Quaker State Oil Refining Corp.

National Labor Relations Board - Board Decisions

Nov 12, 1940

27 N.L.R.B. 1321 (N.L.R.B. 1940)

In the Matter Of, QUAKER STATE OIL REFINING CORPORATION and INTER-
NATIONAL BROTHERHOOD OF FIREMEN, OILERS, HELPERS, ROUNDHOUSE,
AND RAILWAY SHOP LABORERS
Case No. C-1663.-Decided November 12,1940
Jurisdiction : oil producing, refining, and distributing industry.
Unfair Labor Practices
In General: employer's responsibility for anti-union statements of supervisory
employees.
Interference, Restraint, and Coercion: anti-union statements.
Discrimination: employee discharged because of his activity and prominence as
a union member and officer.
Remedial Orders : reinstatement and back pay awarded.
Mr. Harry Brownstein, for the Board.
Mr. Charles B. Prichard, of Pittsburgh, Pa., for the respondent.
Mr. Sidney L. Davis, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Firemen, Oilers, Helpers, Roundhouse and Railway
Shop Laborers, herein called the Union,' the National Labor Relations
Board, herein called the Board, by the Regional Director for the Sixth
Region (Pittsburgh, Pennsylvania), issued its complaint dated June
18, 1940, against the Quaker State Oil Refining Corporation, Oil
City, Pennsylvania, herein called the respondent, alleging that the
respondent had engaged iii and was engaging in unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1) and
(3) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. The complaint and accompanying
notice of hearing were duly served upon the respondent and upon the
Union.
' In the charges the Union was incorrectly designated "International Brotherhood of
Firemen and Oilers" The correct name was net forth on the Union's letterhead received
as an exhibit at the healing.
27 N. L. R. B., No. 212.
1321
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concerning the unfair labor practices, the complaint alleged in
substance (1) that the respondent, by its agents, engaged in conver-
sations, the making of statements, and other acts tending to discourage
concerted activities by its employees; (2) that the respondent dis-
charged Richard M. Curran on or about November 6, 1939, because
of his membership and activities in the Union; and (3) that by the
above acts the respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
On June 28, 1940, the respondent filed an answer to the complaint
in which it admitted certain facts concerning the interstate character'
of its business, denied that it had committed the unfair labor practices
alleged in the complaint, and alleged affirmatively that it had dis-
charged Richard M. Curran because he persistently violated an estab-
lished-rule that no employee of the respondent could be regularly in
the employ of another establishment.
Pursuant to the notice, a hearing was held at Smethport, Pennsyl-
vania, on July 1, 2, and 3, 1940, before Tilford E. Dudley, the Trial Ex-
aminer duly designated by the Board. The Board and the respondent
were represented by counsel and participated in the hearing. A repre-
sentative of the Union was present throughout the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the close of the hearing, the Trial Examiner granted, without objec-
tion, motions of counsel for the respondent and counsel for the Board
to amend all pleadings to conform to the evidence adduced at the hear-
ing. During the course of the hearing the Trial Examiner made sev-
eral other rulings on motions and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed. Thereafter the respondent filed a brief and a supple-
mental brief with the Trial Examiner. On August 13, 1940, in accord-
ance with a stipulation entered into between counsel for the respondent
and counsel for the Board, the Trial Examiner issued an order direct-
ing correction of certain typographical errors in the transcript of the
hearing. -
On August 17,1940, the Trial Examiner issued his Intermediate Re-
port, copies of which were duly served upon all the parties. He found
therein that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(1) and (3) and Section 2 (6) and (7) of the Act and recommended
that the respondent cease and desist therefrom and take certain affirm-
ative action remedial of their effect, including reinstatement of Rich-
ard M. Curran, with back pay. The respondent thereafter filed with
QUAKER STATE OIL REFINING CORPORATION 1323
the Board its exceptions to the Intermediate Report and' submitted a
brief in support of such exceptions.
Pursuant to notice, and upon the respondent's request, a hearing was
held before the Board in Washington, D. C., on October 1, 1940, for
-the purpose of oral argument. The respondent appeared by counsel
and presented argument. The Board has considered the exceptions
and brief of the respondent and the argument presented at the hear-
ing before the Board and, in so far as the exceptions are inconsistent
with the findings, conclusions, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Quaker State Oil Refining Corporation, a Delaware corporation
with its principal office and place of business in Oil City, Pennsylvania,
is engaged in producing, refining, and distributing petroleum and its
byproducts. It has plants at Oil City, Farmers Valley, and Emlenton,
.Pennsylvania, and St. Marys, West Virginia. It purchases crude oil,
fuel, supplies, and equipment. Its products consist principally of
refined petroleum products.
This proceeding concerns the Farmers Valley plant. The purchases
in 1939 for this plant amounted to $3,029,206.36, of which 1.8 per cent
were purchased from sources outside Pennsylvania. In 1939 the sales
at this plant totaled $4,627,712.36, of which approximately 80 per cent
were sold and shipped to points outside Pennsylvania. On June' 1,
1940, the respondent employed at the Farmers Valley plant 198 pro-
duction and maintenance employees. The respondent admits that it
is engaged in interstate commerce, within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Firemen, Oilers, Helpers, Round-
house and Railway Shop Laborers, is a labor organization affiliated
with the American Federation of Labor. Local No. 112 thereof
admits,to membership non-supervisory employees at the respondent's
Farmers Valley plant.
III. THE UNFAIR LABOR PRACTICES
A. Background
In September 1933, Guy B. Hunter, the respondent's director of
refinery operations, addressed the employees at the Farmers Valley
1324 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
plant. He said that, the respondent intended to cooperate with the
National Recovery Administration and was, therefore, changing the
work period of 8 hours per day and 56 hours per week to 6 hours per
day and 36 hours per week. Hunter stated that tha respondent did
not want its employees to use the decrease in hours as an excuse for
undertaking additional regular employment - elsewhere. He stated
that refraining from other regular employment was thereafter a con-
dition of employment with the respondent but that this did not apply
to other casual employment. Hunter also stated that, pursuant to,
the National Recovery Act, the employees would be invited to elect
representatives to meet with representatives from the plant to discuss
any problems that the employees might have. Notices were posted,
ballots were distributed, and representatives were elected to meet
with representatives from the management. Such meetings were
thereafter held from time to time.
In September 1939, Joseph A. Wilder, international representative
of the Union, commenced to organize oil workers in McKean County.
On or about September 15, 1939, he held an open meeting, in Brad-
ford, McKean County, Pennsylvania, which was attended by a few
employees from the respondent's Farmers Valley plant.
On September 22, 1939, Wilder called on William H. Rockman,
manager of the Farmers Valley plant, and told him he was going
to organize the refinery and oil field workers in the vicinity. The
two men then "discussed unionism in its various phases." Rockman
expressed no objection to Wilder's activities but referred him to-
Hunter. Within a week Wilder, called on Hunter at the respondent's-
plant in Emlenton, Pennsylvania, and said he was starting to organize
the respondent's employees. Hunter said, "If the men had any use
for his services, that we had no objection."
On' September 29 "The Bradford Union," a newspaper published-
weekly for the Bradford Trades Assembly, affiliated with the Amer-
ican Federation of Labor, carried a front page story with a headline
reading : "Quaker State Recognizes Union-Brotherhood of Fire-
men and Oilers Wins Acceptance of Oil Companies." The- article
stated, inter alia, that "a committee from the Brotherhood was con-
ducting negotiations with the management" of the respondent.
Within the following week, Rockman called a meeting of all the
supervising foremen at the Farmers Valley plant 2 He called their
attention to this article and told them that "the article was not a true
statement of fact; that we accorded Mr. Wilder an interview and had a
general discussion with respect to unions and labor, and it ended by
talking about hunting and fishing and other than that, we had not
2 Healy, pipe=line superintendent, was out in the field at the time However, Rockman
later talked to him individually and to the same general effect. -
QUAKER STATE OIL REFINING CORPORATION 1325
expressed an opinion one way or the other." Rockman testified that
he also stated the respondent did not want them to say anything
against unionization or for it, and that they were to take a strictly
neutral attitude.
At about the same time eight or nine representative leaders of the
respondent's employees from the Farmers Valley plant met at the
home of Employee Merton Bundy to see if they could start a local
unit of the Union. They decided it was feasible to attempt organiza-
tion. Thereupon Local No. 112 was created for the respondent's em-
ployees and other oil woikers in McKean County. It proceeded to
enlist members in the respondent's plant and elected a committee to
draft a contract on working conditions and wages to propose to the
respondent. Wilder telephoned Rockman several times and on October
25, 1939, sent him a letter enclosing a copy of the proposed agreement
and asking him for a conference at which the matter could,be discussed.
Wilder testified that by November 1, 1939, at least 40 of the respond-
ent's employees were union members. On November 6 the respondent
discharged Richard M. Curran. The circumstances surrounding this
discharge are discussed hereinafter in detail. On or about November
20, the Union claimed a majority of the respondent's employees and
sought recognition as exclusive bargaining representative. This was
refused by the respondent, allegedly because it had no proof that the
Union represented a majority of its employees. Thereafter the re-
spondent consented to an election which was conducted by the, Board
on January 30, 1940. One hundred forty-two employees voted for
the Union, 35 against it. The respondent thereupon granted the
Union exclusive recognition.
B. Interference, restraint, and coercion
Employee George E. Olson testified that during the latter part of
September or the first part of October 1939, Field Superintendent
Healy approached him, started a conservation, and asked how the
Union was coming along. In the course of the conversation Healy
asked what the men figured they were going to get by joining the
Union, told Olson he thought the nien probably would be just as far
ahead if they had gotten some local attorney to represent them and
that it would have been a lot cheaper for them, and said it looked to
him as if the boys down at the plant "would be putting out quite a
lot of money and not getting inuch in return for it."
Employee Harry L. Williams testified that on or about November 5,
1939, Healy suggested approximately the same thing to him. He
stated that Healy asked hini how the Union was coining along and
why he wanted to give away $2 to it. Healy said that if they wanted
a union, or "anything," they could get a local attorney to handle it
1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for them, instead of the American Federation of.Labor ; that he did
not see why the employees should put their $2 into the Union and
have it drunk up ; and that he had seen Wilder in a beer parlor treating
everybody in the parlor.
Employee Clair Griffin testified that sometime during October, while
he was working, Healy asked him if he had joined the Union. Griffin
had joined at that time but he told Healy that he had not. Healy
then said that he did not think it would do any of the employees any
good to join the Union, because he did not think the respondent would
grant it recognition. He said the men at the head of the respondent
had made their money in the oil business when it was at a boom; that
they were now, however, operating at a loss for about 8 months 'out
of the year; and that he thought the respondent ,would shut down the
plant before it would recognize the Union. He added that he did not
see how the Union could help the men.
About January 1, 1940, Employee John Orlandi testified he was
wearing his union pin on his coat. Healy asked him where he got it
and Orlandi,replied that he had joined the Union and that he hoped
"we would gain seniority rights." Healy then said there was no such
thing as seniority rights.
Healy was not called as a witness. The Trial Examiner credited
the uncontroverted testimony of Olson, Williams, Griffin, and Orlandi.
We find that Healy made the statements attributed to him above.
On or about October 15, 1939, James McElhatten, the respondent's
plant manager in charge of maintenance, during a conversation with
Employee Herbert E. Watson, said that he had nothing against unions,
but that he did not see how one would operate in a small plant such as
the respondent's; that a union was all right in a larger company or
city but as the respondent's wages became high, the respondent, with
the limited equipment that it had, could get a lot of its work done
more cheaply by outside contractors.
On or about November 1, 1939, McElhatten called Employee Maurice
Huth over to the cracking machine and asked him to cut the good ends
off some tubes, in order that these good ends might be welded on new
tubes and thus saved for future use. Huth asked if they would do the
welding there at the shop. McElhatten replied that before the Union
came in they would have, but that they intended to send them away
for welding now that the Union had come into the plant, and that in
the future they would let out to contractors such work as they could
let out. McElhatten testified that he did not remember the conversa-
tion but that actually the Key Company, which supplied the tubes and
did the welding, would not permit the respondent to do the welding
because the respondent did not have the proper method of annealing.
The Trial Examiner accepted McElhatten's testimony that the tubes
v
QUAKER STATE OIL REFINING CORPORATION 1327
had to be welded by the Key Company because of the process involved,
but credited Huth's testimony of the conversation. We find that
McElhatten made the statement related by Huth.
The respondent takes the position that Healy and McElhatten were
friendly with the employees, that the statements attributed to them
were made during casual conversations, and that the record does not
indicate that these conversations had any effect on the employees'
membership in or loyalty to the Union. Nevertheless, the tenor of their
statements was clearly anti-union. Healy and McElhatten were high
supervisors and, so far as their subordinates knew, purported to state
the respondent's policies and views with respect to the Union. We find
that Healy,and 1/IcEliiatten are supervisory employees for whose state-
ments herein the respondent is chargeable.3
We find that by the statements of Healy and McElhatten, above set
forth, the respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed to them in Section 7
of the Act.
With respect to certain statements made in'November 1939 and
February 1940, by Foreman O. C. Smith, and overheard by Employee
Orlandi, the Trial Examiner found that, under the circumstances of
the case, such statements did not constitute unfair labor practices. We
concur in this finding.
C. The discharge of Richard M. Curran
(1) Curran's union activities
Richard M. Curran was first employed in the Farmers Valley plant
in March 1927 as a laborer. After 2 weeks at 45 cents an hour he was
promoted to the position of operator of the centrifuge machine at
62i/2 cents per hour. Two years later he became a stillman's helper,
and in about 1933 the respondent promoted him to the position of
stillman. He joined the Union in the early part of October 1939 and
became vice president thereof on October 27. He was discharged on
November 6, 1939, for an alleged violation of a rule of the respond-
ent's prohibiting regular employment elsewhere.
In 1933 Curran was elected as a representative of the employees
in the above-described Employees Representation Plan. The manage-
ment's representatives were Hunter, Rockman, Ebner, and perhaps
3 As noted above, during the early part of October 1939, the respondent notified its
supervisory employees to take a strictly neutral attitude with respect to the Union.
It is plain ,.however , that these instructions were not followed by Healy and DlcElhatlen,
nor did the respondent "take effective means to stop repeated violations of the Act."
Swift and Company v. National Labor Relations Board , 106 F. (2d) 87, 93 (C C A. 10)
See also, A . S. Abell Co. v. National Labor Relations Board , 97 F. (2d) 951, 956
(C. C. A. 4). 1
1328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Megivern and Healy. This committee met six or seven times the first
year and continued in existence for about 3 years, when it was
disbanded.
Curran testified that soon after September 29, 1939, he and Rockman
met each other as they were leaving the plant. Mention was made
of the above-described article that had appeared in "The Bradford
Union" on September 29. Rockman remarked that the article was not
true, stated that he did not know Wilder or anything about him, and
added: "You know how some of these men are that come in and
form a union; they are just a racket and walk out with all the money
the boys pay in." Curran replied : "I am not in touch with it and I
know nothing about it. I don't know whether it is a good thing for
the men or not." Rockman suggested that Curran tell the boys to go
a little slow until they found out more about the Union. Curran
replied that he would do what he could to find out about it, that he
expected to meet Wilder, and that if the boys did form a union, he
would join it with them. Rockman admitted conversing that day
with Curran about the plant "being unionized" but denied saying
that unions were a racket or that Curran told him that if the boys
formed a union he would join it with them. We find that the conversa-
tion occurred between Rockman and Curran as testified by the latter.
Soon thereafter certain men with whom Curran R*orked in the re-
finery asked him to attend the meeting held in Bundy's house and to'
represent them there. He did so. Besides himself, Bundy, Wilder,
and six or seven other employees were present. They, discussed or-
ganizing the- employees at the respondent's plant. Curran later
attended an open meeting of the Union in Bradford, Pennsylvania.
Curran joined the Union in October 1939. The Union was then a
common topic of conversation both in the plant and outside. Many
employees came to Curran for advice, remembering his earlier repre-
sentation of them under the Employees Representation Plan and
having confidence in his judgment. Curran told other employees it
would be a good idea to form the Union. He cited benefits obtained
by other Unions in the form of better working conditions, pay for
overtime, and increased wages. He estimated that he talked to 45 or
50 employees and advised them to join.
Curran was selected by five stillmen and their five helpers to repre-
sent them on the committee which drafted the-Union's proposed con-
tract covering wages and working conditions. He attended every
meeting held by the committee. The contract thus prepared was sub-
mitted to the respondent on October 25.
On October 27 the Union had a meeting in Bradford. Curran was
not present, but some 70 or 80 employees of various leases and refineries,
including the respondent's, were there. In the course of the selec-
QUAKER STATE OIL REFINING CORPORATION 1329
t ion of temporary officers a number of the men asked Wilder, who
was serving as general adviser, if it was possible to elect someone
who was not present. Upon receiving an affirmative reply, several
.of them shouted they wanted Curran for vice president. Bundy,
another of the respondent's employees and an oil field worker not in
the respondent's employ,' were selected to be secretary-treasurer and
president, respectively. The minutes of the Union indicated that
Curran was, appointed vice president by Wilder on October 27.
Rockman testified he did not know of Curran's connections with
the Unioii when he discharged him 10 days later; that he did not
know definitely Curran was even a member of the Union until Wilder
so informed him at a later date. This does not seem likely. Smeth-
port was a small town where news traveled quickly and easily. Rock-
man himself testified that when the Union started to organize "there
was general discussion around the town, in a small community that
naturally would go on, discussions around the town, and discussions
around the plant." He further said : , "I believe everybody in the
community knew" that there was a great deal of activity going on ;
it was a general topic of conversation and was reported in the local
newspapers. Rockman further knew, of course, about Curran's prom-
inent part in the former Employees Representation Plan, about the
confidence other employees had in him, and that "he was interested
in those matters." Similarly, he testified that lie remembered hear-
ing Bundy and another employee being named ,as men prominent in
the Union. Curran was even more prominent-than these men; being
vice president, he was the leader of the respondent's employees in
the Union. In addition, the record shows many instances in which
Rockman learned what the employees were doing, both in union and
non-union affairs, merely because of the talk of the community and of,
common acquaintances. We find that at the time of Curran's dis-
charge, Rockman knew Curran was a prominent member of the Union
and active'in its affairs.
(2) Curran's alleged violation of the rule
Sometime in-the summer of 1936 Curran's friend, Walter A. Bren-
neman, decided to open a tap room in connection with his restaurant
located in Smethport. He needed someone to help him tend the bar
and asked Curran if he would "help him out." Curran replied that
he would.
Soon thereafter Curran met Rockman on the street; he told him
that Brenneman was opening a tap room in his restaurant and had
asked him to help out as a bartender. Curran asked if it would be
all right for him to do extra work of this nature, provided it did not
interfere with his work at the refinery. Rockman said it would be all
323428-42-85
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right for Curran to help out temporarily ; that he did not see that it
was any different from painting a house or cutting a lawn or doing
work of that character. Soon thereafter, Rockman spoke to Curran
at the refinery and said : '-Dick, about that conversation the other day,
'I won't give you my permission, but you go ahead just as if you
had not spoken to me, and if anything comes up, I will call you in the
office and we will have a little talk about it."
Curran accordingly began work in the tap room on August 1, 1936.
He thereafter worked 6 days a week, from 7 to- 9 hours per day, in
addition to working at the refinery. For his work as bartender he
was paid 35 cents per hour. Rockman testified. that about a year
later, in the first part of September 1937, he heard "in the plant and
around town that Mr. Curran was working regularly on two jobs";
that he spoke to Curran and called his attention to the plant regula-
tions regarding outside regular employment; that Curran said he
understood- and, while he would like to have the extra money, he
wanted to hold his refinery job.
On -September 10, 1937, the respondent posted the following notice
at-its Farmers Valley plant : 4
To all employees :
We wish to call your attention to the established policy of the
company not to employ or continue in its employ anyone who is
regularly working in another establishment. The existing_ un-
employment and social conditions make it necessary and desirable
that this policy be strictly followed.
Curran thereupon discussed this notice with Brenneman. They
both agreed that Curran had better stop working in the tap room in
order to be sure that there was not trouble about retaining his job at
the refinery. On September 18, 1937, Curran terminated his work
at the tap room.
Curran denied having the conversation in September 1937, with
Rockman about his job in the tap room and claimed that he quit
because of the notice posted September 10, 1937. The Trial Exam-
iner found that both Curran and Rockman appeared to be honest
witnesses and that he believed that Curran forgot this particular con-
versation. We concur in the findings of the Trial Examiner.
During the rest of 1937 and during 1938, Curran worked in the
tap room occasionally, for possibly 2 or 3 hours at a time, during
busy periods. Early in 1939 he started working there for special
events as on Saturday nights, and at other times when the regular
employees were too busy to handle all the customers.
4 The notice remained posted for about 6 weeks. It was then taken down and later
reposted on November 6, 1939, the date of Curran' s discharge.
QUAKER STATE OIL REFINING CORPORATION 1331
On September 16, 1939, one of the regular bartenders quit Brenne-
man's employ without giving any advance notice. Brenneman there-
upon asked Curran "if be-could help me out a few times now and
then until I found somebody." Curran thereafter worked in the tap
room from 3 to 5 hours a day for about 6 days a week. His hours of
employment were irregular; he was there only when not engaged in
the refinery and whenever he had nothing else to do. For this he
received 35 cents per hour. For his work in the tap room during
September, Curran received $30 which would be the pay for 85.71
hours of work during that month. In October he earned $33.78 for
96.51 hours of work. For the first week in November he received
$5 for 14.28 hours of work.
On Tuesday, October 31, 1939, Field Superintendent Healy and
Employee Daughtery reported, separately, to Rockman that they had
heard complaints made the night before by one Earl Chase about the
respondent's allowing Curran to work at the plant and also at the tap
room. Rockman thereupon called in his assistant, Megivern, who was
also 'the office manager, and asked him to check up on the report.
Rockman himself had to leave the city that evening on a 3-day
business trip.
Megivern then ate lunch in Brenneman's restaurant during noon-
time from Tuesday through Friday. Each time he walked back into
the tap room to see if Curran was "behind the bar with an apron and
a coat and serving drinks." He found Curran so occupied on three
out of the four noon periods. On Friday afternoon, Rockman re-
turned to his office and asked Megivern for his report. Megivern then
told Rockman of his investigation.
On the following Monday, November 6, 1939, Rockman asked the
plant superintendent, Carl Anderson, to bring Curran into the office.
Megivern was also called in. Rockman read the notice posted on
September 10, 1937, and said he understood Curran was again working
regularly at the tap room. Curran said he had not been working there
regularly but he had worked there steadily for the last 2 months be-
cause Brenneman's regular bartender had quit without notice and he
was helping him _out until he was able to get another. Rockman re-
plied : "Well, it is taking him a long time to get another bartender."
This Curran admitted. He said however, that Brenneman had had
quite a few bartenders that were not satisfactory and he wanted to be
sure that he got someone that was good. Rockman said he thought
this was regular employment. Curran then said : "I don't [but] I
will admit I did wrong in breaking the rule, but I saw other people
working outside of the plant and I didn't see why I couldn't too."
Rockman then referred to his conversation with Curran 2 years pre-
viously, in September 1937, when Rockman had called Curran's atteh-
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to the regulation prohibiting outside employ. Curran said he
did not remember the conversation. He admitted, however, that he
had quit the job previously because of the notice that was then posted:
Rockman said : "I don't post these rules for the fun of it . . . If you
don't abide by the rules, you will be discharged." Curran replied:
" WW'e11, if you feel that way about it, I will do no outside work." There
vas more discussion. Curran was asked to leave the room; Rockman.
Megivern, and Anderson discussed the-case among themselves. Cur-
ran was then recalled and told he was discharged because of the rule
against regular outside employment.
(3) Conclusions as to the cause of Curran's discharge
Rockman testified that when Hunter announced the ruling, "he em-
phasized steady outside employment",as being the kind of work pro-
hibited. He admitted this did not cover occasional jobs and that
respondent gave a liberal construction to the rule. Thus, in 1934,
when Employee Thornton got a job drilling a well and worked 13
days, thereupon, Rockman and Anderson drove out to his place of
work and told him he could not work on two jobs; that he would have
to quit one or the other. At-that time Thornton was almost through
with the job, having only 1 more day's work. After receiving the
warning, he worked the balance of that day, and also the next day,
and thus finished the job. He was not discharged for this.
In the spring of 1936 Employee Clinton L Oviatt's wife started a
grocery business. Oviatt helped her to the extent of running errands,
waiting on some customers and emptying rubbish. In June 1936, he
bought a,sedan delivery truck and painted : " M. C. Oviatt (xrocery" on
its side. Oviatt and his family used the truck foi pleasui e and to mile
,deliveries for the store. Oviatt also drove the truck to his place of
work at the refinery. He was never reprimanded in any way for his
participation in the grocery business.
Employee George E. Olson lives with his sister and his aged father
on the latter's farm near Smethport. Seven years ago Olson started
to run the farm; 5 years ago he started a dairy business there which he
still operates. He has two employees in the dairy; lie, himself, helps
with the chores and works during emergencies and rush seasons such
as harvest time, most of his work, however, is to oversee the other
men. The profits of the dairy belong to him. He has never been
reprimanded for his ownership and operation of the dairy. Rock-
man testified that he did not know that Olson was running the dairy
business separately, but after listening to Olson's testimony at the
hearing he-nevertheless believed that such work was not a violation
of the rule against regular employment elsewhere.
QUAKER STATE OIL REFINING CORPORATION 1333
Paul Montgomery, a teacher in the local high school, was know-
ingly employed by the respondent "for several summers at about the
time in question . . . during vacations." Anthony Dougal, another
teacher in the public schools, worked for the respondent "part of one
summer" sometime between 1934 and 1936. When inquiry was made
about Employee Lunn's doing mechanical work in a garage operated
by his neighbor for "a couple of hours each day," Rockman told
Lunn that it was like helping a neighbor fix a porch and "was not
considered a steady job." He said Lunn could work there for 2 or
3 days more and then he should quit. Likewise when Foreman Smith
was doing some outside work, he was sent to see Rockman who told
him he would have to quit the other job or leave the refinery.
From these and other similar instances described at the hearing, we
conclude: (1) That the re,,pondent tries to enforce its rule against
outside employment; (2) that it interprets the rule liberally; and
(3) that in case of a suspected violation, it calls in the employee
involved, asks him about his outside work, and gives him a chance
to complete the job in which he is engaged and then to cease the
outside work in order to retain his employment with the respondent.
Rockman testified that the first time an employee violates- a rule
of the respondent's, especially "if it is a matter of misunderstanding,
like with Mr. Curran, we talk it over" With the employee. Thus,
when Employee Olson failed to report for work without giving no-
tice, Rockman reprimanded him and "told him he could not consider
a second violation." Likewise, in cases of carelessness or negligence,
lack of interest in the -work, or pumping a tank over, the employee
is given a warning on the first infraction. Rockmau testified : "We
give the man the benefit of the doubt on the first occasion and talk it
over with him, a warning. We talk constructively and analyze why
it was pumped over."
Rockman further testified that the usual penalty for a second
offense "where it is a'definite infraction of a plant rule," was a week's
lay-off. Thus, when Employee Olson failed to report for work
without giving notice, was reprimanded, and then repeated the R=io- .
lation, he was given a week's lay-oft as a penalty. This penalty has
likewise been levied in cases of carelessness or negligence, lack of
interest in the work, or pumping a tank over. Never has a more
Severe penalty been imposed.
Rockman said at the hearing that he gave Curran his warning after
his first infraction in September 1937; that the outside work in the
fall of 1939 constituted the second violation; and that if he had not
then discharged him, it would have been "detrimental to the com-
pany's control" because it would have meant giving everybody in the
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant another chance when the question of infraction of the respond-
ent's rules arose.
This explanation does not seem reasonable under the circumstances.
The warning, if such it was, of 1937, was so indefinite that Curran did
not remember it. In any event, whatever question existed at that
time was solved when Curran gave up the outside work. The inci-
dent was thus closed and more than 2 years passed by. The situation
of 1939 was clearly different from that of 1937 in that the,outside
work was less than half time and was clearly temporary. Whether
it constituted a violation of the respondent's rules was a question
that could be decided only by the respondent. We believe that if the
respondent had treated Curran like its other employees in similar
circumstances, Rockman would have called Curran in, inquired as to
the nature of his outside work, decided whether it constituted a
violation of the rule, and, if it did, offered Curran his choice of
employment in the refinery or on the outside. As it was, the re-
spondent made no offer at all; when Curran made the offer by saying
he was willing to give up his outside work entirely in order to keep
his job at the refinery, the respondent rejected it by dismissing him.
Even on the basis of Rockman's explanation that this was Curran's
second offense, he would not have been summarily discharged. In-
stead, he would have been laid off for 1 week, just as Olson and other
employees were for their second violations. Curran's infraction was
less injurious to the respondent and more uncertain in character than
those mentioned by Rockman. If different treatment were to be
accorded Curran, one would have expected a lighter penalty rather
than a more severe one. The explanation .of Curran's discharge,
therefore, does- not lie in his alleged violation of the respondent's
rule against regular outside employment.
When, on October 31, 1939, the question as to Curran's alleged
violation of the rule arose, only 6 days had passed since the respondent
had received the proposed contract drawn by Curran and his com-
mittee and the Union's request for formal negotiation. Only 4 days
had elapsed since Curran had been made vice president of the Union
and had thus been indicated as the principal union leader among the
respondent's employees. Curran testified that in September or Octo-
ber 1939, while he was wearing his white bartender's coat, he spoke to
Rockman who was eating in the restaurant and, during this same
period, Rockman's assistant, Megivern, and Maintenance Manager
McElhatten also saw him working in the tap room,but said nothing to
him about it. Rockman himself admitted that lie had eaten in Bren-
neman's restaurant several times a month during 1938 and 1939' and
that he may have seen Curran working there on one or two occasions,
QUAKER STATE OIL REFINING CORPORATION 1335
though he stated that-if he had seen him he would not have associated
this with regular employment. Nevertheless, no attempt was made to
ascertain the character of Curran's employment until a few days after
he became vice president of the Union. We believe and find that,
because of his activity and prominence as a union member and officer,
the respondent treated Curran differently from other employees in-
volved in similar situations and discharged him instead of allowing
him to cease his outside employment and retain his position with the
respondent.5 We find that the respondent thus discriminated against
Curran in regard to his hire and tenure of employment and thereby
discouraged membership in the Union and interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
- At the time of his discharge by the respondent, Curran was earning
about $33 per week. Since his discharge he has been working reg-
ularly at Brenneman 's tap room at a salary of $22 per week and meals.
He has expressed a desire to return to work for the respondent.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent, set forth in Section III
above, occurring in connection with the operations of the respondent
described in Section I above, have a close, intimate and substantial
relation to-trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce'
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom, and to
take certain affirmative action which we deem necessary to effectuate
the policies of the Act.
We have found that the respondent, by discharging Richard M.
Curran, discriminated against him in regard to his hire and tenure
of employment. We shall order the respondent to reinstate Curran
to his former or substantially equivalent position without prejudice to
his seniority and other rights and privileges, and to make him whole
for any loss of pay he may have suffered by reason of the discrimina-
tion against him, by the payment to him of a sum of money equal to
the amount he would normally have earned as wages from the date
See Matter of Kelly-Springfield Tire Company and United Rubber Workers of America,
Local No. 26, et al., 6 N L. R . B 325, 342; Matter of Titmus Optical Company and Optical -
Workers Union , Local No. 20682, 9 N. L. R B 1026, 1036
1336 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD
of the discrimination against him until the date of the offer of rein-
statement to him, less his net earnings 6 during such period.
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. International Brotherhood of Firemen, Oilers, Helpers, Round-
house and Railway Shop Laborers, Local No. 112, is a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of elhploy-
ment of Richard M. Curran, thereby discouraging membership in In-
ternational Brotherhood of Firemen, Oilers, Helpers, Roundhouse
and Railway Shop Laborers, Local No. 112,-the respondent has en-
gaged in and is engaging in an unfair labor practice, within the mean-
ing of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. 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, Quaker State Oil Refining Corporation, and its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in' International Brotherhood of
Firemen, Oilers, Helpers, Roundhouse and Railway Shop Laborers,
Local No. 112, or any other labor organization. of its -employees, by
discharging or refusing to reinstate any of its employees, or in any
other manner discriminating against them in regard to their hire or
' By "net earnings " Is meant earnings less expenses , such as for transportation, room,
and board, incurred by an employee in connection- with obtaining w, ork and working else.
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union , Local 2590 , 8 N L. R . B. 440 . Monies
received for work performed upon Federal , State, county, municipal, or other work -relief
projects are not considered as earnings , but shall be deducted from the sum due the
employee, and the amount thereof shall be paid over to the appropriate fiscal agency of
the Federal , State, county , municipal , or other government or governments which supplied
the funds for said work-relief projects.
QUAKER STATE OIL REFINING CORPORATION 1337
tenure of employment or any terms or conditions of their employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join or assist labor organizations, to bargain collectively through rep-
resentatives of their' own choosing, and to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual- aid or
protection, as guaranteed in Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Richard M. Curran immediate and full reinstatement
to his former or substantially equivalent position, without prejudice
to his seniority and other rights and privileges;
(b) Make whole Richard M. Curran for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to his
hire and tenure of employment, by payment to him of a sum of money
equal to that which he would normally have earned as wages from
the date of such discrimination against him to the date of the offer
of reinstatement, less his net earnings 7 during such period; deduct-
ing, however, from the amount otherwise due to him monies received
by said employee during said period for work performed upon Federal,
State, county, municipal, and other work-relief projects; and pay over
the amount so deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Post immediately in conspicuous places throughout its Farmers
Valley plant, and maintain for a period of at least sixty (60) consecu-
tive days from the date of posting, notices to its employees stating :
(1) that the respondent will not engage in the conduct described in
paragraphs 1 (a) and (b) of this Order; (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a) and (b) of
this Order; and (3) that the respondent's employees are free to become
or remain members of the International Brotherhood of Firemen,
Oilers, Helpers, Roundhouse and Railway Shop Laborers, Local No.
112, and that the respondent will not discriminate against any employee
because of membership or activity in that organization ;
(d) Notify the Regional Director for the Sixth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply herewith.
° See footnote 6