaint alleged in substance that the respondent: (1) from July 1933 until May 1937 had sponsored, fostered, encouraged,- dominated, and interfered with the formation and administration of the Employe Representation Plan, a labor organization of its employees, herein called the Plan ; (2) in May 1937 continued to sponsor, foster, encourage, dominate, and interfere with the formation and administration of a labor organ- ization of its employees by effecting the organization of, encouraging membership in,, and dominating the administration of the Agency; (3) since April or May 1937 has engaged in a continuous plan and course of action to interfere with the self-organization of its employees, to discourage them from affiliating with the Union, and to induce them to change their affiliation from the Union to the Agency; and (4) by other acts and conduct has interfered with, restrained, and coerced its employees in the 'exercise of the rights guaranteed by the Act. In accordance with leave granted by the Regional Director, the respondent filed its answer to the complaint on September 6, 1939, with counsel for',the'Board at Port Arthur, Texas. In effect; the answer constituted a general denial of the unfair labor practices alleged in the complaint. The answer. also contained affirmative allegations as to the respondent's general policy towards labor organizations, both prior and subsequent to the' effective date of the Act; as to action taken by the respondent in carrying out this general policy; and as to the respondent's dealings and relationship with labor organ- izations of the employees at its various plants, including the Plan and the Agency at its Port Arthur Works. Pursuant to notice, a hearing was held at Port Arthur, Texas, on September 7, 8, 9, 11, 12, and 13, 1939, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the respondent and Local No. 23.of the Union were represented by counsel and participated. in the hearing. The Agency, by its secretary, Euclid Hudson, entered ' its appearance on September 12, 1939, but took no active part 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. 1 Receipt of a copy of the complaint and notice of hearing on August 21, 1939, more than 10 days prior to the beginning of the hearing herein, by the Employees Collective Bargaining Agency of The Texas Com- pany, Port Arthur works, herein called the Agency, was admitted at the hearing. The Agency is a labor organization, the formation and administration of which are alleged in the complaint to have been encour- aged, dominated , and interfered with by the respondent, THE TEXAS COMPANY .1061 At the opening of the hearing, the respondent filed written applica- tion for a bill of particulars of the complaint. The application was denied by the Trial Examiner, with the statement that the respondent would he given adequate opportunity to meet any evidence as to which it claimed surprise. On September 12, 1939, the Agency appeared by its secretary and requested leave to file a document captioned, "Motion to Intervene and Answer." The request and the motion to intervene were both granted by the Trial Examiner but, as stated above, the Agency did not actively participate in the hear- ing. At the close of the hearing, counsel for the Board moved to conform the pleadings to the proof as to dates, spelling of names, and other formal matters. The motion was granted by the Trial Ex- aminer without objection. Rulings on other motions and on objec- tions to the admission of evidence were also made by the Trial Ex- aminer 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. The record made at the hearing includes a series of written stipula- tions between counsel for the Board and for the respondent, which were. placed in evidence.2 The Agency's secretary, Euclid Hudson, stipulated on the record that the Agency should be bound by the stipulations entered into by counsel for the Board and for the respond- ent, as if each of them. had also been signed on behalf of the Agency. Thereafter, the Trial Examiner issued his Intermediate Report dated January 16, 1940, in which he found that the respondent had engaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices, withdraw all recognition from and completely disestablish the Agency as a collective bargaining representative of any of the respondent's employees, and post. appro- priate notices in its Port Arthur Works. Copies of the Intermediate Report were duly served upon the respondent, the Union, and the Agency. Exceptions to the Intermediate Report were filed by the respondent with the Board on March 15, 1940, in accordance with an extension of time granted at the respondent's request. A brief in support of its exceptions was filed by the respondent on March 20, 1940. Oral argument, pursuant to notice thereof duly served on all the parties, was had before the Board at Washington, D. C., on March 21, 1940. The respondent was represented by counsel and participated in the oral argument; the Union and the Agency did not appear. The-Board has considered the respondent's exceptions and brief and, 2 These stipulations and a large number of exhibits placed in evidence by counsel for the Board and for the respondent constitute the bulk of the record. 323429-42-vol. 9_6-68 1062. DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the extent that the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to he without merit. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent is a Delaware corporation, having its principal offices in New York City and Houston, Texas. It is a wholly owned subsidiary of The Texas Corporation, which also owns or controls all of the stock of a number of other subsidiary corporations engaged in various phases of the oil industry in the United States and foreign countries. As one of the subsidiaries of The Texas Corporation, the respondent is engaged in the production, manufacture, and marketing of crude oil and its products in a number of States in the United States. At the time of the hearing the capitalization of the respondent was in excess of $250,000,000. Its gross receipts during the calendar year 1938 were more than $280,000,000. According to the franchise tax return filed by the respondent with the Secretary of the State of Texas for the fiscal year ended December 31, 1938, less than 14 per cent of the respondent's business was intrastate and more than 86 per cent of its business was interstate in character. The respondent operates 14 refineries in the United States, of which 7 are in the State of Texas, 2 are in the State of Wyoming, and 1 is in each of the States of Colorado, Oklahoma, Illinois, Kentucky, and Louisiana. The present proceeding involves only the refinery operated by the respondent at Port Arthur, Texas.3 An average of at least 75,000 barrels of crude oil per day is processed at the respond- ent's Port Arthur refinery. Of this crude oil, approximately 60 per cent is produced within the State of Texas, approximately 30 per cent in Louisiana, and approximately 10 per cent in Oklahoma. Sub- stantially all of this crude oil is transported to the Port Arthur refinery in pipe lines, ships, or barges owned or controlled by the re- spondent or by other wholly owned subsidiaries of The Texas Corpo- ration. At least 90 per cent of the refined products manufactured at the respondent's Port Arthur refinery are shipped by it to destinations in foreign countries or, in States other than Texas by way of ships or barges largely owned or controlled by the respondent or by rail in tank cars largely leased to the respondent. At the time of the hearing the respondent had more than 3,800 employees at its Port Arthur refinery.' 3 The respondent's Port Arthur refinery includes, in addition to the refinery proper, the respondent's Port Arthur terminal, the Nederland tank farm and the National tank farm. 4 The Board has already had occasion to consider the respondent's business and its relation to commerce. Matter of The Texas Company and Oil Workers International Union, Locals Nos. 367 and 228, 17 N. L. R B. 843, curd, The Texas Co. v. N. L. R. B., 112 F (2d) 744 (C. C. A. 5). THE TEXAS COMPANY II. THE ORGANIZATIONS INVOLVED 1063 Oil Workers International Union, Locals No. 23 and 254, are labor organizations affiliated with the Congress of Industrial Organizations, herein called the C. I. 0. They admit to membership employees of the respondent at its Port Arthur Works in Texas. Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, is an unaffiliated labor organization in which em- ployees of the respondent at its Port Arthur Works are eligible to participate.' The Employe Representation Plan of The Texas Company and its Council at the respondent's Port Arthur Works together constituted an unaffiliated labor organization in which the employees of the respond- ent at its Port Arthur Works were eligible to participate.' Opera- tion of the Plan and Council at the respondent's Port Arthur Works was terminated upon formation of the Agency in June 1937.7 111. THE UNFAIR LABOR PRACTICES A. Interference with, domination, and support of the Plan From 1920 until July 1933 8 no labor organization sought to repre- sent the respondent's Port Arthur employees, and the respondent had no dealings with any collective bargaining representative of those employees. In July 1933 the respondent installed at its Port Arthur refinery an Employe Representation Plan prepared and formulated by it. Beyond participating in the first election of representatives under the Plan, which they were invited and urged by the respondent to do, the respondent's Port Arthur employees had no part in the establishment of the Plan. 5 The Agency's articles of association make no provision for Agency membership . Article III, Section 1 provides instead that "Each employee of The Texas Company in the Port Arthur works (except those employees in an administrative capacity and department foremen and assistant department foremen, or any others so designated from time to time by the council of elected representatives ) shall be eligible to participate in the plan herein set forth." 9 The Plan contained no provision for membership therein. The term "employe", as used in the Plan to refer to those covered by its provisions and eligible to participate in its activities , was defined in Article II, Section 1 as "any individual employed by The Texas Company not identified with the Management." Section 2 of Article II defined generally the phrase "identified with the Management" and listed specifically some of the categories of employees falling within its meaning. 7 The manner in which operation of the Plan and the Council was discontinued is discussed below in some detail. 9 The respondent's activities during this period and thereafter until July 5, 1935, the effective date of the Act, cannot of course constitute unfair labor practices within the meaning of the Act. They are, however, essential to an appraisal of those activities of the respondent subsequent to July 5, 1935 , which are called in question by the present proceeding . It is now well settled that antecedent events , though not themselves unfair labor practices , are material to a consideration of whether subsequent related events are unfair labor practices within the meaning of the Act. N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261, 268-70; N. L. R. B. v. Pacific Greyhound Lines, 303 U. S. 272, 273; N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241 ; N. L. R. B. v. The Falk Corp ., 308 U . S. 453; N. L. R. B. v. II. E. Fletcher Co., 108 F. (2d) 459, 464-5, (C. C. A. 1), cert . denied, 309 U. S. 678; N. L. R. B. v. American Potash & Chemical Corp., 98 F. (2d) 488, 494 (C. C. A. 9), cert. denied, 306 U. S. 643 ; Cudahy Packing Co. v. N. L. R. B., 102 F. (2d) 745, 747 (C. C. A. 8), cert. denied, 308 U. S. 565. 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In structure, the flan was typical of the joint conference schemes which employers were then widely sponsoring.' The essence of the Plan was "equal representation" of management and employees at periodic joint conferences of representatives selected by the employees and an equal number of representatives appointed by the manage- ment. These management and employee representatives constituted a Council "at each plant or in each. Company or territorial subdivi- sion." At all meetings of any Council established under the Plan, the management representatives, regardless of how many were in attendance, were to be entitled to cast as many votes as the employee representatives. Eligibility to serve as elected representatives under the Plan was restricted to employees more than 21 years of age who were American citizens and who had been continuously employed by the respondent for at least one year. Any employee representative who left or was transferred out of the plant or company subdivision which he repre- sented thereby immediately lost his status. Only employees in the plant or company subdivision for which representatives were being elected were eligible to participate in the election, and then only if they were regular employees at least 21 years old. An aggrieved employee was required to present his grievance first to his elected or appointed representative and then, failing settle- ment, to the appropriate Council, which was to "endeavor to adjust the grievance by a majority vote." Appeal from the Council could ,be taken, either by the local management or by the aggrieved em- ployee, to the president of the respondent, whose decision was "final and conclusive." The Plan also provided for review and arbitration, after Council action, of "any question in respect to the standards, as to the maximum hours of labor, minimum rates of pay, and other .conditions of employment affecting the employes over which the Council has jurisdiction." In. addition, the Plan also contained a provision for its amendment or termination only by "a majority vote of all the duly elected Em- ploye Representatives together with a majority vote of all the Man- agement Representatives" of a Council. In any event, the Plan was not to be amended so as to "destroy or limit the equal voting power of the Employe Representatives and the Management Representatives. in the Council." In accordance with the Plan, an election was held by the respondent at its Port Arthur refinery early in July 1933, and a Council consisting of 10 employee representatives and 10 management representatives was immediately thereafter established. At its first meeting on July 7 Following the enactment of-the National Industrial Recovery Act, 48 Stat . 195, and during the period 1933-5, there was a very substantial increase in the number of company unions. See U. S . Dept. of Labor, Bureau of Labor Statistics , Bulletin No . 634, Characteristics of Company Unions, 1935, pp. 28, 50-51 78; Republic Steel Corp . v. N. L. R. B., 107 F . (2d) 472, 474 (C. C. A. 3), cert . granted on other grounds, 309 U. S. 684. See also Daugherty, Labor Problems in American Industry (rev. ed . 1938), 643. THE TEXAS COMPANY 1065 13, 1933, the Port Arthur Council "adopted" the Plan as prepared and presented by the respondent. As provided in the Plan, the Coun- cil at first met quarterly, but in January 1934 it voted to hold regular meetings monthly. The Plan made no provision for membership therein or for the payment of dues by employees who participated in its activities, and accordingly no membership meetings could have been or were held and no clues were collected. Also in accordance with the Plan, an employee representative and a management repre- sentative alternated each half year in the office of chairman and the office of secretary of the Council. Minutes of Council meetings were prepared and approved by the chairman and secretary of the Council; the minutes were kept in the respondent's office, but were available for inspection by Plan Council members at any time. Early in 1936 F. L. Wallace, then assistant general superintendent of the respondent's Port Arthur refinery, discussed at a Council meet- ing the question of creating more interest in the Plan and indicated the desirability, presumably for that purpose, of increasing the number of employee representatives. Thereafter, the 10 zones or divisions into which the respondent's Port Arthur Works had been divided for Plan election purposes were subdivided by the Council into 48 subdivisions or departments; and, at the 1936 election, the respondent's Port Arthur employees- elected, in addition to the usual 10 zone represent- atives or Council members, 45 department representatives who con- stituted what was thereafter known as the Subcouncil. Until 1936 the employee representatives did not meet with each other except in regular Council meetings at which the management representatives were also present.1° Following the 1936 election, how- ever, the zone and department representatives met with each other regularly once a month in the main dining room of the respondent's refinery. Both the zone representatives and the department represent- atives were paid at their regular rates for time spent at these monthly meetings with each other, with a maximum of 2 hours' pay for any single meeting; in addition, the zone representatives were paid for time spent in attending the regular monthly meetings of the Council, itself. The respondent also bore all of the other expenses connected with the administration of the Plan, and provided the election booths and ballot boxes and ballots used in Plan elections and whatever steno- graphic assistance was required. Plan elections were held on com- pany time and property, though the ballots were secret and the re- spondent did not influence the selection of representatives by the 10 This is stipulated by counsel for the respondent , though the minutes of meetings of the Council indicate that the Council voted on July 3 , 1935, for monthly meetings of the employee representatives without the management representatives present . It also appears from these minutes that the employee representatives were to be paid at their regular rates for working time spent in attending these monthly meetings. 1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees. Starting in 1934, the respondent annually gave a day's outing, consisting of a boat trip, a picnic lunch, and refreshments, to all employees who during the preceding year had represented em- ployees for collective bargaining purposes. It is stipulated that repre- sentatives of three American Federation of Labor unions, as well as Plan Council representatives, were invited to, and did, attend these outings during the years 1934-1937. It is also stipulated that these annual outings were discussed at certain Council meetings; and it is evident from the minutes of these meetings that the outings were actually arranged by the respondent with the Plan Council and were regarded as being primarily Plan social affairs. With respect to the accomplishments of the Plan Council, it is stipulated that new and higher minimum rates were established by it' for many employees and that revisions in minimum rates were dis- cussed or approved. at 6 Council meetings between August 1933 and April 1937. It is true that, under the Plan, each Council was "em- powered to determine finally, by majority vote, for the plant or sub- division over which it has jurisdiction, all questions relating to maxi- mum hours of labor, minimum rates of pay, and other conditions of employment and to make agreements in respect thereto." It is also true that minimum rates of pay were discussed at various Council meetings, and that the Council on a number of occasions voted higher rates for individual employees or adopted general schedules of mini- mum rates for the Port Arthur refinery. An examination of the minutes of the Plan Council meetings, however, reveals that these were not the voluntary decisions of an independent organization, based upon consideration of the merits and compromise of conflicting views. These decisions on minimum rates of pay, like most of the action taken by the Council during its existence, were merely a reflec- tion of the respondent's desires and an acceptance of its unilateral determinations as to what should be done. General revisions and schedules of minimum rates of pay were invariably prepared and in- troduced by the respondent. and adopted by the Council as pre- sented." Attempts by employee representatives to have the Council consider general raises in pay or the establishment of fixed rates for given jobs met with a refusal by the management representatives to consider adjustments in rates of pay except on an individual basis. Not once, so far as the record shows, were the review and arbitration provisions of the Plan invoked by either the employee or the manage- ment representatives in order to settle a controversy between them. Action taken by the management on requests presented to the Council through the employee representatives was most often noted in the Council minutes with the comment that it "met with the approval of "This is true of each of the meetings at which , it is stipulated , the Council discussed or approved revisions in minimum rates. With one exception, the minimum rate schedules prepared and presented by the man- - agemcnt were adopted by the Council without change. THE TEXAS COMPANY 1067 the Council", even when such action consisted of rejection of the requests. Indeed, F. L. Wallace, then assistant general superintend- ent of the Port Arthur refinery, flatly advised the Council at its meeting of February 6, 1935, that it had no authority under the Plan to deal with or settle questions of salaries or rates of pay, except in so far as Article III, Section 2 of the Plan empowered it to determine minimum rates of pay. In reality, the Plan Council at the respond- ent's Port Arthur refinery constituted only an advisory council to the respondent and served merely as a means for airing grievances and for creating some semblance of employee participation in the determi- nation of wages, hours; and working conditions. There was and could have been no actual participation of employees in the determination of these questions or in the settlement of grievances, because the Plan provided no opportunity or method for crystallizing the collective sentiment of the respondent's employees or for informing the employee representatives of the desires or needs of their "constituents." The Plan was not only instituted and established by the respondent, but continued, thereafter to operate only with the respondent's con- stant financial aid and outspoken support. The minutes of the Council meetings clearly show that the decisions of the Council were at all times dominated by the respondent and reflected its wishes and policies. Control of the Council by the respondent was assured by the Plan requirement of concurrence by the management representatives ,in any decision or action by the Council and by the provisions effec- tively limiting the method and extent of amendment of the Plan. No substantial changes in the structure or operation of the Plan were made even after passage of the Act in 1935. On July 10, 1935, 5 days after the Act became effective, Wallace at Port Arthur was instructed by telegram from the respondent's New York office that no Plan elections were to be held until further notice, that the respondent would decide within a few days on a "definite policy as result of pas- sage of Wagner bill," that Wallace would then be advised in detail, and that in the meantime he was to keep "this information strictly confidential." On July 18, 1935, after Wallace had in the meantime been furnished by the respondent with a detailed analysis of the Act, he was advised by the New York office that Plan elections could be held by the employees, but that the management was not to assist in any way in the holding of such elections. Other than that, there was no change in the respondent's policy or in its relationship with the Plan and the Council. at the Port Arthur refinery.12 12 The fact that the respondent was able to issue instructions that Plan elections be postponed pending determination by the respondent of its general policy in view of the passage of the Act is, in itself, the strongest kind of evidence of the respondent 's complete domination and control of the Plan . Of similar significance was the respondent 's assumption that even a matter so vitally affecting the Plan as the effect upon its existence of the passage of the Act could be decided by the respondent not only without consulting the em- ployee representatives but with explicit instructions to the respondent 's supervisory personnel that they , were to keep confidential the fact that the respondent was even giving consideration to such a problem. 1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Plan and the Council continued to function at the respondent's Port Arthur refinery until June 1937 with the uninterrupted approval, encouragement,, and material support of the respondent. The final meeting of the Council was held June 2, 1937, when it voted that "the present Council Plan be discontinued." We find that the respondent dominated and interfered with the formation and administration of the Plan and the Council at its Port Arthur refinery and contributed financial and other support to them, both prior and subsequent to the effective date of the Act and until June 1937, and that, by continuing such domination, interference, and support after July 5, 1935, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.13 B. Interference with, domination and support of the Agency 1. Formation and administration of the Agency Late in February of 1937 it was publicly announced that the C. 1. 0. had decided on a general organizing drive in the oil industry to begin April 5, 1937, on the Texas Gulf Coast. News of this decision was featured in the February 20, 1937, issue of the Port Arthur News, the only daily newspaper published in the community.of which the respondent's Port Arthur refinery and employees are part. On Maf ch 18, 1937, General Superintendent Dodge delivered a speech at a Rotary Club luncheon in which he referred to the C. I. 0. "threat" to organize labor in Port Arthur, coupled the C. I. 0. with sit-down strikes, and urged the city's merchants and business men to "line up" against any such activities and to discourage any such movement in Port Arthur. In its issue of April 5, 1937, the Port Arthur News announced in large headlines that the C. 1. 0. had opened its drive to unionize the oil industry, beginning with the workers in the south- west oil fields. On April 12, 1937, the Supreme Court of the United States sus- tained the constitutionality of the Act.14 On April 27, 1937, the re- spondent's manager of manufacturing, Halpern, and its counsel, 0. J. Dorwin, discussed with the Board's Regional Director at Fort Worth,. Texas, the question of whether the respondent should do anything about terminating the operation of the Employe Representation Plan at its various properties. Having been advised by the Regional 13 Activities such as those in which the respondent engaged with respect to the Plan have repeatedly been held to constitute unfair labor practices within the meaning of section 8 (1) and (2) of the Act. N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261 ; N. L. R. B. v. Pacific Greyhound Lines , 303 U. S. 261; N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241; N. L. R. B. v. Fansteel Metallurgical Corp., 306 U. S. 240; N. L. R. B. v. The Falk Corp., 308 U. S. 453; The Texas Company v. N. L. R. B., 112 F. (2d) 744 (C. C. A. 5); Continental Oil Co. v N. L. R. B., 113 F. (2d) 473 (C. C. A. 10); Westinghouse Electric & Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2); N. L. R. B. v. Brown Paper Mill Co., 108 F. (2d) 867 (C. C. A. 5); N. L. R. B. v. Lane Cotton Mills Co., 111 F. (2d) 814 (C. C. A. 5). '4 Jones & Laughlin Steel Corp. v. N. L. R. B., 301 U. S. 1, and companion cases. THE TEXAS COMPANY 1069 Director that he believed nothing need be done co terminate the Plan unless and until its legality was questioned, Halpern and Dorwin returned to a meeting of the respondent's refinery managers . at Beaumont, Texas. The refinery managers, including F. P. Dodge and F. L. Wallace, respectively general superintendent and assistant general superintendent of the respondent's Port Arthur refinery, were informed of the Regional Director's opinion and were advised to discuss the problem at the next meetings of their respective Councils, leaving it up to the employees whether or not to continue the Plan. At the next meeting of the Port Arthur Council, held on May 5, 1937, Wallace raised the question of what, if anything, was to be done by way of continuing, modifying, or terminating the operation of the Plan. He stated that the Plan "is satisfactory under the Wagner Act", but nevertheless discussed the question of its continu- ation or modification. He urged that "some action should be taken by the Employee Representatives in this connection before the election of representatives to be held next month so that the men may work up the election procedure accordingly." He praised the Plan Council and stated that"the main idea is to have proper representation among the men and close contact with them for proper handling of their com- plaints." He then requested comments from the employeere present- atives with respect to the "bargaining agency desired." One employee representative, E. Z. Lavelle, suggested that, while the Plan Council had worked satisfactorily, there had been some objection to having foremen act as members of the Council, and that the Sub- Council "is more truely representative than the Employe Representa- tives." Lavalle therefore suggested that the 10 zone representatives be "abolished" and that the department representatives "meet with the Management for bargaining purposes, using the present Employe Representation Plan with this exception." Wallace expressed approval of Lavelle's suggestions, although. he pointed out that the employees and not the management would have to make any such change and that "the men themselves should agree upon any Plan they desire and put it into effect." Wallace also stated that, while he believed it would be illegal for department representatives to be paid for time spent at meetings with each other, they could be paid for working time spent in meeting with management representatives. Wallace ended by recommending that the employee representatives "discuss this matter further among themselves following the regular meeting in as much as this is their problem and they should decide on what they want." Shortly after the Council meeting of May 5, 1937, C. Otho Bennett, who is employed by the respondent as an engineer and who was a Plan employee representative and secretary of the Council, wrote and sent to each zone and department representative a notice of "a 1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD special meeting of the Employees' Representative Council" to be held in the main dining room at the respondent's plant on May 13, 1937, "for the purpose of determining the proper course of action with regard to the Employee-Management Representation Plan now in effect at Port Arthur Works. At this meeting we shall determine whether or not the present plan shall be continued or shall be dis- continued in favor of a new plan which will be fabricated to more favorably meet the requirements of a bargaining group under the Wagner Act. . . . No compensation will be allowed for Employees attending this meeting."15 Bennett also spoke personally to a number of Plan representatives and asked them to urge other em- ployees to attend the meeting. Pursuant to Bennett's notice, a meeting was held on May 13, 1937, in the main dining room at the respondent's plant. In attendance at the meeting were 29 of the zone and department representatives under the Plan and 10 other employees of the respondent; the 10 additional employees were given no voice in the meeting. Bennett, who acted as chairman of the meeting, explained that its purpose was to "reorganize the present employee-management council plan or to develop a new plan to take its place." Bennett then read excerpts from the minutes of the Plan Council meeting of May 5, 1937, "at which Mr. Wallace expressed his views on the present plan and the advisability of retaining it." There followed some discussion of revising the Plan "so as to conform to Wagner Labor Act" and of whether or not the Plan should be retained, but nothing definite was agreed upon. It was then moved and unanimously carried "that the present plan be abolished." Minutes of the meeting were taken, at Bennett's request, by Claude Bourque, an employee of the respond- ent, though E. G. Hacken.dorff, Jr., secretary of the Plan Sub-Council, was present. Approximately 10 minutes after adjournment of the meeting de- scribed in the preceding paragraph, a second meeting of the same employees of the respondent was convened at the same place. This time, however, the 10 employees present who were not either zone or department representatives under the Plan were permitted to partici- pate fully. Minutes of this meeting were also taken by Claude Bourque and were subsequently written,up by him on a company typewriter, though not on company time. The minutes of the meeting are captioned "Minutes of Meeting Held by Employees of Port Arthur Works to Formulate a New Representation Plan," and what took place at the meeting is of sufficient importance to the present discussion to warrant being set forth in some detail. IS There is no explanation in the record of how Bennett knew that employee representatives attending this meeting would not receive compensation for time spent there. The notice was subscribed "C. Otho Bennett, Chairman", though Bennett was then secretary of the Council ; he had been chairman of the Council during the preceding 6-month period. THE TEXAS COMPANY 1071 The meeting first selected Bennett chairman and E. G. Heckendorff, Jr. vice chairman. Heckendorff is employed by the respondent in its research laboratory and was secretary of the Sub-Council under.the Plan. Bennett explained to the meeting that "This group is organiz- ing temporarily for the purpose of formulating a plan whereby another organization of a more permanent nature could be worked out for the definite purpose of bargaining with the company." He then read to the meeting the "Articles of Federation of the Humble Company's Baytown Refinery Employees Plan." 16 The question of membership in the proposed new organization was then brought up, and Bennett "expressed himself as being opposed to membership." A suggestion that advice be obtained from a representative of the -Board with respect to the "possibilities of revising present plan'.' was voted down, but a committee of seven was appointed by Bennett, pursuant to approval of the meeting, for the purpose of drafting "organization plans without membership to present to this group for adoption at a later date." This committee was to report to the group at a meeting to be held in the respondent's main office dining room on May 18, 1937. Between May 13 and May 18, 1937, the committee thus appointed held two night meetings in the respondent's main dining room. Bennett was present at each of these meetings. Considered during the deliberations of this committee were the Act, the constitution and bylaws of the Employes' Federation of Baytown, Texas, the respond- ent's Employe Representation Plan, and the constitution and bylaws of other organizations not specified in the record. The meetings of the committee resulted in proposed articles of association for the Agency. On May 17, 1937, notice of a meeting to be held the following day was sent by Bennett to approximately 95 employees of the respondent who were regarded as likely to be interested. The list of employees to whom this notice or invitation was sent was compiled by Bennett, at the suggestion of those who attended the second meeting on May 13. The notice opened with the statement that "The present Employee Representation Plan will soon cease to exist at Port Arthur Works." It continued: "We believe that the Employees of Port Arthur Works do not want to be without an organization thru which they can bar- gain with the management regarding working conditions, etc. and we believe that they do not want to do their bargaining through some outside organization. . . . A committee was appointed to draft a plan to be presented before a group of representative employees 17 at the Main Dining Room on Tuesday, May 18, at 7:30 P. M. You 16 There is no explanation in the record of how Bennett obtained these Articles. For a discussion of the nature of the organization in question , see Matter of humble Oil & Refining Company and Oil Workers Inter- national Union, Locals No. 333 and 316, 16 N. L. R. B., 112, set aside in part, Humble Oil & Refining Co. v. N. L. R. B., 113 F. (2d) 85 (C. C. A. 5). 17 As the minutes of the second meeting of May 13 show , it was there voted that the drafting committee present its recommendations or proposals to the same group, not to "a group of representative employees." 1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD, have been selected 18 to represent your department temporarily, until the plan can be worked out and presented to all employees for their approval and until an election can be held establishing a per- manent representative from your department." 10 The notice was subscribed "C. Otho Bennett, Chairman of Organizing Group." Pursuant to the notice, a meeting was held in the respondent's main dining room on May 18, 1937, with 64 employees in attendance. In the course of an opening talk, Bennett, who acted as chairman, explained " that the reason a new organization was needed was because the present plan of representation has been outlawed by the Wagner Act." 20 The proposed constitution or articles drafted by the com- mittee appointed on May 13, 1937, were then read to the meeting and-adopted section by section. Claude Bourque and Frank F. Axtell were then elected secretary and treasurer, respectively, a finance committee and an election committee were elected, and Bennett was authorized to spend approximately $80 for the printing of ballots and other papers. The next meeting of the organizing group, which by this time called itself the Agency, was held on May 27, 1937, in the respondent's main dining room. The procedure to be followed in the forthcoming election of representatives was agreed upon, the election divisions and the: number of representatives for each division were established, and the finance committee reported that a donation list was being circulated. It was decided that the solicitation of donations should be continued. On June 1, 1937, Bennett sent to each of some 58 persons approxi- mately 10 or 15 Agency contribution slips, together with a covering memorandum.21 The memorandum was addressed to "Members of the Temporary Council" and evidenced Bennett's preoccupation with the problem of avoiding any possible accusation of management par- ticipation in the .formation of the Agency. The memorandum in- structed its recipients, in part, to "impress on employees the impor- tance of the organization, non-management participation, difference in cost of this and other organizations, and that we would like to have an average of fifty cents (500) from each employee. . . . Do not forget, we must be able to tell from whom every cent is collected in order to clear our organization of possible criticism from the manage- ment participation angle." I s As we have pointed out above, the selection was made by Bennett. 19 The latter part of this sentence indicates an almost prophetic insight on Bennett 's part as to the action which would be taken by the group engaged in organizing the Agency. 20 So far as the record shows, there had as yet been no unequivocal public statement by the respondent that the Plan was invalid under the Act. 21 Each contribution slip was addressed to "Mr. F. F. Axtell, Temporary Treasurer , The Employees' Collective Bargaining Agency of The Texas Company , Port Arthur W orks" and read as follows: "I am con- tributing herewith $_ _ _ _ _ _, with the understanding that it will be used to defray necessary expenses in connection with the establishment of a permanent Collective Bargaining Agency for the Employees of The Texas Company at Port Arthur works." THE TEXAS COMPANY 1073 The form of Agency contribution slip was written by Bennett, a mimeographed stencil of it was prepared by Bourque 22 outside the respondent's plant, and the slips were mimeographed by Bennett and another employee of the respondent, Drake,23 at the latter's home. Mimeographed copies of the contribution slips were sent by Bennett to the "Temporary Council" members through the respondent's plant mail system in envelopes obtained without the respondent's permission from the engineering department's stationery storage. Among the persons to whom contribution slips were sent was Frederick, who in turn delivered some of the slips during- working hours to another employee of the respondent, S. S. Faircloth. The latter, also during working hours, distributed contribution slips among several other employees and spoke to four or five of them, taking approximately 40 minutes to an hour to do so. Both Frederick and Faircloth were classified at the time as hourly paid first-class carpenters, but both were then acting as gang pushers or strawbosses on a construction project known as Estimate 5500. As two of the three or four gang pushers employed in connection with Estimate 5500, Frederick and Faircloth each had from three to as many as 25 or 30 men under him from time to time, whose work he supervised and directed. After completion of Estimate 5500 in 1937, Frederick was made an area foreman with admittedly supervisory status. Faircloth, at the time of the hearing, was again acting as a gang pusher or straw- boss. Both. Frederick and Faircloth voted in the Agency elections of 1937 and 1938, but were apparently regarded as ineligible to participate in the 1939 elections because, of their supervisory status. We find that Frederick and Faircloth, at the time they participated in the distribution of Agency contribution slips and in the solicitation during working hours of contributions for the Agency, were supervisory employees for whose activities in soliciting and obtaining support for the Agency the respondent is responsible.24 In contrast with this. support of the Agency by supervisory em- ployees of the respondent is the approximately contemporaneous action taken by W. R. Moser, then assistant to the general superin- tendent of the respondent's Port Arthur Works, when he learned that J. W. Reed, an employee of the respondent, had distributed C. I. 0. handbills just outside the plant. Reed testified at the hearing that he and two or three others distributed these handbills several days after June 4, 1937, and that shortly afterwards lie was approached by Moser in the respondent's plant and had an extended conversation with him. Moser indicated to Reed that the latter's activities in 22 Bourque was employed by the respondent as a stenographer in its general office. 22 Drake is employed by the respondent as an engineer's helper. 2a Cf. H. J. Heinz Co. v. N. L. R. B., 110 F . (2d) 843 (C. C. A. 6); International Ass'n. of Machinists v. N. L. R. B., 110 F . (2d) 29 (C. A. D. C.), aff'g, 311 U. S. 72; N. L. R. B. v . American Mfg. Co., 106 F. (2d) 61, 64, 67 (C. C. A. 2), affd., 309 U. S. 629; Virginia Ferry Corp . v. N. L. R. B., 101 F. (2d) 103, 105-6 (C. C. A. 4). 1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD behalf of the C. 1. 0. were regarded by Moser as a sign of dissatisfaction on Reed's part with his employment with the respondent. In response to a question from Reed as to why he did not want the men to join the C. I. 0., Moser replied that it was because of the C. I. O. leadership. Admitting the conversation, Moser explained at the hearing that he spoke to Reed only because he wanted to learn whether Reed was dissatisfied, it being part of Moser's job at that time to adjust em- ployees' complaints and grievances. Moser also testified that, during his conversation with Reed in June 1937, he told Reed that the latter was free to join any labor organization he wished. Accepting Moser's explanation of his motive, we nevertheless believe that it does not detract from the impression which must have been and was conveyed to Reed by the conversation with Moser.2b Moser's remarks made it clear that Reed's activities in behalf of the C. I. 0., as, well as the C. I. O. itself, met with the respondent's disapproval, and we so find.26 On June 2, 1937, the Plan Council held its last meeting. It first disposed of its regular business, which included (1) an announcement by General Superintendent Dodge that "a houseboat party will be given the Council" the following Tuesday, June 8, and (2) an announce- ment by Assistant General Superintendent Wallace that the respond- ent's group life insurance and pension plan for its employees would go into effect on July 1, 1937, if 75 percent or more of the employees subscribed. Dodge discussed the insurance plan in detail, pointing out its advantages and explaining the methods to be used by the Plan representatives in "selling" it to the employees. At the close of the meeting, Bennett, who was then secretary of, the Council, "stated that at the special meeting of Council and Departmental Representa- tives, which was called on May 13th for the purpose of discussing whether or not the present Council should be reorganized or discon- tinued, it was voted that the present plan be discontinued on about June 30th with the idea in mind that the employes would organize an employes' group to take the place of the present Council." . The minutes of ,the meeting disclose that this statement by Bennett was followed by discussion, but the nature of the discussion does not appear. It is admitted, however, that the discussion included a request by Assistant General Superintendent Wallace that the old Plan not be "killed" until the new one was "workable."27 In accord- 76 Certainly Moser's explanation fails to justify his deprecation of C. I. 0. leadership and his admission that he did not want the men to join the C. I. 0. because of its leadership. Neither was relevant, if Moser was interested only in learning whether and why Reed was dissatisfied. %e As to an employer's questioning his employees with respect to their union membership or activities, see e. g., N. L. R. B. v. Botany Worsted Mills, 106 F. (2d) 263, 267-8 (C. C. A. 3); N. L. R. B. v. Hearst, 102 F. (2d) 658, 662 (C. C. A. 9), enf'g, Matter of William Randolph Hearst, et al. and American Newspaper Guild, Seattle Chapter, 2 N. L. R. B. 530, 540ff. 27 Wallace testified at the hearing, apparently in the belief that his participation in determining the fate of the Plan was thereby justified, that he wanted the Plan continued until the new organization was estab- lished because he wanted to continue dealing with the Plan representatives in settling employee grievances. The Act contains no such exception to its prohibition of employer interference with the complete freedom of employees to select and, by the same token, to discard their collective bargaining representatives. THE TEXAS COMPANY 1075 ante with his wishes, the effective date of the termination of the Plan and the Council was postponed, Bennett moving "that the present Council Plan be discontinued upon the date which the new Employe Plan becomes effective." Bennett's motion was unanimously carried, and the meeting was thereupon adjourned. On June 7, 1937, Bennett sent notices to all members of the "Tem- porary Council" of the Agency, announcing a special meeting to be held "in the Main Dining Room at 7:30 PM on Wednesday, June 9th, for the purpose of distributing to the members of the Council printed copies of the Articles of Agreement, and to give out further instructions with respect to the promotion of Plant interest ..." in the Agency. The first election of representatives to the Agency Council was held on June 16, 17, and 18, 1937.$ An election committee of the Agency arranged on its own time for the printing of ballots and handbills, provided the necessary voting booth and ballot boxes, and supervised the election. The voting booth was placed outside the main gate of the respondent's refinery, off its property. Of the five ballot boxes provided by the committee, four were placed in the voting booth and the fifth was placed inside the clock house at the north gate of the respondent's property. The fifth ballot box was so placed, it is stip- ulated, without permission from the management.29 The handbills prepared by the Agency's election committee were distributed by the members of the committee on their own time approximately 5 days before the election was held. The distribution took place outside the main gate of the respondent's refinery and off its property. The handbill itself warrants some attention. It was divided into three parts: (1) a fictitious conversation between two supposed. employees of the respondent, "John" and "Bill"; (2) the names of the employees who had participated in the work of the "temporary organization"; 30 and (3) a list of the election divisions into which the respondent's employees were divided, together with the number of representatives to which each division was entitled. In the course of the fictitious conversation, "John" explained to "Bill" that the old Plan was to be discontinued because of "some question about the company partici- pation part of it"; that "there really wasn't anything wrong" with the 28 The election was originally scheduled to be held on June 16 and 17, but apparently it was subsequently decided to continue the voting for an additional day. The extension of time was announced in handbills which stated that the "election will continue through Friday at the request of groups of employees" and which urged the employees to vote for reasons stated therein. 29 That the respondent did not give its permission does not, of course, mean that it was unaware of what the Agency was doing. In this instance, as in others in which it is stipulated that the Agency's use of com- pany facilities, time, and property was without permission from the management, the nature of the Agency's activity was such that it must have been known to the respondent's supervisory personnel. The absence of any effort on the respondent's part, at least until July 1939, to forbid such Agency activities, and its complete failure to contradict publicly the inference of company approval arising from the Agency's use of company facilities, time, and property, constituted just as effective support as if company approval and permission had been expressly given. 30 Included among the names thus listed was that of S. S. Faircloth. 1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plan, "but it might have been questioned"; that a group of employees had "worked out a new plan that there won't be any question about," viz., the Agency; that the Agency involved no membership and no payment of dues; that funds necessary for the Agency's activities would be raised by way of contributions from the employees; and that it was important for every employee in the plant to participate in the election. With respect to the election itself, it is stipulated, in substance, that the respondent was in no way connected with it, except that some of the ballots were counted on company property, though not on company time. Approximately 59 per cent of the eligible em- ployees at the respondent's Port Arthur refinery voted in the election." Of the 74 representatives to the Agency Council elected in the 1937 election, approximately 30 were former Plan Council or Subcouncil members.32 Twenty-six of these 30 were representatives to the Plan Council or Subcouncil during the election year 1936-37, just preceding the formation of the Agency. Recasting the figures, 7 of the 10 rep- resentatives to the Plan Council during the year just preceding the formation of the Agency-became Agency representatives in June 1937, and approximately 19 of the 44 Plan Subcouncil representatives for the same year also became Agency representatives in June 1937.33 The first meeting of the new Council was held on July 7, 1937. A chairman, vice chairman, secretary, and treasurer were elected. As chairman, the Agency representatives elected C. O. Bennett, who had been a representative to and successively chairman and secretary of the Plan Council and who played so prominent a part in the forma- tion of the Agency.34 A motion "to have the body adopt the bylaws drawn up by the Temporary Organization" was carried. Bennett requested and received "permission to contact the Management, through the medium of a letter, for the purpose of gaining recognition of the Agency." It was. decided "that the Third Wednesday of each month would be the Council's Business Meeting Date, and the First Wednesday of each month, to be the date of meeting with repre- sentatives of the Management." In accordance with the permission granted at the Agency Council meeting of July 7, Bennett wrote to General Superintendent F. P. Dodge on. July 14, 1937, informing him of the formation of the Agency and enclosing a copy of its bylaws. Bennett also included in his 3' In the 1938 Agency election approximately 23 per cent of the eligible employees voted , and in the 1939 Agency election approximately 29 per cent of the eligible employees voted. 32 The number 30 is only approximate because slight differences in the spelling of three names creates some uncertainty as to whether they were duplicated. 33 The necessity for this approximate figure has been explained in the preceding footnote. 31 At the Agency Council's meeting of June 1, 1938, Bennett was reelected chairman of the Council for another year. THE TEXAS COMPANY 1077 letter complete details of the election of Agency representatives 35 and the names of the officers elected at the first Agency Council meeting of July 7. He requested recognition by the respondent of the Agency as "a bargaining agency for those employees desiring to use it as such", and asked that management representatives meet with the Agency Council "on Wednesday, August 4th, at a convenient hour and on the first Wednesday of each month thereafter." Bennett also told Dodge that the next regular business meeting of the Agency Council would _be held on July 21, and suggested that Dodge reply to the letter prior to that date. Dodge replied on July 17, 1937, that "the Management will be glad to meet with representatives of your organization Wednesday, August 4, at 12:30 P. M., in the Dining Room at rear of the Main Office Building." Dodge made no mention in his letter of Bennett's request for recognition of the Agency and for regular monthly meetings, between representatives of the Agency and of the management. On July 21, 1937, the Agency Council held its second meeting, with 38 representatives present. Bennett announced the prospec- tive meeting on August 4 between Council and management repre- sentatives. A finance committee was elected. Bennett then "dis- cussed the method of handling grievances in detail." 36 The Council voted "that the Management be requested to notify Department Heads of the Council Meeting the first Wednesday of each month, giving them the names of Representatives." It also appears from the minutes that four representatives had already submitted griev- ances to foremen, although the Agency had not as yet been formally recognized by the respondent. The Council also voted "that a brief of the minutes of the Meeting with the Management be posted on the Bulletin Board." '5 The letter contained the following tabulated information as to the Agency election: Port Arthur refinery Port Arthur terminal Total Total employees------ ------------------------- 4,647 315 4,962 Employees identified with management __________________ 250 21 271 Absent, sick, or on vacation ---- --------- ----------------- 250 29 279 Total eligible to participate- ------------ ------------------ 4, 147 265 4,412 Total voting in election__________________________________ 2, 450 158 2, 608 Percent of eligible employees voting ---------------------- 59.0% 59.6% 59. 1% There is no explanation in the record of how Bennett obtained such detailed information as to the respondent's employees eligible and able to participate in the Agency election. sa At this point the minutes of the meeting continue as follows: Briefly, the method will be as follows : Grievances will be taken up with Foreman , unless otherwise specified by employes, and every effort will be made to settle with the Foreman. Representative will then, if not successful, either take the matter up through the Council or direct with the Manage- ment. In all cases, however, the grievance will be reported to the Council , together with the action taken. This was substantially the same as the grievance procedure which had been followed tinder the old Plan Council. 323429-42-69 1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 2, 1937, Bennett sent notices to all Council members, reminding them of the forthcoming meeting with the management and giving them other information and instructions of a general. nature. Although the record does not show that Bennett had, 'on August 2, 1937, received any word from Dodge with respect to the Agency's request for regular monthly meetings with the management, Bennett felt free to state in his notice of August 2 to the Council members that, "unless otherwise notified, these meetings will be held on the first Wednesday of each month hereafter at the hour designated above." The first joint conference of management and Agency representa- tives took place as scheduled on August 4, 1937. The first business considered by the joint conference is captioned in the minutes of the meeting as "unfinished business", and consisted of three items which had originally been brought up for consideration by the old Plan Council and which were carried over to the new Council. The first'. of these three items, involving working conditions at the Furfural Refining Unit, was "left open for further consideration. The second, involving a long-standing request that the respondent's employees be permitted to purchase gasoline at a discount, was dis- posed of by a statement by Dodge, the respondent's general super- intendent and one of the three management representatives present, to the effect that "he had written to New York and had a reply whereas New York declined to grant this request at this time." 'It was moved and carried "that item be closed." The third of the three items, involving a request that the driveways in the employee parking sheds be oiled, was . granted. It was announced that seniority lists and information as to employees' rates of pay would be available to Agency representatives. Wallace, another of the three management repre- sentatives present, explained "the new Jury Duty Pay Plan".37 and further stated that Agency representatives would be paid at their regular rates for working time spent in attending meetings. The next meeting of management and Agency representatives was an- nounced for September 1. The organization which thus easily and naturally began functioning in place of the disestablished Plan Council was substantially similar in structure to the organization which it succeeded. The articles of association of the Agency made no provision for membership or for membership dues. Every employee of the respondent at its Port Arthur Works, except "those employees in an administrative capacity 37 This plan had already been announced by the respondent in a notice to employees dated July 31, 1937. Briefly stated , it provided that employees be paid at their regular rates for working time spent in serving on juries. Such pay had first been requested in June 1934 by the employee representatives to the Plan Council. The request was renewed or discussed at subsequent Plan Council meetings during 1936 and 1937 on at least six different occasions, but was rejected by the respondent . At its meeting of May 5, 1937 , the Plan Council voted not to take the matter up again with the respondent 's New York office; and there is no evi- dence that the question was thereafter raised by any employee representative. THE TEXAS. COMPANY 1079 and department foremen and assistant department foremen, or any others so designated from time to time by the council of elected representatives," was eligible to participate in the Agency's activities. Eligible employees -were to. elect representatives, who "shall constitute the governing body" of the Agency, known as the Council. Officers of the Agency were to be elected by the Council from among its members. Election divisions were to be set up, as under the old Plan, for the purpose of election of representatiy es. Eligibility for election as Agency representatives was limited to employees of the respondent employed in the election divisions from which elected, who were citizens of the United States and who had at least 1 year's service with the respondent immediately prior to the election. Any repre- sentative leaving "the service of the Company or the election division" was automatically to lose his status.38 Representatives were to re- ceive complaints and grievances, present them to the proper manage- ment representatives for adjustment, and, if they were not settled, refer them to the Council "for consideration." The Council was given almost unlimited power over the aff airs of the Agency.39 Amendments. to the articles of association had to be approved first by a two-thirds vote of, all members of the Council, and -then by a vote of the employees eligible to participate in the Agency's activities. The respondent's minutes of the first joint conference of manage- ment and Agency representatives on August 4, 1937, state in part that Bennett "advised that Mr. Dodge has-agreed that the Manage- ment representatives would meet with the Council whenever desired by the Council, and stated that it was voted at last regular meeting of the Council on July, 21st that the Management would be requested to'meet with them on the first Wednesday of each month."40 After ae Such restrictions upon eligibility to act as employee representatives have been held indicative of em- ployer domination . N. L. R. B. v. Pacific Greyhound Lines, 303 U. S. 272 ; N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U . S. 261. See N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 101 F. (2d) 841, 850 (C. C. A. 4), mod. and aff'd, 308 U. S. 241; Titan Metal Mfg . Co. v. N. L. R B., 106 F. (2d) 254, 262 (C. C. A. 3), cert . denied, 308 U. S. 615. 89 Article X contained the following provisions as to the powers of the Agency Council: Section 11 . The Council shall have full power and authority for and on behalf of the Employees' Collective Bargaining Agency to negotiate a written agreement with the Company providing a method of discussitln , adjustment , and settling all matters with respect to wages , hours, or working conditions; provided , however, that before executing such an agreement on behalf of the Employees ' Collective Bargaining Agency, the Council shall submit by secret ballot on whether or not such agreement shall be entered into and such agreement shall be so entered into when approved by a majority of the votes of the employees participating in said voting. Section 12 . The Council shall have authority , if any agreement is entered into with the Company in accordance with the provisions of Section 11 of this article , to negotiate , settle, and agree with the Com- pany with respect to any matter referred to.it by the representatives ; provided , however, the Council shall have no power or authority to agree with the Company on any change in said agreement , or as to any general change in wages, hours , or working conditions which affect the whole or a majority of the members, until such proposed changes are approved by a majority of the votes of the employees par- ticipating in said voting. Section 13 . The Council shall have such other powers , duties and authorities as maybe necessary to accomplish the purposes herein set forth. 40 This does not appear in the Council's minutes of the first joint conference . On the question of regular monthly meetings between management and Agency representatives , counsel for the Board and for the respondent stipulated that "members .of the Agency Council have assumed that Respondent 's representa- tives would meet with them regularly once a month and monthly meetings have been held." 1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion, "it was agreed that the Council would meet with. the Management representatives the first Wednesday of each month at 12:30 P. M. at the West Side Cafeteria." ' Thereafter, and until the hearing herein, management and Agency representatives met jointly once each month. The employee repre- sentatives, continuing the practice established under the old Plan, met with each other regularly once a month with the management representatives not present. It is unnecessary to describe in detail what took place at both these series of meetings. We are satisfied from the minutes of these meetings that the Agency, in function, was a replica of the Plan Council which it had supplanted. The joint conferences of Agency and management representatives, like the Plan Council meetings which they succeeded, did not serve as oppor- tunities for genuine collective bargaining by the respondent with the representatives of its employees. Under the Agency, as under the Plan, the periodic meetings between management and employee representatives were only a forum for the discussion of employee grievances and for their disposition in accordance with the respond- ent's views. Like the employee representatives to the old Plan Council, the Agency representatives at their joint conferences with management representatives usually approved or accepted the re- spondent's decisions on problems and requests presented for consider- ation.- ilvianagenient representatives continued their use of joint conferences as opportunities to defend the respondent and its policies toward its employees, to enlarge upon the respondent's generosity, and to praise the Agency and its representatives and accomplishments. Despite the respondent's constant praise and encouragement of the Agency and the joint conferences, and perhaps in part because of the complete lack of general employee participation in Agency activities, interest in the Agency among the respondent's employees was small and was more than once the topic of discussion at Agency Council meetings. This lack of interest extended even to the employee representatives themselves, many of whom did not attend their own monthly discussion meetings. At the Council meeting of March 23, 1938, it was suggested that a general meeting of the respondent's employees he held. The minutes of the meeting state that "it was the consensus of opinion that it would be well to build up interest in the Council proper before at- tempting a mass meeting such as that." At a later time, however, a meeting of the Agency representatives was held, to which. each representative invited and brought a group of fellow employees to observe the Council at work. 41 As appears above, Bennett, on August 2, 1937 , notified his Council members that meetings with manage- ment representatives would be held the first Wednesday of each month at 12 :30 p. m ., though the question was apparently not decided until the joint conference of August 4, 1937. THE TEXAS COMPANY 1081 At the joint conference of management and Agency representatives on June 8, 1938, an employee representative from the Port Arthur Terminal did not hesitate to bring up for discussion a request which had been made to him that a separate bargaining agency be organized for the Terminal employees. This was obviously a matter of internal structure which a bona fide labor organization would determine for itself rather than present to a joint body of employer and employee representatives, to determine. At Bennett's suggestion, the matter was held over for discussion at a following meeting. At the same conference of June 8, 1938, the respondent's works manager, Dodge, read a letter dated May 18 from an anonymous employee requesting that the respondent give its employees a bonus rather than declare extra dividends for its stockholders. Dodge defended the respondent's declaration of dividends to its stockholders, stressed "the numerous benefits now being given to Texas Company employes," and declared that employees ought to keep their shoulders to the wheel instead of asking for more money. At the joint conference held on September 14, 1938, one of the Agency representatives, J. F. McElyea, "inquired as to who the Management is supposed to bargain with when complaints are brought up to them." McElyea explained that he ` raised the question be- cause "at times it appears that when the Representatives bring up items the Management turns around and checks with the foremen and bargains with the foremen and not with the employes." Wallace, in answer, explained that it was necessary to check with the foremen, but that the management did not always adopt the foreman's point of view. He "advised that if the Management feels that the com- plaint is justified ruling is made in favor of the employes, and vice versa." This explanation "met with the approval of the Council." At the joint conference of April 12, 1939, there was extended dis- cussion of a request for a. general increase in rates of pay for all em- ployees at the Port Arthur Works. Dodge asked for a statement by the Agency representatives present of the reasons upon which the request for an increase was based. Several of the representatives stated their reasons, which included an alleged increase in the cost of living, higher rates paid by competitive refineries, and dissatisfaction among the men. One of the representatives, H. E. Turner, stated that the men in his department, the grease plant, felt that the Agency "is not worth a damn," and that the C. I. 0: was worth more to them than the Agency. In answer, Dodge "advised that a lot of good has been accomplished by the Employes" Collective Bargaining Agency," and stated that he "was sorry to hear such a statement made as he did not feel that this represented the men as a whole in the Grease Plant or any other part of the plant." Dodge also pointed to several improvements in working conditions which had been made by the 1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent, and said, "This organization is responsible for that." Another representative, J. S. Fuller, stated that the men in the labor- atory felt "that if the Company would give a small general increase in rate of pay it would have a good effect on the men and the men would have more respect for the Council in thinking that the Council was instrumental in getting them a general increase. [He] Pointed out that such action would offset influence of outside organizations." A third representative, D. R. Harrington, stated that some time before, while trying to get the men in one department to elect a representative to fill a vacancy, in the Agency Council," he was very much embar- rassed by the lack of interest taken in the election and remarks made by the men to the effect that the Council is good for obtaining repairs, et cetera, to Company equipment but not very good in the way of obtaining advantages for the men. Informed that he was interested in the future of the Council and that he hoped it would be successful in winning the respect of the employes by accomplishing worthwhile things for them." In response, finally, to a direct demand by Fuller for a definite answer, Dodge rejected the request for a general increase.41 The upshot of the extended discussion was it vote by.the Council that a copy of the minutes of each Council meeting be given to every rep- resentative, "so that the men can explain to the employes in the plant just what goes on in the meetings, and to prove to the men that the Representatives do attempt to accomplish things for their benefit." In addition, Dodge promised that the respondent would furnish its employees with understandable reports on its business and on the benefits provided by it for its employees. A little later in.the meeting one of the representatives, E. P. Letulle, reported that he had been asked to request two additional ping-pong tables for one of the locker rooms. The request was granted, and "F. P. Dodge advised would give you everything you asked for in reason but no general increase." At a meeting of the Agency representatives on April 27, 1.939, 42 The Council's minutes of this joint conference indicate that Dodge, in the course of rejecting the request for a general wage increase, made statements in part along the following lines: The Management here is interested in the welfare of the employes, but as far as raises are required, it will be done without action on anybody 's part. . . . The investment The Texas Company has for employes' benefits, Vacation Plan, and other things make each employe $5.34 per week . In answer to this general proposition of wage increase, I cannot, and I have not heard any reasons, conscientiously make any i ecommendation for a general increase in wages. I would not make any change in our present program . We felt that increases are warranted for individuals but business conditions will not warrant a general increase , and that is borne out by a survey of general business conditions over the country. I have already pointed out that you men are enjoying higher weekly , higher monthly , and higher annual earnings than any other industrial workers in the country . You have this to take back to the boys. In answer to the matter of the Grease Plant talk of outside influence . Did you know that during the year 1938, Factory Management , in January 1938, published these facts. In the year 1937 strikes over the country lost to the employes , working men who were working , 1,861,000 employes walked out and they lost 38,000,000 days of work . Did labor disputes benefit the working man? I don't think so. [Italics supplied.] THE TEXAS COMPANY 1083 Bennett reported that the Union had filed a charge with. the Board alleging company domination and control of the Agency, and that a representative of the Board had questioned him. Later in the meet- ing there was : "considerable discussion relative to Departmental Clerks being so closely identified with the Management," and the Council voted "that Departmental Clerks in the Maintenance & Construction Division be eliminated from those eligible to participate in the Council." This action by the Council barred nine men from serving further as. Agency representatives. At the joint conference held on June 14, 1939, after the 1939 elec- tion of Agency representatives, "Mr. Dodge was called upon by Chair- man Fuller to make any remarks he cared to and advised that he was glad to see new members in the organization. Expressed the hope that the Council will carry on through the year and obtain considerable good from the meetings. Advised will be glad to cooperate all possible with the Council." From its inception, the Agency made free and continued use of company facilities in carrying on its activities." The preliminary meetings of the group which organized the Agency were held in the main dining room of the respondent's Port Arthur refinery, though without express permission from the management. Later meetings until July 1939 were held on company property with the knowledge of, but without express permission from, the management. The Agency paid no rental for the use of these meeting places and did not reimburse the respondent for any expense incurred by its because of such use. Unknown to the respondent and without its permission, the Agency at times used typewriters, stationery, hectographing machines, and other facilities of the respondent for Agency purposes, and delivered notices of Agency. meetings by attaching them to time cards of the employees at the respondent's Gate Office and also by way of the plant mailing system. It is stipulated that information with respect to such use of company facilities first came to the respondent at a meeting in May 1939 between its representatives and the Board's Regional Director at Forth Worth, at which the Regional Director indicated that continuation of. the Agency's use of company property for meet- ings and of other company. facilities for its business would constitute support by the, respondent of the Agency. While the respondent questioned the Regional Director's views, it nevertheless instructed the Agency early in July 1939 to hold no further meetings on company property, to discontinue the use of company facilities, for Agency business, and not to perform Agency work on company time. No 13 Some mention of this use of company facilities by the Agency has been made incidentally in the pre- ceding discussion. However, we here group together, for the sake of clarity and convenience, all such in- stances of Agency use of company facilities, with no intention of stressing , by repetition alone , any particular instances. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meetings have since been held by the Agency on company property, and Agency use of company facilities has been discontinued.44 The Agency has financed itself by donations obtained from the respondent's employees. These donations have usually been approxi- mately 25 cents per employee, and neither the respondent nor any member of its managment has made any donations. Agency cam- paigns for donations are conducted about once a year, and the total amount thus collected up to the time of the hearing herein was $232.25. Agency expenditures have amounted to $217.75. In accordance with the Working Rules in effect at the various refineries of the respondent, it has been the respondent's practice to pay employees for time spent by them as the representatives of any labor organization in attending meetings with management rep- resentatives. Such payments have been made to representatives of the Oil Workers International Union and of American Federation of Labor unions, as well as to representatives of the Agency and other "independent" labor organizations. 2. The respondent's contentions; conclusions as to the Agency A substantial part of the record relates primarily not to the im- mediate controversy involved in this proceeding but rather to the respondent's general policy toward its employees and their labor organizations and to the nature of the relationship between the respondent and the Oil Workers International Union at plants other than the Port Arthur refinery. The respondent, for example, empha- sizes the extended conference between its representatives and rep- resentatives of the International Union in Chicago during March 1936, the Working Rules which were there formulated, and the adoption of these Working Rules at all the respondent's refineries, including those at which the Oil Workers International Union did not represent or claim to represent the employees. Attention is also directed by the respondent to a second extended conference between representatives of the respondent and of the International Union in Chicago during May 1937, at which the Working Rules formulated the preceding year were reviewed and revised, and to the series of consent elections conducted shortly thereafter at six of the respondent's refineries at which the International Union claimed to be 'the majority collective bargain- ing representative. At the oral argument before the Board on March 21, 1.940, counsel for the respondent again stressed "the general picture of The Texas Company," the fairness of the respondent's relations with the International Union, and its record of dealing with labor organizations of its employees. He referred to the efforts the '4 Some of the details as to the extent to which the Agency used company typewriters and hectographing machines and the plant mailing system, etc., were stipulated at the hearing . Without repeating the details so stipulated , we find that the Agency's use of company property and facilities in furthering its formation and the subsequent administration of its affairs was substantial. THE TEXAS. COMPANY 1085 respondent had made "in informing the supervisory personnel of their obligation. under the Wagner Act"; explained that the respondent has a total of 30,000 employees, of whom 10,000 are in the refining depart- ment; and pleaded "the difficulty of getting policies and principles carried out by the men on the firing line." Finally, he urged the evidence of the respondent's general policies and practices as a basis for our drawing inferences and conclusions favorable to the respondent, even if the record revealed circumstances and events tending to create suspicion of violation of the Act by the respondent. It is to be noted, on the other hand, that the respondent has already thrice been found to have engaged in labor practices condemned by the Act as unfair.45 Ignoring these prior findings, however,, and restricting ourselves to a consideration of the facts in the present record and of the conclusions reasonably to be drawn therefrom, we are not convinced that the respondent's general labor policies and practices have been such as to justify the position taken by the respondent. For example, the Working Rules promulgated by the respondent at its various refineries pursuant to the understandings reached by the respondent and the International Union at the Chicago conferences were only public statements by the respondent of the terms and conditions under which its employees were to be employed for a specified period of time. Though the respondent places sub- stantial reliance upon the "negotiation" and promulgation of these Working Rules as evidence of its good faith in treating with. representa- tives of its employees and in observing the mandate of the Act, we have held on more than one occasion that such unilateral declarations of employment policy, as distinguished from bilaterial written agree- ments mutually enforceable by the parties, fail to comply with one of the major requirements of the Act. We make no finding that pro- mulgation of these Working Rules by the respondent constituted all unfair labor practice within the meaning of the Act, that issue not being before us here, but we do believe and find that their promulgation is not such evidence of bona fide collective bargaining as would serve as a basis for construing otherwise ambiguous events in favor of the respondent. We rest our decision, however, neither upon the prior findings we have made as to the respondent's violations of the Act nor upon any present finding that the respondent's general labor policy and practice have or have not been indicative of a genuine attempt by the respond- ent to comply with the Act. We believe that the facts as to the formation and administration of the Plan and of the Agency at the 4' Matter of The Texas Company and Oil Workers International Union, Locals Nos. 367 and 228, 17 N. L. It. B. 843, enrd, The Texas Company v. N. L. R. B., 112 F. (2d) 744 (C. C. A.5); Matter of The Texas Company, Marine Division and National Maritime Union, Port Arthur Branch, 19 N. I,. R. B., 835; Matter of Citirs .9eroice Oil Company. The Pore Oil Company, and The Texas Company and National Maritime Union of America, C. I. 0., 25 N. L. R. B. 36. 1086 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD respondent's Port Arthur refinery speak without ambiguity , and that these considerations of a general nature which the respondent urges upon us. are therefore unimportant.41 In any event, the respondent's alleged general policy and practice did not extend to the employees at its Port Arthur refinery. It is admitted that the respondent 's dealings with the International Union were not at any time concerned with the respondent 's Port Arthur employees. The Working Rules upon which the respondent places so much emphasis were formulated at conferences in which no person or labor organization purporting or authorized to speak for the Port 'Arthur employees participated . It is true that the Working Rules were, after consideration and revision by the respondent's supervisory personnel, presented to the Plan Council at the Port Arthur refinery in April 1936 , and were there made effective as of May 1 , 1936, after discussion and acceptance by the Council. But this consideration by the Council of the proposed Working Rules was not collective bargain- ing between the respondent and the freely chosen representatives of its Port Arthur employees . As we have found above, the Plan and its Council at the Port Arthur refinery were dominated and supported by the respondent : The adoption of Working Rules, like other important decisions of the Council , was proposed by the respondent, was an integral part of the respondent 's management policies, and was merely another example of the Council's amenability to the respondent's wishes.47 It is stipulated that, for a period of approximately 2 months follow- ing the Supreme Court decisions of April 12, 1937, there was a great deal of public comment as to the legality of employee representation plans and unaffiliated labor organizations ; that the employee repre- sentation plans of some of the large employers in and near Port Arthur were discontinued ; and that newspaper. articles to that effect , and also . 4 Evidence of the manner in which the Port Arthur Plan Council was formed and administered prior to the effective date of the Act is directly related to the question of the Plan Council's status under the Act subsequent to July 5, 1935 . The antecedent events are not an extrinsic aid in the interpretation of subse- quent events which might otherwise be ambiguous in meaning but an organic part of the history of a particu- lar labor organization which existed both prior and subsequent to the passage of the Act . The relevance of this evidence of antecedent events cannot be doubted ; its competence , though questioned , is now settled. On the other hand, the competence of the respondent 's evidence as to its general policies and practices is not questioned by us; we exclude it from our consideration solely because we regard it, under the present circumstances, as irrelevant to a determination of this proceeding . The direct evidence bearing upon the formation and administration of the Plan and the Agency at the respondent 's Port Arthur refinery is not in our opinion ambiguous , and we therefore see neither the necessity nor the relevance of any extrinsic aid in its Interpretation. 4' As the minutes of the Plan Council meeting of April 29 , 1936, indicate, copies of the Working Rules were distributed to the employee representatives in printed form and were then unanimously adopted by the Council. In presenting the Working Rules, F. L. Wallace pointed out "that the Company is offering these Working Rules to the men strictly through its own initiative and not as a result of any influence exerted by any source whatsoever." This was obviously intended to dispel any impression the respondent's Port Arthur employees might have had as to the part played by the International Union in obtaining the Work- ing Rules from the respondent . By the same token, however, it effectively repudicated the inference which the respondent now seeks to create , viz., that the Working Rules adopted at the Port Arthur refinery were the product of genuine collective bargaining between representatives of the respondent and of its employees at Port Arthur. THE TEXAS COMPANY 1087 to the effect that employees were organizing labor organizations affiliated with neither the C. I. O. nor the A. F. of L., came to the attention of many of the respondent's Port Arthur employees. The inference which the respondent apparently wishes to have drawn from these stipulated facts is that the formation of the Agency was a spontaneous movement on the part of its Port Arthur employees, growing out of the Supreme Court decisions and the consequent wide- spread and well-publicized tendency towards replacing invalid em- ployee representation plans with "independent" labor organizations .41 We do not believe that such an inference is justified by,the present record. The initiative in terminating the old Plan 'and in beginning the formation of its successor was taken not by the employees but by the respondent. In. April 1937, following the Supreme Court decisions, the respondent held a meeting of its supervisory personnel obviously for the purpose of determining its policy towards labor organizations in the light of the constitutionality of the Act. At the May 1937 meeting of the Port Arthur Plan Council, it was Assistant General Superintendent Wallace who raised the question of continuance, modification, or termination of the Plan. He at that time indicated his approval of the form of labor organization embodied in the Plan and of the formation of another organization substantially in the image of the Plan. At the June 1937 meeting of the Plan Council, after the employee representatives had in the meantime taken action in accord- ance with' the suggestions made by Wallace at the May meeting, the Council again followed Wallace's advice and voted that the Plan be kept alive until the new organization, which was already under way, became "workable." On these facts, we cannot but find that the im- petus to form the Agency did. not come spontaneously from the re- spondent's employees acting as part of or even in imitation of a general movement towards the formation of such unaffiliated labor organiza- tions, but sprang rather from the suggestions and advice of an execu- tive employee of the respondent whose actions reflected a general policy deliberately fixed by the respondent. The impetus thus fur- nished by therespondent resulted in employee action along lines made easy and natural by the habits formed during some 4 years of oper- ation of the Plan. It was reasonably foreseeable, under the circum- stances then obtaining, that even the slightest encouragement or sug- gestion by the respondent of the advisability of continuing the form of organization embodied in the Plan would result in precisely the kind of employee action which actually followed Wallace's remarks at the May 1937 meeting of the Plan Council. The respondent may not now disclaim all connection with that result. 4 In paragraph "37" of its answer, the respondent alleges "that it was this information, coupled with a desire, purpose and determination not to become affiliated with a nationally organized labor organization, that led Respondent's employees at its Port Arthur Refinery to organize the said Employees Collective Bargaining Agency ..." 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Reference has been made to an earlier decision in which we dis= missed a complaint with respect to activities of the respondent at its Galena Park refinery. The constitution of the Federation at the Galena Park refinery provided for membership therein, for monthly membership meetings, and for initiation fees and regular monthly dues. Adoption of the Federation's constitution was preceded by extensive discussion through the summer of 1937 and until the latter part of September. Only one of the Federation's organizers and subse- quently elected officers and executive council members was a former representative to the Plan Council. Provision was made in the Feder- ation's constitution for strike calls. Shortly after adoption. of its permanent constitution, the Federation presented the respondent with an elaborate proposed agreement recognizing the Federation as. exclusive representative of all the respondent's .nonadministrative employees, and requested a general wage. and. salary increase of 15 per cent. In structure and administration, the Federation differed "substantially" from the Plan and, as we there found, "the few vestiges carried over were not such that employees might reasonably, on that premise alone, identify the two organizations as a direct line of descent." The facts in the present proceeding are sharply different. The effort to replace the Port Arthur Plan Council with a similar organiza- tion which would not have the Plan's obvious illegalities was initiated and. suggested by a major supervisory employee of the .respondent. To a substantial degree, Plan employee representatives composed both the temporary organizing group and the subsequently selected officers and representatives of the Agency.49 The Plan representatives neither resigned their offices nor abandoned the Plan until after forma- tion of the Agency was well under way. The leader and dominant personality in the.formation of the Agency, C. Otho Bennett, regarded it as essentially a continuation of the Plan Council, with only such changes as would confer immunity from attack under the Act. This conception of continuity was given concrete expression in the dupli- cation of Plan and Agency personnel, in the structural similarity of the Plan Council and the Agency joint conferences, and in the un- interrupted assumption by the Agency of the Plan Council's activities. 40 The significance of such duplication of personnel was noted in International Association of Machinists v. N. L. R. B ., 110 F. (2d) 29 (App. D . C.), enf'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America , Local No . 459, 8 N. L. R. B. 621 , cert . granted, 311 U. S. 72, in which the Court of Appeals said: Acme Welfare was acorn pany union. It follows necessarily that its leading promoters were company representatives . Men accustomed to such submission seldom regain independence overnight. The interval, if these was one, required for the transfer of allegiance by Byroad , Fouts , Shock and Bolander from Acme Welfare and the company to I. A. M. was too brief for disruption of the old and basic loyalty. The evidence supports the conclusion that it was not disrupted , but continued , though manifested in less obvious but more effective form . All that they did, therefore , is imputable to the company. THE TEXAS COMPANY 1089 The respondent, itself, made no effort to inform its employees of any demarcation or difference between the Plan and the Agency, or of any change in its established policy of dominating and supporting the organization which purported to speak for the employees in their dealings with the respondent.6' As in the case of the respondent's determination of policy following the passage of the Act in July 1935, its determination of policy following the Supreme Court decisions of April 12, 1937, was accomplished without any notice to.the respond- ent's employees either that such a determination was being made or that it in any way affected the respondent's relationship with its employees. Neither when the Act became law nor when it was sus- tained by the Supreme Court did the respondent advise the general body of its Port Arthur employees that the Plan was invalid, that the, Council was therefore being disestablished, and that the employees were free to form or join any labor organization without interference by the respondent. In May 1937, the respondent's decision was con- veyed only to the members of the Plan Council, which we have found was controlled and dominated by the respondent. Even this state- ment of the respondent's position was made in the most guarded fashion and only in conjunction with fulsome praise of the Plan, and hardly disguised advice as to the form of organization which should replace the Plan. The respondent's initiation of the movement to form the Agency was followed by active participation of supervisory employees in the enlistment of employee interest and the solicitation of financial contri- butions, coupled with discouragement of activities on behalf of the Union. In purpose, in personnel, in structure, and in operation the Agency was essentially a continuation of the Plan and its Council. The most dramatic evidence of this continuity is the manner in which the first joint conference of Agency and management representatives proceeded to consider and dispose of three items of unfinished business carried over from the Plan Council. Inspired by the respondent, aided by the use of company facilities, and molded by the habits of thought and action formed by employees and their "representatives" during the operation of the dominated Plan Council, the Agency became in effect the same joint conference scheme for the handling of grievances which had been the essence of the Plan. As we found with respect to the Brotherhood at the respondent's Port Neches plant, the Agency at the respondent's Port Arthur plant "was a direct 50 With respect to a similar situation , the court in Westinghouse Electric & Mfg . Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2), enf'g Matter of Westinghouse Electric & Manufacturing Company and United Electrical Radio and Machine Workers of America , Local #410, 18 N. L. R. B. 300, stressed the consideration that "the employees at large had not been advised that the company was wholly indifferent whether they joined the new union, and that, as it might , and probably did, appear to be a successor of the old, the separation should have been made plain, and with it the discontinuance of any continued countenance from the employer." 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outgrowth if not a mere transformation of the Plan, bearing the impress of the respondent's domination." 51 We : find that the respondent dominated and interfered with the formation- and. administration of the Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, and contributed support to it, and that the respondent thereby interfered with, restrained;' and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III A and B above, occurring, in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to-'trade, traffic, and commerce among the several States- and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices within the meaning of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designed to dissipate the effects of the unfair labor practices and thereby to effectuate the policies of the Act. !e See Afatter of The Texas Company and Oil Workers International Union, Locals Nos . 367 and 228, 17 N. L. R. B., 843, enPd, The Texas Co. v. N. L. R. B., 112 F. (2d) 744 (C. C. A. 5). Cf. Matter of Republic Steel Corp. and Steel Workers Organizing Committee , 9 N. L. R. B. 219, enPd as mod., Republic Steel Corp. v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), cert. granted, 309 U. S. 684; Matter of H. E. Fletcher Co. and Granite Cutters' International 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, 309 U. S. 678; Matter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. It. 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 Manufacturing Company; Company Union of the American Manufacturing Company; The Collective 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), enfd as mod., 309 U . S. 629; Matter of Continental Oil Company and Oil Workers International Union, 12 N. L. It. B. 789, enfd as mod., Continental Oil Co. v. N. L. R. B., 113 F. (2d) 473 (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, Westinghouse Electric & Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (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. It. B. 809; enf'd as mod., N. L. R. B. v. Swift & 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, enfd N. L. R. B. v. Brown Paper Mill Co., 108 F. (2d) 867 (C. C. A..5); Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No. 300; 7 N.• L. R. B. 269, enfd as mod ., Swift & Co. v. N. L. R. B., 106 F . (2d) 87 (C. C. A. 10); Matter of E. I. du Pont de Nemours & Company, Belle, W. Va. and District 50, Chemical Division, U. M. W. of A., affiliated with the Congress of Industrial Organizations, 24 N. L. It. B. 919; Matter of Phillips Petroleum Company and Oil Workers International Union, Local No. 212, 23 N. L. It. B. 741; Matter of Continental Oil Company, a corporation and Oil Workers International Union, Local 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 Committee (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. THE TEXAS COMPANY 1091 .We have found that the respondent dominated and interfered with the formation and administration of the Plan and the Council at its Port Arthur refinery. Since it appears from the record that operation of the Plan and the Council was discontinued in 1937, we shall , refrain from ordering their disestablishment as collective bargaining represent- ative of the respondent's Port Arthur employees. However, in accordance with out practice in such cases, we shall include in our Order an appropriate cease and desist provision barring any resump- tion or repetition of the unfair labor practices in which we have found that the respondent engaged with respect to the Plan and the Council. We have found that the respondent also dominated and inter- fered with the formation and administration of the Agency and con- tributed support to it. The continued existence of the Agency as a collective bargaining representative, and the respondent's recognition of the Agency as such a representative, would not only make it impos- sible for the respondent's Port Arthur employees to exercise freely the rights guaranteed to them by the Act, but would also tend to negate the remedial effect of the cease and desist provisions of our `Order. To free the respondent's Port Arthur employees of this obstacle to their exercise of the rights guaranteed by the Act and to make the remaining provisions of our Order effective, we shall order the respond- ent to withdraw all recognition from the Agency as the representative of any of the respondent's Port Arthur employees for the purposes of collective bargaining, and to disestablish the Agency as such repre- sentative.52 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 Employe Representation Plan of The Texas Company and its Council at the respondent's Port Arthur Works were a labor organi- zation, within the meaning of Section 2 (5) of the Act. 2. Oil Workers International Union, Locals No. 23 and 254, and Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, are labor organizations, within the meaning of Section 2 (5) of the Act. 3. By dominating and interfering with the administration of Em- ploye Representation Plan of The Texas Company and its Council, at the respondent's Port Arthur Works subsequent to July. 5, 1935, and 59 N. L. R. B. v. 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 Management Company, corporations and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway and Motor Coach Employees of 'America, 1 N. L. R. B. 1; 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 Brotherhood of Locomotive Firemen and Enginemen , 2 N. L. R. B, 431; Newport News Shipbuilding & 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 Com- pany and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L. R. B. 866. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by contributing support thereto, the respondent engaged in' ulifair labor practices, within the meaning of Section 8 (2) of the Act. 4. By dominating and interfering with the formation and adminis- tration„' of Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, and by contributing support to it, the respondent has engaged in. and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. , ORDER Upon the basis of the above findings of fact and conclusions of law; and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ent, The Texas Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from: (a) In any manner dominating or interfering with the administra- tion of Employe Representation Plan of The Texas Company and its Council at the respondent's Port Arthur Works, or the formation or administration of any other labor organization of its employees, and from contributing support to said Plan and Council, or to any, other labor organization of its employees; (b) In any manner dominating or interfering with the administra- tion of Employees Collective Bargaining Agency of The Texas Com- liany, Port Arthur Works, or the formation or administration of any other labor organization of its employees, and from contributing support to Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, or to any other labor organization of its employees; (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. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, as the representa- tive of any of the respondent's employees at its Port Arthur refinery THE TEXAS COMPANY 1093 for the purpose of dealing with the respondent concerning grievances, labor disputes , wages, rates of pay, hours of employment , or conditions of work, and completely disestablish Employees Collective Bargaining Agency of The Texas Company, Port Arthur Works, as such repre- sentative; (b) Post immediately in conspicuous places at its Port Arthur Works, and maintain for a period of at least sixty (60) consecutive clays from the date of posting , notices to its employees stating: (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraphs I (a), (b), and (c) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; (c) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith. 323429-42-70