R. J. Oil & Refining Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1954

108 N.L.R.B. 641 (N.L.R.B. 1954)

R. J. OIL & REFINING CO., INC. 641
WE WILL NOT discourage membership in International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , Local Union NO. 310, AFL, or any
other labor organization of our employees , by discriminating in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees in the
exercise of their right to self-organization , to form , join, or assist International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local Union
NO. 310, AFL, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from any or all
of such activities , except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the National Labor Relations Act.
WE WILL offer to Kenneth L. Van Horn , E. W. Richins, Jr., and John Cox immediate
and full reinstatement to their former or substantially equivalent positions , without prej-
udice to any seniority or other rights and privileges previously enjoyed , and make them
whole for any loss of pay suffered as a result of discrimination against them.
All of our employees are free to become or remain members of the above-named union or
any other labor organization. We will not discriminate against any employee because of
membership in or activity on behalf of any such labor organization.
TEXAS INDEPENDENT OIL COMPANY, INC,
Employer.
Dated ................ By.................. .. ........ ..... .................................... ...
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be altered,
defaced, or covered by any other material.
R. J. OIL & REFINING CO., INC. and OIL WORKERS INTER-
NATIONAL UNION, CIO and DISTRICT 50, UNITED CON-
STRUCTION WORKERS OF AMERICA, AND ITS LOCAL
13695, affiliated with UNITED MINE WORKERS OF AMERICA,
Party to the Contract. Case No. 35-CA-293. April 30, 1954
DECISION AND ORDER
On June 29, 1953, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
He also found that the Respondent had not engaged in certain
other alleged unfair practices and recommended the dismissal
of those allegations. Thereafter, the Respondent, District 50,
the General Counsel, and the charging Union filed exceptions to
the Intermediate Report, with supporting briefs.
The Board has reviewed the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, exceptions, briefs,
108 NLRB No. 103.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the entire record in the case , and, to the extent not
inconsistent with the findings and conclusions made below
hereby adopts the Trial Examiner ' s findings , conclusions,
and recommendations.
1. A principal allegation of the complaint in this case is
that the Respondent refused to bargain with the Union following
its certification as majority representative , and that suchcon-
duct breached the obligation imposed upon the Respondent by
the statute . The Trial Examiner so found, and we agree.
As set forth in greater detail in the Intermediate Report, on
April 16, 1951, the Union was certified by the Board as the
statutory bargaining representative of the Respondent's pro-
duction and maintenance employees . A week later , it requested
a meeting with the Respondent to negotiate a collective -bargain-
ing agreement , and meetings were held on May 16, June 4,
and July 11, but the parties were unable to-reach agreement
on a complete contract . The Union then voted to strike for a
contract . During the strike, which began on July 17, the re-
finery manager and superintendent , Fuller, told the Union's
local employee committee that the Respondent ' s president,
Smith, would not meet "while we was on strike . He could not
meet until we went to work ." The Union abandoned the strike
on July 27 and the employees returned to work . The parties
met again on October 2, 1951 , and January 18 and February 5,
1952, when negotiations were finally broken off with no agree-
ment reached.
On February 9, the Union again struck , because it was
unable to reach a satisfactory agreement with respect to the
discharge of employees Sollman and Chandler . By letter
dated March 20, 1952, a union representative requested a
conference with the Respondent for the purpose of settling
the disputed issues in order to reopen the plant and to return
the strikers to the payroll . The next day Smith replied,
acknowledging receipt of the request and stating, "It is my
policy not to meet and discuss any issues in dispute while the
plant is involved in a strike . . . . I want you clearly to under-
stand that I do not intend to meet with you or any Union repre-
sentative and discuss any issues involved as long as the Plant
is on strike ." Four days later the Union reiterated its desire
to meet with the Respondent at any time . Although the strike
continued until June 23, the parties have not met in any other
bargaining session.
The Trial Examiner correctly found that the refusal to meet
with the Union during the July 1951 strike was a direct
violation of Section 8 (a) (5) of the Act. Established Board and
court precedent hold that a refusal to meet and bargain with
the certified representative of employees during a strike
violates the Act.' Similarly, the Respondent ' s unequivocal
1 West Fork Cut Glass Company, 90 NLRB 944, enforced 188 F 2d 474 (C. A. 4); Old Town
Shoe Company , 91 NLRB 240 ; N. L. R B. v. United States Cold Storage Corp ., 203 F 2d
924 (C . A 5), enforcing 96 NLRB 1108, cert, denied 346 U S. 818.
R. J. OIL & REFINING CO., INC. 643
rejection of the Union's direct request in March 1952 to dis-
cuss ways and means for settling that strike was also an unlaw-
ful rejection of the veryprinciple of collective bargaining which
the Act makes mandatory . As the circuit court said in
N. L. R, B. v. Reed and Prince Manufacturing Company, 118F.
2d 874 , 885 (C. A. I.), cert. denied 313 U. S. 595, "If in the
presence of a strike an employer could avoid the obligation to
bargain by declaring further efforts to be useless , the Act
would largely fail of its purpose."
In further support of the broad refusal -to-bargain allegation,
the General Counsel also urged certain other aspects of the
meetings that did take place , either as separate violations of
the Act or at least as further indicia of the Respondent's
unlawful resolve not to bargain with the Union in good faith.
The Trial Examiner considered all of these subsidiary alle-
gations and discoursed on each of them at great length. On
some of these allegations his conclusions are clearly wrong.,2
He found , for example , that the Respondent refused to open its
books for inspection by the Union and thereby committed a
totally independent unfair labor practice . The record shows
instead, and we find , that the union representatives never
demanded inspection of the company records; indeed the
parties eventually agreed amicably on wage increases with
examination of the books never becoming an issue between
them. Further , the Trial Examiner erroneously construed
certain earlier Boai°d decisions as holding that the mere
shifting of positions during bargaining by an employer isomer
se an unfair labor practice . Regardless of whether hasty or
unreasonable withdrawals of specific concessions painstakingly
achieved indicate bad faith in bargaining in a particular con-
text, it does not follow that a party to collective bargaining is,
in all contexts , rigidly bound to each and every tentative
decision reached.
With respect to certain other aspects of the Respondent's
actions during the period of negotiations - e.g., the Respondent's
abrupt termination of all negotiations on February 5, 1952,
and its opposition to nonemployee members on the Union's
bargaining committee - the Trial Examiner may have held
2 Member Murdock does not agree that the Trial Examiner was "clearly wrong" on the
two allegations mentioned in this paragraph . Contrary to the finding that the union represent-
atives never demanded inspection of the company records, the record shows that President
Smith offered to permit Freeman to examine Respondent ' s books to substantiate its claimed
inability to give a wage increase . The Union accepted the offer but understandably asked to
have its accountant make the inspection rather than Freeman , who was a production worker
without knowledge of books. The Respondent refused to permit this. With respect to the other
allegation - shifting positions during bargaining - Member Murdock is not convinced from
reading the Intermediate Report that the Trial Examiner intended to or did make a finding
that this conduct was per se a violation. The Intermediate Report is clear that the Trial
Examiner found this conduct an indicia of bad faith. It is not clear that he found anything
beyond that. Member Murdock agrees with his colleagus however that in view of the clear
refusal to bargain during the strikes which requires an 8 (a) ( 5) order, it is not necessary
to discuss or pass upon other 8 (a) (5) issues either individually or as related to overall
bad faith.
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
correctly, on the entire record, that the Respondent thereby
revealed an intention to defeat its employees' attempt to
bargain collectively. Unlike the Trial Examiner, however,
we deem it unnecessary to pass upon each and every one of the
many detailed items urged by the General Counsel as proof of
the unlawful refusal to bargain. Neither our ultimate con-
clusions nor our remedial order herein would be altered by
such further consideration. The Respondent's unlawful refusal
to bargain , as alleged in the complaint, is amply proved by
its outright refusal to recognize and deal with the Union during
both the 1951 and 1952 strikes.
The Respondent now contends that its refusal to bargain
during the strike was justified because an impasse in the
bargaining had been reached by the parties before each of the
strikes. Significantly, however, its refusal of the Union's
requests for conferences at those times was not explained
on this ground. Moreover, the record does not support the
assertion that bargaining had reached an impasse. While one of
the parties may have indicated very strongly its insistence
on a particular item or two of the conflicting proposals, it
does not follow that continued discussion of such items or
the many others involved might not have led the parties to an
eventual settlement of the entire disagreement between them.
The Respondent's reliance upon certain earlier Board decisions
is misplaced. In contrast to the Respondent's refusal to meet
until each of the strikes was called off, the employer in
Purity Biscuit Company 3 merely postponed discussion of other
issues until disposition of the major issue separating the
parties, upon which negotiations had temporarily hit a snag.
And in the United States Cold Storage case, supra, the Board,
basing its order to bargain upon the employer's refusal to
meet during a strike, said, "What seemed a rigidity of bar-
gaining positions before strike action, afterward might very
well have become a model of flexible compromise." The
circuit court, in enforcing the Board's order, agreed that an
impasse, if any, had been broken by the strike itself. Accord-
ingly, we find, like the Trial Examiner, that the Respondent
violated Section 8 (a) (5) and (1) of the Act.
2. For the reasons set forth in the Intermediate Report,
we agree with the Trial Examiner that Herschel Sollman was
discharged for sleeping on the job and not because of his union
activities. However, unlike the Trial Examiner, we reach the
same conclusion as to Henry Chandler, and shall also dismiss
the complaint as to him.
According to the testimony of Superintendent Fuller, at
3 o'clock in the morning of February 8, 1952, he received a
telephone call at his home from an unknown truckdriver, who
complained that he was unable to find any employees at the
plant to sign a receipt for a load of oil. Fuller then called the
313 NLRB 917 (1939).
R. J. OIL & REFINING CO., INC. 645
refinery twice but no one answered , despite the fact that the
telephone was connected to a large clanging bell out in the
open. Working at the refinery at that time (on the 11 p. m.
to the 7. a. m. shift ) were Sollman , the pumper ; Chandler,
the still operator ; and Ferguson , the boiler fireman. Fuller,
gravely concerned, then called Office Manager Rebone, picked
him up at his home a half mile away, and drove to the refinery
31- miles away , arriving at 3:15 or 3:20 a. m. - 20 minutes
later. Fuller and Rebone, according to their mutually cor-
roborative testimony , looked through the window of the dressing
room and saw Sollman stretched out on the bench asleep.
They heard him snoring. They walked about 50 feet to the
control room, where they found Chandler asleep in a chair
in front of the control board. They checked the board and
determined that there was no emergency. They did not stop
to awaken Chandler , but went at once to the boilerroom, and
determined that there was no emergency there. Unlike Sollman
and Chandler , Ferguson was awake and was reading a magazine.
Fuller ordered Ferguson to awaken Chandler in the control
room vile he, with Rebone, went to the dressing room, put
on the lights, and shouted "Get up, Soll." Fuller and Rebone
then completed a quick trip around the refinery, and left
when they found everything in good order and saw Sollman
and Chandler up and around.
Verner Ferguson , a disinterested witness, testified that
Fuller, after calling him out of the boilerroom, told him
that "Soil is here asleep and Chandler is in the control room
asleep. Go wake up Chandler." Ferguson added that instead
of doing so immediately, he first checked the boilers because
he "didn't want to see anything" and wanted to "give them a
chance"; that 3 or 4 minutes later, he went to the control
room and told Chandler, who was then awake, that Fuller had
ordered Ferguson to awaken him.
Chandler testified as follows : "I was doing my regular tour
of duty, and about three-twenty that morning Vernor Ferguson
came to the control room where I was, and wanted to know if
I saw Mr. Fuller out there, and I said no, I didn't. He said
'Well, they [Fuller and Rebone] came over to the boiler house
and told me to go over and wake you up' . I said well, I
didn't see them, I didn't know they were out there, so I went
ahead with the work until about seven o'clock that morning."
When Chandler finished work, Fuller called him to his office
and discharged him for being asleep on the job. At that time,
according to Fuller, Chandler admitted dozing. According to
Chandler, however, he replied that he had not been asleep.
We agree with the Trial Examiner that the issue as to
Chandler's discharge is one of credibility and that the reso-
lution of credibility depends not so much on Chandler's as on
Fuller's testimony. However, unlike the Trial Examiner, we
see no reason to discredit Fuller ' s testimony that he and
Rebone found Chandler asleep at his post, or to resolve credi-
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility in favor of Chandler . In discrediting Fuller , the Trial
Examiner relied in part upon Fuller ' s penchant for having
witnesses to actions he felt compelled to take against employees
under his supervision for derelictions of duty, and upon his
failure to awaken Chandler immediately . We do not deem these
reasons sufficient to discredit Fuller ' s testimony that Chandler
was asleep . A penchant for having witnesses does not neces-
sarily indicate that Fuller was not credible , but rather that
he was cautious and careful . Further , the fact that Rebone
corroborated him strengthens Fuller ' s testimony . Nor do we
believe that Fuller acted unreasonably in first checking on the
safety of the refinery , before awakening Chandler. On the
contrary , it seems to us that, as safety was of immediate
concern, prudence and good judgment would dictate that Fuller
check on refinery operations in the first instance before stop-
ping to awaken and perhaps disciplining Chandler - an action
that could be taken at any time later . In fact , Fuller also
acted in the same manner with respect to Sollman , who the
Trial Examiner found was properly discharged at the same
time as Chandler for having been asleep on the job . We also
note that Fuller and Rebone left the refinery only after they
had inspected the refinery and had observed Chandler and
Sollman up and around . In these circumstances , we do not
agree that Fuller ' s penchant for witnesses and his failure
to awaken Chandler immediately afford a sufficient basis to
discredit his and Rebone's testimony that they saw Chandler
asleep.
Moreover , the Trial Examiner ignores the fact that the
testimony of Ferguson , and indeed of Chandler himself, tends
to support the claim of Fuller and Rebone, that they found
Chandler asleep on the job . 4 Ferguson admitted that Fuller
told him that Chandler was asleep in the control room and
instructed him to awaken Chandler. If Chandler had not, in
fact , been found asleep by Fuller and Rebone , why would
they have instructed Ferguson to awaken the sleeping Chandler?
To disbelieve them, as the Trial Examiner would have us do,
would require the unreasonable inference that Fuller and
Rebone had fabricated their entire story out whole cloth.
Such an inference we are not prepared to and cannot make.
Further , it is significant that when Ferguson went to the control
room and told Chandler about Fuller ' s instructions to awaken
him, Chandler did not deny sleeping or make any reference
thereto but only admitted that he had not seen Fuller. In our
opinion, Chandler ' s failure to deny sleeping when talking to
Ferguson and his admission that he had not seen Fuller are
4 The credited testimony of Sollman also tends to support the general credibility of Fuller
and Rebone . Although the Trial Examiner credited Sollman 's denial that he was asleep, he
nevertheless found, upon Sollman 's admission , that he was in a reclining position and that
Fuller was justified in concluding that Sollman was asleep.
R. J. OIL & REFINING CO., INC. 647
consistent with Fuller's story that Chandler was asleep
in the control room. If Chandler had been awake and on his
regular tour of duty, he certainly would have replied to Ferguson
that he had not been sleeping , and he would have been aware
of the presence of his superiors at the refinery as both Ferguson
and Sollman were. Finally , it is highly unlikely that Fuller and
Rebone would have inspected the refinery and spoken to
Ferguson and Sollman without, at the same time , going into
the control room to check upon Chandler , the only other
employee on duty at the plant at that time.
In these circumstances , and upon what we deem a clear
preponderance of the evidence on the entire record , we reject
the Trial Examiner's credibility resolution in favor of
Chandler.5 We find that both Fuller and Rebone testified
credibly; and that Chandler , like Sollman , was asleep on the
job. Even assuming , as the Trial Examiner believed, that
Fuller - when he left home in the middle of the night - hoped
to discover a good reason to rid himself of union adherents,
we are not prepared to say, in view of the clear and present
danger resulting to the refinery from employees sleeping on the
job, that Chandler' s and Sollman's sleeping was only a pretext
for their discharges . On the contrary , the record clearly shows
and we find that they were discharged for sleeping on the job,
a ground that would warrant the discharge of any employee
whether prounion or antiunion .6 Accordingly, we shall dismiss
the complaint insofar as it alleges that the Respondent discrim -
inated against Chandler and Sollman.
3. We find no evidentiary support for the Trial Examiner's
finding that the strike of February 9, 1952 , was originally
caused by unfair labor practices of the Respondent , but we do
agree that it was converted into an unfair labor practice
strike on March 21, 1952, when the Respondent unlawfully
refused to meet with the Union.
As the Trial Examiner reported , a strike vote was taken
after the employees had considered the discharges of Sollman
and Chandler and the breakdown of negotiations . Apparently
on this fact alone, he concluded that the strike was caused by
the Respondent ' s earlier improper conduct . However, the
record shows clearly that the strike was precipitated only by
the refusal of the Respondent to reemploy Sollman and Chandler,
and not by any conduct of the Respondent which was violative
of the Act. According to Hill , a credited witness , the employees
voted to strike if the Union was unable to reach a "satisfactory
agreement" with Respondent as to "taking the fellows [Chandler
and Sollman ] back." We have found , however , that the Re-
spondent acted entirely within its rights in discharging Chandler
5 Standard Dry Wall Products Inc., 91 NLRB 544, enforced 188 F . 2d 363 (C. A. 3).
6 West Texas Utilities Company, Inc., 94 NLRB 1638 , enforced 195 F . 2d 519 (C. A. 5);
Lloyd A Fry Roofing Company, 84 NLRB 1222.
648 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
and Sollman. Accordingly,, as the strike of February 9, 1952,
was originally caused by the failure to settle to the satisfaction
of the Union the discharges of Sollman and Chandler, we find
that it was economic in its inception. However, in accord with
well-established precedent, we also find that the strike was
prolonged, and thereby converted into an unfair labor practice
strike, by the Respondent's refusal to meet with the Union on
and after March 21, 1952, conduct which we have hereinabove
found to violate Section 8 (a) (5) and (1) of the Act.7
4. Because it caused the concerted activities of the em-
ployees to become an unfair labor practice strike on March 21,
1952, the Respondent at that time forfeited the right permanently
to replace the strikers and came under an obligation to reinstate
them to their former or substantially equivalent positions upon
their unconditional request for reinstatement.' Like the Trial
Examiner , we find that Ray Jacquemai, Joseph J. English,
Richard Sloan, Robert Lee Roney, John Osborne, and Amos
Hill were unfair labor practice strikers when they uncondi-
tionally requested reinstatement on September 9, 1952. We
further find that, at that time, the Respondent discriminatorily
refused to reinstate them.
Thereafter, at different times in November and December
1952, the Respondent offered to reinstate each of these
employees to their former or substantially equivalent
positions.' However, the Trial Examiner found that 2 of the 6
employees, Osborne and Hill, are now entitled to a further
offer of reinstatement despite the previous offers made to
them. We disagree . We find that the Respondent, by offering
to reinstate Osborne to his former or substantially equivalent
position, has fulfilled its legal obligation as to reinstatement
and has, therefore, tolled its back-pay liability. Accordingly,
contrary to the Trial Examiner, we find that Osborne is
not entitled to a further offer of reinstatement and is entitled
to back pay in the amount that he normally would have earned
from September 9, 1952, only to December 18, 1952, the date
of Respondent's offer of reinstatement.
As to Hill, pursuant to Respondent's offer, he went back to
work on November 20, 1952. Although not given his former
position of operator, Hill was assigned to the maintenance
crew with his full pay and seniority. Superintendent Fuller
explained that this assignment was temporary until new work
7 Knickerbocker Plastic Co., Inc., 104 NLRB 514; Spitzer Motor Sales, Inc., 102 NLRB
437; N. L. R. B. v, Stilley Plywood Co., Inc., 199 F. 2d 319 (C. A. 4), enforcing as modified
94 NLRB 932. See Old Town Shoe Company, supra, where the economic strike was converted
into an unfair labor practice strike by refusal to meet during the strike.
8Prior to March 21, the Respondent had the right to replace permanently any of the economic
strikers in order to continue to operate its business. N L. R. B. v. Mackay Radio & Telegraph
Co., 304 U. S. 333. Therefore, the Respondent is under no legal obligation to dismiss any
such replacements in order to reinstate any strikers.
9Jacquemai, December 3, 1952; English, November 3, 1952; Sloan, November 23, 1952;
Roney, November 12, 1952; Osborne, December 18, 1952; and Hill, November 20, 1952.
R. J. OIL & REFINING CO., INC. 649
schedules could be figured out. Hill worked approximately 3
or 4 days and again asked Fuller for his old job. Fuller
suggested that Hill continue the maintenance job and that,
in the future, he would be placed in charge of some maintenance
men. Fuller further stated that he could not return Hill to
his old job at that time because the other employees would
strike. Hill thought over Fuller' s suggestion for a day and
then wrote the Respondent that he would not report back to
work unless he were reinstated to his old position of operator.
Hill has not worked for the Respondent since that time.
The Trial Examiner found that the Respondent, by reemploy-
ing Hill at a different and "less desirable" job, had not
satisfied its legal obligation to fully reinstate Hill, and that
it had not carried out its offer in good faith. Except for Hill's
personal preferences, the record does not support the Trial
Examiner's finding that the maintenance job was "less de-
sirable." Under these circumstances, and upon the entire
record, we find, contrary to the Trial Examiner, that the
Respondent did carry out its offer in good faith and thus
properly fulfilled its legal obligation to Hill. Accordingly, we
shall not order Hill' s reinstatement and we shall toll his
back pay on November 20, the day he returned to the Respond-
ent's employ.
As for Jacquemai, English, Sloan, and Roney, we agree with
the Trial Examiner that they are not entitled to a further offer
of reinstatement, and are entitled to back pay from September 9,
1952, only to the date of the Respondent's offer to each of
them.
5. We agree with the Trial Examiner that the Respondent
independently violated Section 8 (a) (1) of the Act. However,
our agreement in this respect is limited to the December
1951 conversation between employee Herber Zimmerman,
a union member, and Truck Foreman Robert Smith. 10 At
that time, Smith told Zimmerman to tear up his union card
and get out from under the Union. Smith then took his bill-
fold out of his pocket, and with it in his hand, said "I am
the fellow that could do you some good." We agree with the
Trial Examiner that, by these statements of Foreman Smith,
the Respondent violated Section 8 (a) (1) of the Act because
they clearly carried with them apromise of benefit to Zimmer-
man if he would abandon the Union.
w We find that the conversation between Fuller and employee Joseph J. English, occurring
sometime between April 6 and June 8, 1951, neither contained a threat of reprisal nor
amounted to interrogation in violation of the Act. Further, we note that the conversation
of January 1951 between Osborne and Truck Foreman Smith occurred more than 6 months
before the filing of the original charge in this proceeding. In these circumstances, we
reverse the Trial Examiner's findings of violations of Section 8 (a) (1) of the Act in these
respects. Member Murdock, however, would affirm the 8 (a) (1) finding on Superintendent
Fuller's statement to English, believing that an employer's statement that he knew who
had voted for and against the Union in an election, and knew the employee voted for the
Union, has a coercive effect, suggesting surveillance and implying reprisal.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent , R. J. Oil & Refining Co., Inc., Princeton , Indiana,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil Workers Inter-
national Union, CIO, as the exclusive representative of all the
production and maintenance employees , including truckdrivers,
employed at the Respondent ' s refinery at Princeton , Indiana,
but excluding office and clerical employees , gaugers, pro-
fessional employees , chemists, guards , the dispatcher, and
other supervisors as defined in the Act.
(b) Discouraging membership in Oil Workers International
Union, CIO, or in any other labor organization of its employees,
by refusing to reinstate to their former or substantially
equivalent positions any of its employees , or in any other
manner discriminating in regard to their hire or tenure of
employment , or any term or condition of employment.
(c) Performing or giving effect to its contract of June 14,
1952, with District 50, United Construction Workers of America,
and its Local 13695, affiliated with United Mine Workers of
America, or to any modification , extension , supplement, or
renewal thereof or to any superseding agreement with said
labor organizations affecting any of the aforesaid employees
relating to grievances , labor disputes , wages, rates of pay,
hours of employment , and other conditions of employment,
unless and until said labor organizations shall have been
certified by the Board.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
Oil Workers International Union , CIO, or any other labor
organization , to bargain collectively through - representatives
of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(a) Upon request , bargain collectively with Oil Workers In-
ternational Union , CIO, as the exclusive representative
of the employees in the above described appropriate
unit, and e mbody in a signed agreement any under-
standing reached.
(b) Make whole Ray Jacquemai, Joseph J. English , Richard
Sloan, Robert Lee Roney, Amos Hill, and John Osborne for
any loss of earnings they may have suffered by reason of the
R. J. OIL & REFINING CO., INC. 651
Respondent's discrimination against them by the payment to
each of them of a sum of money equal to the amount which he
normally would have earned as wages from September 9, 1952,
until the date set opposite the name of them in the manner
provided in section of the Intermediate Report entitled "The
Remedy":
Ray Jacquemai December 3, 1952
Joseph J. English November 3, 1952
Richard Sloan November 23, 1952
Robert Lee Roney November 12, 1952
John Osborne December 18, 1952
Amos Hill November 20, 1952
(c) Withdraw and withhold all recognition from District 50,
United Construction Workers of America, and its Local 13695,
affiliated with United Mine Workers of America, as the
collective -bargaining representative of any of the employees in
the aforesaid unit, unless and until certified by the Board.
(d) Upon request make available to the National Labor Rela-
tions Board or its agents, for examination or copying, all pay-
roll records, social-security payment records, timecards,
personnel records and reports, and all other records necessary
for a determination of the amounts of back pay due under the
terms of this Order.'
(e) Post at its plant near Princeton, Indiana, copies of the
notice attached hereto and marked "Appendix A."" Copies of
said notice, to be furnished by the Regional Director for the
Ninth Region, shall, after being signed by Respondent's duly
authorized representative, be posted by it immediately upon
receipt thereof and maintained by it for sixty (60) consecutive
days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Ninth Region, in
writing, within ten (10) days from the date of this Order,
what steps the Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint , insofar as
it alleges that the Respondent has discriminated against
Herschel Sollman, Billy Frank Scott, and Henry Chandler,
be, and it hereby is, dismissed.
Member Beeson took no part in the consideration of the
above Decision and Order.
n In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of a United States Court of Appeals, Enforcing an Order."
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board and in order to effectuate the policies of the
National Labor Relations Act, we hereby notify our employees
that :
WE WILL bargain collectively , upon request, with
Oil Workers International Union , CIO, as the exclusive
representative of all employees in the bargaining unit
described herein and, if an understanding is reached,
embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees including
truckdrivers employed at our Princeton , Indiana,
refinery , but excluding office and clerical employees,
gaugers, professional employees , chemists, guards,
the dispatcher , and supervisors as defined in the
Act.
WE WILL withdraw and withhold all recognition from
District 50, United Construction Workers of America, and
its Local 13695, affiliated with United Mine Workers of
America, as the representative of any employees in the
aforesaid unit, unless and until certified by the National
Labor Relations Board.
WE WILL cease performing or giving effect to our
contract of June 14, 1952, with said labor organizations
or to any modification, extension , supplement, or renewal
thereof, or to any superseding agreement affecting any of
our employees relating grievances , labor disputes,
wages, rates of pay, hours of employment, or other con-
ditions of employment, unless and until certified by the
National Labor Relations Board.
WE WILL make whole the following named employees
for any loss of pay suffered as a result of discrimination
against them:
Ray Jacquemai
Joseph J. English
Richard Sloan
Robert Lee Roney
John Osborne
Amos Hill
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of the
R. J. OIL & REFINING CO., INC. 653
right to self-organization , to form labor organizations,
to join or assist Oil Workers International Union, CIO,
or any other labor organization , to bargain collectively
through representatives of their own choosing and to
engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to refrain
from any and all such activities except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain members
of Oil Workers International Union, CIO, or any other labor
organization . We will not discriminate in regard to hire or
tenure of employment or any term or condition of employment
because of membership in or activity on behalf of any labor
organization.
R. J. OIL & REFINING CO., INC.,
Employer.
Dated ........... By ................ ... .... .
(Representative ) (Title)
This notice must remain posted for sixty ( 60) days from the
date hereof, and must not be altered , defaced , or covered by
any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon an original and amended charges filed by Oil Workers International Union, C. I. 0.,
herein called the Union, beginning on August 30. 1951, and orf various dates thereafter the
General Counsel for the National Labor Relations Board, i by the Regional Director of the
Ninth Region (Cincinnati, Ohio), issued a complaint and amended complaint dated August 15
and September 16, 1952, respectively, alleging that R. J. Oil & Refining Co., Inc., hereinafter
called Respondent, had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1), (2), (3), and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, as amended (61 Stat. 136), herein referred to as the Act.
Copies of the complaints, the charges, and notices of hearing were duly served upon the
Respondent, the Union, and District 50, United Construction Workers of America, and its
Local 13695, affiliated with United Mine Workers of America, party to the contract, herein
referred to as District 50.
With respect to the unfair labor practices, the complaint as amended alleges in substance
that the Respondent, commencing on or about April 23, 1951, and at all times thereafter,
through and by its agents did refuse and fail and is now refusing and failing to bargain
collectively with the Oil Workers, as the exclusive and certified bargaining representative
of its employees in a unit found appropriate by the Board, by refusing to meet with the Oil
Workers at reasonable times and confer in good faith with respect to wages, hours, and other
terms and conditions of employment, although requested so to do by the Oil Workers, com-
i The General Counsel and the staff attorney appearing for him at the hearing are herein
referred to as the General Counsel; the National Labor Relations Board is referred to as
the Board.
654 DECISIONS OF NATIONAL LABOR RELATIONS
mencing on or about February 9, 1952 , and at all times thereafter , Respondent did refuse
and fail and is now refusing and failing to bargain collectively with the Union , by refusing
altogether to meet and bargain with the Union , although requested to do so; Respondent, by
its officers , agents, representatives , and employees , more particularly by Henry P . Smith,
Bob Smith , Joseph R. Fuller , Lloyd Manning , and other supervisory and managerial personnel,
from on or about March 5, 1951, and continuing to date, committed , authorized , instigated,
or acquiesced in certain acts and conduct , including but not limited to the following , to wit:
(a) Interrogating employees as to their union affiliations , activities , or desires ; (b) threatening
employees by advising them not to have any dealings with the Union in any way, shape , or form;
(c) threatening to change working conditions in a manner inimical to the interests of the
employees if the Union came into the Respondent 's refinery ; (d) granting a wage increase
shortly prior to the April 1951 bargaining election , an object of which was to defeat the Union.
Respondent discharged employees Henry Chandler and Herschel W. Sollman on February 9,
1952, and has since failed and refused to reinstate them because of their membership in,
sympathy for, affiliation with , and activities on behalf of the Union , and for the purpose of
discouraging membership in, sympathy for, affiliation with , and activity on behalf of the
Union; commencing on or about June 1 , 1952 , and continuing thereafter until the present time,
Respondent , through its officers , agents , and employees , interfered with , lent support to,
assisted and directed the formation , organization , and administration of District 50 by,
inter alia: (a) recognizing District 50 as the exclusive bargaining representative of its
employees in the appropriate unit: (b) by entering into a contract with District 50, covering
the hours , wages, and other terms and conditions of employment of the employees in the
units found appropriate by the Board ; 3 and that on or about February 9, 1952, the employees of
Respondent ceased work concertedly and went on strike, that said strike was caused and
prolonged by the unfair labor practices of the Respondent described above; that on or about
June 23 , 1952 , the employees named below terminated their strike , and on said date and
continuously thereafter requested the Respondent to reinstate them and each of them to the
positions held by each of them immediately prior to said strike or to positions substantially
equivalent thereto : 4 Bobby Eckiss , JosephJ. English , James Hayes , Amos Hill, Ray Jacquemai,
John Osborne , Robert Lee Roney , Billy Frank Scott, Richard Sloan ; on or about said date,
June 23, 1952 , and at all times thereafter the Respondent has failed and refused to reinstate
said employees , because of their membership in, sympathy for, and activity in behalf of the
Union . By the totality of the acts described above the Respondent did interfere with, restrain,
and coerce , and is interfering with, restraining , and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act , and did thereby engage in and is thereby
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and hence
violating Section 8 (a) (1), (2), (3), and(5) of the Act , and affecting commerce within the mean -
ing of Section 2 (6) and (7 ) thereof.
On or about August 20, 1952 , the Respondent filed an answer denying that it had engaged in
any unfair labor practices.
On or about August 20, 1952, District 50 filed an answer in which it admitted that it was a
labor organization within the meaning of the Act , and stated that it was without "knowledge
or data to form an opinion as to the various conclusions " alleged in all other branches of the
complaint , except as to paragraph 12, thereof , which it specifically denied.
Pursuant to notice a hearing was held at Princeton , Indiana, in the Gibson County Court
House on December 16, 17, 18 , 19, 1952 , before James A. Shaw, the undersigned Trial
Examiner, duly designated by the Chief Trial Examiner . The General Counsel and the Respond-
ent were represented by counsel and the charging Union by lay representatives . District 50,
though it sent a representative to the hearing, did not choose to formally participate in the
proceedings , fir reasons which will be discussed in detail hereinafter . The General Counsel
and counsel for the Respondent participated in the hearing and were afforded full opportunity
to be heard , to examine and cross -examine witnesses , and to introduce evidence bearing upon
the issues.
At the close of the General Counsel 's case-in-chief, counsel for the Respondent moved to
dismiss the complaint in its entirety ; the undersigned denied his motion without prejudice
2 The General Counsel moved to dismiss subparagraph (d) of paragraph 10 of the complaint
at the hearing herein. The motion was granted by the undersigned.
3See infra.
4The General Counsel moved to dismiss the complaint as to Bobby Eckiss and James
Hayes at the hearing herein. The motion was granted by the undersigned.
R. J. OIL & REFINING CO., INC. 655
to renewing it at the close of the hearing. At the close of the hearing the General Counsel
moved to conform the complaint to the proof as regards minor matters such as names, dates,
and the like. The motion was granted by the undersigned without objection. Counsel for the
Respondent also renewed his motion to dismiss the complaint; ruling thereon was reserved
by the undersigned. It is now denied in part and allowed in part for reasons which will be
shown hereinafter. The parties though given an opportunity to do so declined oral argument
to the undersigned on the issues involved. The parties were then advised by the undersigned
of their right to file proposed findings of fact and conclusions of law as regards the issues
involved and to file briefs in support thereof. Thereafter, the undersigned received briefs
from all the parties on various dates between the time granted for that purpose at the hearing
and February 13, 1953.5
Among the documents received from the parties was a memorandum from District 50,
which in substance was a brief in support of a plea by it to reopen the record in this proceed-
ing for the purpose of permitting Frank Barnhart, its regional director to testify as regards
District 50's role in the events with which we are concerned herein, and the circumstances
surrounding the execution of its contract with theRespondent as the bargaining representative
of the Respondent's employees. At first blush the undersigned was convinced that the memoran-
dum brief raised no new or novel issue that was not thoroughly litigated and discussed at the
original hearing. However, after a close and careful perusal and analysis of the entire record
in the case including the briefs of the parties, he reached the conclusion that it would be in
the public interest to reopen the record and thus permit District 50 to enter a formal appear-
ance in the case and place upon the record the testimony of Frank Barnhart, its regional
director, together with any documentary evidence it might desire to offer in support of its
position. Having thus determined, the undersigned ordered the record reopened for the sole
purpose of taking the testimony of Frank Barnhart in this regard. Consequently he did so and
-recordr was reopened and a hearing had on the issues described immediately above at
Terra Haute, Indiana, on May 6, 1953. All parties appeared and were represented by counsel.
In passing the undersigned desires to point out the fact that at the time of the original hearing
Frank Barnhart was a very sick man. There is no question about that. As a matter of fact
in the course of his testimony before the undersigned on May 6, 1953, he stated that he had
only been up and about for about a week at that time.
At the reopened hearing counsel for District 50 requested permission to offer the testimony
of several of the then employees of the Respondent as regards their selection of District 50
as their bargaining agent, and their reason for abandoning the Union herein and joing District
50. The undersigned denied counsel's request in this regard, primarily for three reasons:
(1) any testimony they might offer would be irrelevant and immaterial to the legal issues
involved herein; (2) the record was reopened for the "sole purpose" of taking Frank Barnhart's
testimony, and the parties were so advised at the time the undersigned ordered the record
reopened; and (3) District 50 was at no time precluded from entering a formal appearance
at the original hearing, in fact it chose to do otherwise at that time, though given ample
opportunity by the undersigned to do so, as the record itself shows. Surely there must be an
end to litigation sometime, consequently hearings cannot be had here, there, and everywhere
ad infinitum to meet the whims and caprice of the parties. It is not only impractical, but
where as here an opportunity to be heard as to all matters except as regards Barnhart's
testimony, was given and rejected, then the rule of reason must prevail.
As indicated above, counsel for the Respondent and District 50 have taken exception to
the undersigned's ruling at the reopened hearing in denying them the right to call and examine
the then employees of the Respondent as to why they left the Union herein and joined District
50. Counsel for the Respondent in his briefs and on the record complains that the undersigned's
remarks as regards the position of Batey at the original hearing and his subsequent ruling as
regards the calling of the said employees as witnesses in this proceeding denied the Respond-
ent a fair hearing. Counsel takes the position that Batey was not acquainted with the circum-
stances surrounding the execution of the contract between District 50 and the Respondent,
and that Barnhart alone was the person who knew all the facts, that Batey was nothing more
than a "messenger boy," and consequently was in no position to either enter a formal
appearance at the original hearing or to testify concerning the events leading up to the execu-
tion of the contract between District 50 and the Respondent. As indicated above, the under-
signed gave all these objections careful consideration and it was for precisely these reasons
that he reopened the hearing on May 6, 1953. to take the testimony of Frank Barnhart as
5See infra.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regards the matters raised by counsel for the Respondent in his brief. In the considered
opinion of the undersigned, the record as a whole, and in particular the testimony adduced
at the reopened hearing, refute the contention of counsel as regards Batey. The transcript
of the record taken at the reopened hearing clearly show that Batey was in possession not
only of all the facts surrounding the execution of the contract between District 50 and the
Respondent but far more familiar with District 50's role in the events with which we are
concerned herein than Barnhart. The entire record clearly shows without contradiction of
any kind that Batey was an organizer for District 50 and was the first person connected with
that organization to discuss affiliation with it with the Respondent's employees. Thereafter,
he secured their signatures on application-for-membership cards, arranged meetings
with Barnhart, attended the bargaining negotiations with the Respondent, and lastly and of
far greater significance is the fact that he is a signator of the contract at issue herein. These
facts have convinced the undersigned that Batey was no mere "messenger boy" and was not
only competent to testify regarding these matters at the original hearing but well able to
have entered an appearance and participate therein in December 1952.
At the close of the reopened hearing on May 6, 1953, the undersigned extended to all
parties the right to file supplemental briefs with the undersigned in support of their respective
positions as regards the matters that were brought out and litigated at that time. Briefs have
been received from counsel for the Respondent and District 50,6 At the close of the reopened
hearing counsel for District 50 moved to dismiss the complaint insofar as District 50 is
concerned in the issues raised therein. The undersigned reserved ruling thereon. It is
hereby denied for reasons which will be apparent hereinafter. Counsel for the Respondent
likewise moved to dismiss the complaint in its entirety. Ruling was likewise reserved on
his motion. It is hereby denied in part and granted in part for reasons which will be shown
hereinafter. 7
Upon the entire record in the case, and from his observation of the witnesses, the under-
signed makes the following:
FINDINGS OF FACT
1. The Business of the Respondent
The parties stipulated that the R. J, Oil & Refining Co., Inc., is an Indiana corporation with
its principal office in Terre Haute, Indiana, and operates its sole refinery at a place near
Princeton, Indiana, where it is engaged in the refining and distribution of gasoline, kerosine,
and pure oils. During a representative period it purchased annually petroleum products in
excess of $ 750,000, of which approximately 5 percent was brought into the State of Indiana
from points outside of said State. During the same representative period its sales were in
excess of $ 750,000 per year, of which approximately 10 percent was sold to customers
outside the State of Indiana. The Respondent concedes, the parties have stipulated, and the
undersigned finds that the R . J. Oil & Refining Co., Inc ., the Respondent herein , is engaged in
commerce within the meaning of the Act.
II. The Labor Organizations Involved
Upon the entire record in the case the undersigned finds that Oil Workers International
Union, CIO, and District 50, United Construction Workers of America, and its Local 13695,
6A supplemental brief was received from counsel for the Respondent on May 25, 1953,
and from counsel for District 50 on May 26, 1953. Both have been carefully considered by
the undersigned.
7 Motions to correct the record have been received from counsel since the close of the
reopened hearing--they are disposed of below.
(1) On May 22, 1953, counsel for District 50 filed inter alia a motion to correct the tran-
script of the record at page 711, lines 13 and 21. Thereafter the General Counsel filed a
motion in opposition to said motion on May 29, 1953. The undersigned has considered both
motions. His impression of the testimony of the witness Barnhart is contrary to that of
counsel for District 50. Consequently, the motion of District 50 to correct the record is
denied. The motion of the General Counsel is granted.
(2) On May 23, 1953, counsel for the Respondent filed a motion with the undersigned to
correct the record at JR-756, line 13 to read from "Friday June 18, 1951," to read "Fri-
day June 8, 1951." His motion is well taken and is hereby granted by the undersigned, who
ordered that the record be corrected accordingly.
R. J. OIL & REFINING CO., INC. 657
affiliated with United Mine Workers of America, are labor organizations within the meaning
of Section 2 (5) of the Act.
III. The Unfair Labor Practices
A. The alleged refusal to bargain
1. Sequence of events
Sometime in 1948, the Respondent started production at its refinery, which is located
approximately 4 miles from the city of Princeton, Gibson County, Indiana, a typical mid-
western county seat town. Its population at the time the events herein occurred was around
10,000. Gibson County is located in the western part of the State and its western boundary
is the Wabash River. Nearby is Vincennes, Indiana, about 40 miles to the north. Across
the Wabash River, and about 35 miles from Princeton, is Lawrenceville, Illinois. Lawrenceville
is a well-known oil center, and 1 of its principal industries is the "Texaco" refinery, which
employs between 700 and 800 people. In the area, that is in both Indiana and Illinois, there is
a considerable amount of coal produced, Terre Haute being the center of that industry. This
is indicated not only by the record herein, but it is a matter of common knowledge. At this
city, District 50 and its parent organization maintain their offices. Here likewise are located
the offices and principal place of business of the Respondent s and its president, Henry P. Smith.
The record shows that Henry P. Smith is interested in a number of enterprises, particularly
in the production and refining of petroleum and the mining of bituminus coal, in both Indiana
and Illinois.
In October 1950, Roy N. Freeman, international representative of the Union, went to Fort
Branch, Indiana, 9 and contacted employees of the Respondent for the purpose of persuading
them to join the Union. The first employee of the Respondent he contacted was Herschel
Sollman, of whom more anon hereinafter. Subsequently, he gave Sollman application-for-
membership cards in the Union, and persuaded him to assist in the Union's organizational
drive amongst the Respondent's employees. Sollman took the cards and from that time on
engaged in organizational work amongst the Respondent's employees. The first employee
that he contacted in his organizational activities was Henry Chandler, of whom likewise
more anon. Sollman and Chandler were successful in their efforts and as a result the Union
was designated as the collective-bargaining representative of the Respondent's employees.
On November 13, 1950, the Union filed apetition for certification of representatives, pursuant
to the provisions of Section 9 (a) and (c) of the Act. In its petition the Union contended that
"all production and maintenance employees of the Company's refinery at Princeton, Indiana,
excluding supervisory, office and clerical employees, plant guards and technicians and
professional employees" constituted a unit appropriate for thepurposes of collective bargain-
ing. Also in its petition the Union stated that there were 20 employees in the appropriate unit
of which 12 had signified their intention of supporting the Union in its petition. In due course
the Board held a hearing in R. J. Oil & Refining Co., Inc., Case No. 35-RC-463. At the hearing
the Respondent, in substance, contended that the unit desired by the Union was inappropriate.
Its contention being that all employees at its refinery should be included in the unit, par-
ticularly the truckdrivers, of whom more anon hereinafter. The Union resisted the Respond-
ent's contention in this regard and protested the inclusion of the truckdrivers in the unit.
In due course the Board issued its Direction of Election on March 8, 1951, in which it upheld
the contention of the Respondent at the hearing, and included the truckdrivers in the unit
which it found to be appropriate. Its finding was as follows:
4. The following employees of the Employer constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b) of the Act:
All production and maintenance employees, including truck drivers, employed at
the Employer 's Refinery at Princeton , Indiana, but excluding office and clerical
employees , gaugers, professional employees , chemists , guards , the dispatcher
and other supervisors as defined in the Act.
8 The record clearly shows that the books of the Respondent are kept at Smith's offices
in Terre Haute , Indiana.
9 A small town of about 1,500 in Gibson County and a few miles south of Princeton.
339676 0 - 55 - 43
658 DEGJSIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the Board's "Direction of Election", the Regional Director of the Ninth
Region [Cincinnati, Ohio] conducted an election amongst the Respondent's employees in
the above found appropriate Unit on or about April 6, 1952.
TALLY OF BALLOTS
The undersigned agent of the Regional Director certifies that the results of the tabula-
tion of ballots cast in the election held in the above case, and concluded on the date
indicated above , were as follows:
1. Approximate number of eligible voters .................................................. 28
2. Void Ballots ...................................................................................... 0
3. Votes cast for OIL WORKERS INTERNATIONAL UNION, CIO .................... 18
4. Votes cast for ................................................................................
5. Votes cast for ....................... .................. .................................
6. Votes cast against participating labor organization(s) ..............................
7. Valid votes counted (sum of 3, 4, 5, and 6) ..............................................
8. Challenged ballots ..............................................................................
9. Valid votes counted plus challenged ballots (sum of 7 and 8) ......................
10. Challenged are (not sufficient in number to affect the results of the election.
11. A majority of the valid votes has been cast for ........................................
OIL WORKERS INTERNATIONAL UNION, CIO
The Petitioner would exclude the truck-drivers from the unit, whereas the Employer
would include them. The truck-drivers are engaged primarily in driving the Employer's
oil trucks, hauling crude oil to the refinery and delivering refined products to distribution
points for sale to consumers. When necessary, they assist the pumpers at the refinery
in loading the trucks. The record shows that many of the conditions of employment of the
truck-drivers are similar to those of the production and maintenance employees. They
receive the same vacation, holiday, and hospitalization benefits as other employees, and
like other employees are on a 24 hour duty call. work rotating weekly schedules which
include Saturdays and Sundays, and are paid bi-weekly on an hourly rated basis. Under
these circumstances , and as no other labor organization seeks to represent the truck-
drivers, we shall include them in the unit.
On April 16, 1951, the Board certified the Union as the "exclusive representative of all
the employees " in the above unit found appropriate by the Board in Case No . 35-RC-463.
Upon all of the foregoing the undersigned finds that the appropriate unit herein is the same
as the Board found in Case No. 35-RC-463.
2. The allegations with respect to interference, restraint, and coercion10
In his complaint the General Counsel alleges that certain statements and conduct of the
Respondent by and through its supervisory employees constituted, if standing alone, independent
violations of Section 8 (a) (1) of the Act.
As shown above the Board conducted an election amongst the Respondent's employees in
April 1951. According to Clem Reinhart, an employee of the Respondent at all times material
herein, he had a conversation with Superintendent Fuller shortly before the election in which
Fuller said ". . . we ought to think of the advantages we have now and maybe the disadvantages
you would have if you had a union."
The General Counsel contends that this statement of Fuller was in and of itself violative
of Section 8 (a) (1) of the Act. The undersigned does not agree. Though vaguely suggestive
of retaliation by the Respondent against its employees in the event they selected the Union as
their exclusive bargaining representative, the undersigned is convinced that on the other hand
just as much could be said that it was merely an expression of Fuller's opinion. Under such
circumstances the undersigned finds that Fuller's remarks were within the purview of Section
8 (c) of the Act and hence privileged.
ID The undersigned recognizes that this report does not follow the usual pattern, but he
considers this factor of no importance because he has attempted to assemble it so that it
will present the picture as the events with which we are concerned developed.
R. J. OIL & REFINING CO., INC. 659
Joseph J. English , an employee of the Respondent at all times material herein, testified
concerning two conversations he had with Superintendent Fuller about the Union, one was
before the election in April 1952, and the second shortly thereafter. The first conversation
took place in Fuller 's office. In the conversation Fuller asked English what he expected to
gain by having a union in the refinery , and then went on to tell English about the Respondent's
plans to enlarge its refinery which in turn would create better jobs for those then employed.
Other than these remarks the conversation was about things in general and did not concern the
Union or the coming election . However, when English started to leave the office, Fuller said
to him that he would be ". . . doing him a personal favor if I voted against the Union."
True , the above conversation contains a veiled promise of benefits to the employees in the
future. But as the testimony concerning it stands in the record, the undersigned is not convinced
that these remarks of Fuller's are violative of the Act for the same reasons that he found
above that the remarks to Reinhart were not, if anything they were only suggestive , and would
require the drawing of innumerable inferences to bring them within the purview of the Act.
Nor does the undersigned consider Fuller's solicitation of an unfavorable vote against the
Union as an independent violation of Section 8 (a) (1) of the Act. As the undersigned sees it
it was nothing more than an expression of personal opinion , and perhaps "wishful thinking"
on the part of Fuller, but since it carried with it no promise of benefit or threat of reprisal
the undersigned finds that it was a privileged remark. In the considered opinion of the under-
signed remarks of the type described above though trivial, nevertheless tend to show the
general attitude of the Respondent towards the concerted activities of its employees, but surely
they are not serious enough to predicate a finding that they were independently violative of
Section 8 (a) (1) of the Act.
English's testimony as regards a second conversation with Fuller is of a far more serious
nature. It occurred sometime between the election ordered by the Board in Case No. 35-RC-463
and the authorization for a union-shop election in June 1952 . In this conversation Fuller told
English that he knew who voted for and against the Union in the representation election, and
that heknewthat he (English ) had voted for the Union . English disputed Fuller's statement and
pointed out that since the vote was by secret ballot it was impossible for him to have such
knowledge. However, English admitted to Fuller that he voted for the Union. Fuller denied
English's testimony as regards the above conversation in toto.
For reasons which will be thoroughly discussed • hereinafter, the undersigned discredits
Fuller's denial and credits English's testimony as regards the above incident in its entirety.
In the considered opinion of the undersigned , Fuller's remarks constitute a flagrant viola-
tion of the Act. In the first place they were made shortly before a Board election, and clearly
conveyed the inference that the Respondent by some means had a way to secure information
as to how the employees voted. They suggested tampering with the ballot box in an election
conducted by a Government agency. This is a very serious suggestion to "plant " in the minds
of employees on the eve of an election, which they have every reason to believe would be
conducted in a legal and honest manner. Particularly since over the years of the Board's
existence there has been little, If any, criticism of its conduct of elections. Such remarks
could not help but sow distrust in the minds of the Respondent's employees and it takes little
imagination to realize that it was, to say the least, more than a veiled threat of reprisal
if the employees exercised their statutory right to vote in a Board-conducted election. In
addition it amounted to the interrogation of English as to how he voted in the election. Without
more ado the undersigned finds that Fuller's remarks to English as described above consti-
tuted interference with, restraint, and coercion of its employees in the exercise of the rights
guaranteed them in Section 7 of the Act, and is thus violative of Section 8 (a) (1) of the Act.
Herbert Zimmerman, a truckdriver for the Respondent at all times material herein,
testified that sometime in December 1951 he had a conversation with Robert "Bob" Smith,
supervisor in charge of the truckdrivers and a son of Henry P. Smith, the Respondent's
president , as regards taking one of the trucks out on a run over to Bloomington , Indiana.
Shortly before this conversation occurred, a grievance had developed between one of the
drivers and management. There had been some talk of a walkout by the truckdrivers, but
nothing came of it and as far as the record herein is concerned the grievance was finally
disposed of. In any event at the time Smith and Zimmerman had their conversation there was
still a little uncertainty as to whether the truckdrivers would take their trucks out.
As the undersigned understands the record it was during the period of the dispute between
the Respondent and the truckdrivers that Zimmerman along with other truckdrivers joined
the Union. His conversation with Smith took place the day after he joined the Union. Smith
asked Zimmerman if he was ready and willing to take a truck to Bloomington , Indiana, and
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he told him he was. Zimmerman then asked what about the other truckdrivers and Smith
said they were not there yet. In the ensuing conversation Zimmerman told Smith he had
joined the Union the night before. Smith told him to get out from under the "Union," tear
up your card, and then took his billfold from his pocket and with this in his hand said, "I
am the fellow that can do you some good ." A few days later Zimmerman was discharged by
Smith for the alleged violation of one of the Respondent 's rules.
Smith did not appear and testify at the hearing herein for reasons which have been set forth
above. However , counsel stipulated at the hearing that if he had appeared and testified before
the undersigned he would have denied not only the testimony of Zimmerman but that of other
witnesses called by the General Counsel as well. The undersigned saw Zimmerman, who
impressed him as an honest and forthright witness . Accordingly, the undersigned finds that
Robert Smith made the remarks attributed to him by Zimmerman . In passing , the undersigned
desires to state that he is not unmindful of Zimmerman 's apparent animus towards smith as
an individual. This fact has been considered , and has carried no more weight with the under-
signed in his appraisal of Zimmerman as a witness than did the fact that at the time he
appeared before him he was garbed in the uniform of assistant chief of police of the city of
Princeton, Indiana, clearly a position of responsibility. His appraisal of Zimmerman is based
strictly upon the impression he made, the manner in which he testified, and upon the entire
record when considered as a whole.
Upon all of the foregoing the undersigned finds that the statements of Robert Smith to
Herbert Zimmerman were independently violative of Section 8 (a) (1) of the Act in that they
clearly carried with them a promise of benefit to Zimmerman if he abandoned the Union.
John Osborne, an employee of the Respondent at all times material herein, testified that
shortly after he went to work for the Respondent in January 1951 he had a conversation with
Robert "Bob" Smith, supervisor, over the truckdrivers and the garage employees in which
Smith asked him if he had joined the Union. He admitted that he had, and Smith told him that
he could use his own judgment and that the Union might do him some good and then it might
not.
Smith as indicated above did not appear at the hearing herein . His denial by way of stipulation
of the parties to the effect that if he were present he would deny the testimony of Osborne
is not credited . Osborne impressed the undersigned as an honest and forthright witness.
Accordingly , the undersigned credits his testimony as regards the above conversation and
discredits the denial of Smith.
Interrogation of employees as regards their union affiliation has long been held violative
of the Act. Consequently the undersigned finds that Smith's interrogation of Osborne in this
regard constituted interference with , restraint, and coercion of the rights guaranteed employees
in Section 7 of the Act, and is independently violative of Section 8 (a) (1) thereof.
Though there may be and probably are other incidents of independent violations of Section
8 (a) (1) of the Act in the record, the undersigned deems it unnecessary to further burden this
report with their inclusion." Such as for example, the conversation between Lloyd Manning
and Robert Lee Roney. The undersigned has weighed this incident and finds that it amounted
in the final analysis to be nothing more than an expression of opinion by Manning. Though it
might possibly be an independent violation of the Act, the undersigned feels that enough has
been said above and will be said below concerning the Respondent's conduct to fully sub-
stantiate in the main the allegations in the complaint . As the undersigned sees it, the remarks
of Judge Hastie speaking for the Third Circuit Court of Appeals in the Jarka case as regards
the insistence of the General Counsel in his argument before that court to make additional
findings of violations of 8 (b) (1) of the Act are applicable here. There the court said, inter
alia, ". . . We understand that the Board would like to have two strings to its bow. But we
have tested the one and found it strong and entirely adequate. That we think , is enough for
this case . . . . " 2 So it is here . Consequently , the undersigned finds that upon all of the
foregoing and the record considered as a whole, the Respondent herein by the independent
acts of its supervisory employees described above interfered with , restrained , and coerced
its employees in the exerciseof the rights guaranteed them in Section 7 of the Act, and thereby
independently violated Section 8 (a) (1) thereof.
a See the Board 's comment in Diamond Hosiery Corporation, 105 NLRB 532.
N. L. R. B. v, Jarka Corporation of Philadelphia, et al., 198 F. 2d 618 (C. A 3), en-
forcing in part 94 NLRB 320.
R. J. OIL & REFINING CO., INC. 661
3. The bargaining negotiations
The undersigned is convinced that before any proper understanding of the issues may be
had it is advisable to set forth herein at this time a bit of the background of the individuals
who participated in the negotiations between the parties , and their peculiar interest if any
in the issues involved as disclosed by the record and as expressed by the demeanor of those
who appeared and testified at the hearing herein . This is so because the success or failure
of collective -bargaining negotiations quite often depends so much on the personalities of
those engaged in such matters . To begin with let us look at the hierarchy of the Respondent's
management at the time the events herein occurred . As indicated above the Respondent's
president is, and was at all times material herein , Henry P . Smith. In active charge of the
plant was Superintendent Joseph F. Fuller, under his supervision inter alia were the following,
Assistant Superintendent Thomas Stallings ; Lloyd Manning , dispatcher ; and Joseph Rebone,
office manager . Fuller and Manning appeared at the hearing herein and testified . In addition
the record shows that one Robert "Bob" Smith , a son of Henry P. Smith , was also employed
by the Respondent as truckdriver foreman at all times material herein . Neither Robert Smith
nor Henry P. Smith chose to testify at the hearing herein . A statement made to the record
by the Respondent 's counsel indicates that at the time the hearing was in session that both
of these gentlemen were engaged in more important affairs elsewhere and could not appear,
this was particularly true as regards Henry P. Smith , whom the record clearly shows is
interested in many ventures other than the operation of the Respondent 's refinery which
is involved in this proceeding.
The Union 's representatives at the bargaining sessions changed from time to time but for
the most part the same individuals were participants . In order to understand the Union's
selection of committeemen, it is necessary to point out that Local No. 368 to which the
Respondent 's employees were assigned by the International Union maintains its offices in
Lawrenceville , Illinois , since most of its members are employees of the Texas Company
and work in its refinery there. For this reason Hubert Burden , secretary -treasurer of Local
No. 368, participated in the meetings between the Respondent and the Union . Appearing for
the International at most of the meetings was Roy N . Freeman , district director of the
International Union . Also participating at one of the meetings , and a very important meeting
as the events hereinafter described will show, was A. David Herring of Hammond , Indiana,
financial and corresponding secretary of Local 210, and at the time on leave of absence
from his regular employment at the Sinclair Refining Company.
It might be well atthis timetopomt out that since so few were employed at the Respondent's
refinery the International felt that it would be better for all concerned to have its members
employed there in Local 368, which as indicated above was located at Lawrenceville . Illinois,
about 35 miles away . The record shows that while there were no serious differences between
the members of the Union at theRespondent 's plant and those employed by the Texas Company
in Lawrenceville , nevertheless the establishment of a separate local was discussed among
those members employed at the Respondent 's plant, but nothing of material importance came
of such discussion , except that the employees of the Respondent did find it necessary and
convenient to organize into a separate entity for the purpose of handling their day -to-day
affairs with the Respondent . Heading this group , or the chairman so to speak , was Henry
Chandler , of whom more anon hereinafter . The record shows that the following employees of
the Respondent participated in the negotiating meetings: Lloyd Manning , Amos Hill, Henry
Chandler, John English , and Herschel Sollman . Manning attended at least the first meeting
and possibly others as a representative of the Union ; later he was promoted to a super-
visory position by the Respondent in September 1951 . For the most part the meetings were
held at the Emerson Hotel in Princeton , Indiana.
Shortly after the Union was certified by the Board on April 16 , 1951 , Hubert Burden,
secretary -treasurer of Local 368, wrote the Respondent and requested a meeting with repre-
sentatives of the Respondent for the purpose of negotiating a collective -bargaining agreement
and enclosed with the letter a proposed draft of such an agreement . After some little delay
the first meeting between the parties was held on May 16, 1951.
Between May 16, 1951 , and February 16, 1952, the parties met six times . 13 As the under-
signed sees it there is little conflict in the testimony of the witnesses called by the General
isIt was stipulated at the hearing herein that formal bargaining meetings between the
parties were held on May 16, June 4, July 11 , October 2, 1951 , and January 18 and February
5, 1952.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel in support of his allegation as regards the Respondent's refusal and failure to bargain
with the Union in good faith. Consequently, the foregoing findings in this respect are in reality
a composite or summation of the testimony of all the General Counsel's witnesses in this
regard. The principal witnesses called by the General Counsel were as follows: as repre-
sentatives of the International Union and Local 368, Roy Freeman, Hubert Burden, and David
Herring, and for the local group at the Respondent's refinery, Henry Chandler, Herschel
Sollman, and Amos Hill.
At the first, meeting the Union's representatives were John English, Lloyd Manning, and
Amos Hill. The Respondent was represented by Superuitendent Fuller and Henry P. Smith,
its president.
At the meeting the Union's representatives presented to the Respondent a proposed contract.
As the undersigned sees it, there was little controversy between the parties at the meeting.
They went over the proposed contract and discussed among themselves the many provisions
proposed by the Union. Among them was article 2, section 1, which provided for a union shop.
All of the witnesses who appeared at the hearing herein on behalf of the General Counsel
in support of his case testified that the representatives of the Respondent agreed to this
provision at this meeting. Other matters upon which the Respondent agreed at this meeting
were as follows: sections I and III of article XII, which provided in substance payment to
members of the Union's grievance committee for time lost from work for the purpose of
meeting with the Respondent on questions concerning grievances that might arise during the
life of the contract, and the "check-off" of union dues, etc. During the course of the meeting
President Smith informed the Union's representatives that he would not at that time discuss
"money-matters ," that is wages . The Union did not press the issue and it was set aside for
discussion at a later date. From what the undersigned can glean from the record the meeting
was conducted in a friendly atmosphere and closed with all parties desirous of meeting again
on May 28, 1951.
In the interim circumstances beyond the Respondent's control caused it to request the
Union for a postponement of the meeting scheduled for May 28, 1951, and suggested in a
letter from Fuller to the Union dated May 18, 1951, that the next meeting be held on June 13,
1951. This was satisfactory to the Union. In the meantime, however, circumstances changed
and the date for the second meeting was changed to June 4, 1951.
The parties met as scheduled on June 4, 1951, at the Emerson Hotel, in Princeton, Indiana.
They were represented by the same individuals as at their first meeting on May 16, 1951.
At this meeting the Respondent, speaking through President Smith, repudiated many of the
Union's proposals to which it had previously agreed, such as a union-shop provision >n the
proposed contract, and stated in substance that it would never agree to such a provision in a
contract with the Union. While Smith did not agree to grant a "check-off" of union dues,
he did not irrevocably reject the Union's proposal in this regard. When reminded by one of
the union negotiators that he had agreed to and in fact was then under contractual obligation
with the United Mine Workers of America and the "Machinists" Union as regards the "check-
off" of union dues at other of his enterprises, he replied that in such instances he had no choice
in the matter and that such provisions had been forced upon him by the unions involved, that
is it had been put up to him on a "that or else" basis. Other matters repudiated by Smith
were payment for time lost by members of the grievance committee while attending grievance
meetings, and the "check-off" of union dues. As regards "money-matters" or wages, Smith
again refused to discuss them. In addition to the foregoing, Smith'also denied that he agreed
to the Union's proposal as regards "arbitration" of disputes at the first meeting.
As indicated above, Smith refused to discuss "money-matters" at both the first and second
meetings. He did however suggest to the Union that it send Freeman, the Union's International
representative in attendance at the meetings, to his offices in Terre Haute, Indiana, to ex-
amine the books of the Respondent, which he contended would confirm his statement that the
Respondent's financial condition was such that it was unable to grant any increase in wages.
Smith conditioned his offer by stating that Freeman alone would be permitted to examine the
books, and refused to permit him to bring an auditor with him to do the actual figuring of
the Respondent's earnings. Since Freeman was not an accountant the offer was unacceptable
to the Union for the simple reason that for Freeman to do the inspecting alone would be
futile and accomplish nothing.
From what the undersigned can glean from the record the parties were in agreement as
regards several of the Union's proposals as a result of the meetings, as regards seniority,
particularly as to the method of computing an employee's standing on the list and separate
lists as regards seniority for the truckdrivers and the refinery workers, overtime pay, that
is 12' times for work over 8 hours, but only in the event the total amounted to more than 40
R. J. OIL & REFINING CO., INC. 663
hours per week. Other items were discussed pro and con and where there was either disagree-
ment or refusal to discuss at the time by the Respondent they were marked "open" by the
Union on its working copy of its proposed contract and passed by for discussion at later
meetings.
At this time the undersigned is convinced that certain factual matters as regards a union-
shop authorization election should be set forth herein, primarily because there was so much
discussion about the "Union Shop" at the bargaining negotiations, and secondly because upon
this issue much of the undersigned's ultimate resolutions as regards the credibility of certain
of the witnesses who testified in this proceeding is predicated.
The record indicates that the parties had not only discussed the question regarding an
election to permit the employees of the Respondent to express their desires as regards such
a provision in the Union's proposed contract with the Respondent, but had actually entered
into a consent-election agreement to assist them in an early determination of the question
before the bargaining negotiations commenced on May 16, 1952. That this is so is evidenced
by the following letter from the Board's offices in Indianapolis, Indiana, dated May 23, 1951,
addressed to representatives of the Union and the Respondent:
Re: R. J. Oil and Refining Co., Inc.
Case No. 35-UA-1101
Gentlemen:
Reference is made to my letter dated May 3, 1951 with which was enclosed a proposed
Agreement for Consent Election in the above-entitled matter.
Both parties have signed the Consent Agreement which has been approved. In accord-
ance with the terms of the Agreement I am selecting Friday, June 8th, as the election
date.
The Union should notify us in writing as to the name of their election observer. Both
parties should be certain that their observer appears at the poll on election day 15
minutes before the polls open at 7:00 A. M.
I am requesting that the Employer forward a list of eligible employees within the next
few days as of the pay period ending April 30, 1951. This list will be finally checked by
the observers just before the polls open election day. Notices of Election will follow.
Very truly yours,
Robert Volger
Officer in Charge
The parties stipulated at the hearing herein that the consent-election agreement referred
to in the above letter was executed sometime between May 3 and May 23, 1951. It was also
stipulated that the following individuals signed the agreement for their respective principals.
Signing for the Union were Roy N. Freeman, International representative, and for the Re-
spondent, Henry P. Smith, its president.
As a result of the consent-election agreement the Board conducted an election amongst
the employees on June 8, 1951, for the determination of the question as to whether or not
they desired the Union to negotiate for a union-shop clause in the proposed contract with the
Respondent.
The election results showed that a majority of the Respondent's employees in the appropriate
unit approved the inclusion of a union-shop provision in the Union's contract with the Re-
spondent.
The third meeting between the parties was held on July 11, 1951. Sometime between the
second and third meetings Freeman, the international representative of the Union, secured
the services of a Mr. Allen, from the Federal Mediation and Conciliation Service, and he
was in attendance at the third meeting. The principal subjects discussed at this meeting were
wages, benefits, grievance procedure, and eventually the union shop was again brought into
the discussion. As the undersigned sees it one of the principle issues discussed was "money-
matters." Smith refused to agree to any of the Union's proposals in this regard. The dis-
cussion as to "money-matters" ranged from pay to the members of the grievance committee
while engaged in such business towage increases for the employees. The Respondent's position
was that it could not at that time agree to any wage increase or to any of the Union's pro-
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posals that involved the payment of money. Smith's position was that the refinery was losing
money and that it was impossible for the Respondent to meet any of the Union's demands as
regards any matter that would tend to increase the cost of production. With this in mind he
again offered to show the books to Freeman, but to him alone and no one else. The Union re-
jected his proposal in this regard for the same reasons that it had advanced at the meeting
on June 4, 1951, that is that since Freeman was not an accountant it would be futile for him
to examine the books and arrive at an intelligent opinion as regards the Respondent's ability
to grant wage increases.
It was at this meeting that Smith informed the union representatives that the Respondent
planned to erect a new fractionating tower at the refinery at an early date. Smith told them
in substance that the new tower would be larger than the one then in use, and that it should
enable the Respondent to increase its production and thus increase its profits. He also told
them that if production and profits increased as anticipated, then the Respondent would be
in a position to pay the employees more money. In the course of the discussion about the
erection of the new tower, Smith informed those present that it would be necessary to shut
the refinery down for a week or so while the tower was being erected and new equipment
installed. With this in mind Smith suggested to the union representatives that the parties
postpone their meetings until after the new tower was erected and in operation. The union
representatives, though they did not agree to an indefinite postponement of the bargaining
negotiations, promised to take his proposition backtothe membership for their consideration.
Shortly after this discussion the meeting broke up with no definite agreement as to when the
parties would meet again.
Up to this time the parties had met three times, May 16, June 4, and July 11, 1951. As the
undersigned sees it the parties had discussed the entire union proposal and had reached
agreement on several items, on others there was disagreement, some, such as the Union's
request for a union shop and dues checkoff had been flatly rejected by the Respondent and on
the question of "money-matters" there was no agreement whatsoever for the simple reason
that Smith refused to discuss the question, giving as a reason for his position that since the
refinery was not making any money it was impossible for the Respondent to make any con-
cessions in this regard. Moreover, as pointed out above, he contemplated a change in the
Respondent's operations, which as he explained to the union negotiators was expected to in-
crease production and if and when this was an actuality he would then be in a position to intelli-
gently discuss "money-matters." The Union during the course of the three meetings had
suggested to the Respondent that they enter into contractual relations as regards the matters
agreed upon, and leave the inclusion of the disputed issues to a later date. The Respondent
speaking through Smith rejected the Union's proposal and advised the committee that it would
only sign a complete contract, that is one that disposed of all the issues, particularly as
regards "money-matters." It was in the light of such an atmosphere that the meeting of July
11 was brought to an end.
Sometime after the meeting of July 11, the union committee reported to the membership
the status of the negotiations as they then stood. From what the undersigned can glean from
the record the membership of the Union was dissatisfied with the progress of the negotiations,
and as a result decided to strike the plant as a means of securing a contract with the Re-
spondent. The strike lasted from July 17 to July 27, 1951. During the course of the strike a
committee from the Union consisting of Hill and Dodge went to a third party, one Neil, a
salesman for the Respondent, and in effect requested him to act as an intermediary and con-
vey to Smith the desire of the employees to meet with him and work out their differences and
settle the strike. In the meantime the striking employees had prepared and signed a petition
in which they agreed to call offthestrike and return to work. Whether or not the intermediary
actually contacted Smith is not disclosed in the record. In any event shortly thereafter Fuller
told Hill, who as indicated above was a member of the union committee, that Smith would not
meet with representatives of the Union while they were on strike. About 2 days after Hill's
conversation with Fuller, the Union abandoned the strike and the employees returned to work.
After the strike was abandoned and the employees had returned to work, Freeman again
sought the services of Federal Conciliator Allen and asked him to intercede on behalf of
the Union with the Respondent, for the purpose of arranging a resumption of negotiations be-
tween the parties.
Allen did so. Thereafter, there was an exchange of correspondence between Freeman
and Smith which the undersigned considers pertinent to the issues herein. For this reason
he is convipced that it should be inserted herein. On August 10, 1951, Freeman wrote Smith
as follows:
R. J. OIL & REFINING CO., INC. 665
AUGUST 10, 1951
Mr. H. P. Smith, President
R. J. Oil & Refining Company, Inc.,
111 North 7th Street
Terre Haute, Indiana
Dear Sir:
We are advised by Commissioner James Allen of the Federal Mediation and Conciliation
Service that you have refused his request to have company representatives meet in
negotiations with representatives of this Union for the purpose of attempting to con-
summate a collective bargaining agreement for employees at your Princeton, Indiana
Refinery which this Union has been certified by the National Labor Relations Board
to represent.
Mr. Allen's suggestion and request of a meeting to resume collective bargaining,
this forth coming week was made with our knowledge, concurrence and willingness
to participate.
We herewith request a meeting at a time convenient to representatives of both the
Company and the Union this forth coming week or the following week.
Will you let us have your reaction to this proposal, and your position with respect
thereto, at once.
It would seem we should be free to take other steps if we fail to hear from you by
Thursday, August 16, 1951.
Sincerely yours,
/s/ Roy N. Freeman , Representative
OIL WORKERS INTERNATIONAL UNION, CIO
On August 14, 1951, Smith replied to Freeman's letter of the 10th. For the same reason
it likewise is inserted herein below.
Mr. Roy N. Freeman, Representative
Oil Workers International Union, CIO
District Office Number 6
Rooms 1518-20, 188 West, Randolph Bldg.
Chicago, Illinois
Dear Mr. Freeman:
In answer to your letter of August tenth. Mr. Allen called and asked for a meeting,
I cannot remember the date. I informed Mr. Allen our Plant was down and that we
are trying to erect a larger fractionating tower. Also, I told him that we would have to
have some experience in operating the larger tower before I would be in a position to
meet and discuss all matters on which I have information or knowledge of the issues
involved.
I am willing to meet with you when the new fractionating tower is completed and the
Plant has been operating long enough to give us the experience needed for us to determine
our labor and other costs.
Yours very truly,
R. J. OIL & REFINING CO., INC.
President
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Freeman's reply to Smith's letter of August 14 follows below.
August 16, 1951
Mr. Henry Smith , President
R. J. Oil and Refining Company
111 North Seventh Street
Terre Haute , Indiana
Dear Mr. Smith:
In response to your letter of August 14th, we again renew our request for a meeting
with responsible officials having authority to speak for the Company.
It is true that we have met and discussed all matters that were proposed for inclusion
in a collective bargaining agreement. However, agreement was not reached on certain
items. In addition, certain commitments made by Mr. Fuller to our people at the plant
in Fort Branch, which involve working conditions, havenot been lived up to. It, therefore,
is the Union's desire to discuss these commitments which have been broken and, in
addition thereto, the Union might be willing to modify its position on the items in dispute
to the extent that those items already agreed to might be reduced to writing and placed
in effect and machinery established for future disposition of the remaining items.
Our continued inability to get Mr. Fuller to live up to his commitments and our continued
inability to meet with responsible Company officials to resolve our differences, might
well result in a further work stoppage.
May I have your early response to our renewed proposal for a negotiating conference?
Very truly yours,
Roy N. Freeman, International Representative
Oil Workers International Union, CIO
On August 27, 1951, Smith replied to Freeman 's letter of the 16th. It also is set forth
below.
August 27, 1951
Mr. Roy N. Freeman, Representative
Oil Workers International Union, CIO
District Office No. 6
Rooms 1518-20, 188 West, Randolph Bldg.
Chicago, Illinois
Dear Mr. Freeman:
The reason for the delay in answering your letter of August 16th was pressing business
and being compelled to be out of the city. I thought I made myself clear in my letter
to you dated August 14th.
Very truly yours,
R. J. OIL & REFINING CO., INC.
President
The interchange of correspondence between the parties was fruitless insofar as arranging
a meeting between them was concerned, and it was not until October 2, 1951, that such a
meeting was had. On that date they met. Freeman's account of what transpired at that meeting
is, in the considered opinion of the undersigned, a good summation thereof and best told in
his own words; for this reason it is set forth herein below.
R. J. OIL & REFINING CO., INC. 667
Q. (By Mr. Marcus) Then Mr. Freeman in the October 2nd meeting was there any
discussion about a delay in the negotiations for a period of time?
A. Yes.
Q. Could you tell us what that was?
A. In the October 2nd meeting, first we met with the company, the conciliation man
and then the union, and then eventually called us together.
Q. When you were together was there any discussion about delay in negotiations9
A. Mr. Smith at that time stated that he hadn't had enough time to find out what the
tower actually was going to do. It would be sometime before he would be in a position
to tell if he would be in a position to give us more money or benefits, and at that meeting
I made a proposal to Mr. Smith that we would set aside all the money matters and would
agree to the things that pertained to seniority, working conditions, settling of grievances
and disputes, so that the boys in the plant would have some basis to operate.
Mr. Smith took the position that the contract was not complete unless it had all of the
money items and benefits spelled out. I tried to convince Mr. Smith that we were only
going to set the money matters aside until such time as he could fully determine what
his situation on the new tower, how much it was -- how much more production was
going to be forthcoming, and then we would set down and finish the agreement; that there
had been some statements made to the committee on grievances, in the past, complaints,
and then they were changed and the boys had had no basis out there to exactly know where
they were going because one time this might come up and it would be settled in that
manner, and the next time it might be settled in a different way, and therefore I wanted
a concrete grievance procedure set up so that we would have that out of the way, and
agreed to.
Mr. Smith flatly refused to go along with that, and the meeting broke up, no progress
was made, he stating that within sixty days he might be able to meet with us.
Q. Sirs
A. Stating that within sixty days he might be able to meet with us.
In the course of the above-described meeting Freeman and Smith engaged in a heated
conversation as regards the position of the Respondent in its steadfast refusal to enter into
a written contract embodying the issues that had been agreed upon, and the Union's proposal
that they continue negotiations on other issues thatwere in dispute, such as "money-matters,"
union shop, checkoff, holiday pay, and arbitration. In other words the parties would leave
the contract open as to such matters, and when an agreement had been reached on any or all
of them, then they too would be embodied into the contract. Smith refused the Union's proposal
in this regard. At about this timeFreeman told Smith that in his opinion "-- he had two things
he could do; number one, was to set down and negotiate a contract that contained some of the
benefits and wages that were afforded other oil workers in the country, or I would suggest
that he go out of the refinery business. Either let his plant rust down, or we would help him
take the products out, and tear it down, and then when he got through he could lay the em-
ployees off and go out of the refinery business."
The fourth meeting between the parties has been described above. There was no formal meet-
ing between them again until January 18, 1952. In the interim there was some interesting
correspondence between representatives of the Union and President Smith, since the tenor
of the letters is indicative of the tension that was slowly but surely developing between the
parties, the undersigned feels that it would be well to insert such correspondence herein.
Accordingly it follows in sequence below.
On November 26, 1951, Hubert Burden,secretary-treasurer of the Union, wrote the following
letter to Smith:
November 26, 1951
Mr. H. P. Smith, President
R. J. Oil & Refining Company, Inc.
111 North 7th Street
Terre Haute, Indiana
Dear Sir:
At the close of our last meeting with you with respect to negotiating an Agreement for
the employees of your refinery at Princeton, Indiana, you advised that you were not in
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a position to sign an agreement as of that date but would be willing to meet again in
sixty days.
Since the last meeting was held on October 2nd we are looking forward to meeting again
on or about December 3rd, if this date is convenient for you. If not, please arrange for
a meeting as near December 3rd as possible and advise the undersigned, with a copy
to Mr. Roy N. Freeman, Acting Director of the Oil Workers International Union, CIO,
188 West Randolph Building, Chicago, Illinois.
Yours very truly,
OIL WORKERS INTERNATIONAL UNION,
C.I.O., LOCAL NO. 368
Hubert Burden
Secretary -Treasurer
After waiting a reasonable time and having received no reply from Smith to his letter of
November 26, 1951, Burden again wrote him an January 8, 1952. This letter likewise is set
forth herein below.
January 8, 1952
REGISTERED MAIL
RETURN RECEIPT REQTJESTED
Mr. H. P. Smith, President
R. J. Oil & Refining Company, Inc.
111 North 7th Street
Terre Haute, Indiana
Dear Sir:
On November 26, 19511 wrote you in part as follows:
"Since the last meeting was held on October 2nd we are looking forward to meeting
again on or about December 3rd, if this date is convenient for you. If not, please
arrange for a meeting as near December 3rd as possible and advise the undersigned,
with a copy to Mr. Roy N. Freeman, Acting Director of the Oil Workers International
Union, CIO, 188 West Randolph Building, Chicago, Illinois."
As of the date of this letter I have not received a reply to my letter of November 26th.
This is to advise you that unless a reply is received from you arranging for a meeting
within the period of the next ten days your plant will be shut down without further notice.
It seems as though you have objected to Mr. Freeman and the undersigned sitting in
meetings with you. Due to this fact we had advised our Committee from your plant near
Princeton, that they could hold a meeting with you in an attempt to conclude negotiations.
However, I have been advised that you have not seen fit to meet with this Committee
for various reasons.
I think you will have to agree that we have been very patient with you in the past.
In the future there will be a representative from the Local Union and a representative
of the Oil Workers International Union, C.I.O., present at all conferences between this
Union and your Company until a satisfactory agreement is reached.
Yours very truly,
OIL WORKERS INTERNATIONAL UNION
C.I.O., LOCAL NO. 368
Hubert Burden
Secretary -Treasurer
R. J. OIL & REFINING CO., INC. 669
On January 12, 1951, Smith wrote Burden as follows:
January 12, 1952
Mr. Hubert Burden, Secretary -Treasurer
Oil Workers International Union, C.I.O.
Local No. 368
Lawrenceville, Illinois
Dear Mr. Burden:
I have your letter of January 8, 1952. Answering the first paragraph, the reason the
letter of November 26th was not answered is because there had been some local dis-
cussions with the Refinery Committee as to meetings and so forth and I assumed that the
Oil Workers International Union, C.I.O. had been advised.
I do not like the second paragraph whereby you threaten a strike unless a meeting is
arranged within the next ten days. Threats and coercion, in my opinion, do not help
harmonious relationships and I question very much if you had the authority from the
employees of the R. J. Oil & Refining Co. to make this threat.
Referring to your third paragraph, your assumption in this paragraph is wrong as to
Mr. Freeman . I have never objected and do not object at this time to a meeting of our
local Committee with Mr. Freeman or any other full time representative of the Oil.
Workers International Union, C.I.O. as I realize that the Oil Workers International Union
has been certified under the National Labor Relations Act to represent employees of the
R. J. Oil & Refining Co., Inc., and we do not question this authority and have never
refused to meet the Plant Committee or any of the duly appointed representatives. How-
ever, I do hesitate in giving confidential information to a full time employee of a com-
petitor, the said competitor being in local competition in the same area where practically
all our products are sold.
I feel the Oil Workers International Union should have a local Union made up of em-
ployees of the R. J. Oil & Refining Co., and the officers of this local Union should be
employees of the R. J. Oil&RefiningCo. in other words, I object to you sitting in meetings
and getting confidential information as to costs and operation of our little skimming
plant. If I understand the situation right, you are a full time employee of the Texaco
Company at Lawrenceville; that you are Secretary-Treasurer of Local No. 368 which
has a large membership. In other words, the membership of the R. J. Oil & Refining
Co. would be a very small percentage of the membership of Local 368, and under
this situation and condition, it is very easy for you to threaten a strike as a strike at the
R. J. Oil & Refining Co. would not interfere with your income or economic life.
Please do not understand this letter to be a refusal to meeting a duly appointed
representative of the Oil Workers International Union. I would be willing to meet Mr.
Freeman or any other full time officer of the Oil Workers International Union, C.I.O.
and members of a committee of the employees of the R. J. Oil & Refining Co., Inc. This
meeting can be arranged satisfactorily for ten o'clock, A. M., Wednesday, January 16,
1952, at the Emerson Hotel, Princeton, Indiana. This is assuming that weather conditions
and such are favorable for the representatives to travel to Princeton. This is the only
date I will have open in January as it is necessary for me to be in Washington, D. C.
the week of January 21st and I have plans for the week of January 28th.
If you are present or any other full time employee of a competitor, I shall hesitate
to divulge any confidential information as to costs and so forth.
Yours very truly,
R. J. OIL & REFINING CO., INC.
President
In the considered opinion of the undersigned the above letter from Smith to Burden is of
the utmost importance in the undersigned's ultimate determination of the issue herein,
for the simple reason that it sets forth in clear and concise language the reason for much
of the disagreement that had developed between the parties and eventually was one of the
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
major causes of the "break-up" of negotiations between them. The undersigned has in mind
that portion of Smith's letter which refers to his objection to the presence of Burden at the
bargaining session. That the employees themselves had some reaction is evidenced by the
testimony of Hill who was a member of negotiating committee, and was in attendance at all
of the formal meetings. Moreover, he was at all times material herein a full-time employee
of the Respondent, of which more anon hereinafter.
According to Hill the employees in the unit though they had rejected the idea of organizing
themselves into a separate local, nevertheless felt that since the bargaining sessions had
so far accomplished nothing, at least up to the last formal meeting on October 2, 1951, and
thereafter during the months of November and December 1951, that perhaps something could
be accomplished if a committee consisting solely of employees in the unit discussed their
differences with the Respondent. With this in mind an effort was made by Hill, Chandler,
and others of the committee to meet with Smith. Though arrangements were made and dates
tentatively set for meetings, nothing was actually accomplished, mainly because Smith was
unable to keep appointments which had been made through Superintendent Fuller, for one rea-
son or another, such as the press of other business and weather conditions. Consequently,
their efforts in this regard came to naught.
The parties finally met for the fifth time on January 18, 1952, at the Emerson Hotel in
Princeton , Indiana . Representing the Respondent were Fuller and Smith , and for the Union,
Freeman, Burden, and the local committee consisting of Hill, Sollman, and Chandler. At
the onset of the meeting Smith for the first time openly and publicly objected to the presence
of Burden, the secretary of the Union. His objection, in substance, was predicated on the fact
that Burden was an employee of the Texas Company, and that as such was in a position by
virtue of being present at the meetings to ascertain vital economic data as regards the
Respondent's operations which in turn might be imparted to his superiors in the Texas Com-
pany.
At this meeting Smith told the Union's negotiators that he was willing to grant a wage in-
crease to the refinery employees within the limits that were then acceptable to the Wage
Stabilization Board. This offer though not entirely satisfactory to the Union, was never-
theless acceptable providing they could work out the rest of the disputed items in the Union's
proposal. Smith's offer amounted to an increase of around 14 cents per hour for operators
7 cents per hour for yard and maintenance men. Smith also promised the union committee
that he would bring his profit and loss statement for the month of November 1951 to the
next meeting, which was tentatively set by Smith for January 29, 1952, of which more anon
hereinafter.
At the time Smith made his proposal as regards the wage increases to the operators and
yard and maintenance employees, he was queried by the union negotiators as regards the
wages of the truckdrivers. Smith advised them thathe did not have a report on them with him,
and consequently was unable to discuss their wages at that time.
Pursuant to Smith's suggestion the members of the union committee assembled at the
Emmerson Hotel in Princeton, Indiana, for their proposed meeting with the Respondent on
January 29, 1952, at 10 a. m. Composing the union committee were the following. Burden,
from the Local, and Freeman from the International office, and Chandler, Sollman, and Hill
for the employees at the refinery. Representing the Respondent was Fuller. Smith was not
present. Fuller stuck around the hotel for a short time and then he left and went out to
the refinery. Shortly thereafter Burden called out to the refinery and talked to Fuller, who
advised him that he [Fuller] had called the Respondent's office in Terre Haute, and had
been advised that Smith's whereabouts were unknown to his office. Later that afternoon at
about 2 p.m. Rebone, the Respondent's office manager came to the hotel and advised the
union committee that Smith had gone out to one of his oil wells that morning where he had
become ill and was forced to return to his home in Terre Haute. The meeting was then
adjourned until February 5, 1952.
The sixth and last formal meeting between the parties was held on February 5, 1952,
at the Emerson Hotel, in Princeton, Indiana. Present for the Union were the following:
Burden, as secretary-treasurer of the Local, and A. David Herring, for the International. 14
After a careful review of the entire record, the undersigned is convinced that the testimony
of A. David Herring, the international representative at the meeting, clearly sets forth
the events as they transpired at this final and important meeting between the parties. With
14 Freeman who had been in attendance at all of the past meetings was unable to attend
and Herring appeared in his stead.
R, J. OIL & REFINING CO., INC. 671
this in mind the undersigned is convinced that excerpts from his testimony in this regard
should be set forth her. in. His testimony is clear and to the point and fully credited by the
undersigned Consequently, it follows below
Q. Now, could you just tell us as best you remember it, what transpired at that
meeting, who said what to whom?
A. The union committee composed of Secretary Burden, Amos Hill, Chandler, Sollman
and myself met with the Company representatives, Mr. Smith and Mr. Fuller. Mr.
Smith started off saying that he wanted to hit the controversial issues that were keeping
the negotiations from reaching a successful conclusion. At that point, Mr Smith pro-
posed a package deal. Before he proposed the package deal, he said that the truck dri-
vers' wages and our request of the truck drivers that they divide the work when a truck
was down was out of the way, was set aside, that they wouldn't agree on anything like
that. He then offered a wage proposal of the amount which the union had said was per-
missible under the COLA, Cost of Living Allowance, which was talked about, and a
figure more or less agreed upon at the January 18 meeting, to apply to the refinery
workers only. In his package deal he said there would be no union shop, no check off,
no shift differential, no holiday pay. He agreed at that time to eight hours--let me cor-
rect that. He agreed at that time for overtime pay for over eight hours of work. He had
previously agreed over forty, and he put the daily overtime in at that time. On sick
leave he put in a clause of three months at full pay, and three months at half pay.
He talked further about the possibility of giving the men a sick pay plan, or a hos-
pitalization plan, let me say, if there could be an agreement reached with the inde-
pendent union which was in the machine shop at that particular time.
That was roughly his proposal at that meeting
Q. Now, what was the union's reaction to that and who was the spokesman for the
union9
A. Brother Burden and myself, I would say, were the speakers for the union. I. of
course, familiarizing myself with what had been going on before, and Brother Burden
more or less carrying the ball in that session
According to Herring, the union negotiators were "more or less agreed" on the wage pro-
posal made by Smith with the understanding that it would be acceptable providing a solution
could be found for other matters which the Union considered of equal importance. One of
such matters was a question concerning the wages and working conditions of the truck-
drivers It must be remembered that they too were a part of the unit found appropriate by
the Board and it was the duty of the Union as the certified bargaining agent to bargain for
them as well as for the employees actually employed in and around the refinery , that is the
production and maintenance workers. Again, as indicated above in Herring's testimony Smith
at the onset of the meeting before he presented the Respondent's so-called "package-deal"
specifically and unequivocally announced to the union negotiators that insofar as the truckdri-
vers were concerned they were not included in his "package-deal" proposal. This was of
importance to the Union because at one of the first meetings beween the parties, Smith had
tentatively agreed to a seniority system for the truckdrivers as a separate group, at the same
time he had tentatively agreed to a seniority proposal offered by the Union as regards the
production and maintenance employees as a group As the undersigned sees it, Smith dis-
regarded his earlier agreement to a seniority system for truckdrivers that would permit
an employee with seniority to work and drive any one of the Respondent's trucks which was in
operation even though the particular truck whichhedrove regularly was laid up for repairs or
there was not sufficient work to keep all the trucks on the road. The Respondent's position
insofar as the truckdrivers were concerned, was that each man had his own truck and for any
reason that particular truck was out of service, such as for repairs and the like, then the driver
who was assigned to it was automatically laid off regardless of his seniority. In other words,
the "body" went with the truck.
After Smith stated the Respondent's position as regards the truckdrivers, the Union, as
indicated above, raised its objection to his proposal in this regard, which was as stated by
Herring in his testimony, that under the system advocated by the Respondent, some men work-
ing long hours, while others with more seniority were laid off regardless of their seniority.
This the Union felt was grossly unfair and should be remedied. Another point of contention
as regards the truckdrivers was their rate of pay. Under the system then in effect, the
drivers' remuneration was based on the time allotted per trip by the Respondent For
example, the Respondent allotted a certain number of hours for a truck to make the run
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from say Princeton to Vincennes, Indiana, and no deviation was permitted from the maxi-
mum number of hours allotted regardless of what might occur on the trip. To the Union
this system was unsatisfactory. Though the parties did discuss these matters no agree-
ment was reached, and at the end of the meeting the truckdrivers' situation was back where
it was when negotiations started, regardless of Smith's previous agreement to a tentative
proposal of the Union made at one of their first meetings as pointed out above.
There was discussion as regards other matters at the meeting, particularly as regards
holiday pay. During the course of the meeting Smith produced the Respondent's records for
a period of 1 year which the Union considered bad faith in view of the fact that at a previous
meeting Smith had promised to produce for the Union's inspection the Respondent's earnings
for a 2-month period, so that they could intelligently discuss the issue of holiday pay. As
the undersigned sees it, the Union bad reference to a 2-month period after the new frac-
tionating tower had been installed and the earnings after that time were to be the basis for
their discussion as regards the payment of holiday pay It must be remembered that in
prior meetings, that is from May 16 to October 2, 1951, Smith had refused to discuss "money-
matters" either because of the pendency of an ultimate erection of the new tower or for the
reason that not enough time had elapsed since the completion of the tower to ascertain whether
or not production had increased and if so to what extent it had increased the Respondent's
earnings, from which of course, any agreement with the Union as regards holiday pay
would have to rest. When Smith produced the Respondent's cumulative figures for a 1-year
period, Amos Hill, one of the union committee men, raised an objection to Smith's pro-
cedure in this regard, and reminded him that he had promised to bring the records for
"a certain period of time." As the undersigned sees it, Hill's objection was based on the
fact that at previous meetings, particularly the first four, May 18, June 4, July 11, and
October 2, 1951, Smith had refused to discuss "money matters" for the following reasons:
(1) the Respondent was losing money, (2) the pendency of the construction of the fraction-
ating tower, and (3) that "money-matters" could not be intelligently disposed of until the Re-
spondent was in a position to determine whether or not the new fractionating tower had
increased production at the refinery and thereby increased the Respondent's profits Hence,
when Smith presented the cumulative profit and loss records for a period of 1 year, instead
of the period of the months the new tower had been in operation, the parties did not have
before them a true picture of the Respondent's present and anticipated earnings upon which
an increase in wages would of necessity have to be based For this reason Hill protested
Smith's action in this regard Smith resented Hill's query in this regard and "bolted" the
meeting, stating that he did not "feel any too good" and could not deal with Hill, and left
the meeting Shortly thereafter, Herring went to Smith's room in the hotel. Herring's ac-
count of what transpired follows below.
Q. Now, after the meeting broke up, did you talk with Mr Smith'?
A. Yes, sir.
Q. Where did you talk to Mr Smith, and what was said
A. I went immediately to his room
Q. Was that in the Emerson Hotel?
A. Yes.
Q. What happened?
A. I got Mr. Smith to the door and told him I had never in my eighteen years of
bargaining ran into anything like that, that I thought he should at least have the courtesy
to come back and talk shut-down procedure with the union. He said, "Take that up
with Scotty."
Q. Then, did you have any further contact with Mr. Smith?
A. I did.
Q. When was that?
A. About 6:30 in the evening, by telephone.
Q. Was that the same evening?
A. Same evening.
Q. Now, tell us what developed in that conversation, who called whom?
A. I called Mr. Smith The conversation went something like this, that it was my
opinion that we should get together and resolve these points that we were apart on in the
agreement, and I wondered if he was available for further meetings, that he couldn't
deal with Amos Hill, that he was going to take a vacation, he was going to Florida,
R. J. OIL & REFINING CO, INC 673
that if we wanted to strike the plant, to go ahead and strike it, drain the water out and
leave it set, and in no event would he see us until after the first of March.
2. The evidence in support of the Respondent's defense
to the alleged refusal to bargain
As indicated above the negotiators for the Respondent at the bargaining meetings were as
follows: President Henry P. Smith and Superintendent J. R. Fuller, 15 Fuller alone parti-
cipated and testified at the hearing herein At the onset of Respondent 's defense- in-chief
Fuller testified as follows as regards President Smith's inability to appear and testify at
the hearing.
Q. Now, has Henry Smith asked you to come down and testify9
A. Yes
Q. Will you explain why Mr. Smith isn't here9
A. Well, he called me and asked me to testify, because of his other interests, he
is President of the National Coal Association, not president, but Director, and he
has other interests throughout the country, plus inside the state of Indiana, and he is
taken up with that at the present time
Q. Did he make any remark , to you about your being in negotiations , the same
as he was?
A. Yes, he remarked I had been at all of the negotiations, and knew as much about
the negotiations as he did
According to Fuller the Respondent discussed all phases of the Union's proposal at one time
or another during the various meetings between the parties Certain proposals were agreed
to and others were rejected in toto, such as the union shop and checkoff of union dues. He
further testified that Smith never agreed at any time either at the first meeting between
the parties or at any other meeting to a union shop or to a checkoff provision in the Union's
proposal. As the undersigned understands it, Smith was opposed to a union shop and the check-
off of union dues as a matter of principle
Fuller ' s testimony is in agreement with that of Freeman and other witnesses called by
the General Counsel that at one stage of the negotiations the union negotiators proposed to
the Respondent that a partial contract be signed which would include those issues upon which
the parties were in agreement , and that the issues upon which there was still disagreement
be temporarily set aside and negotiated later . The issues upon which there was still dis-
agreement being the union shop, checkoff , seniority , certain portions of the Union ' s proposal
on settlement of grievances , such as arbitration , and "money- matters "
Fuller ' s account of the Hill incident at the February 5, 1952 meeting was as follows:
Q. (By Mr. Donovan ) Calling to your attention , the February 5 meeting , there has
been a discussion as to what might be known as the session between Mr Smith and Mr.
Hill . Will you relate to the Trial Examiner what, if anything , was said by Mr Hill and
Mr. Smith during this February 5th meeting, which, apparently , was in a loud voice9
A. Before that incident , I would like to relate we were getting along very nicely
with Mr . Herring in the meeting , and we agreed on quite a few of the issues in there,
in fact, I would say at least two thirds of the wages and so forth, and we finally got
to holiday pay. The issue come up, called for a slight recess, and when they came
back in the room, Mr. Hill said that if we would give them the union shop that they
would waive pay for jury and witness duty. That was one of the items in there. And
then it got back into the issue of holiday pay, pay for holidays, which was what they
wanted, straight time if they didn't work and double time if they did work, and Mr.
Smith couldn ' t go along on it He said he had given all he possibly could, on this four
cents an hour statement he had given them, and Mr . Hill said it wasn't a true picture
of what the tower could do, and he said, "Well, just like my income tax, I pay on what
I made last year." And there was an incident of directly calling him a liar, and Mr.
Smith said --
MR MARCUS: I object.
i50fttimes referred to in the record by various witnesses as "Scotty."
339676 0 - 55 - 44
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER SHAW That may be stricken just testify what each said All
testimony comes in that way
THE WITNESS: Mr Hill said he was not giving him a true picture of the earnings,
and Mr. Smith said, "Well, it looks like we are at a stalemate , and I have a previous
engagement for 4 30, and I will have to go to that meeting, but I don't see there is any
reason to meet in the future, unless we can break the stalemate " " But," he said,
"there is definitely a stalemate on certain things, union shop, check -off and so forth "
As indicated above the meeting on February 5, 1952, came to an abrupt end shortly after
the argument between Hill and Smith
On February 9, 1952, the Union voted to strike the plant . The issues that developed there-
after will be thoroughly discussed below. u
Fuller was the only witness called by the Respondent to refute the testimony of the General
Counsel's witnesses as regards what transpired at the bargaining negotiations between the
parties. As a matter of fact he was the only person available to testify in this regard, since
Smith for reasons set forth above did not choose to either participate in this proceeding
or to testify on behalf of the Respondent , by deposition or otherwise
On May 6, 1953, the undersigned reopened the record for reasons that have been set
forth above. In the course of the hearing Frank Barnhart , regional director for District
50, of which more anon, testified without contradiction as regards the circumstances sur-
rounding the recognition of District 50 as the exclusive bargaining representative of the
Respondent ' s employees . According to Barnhart ' s testimony , which the undersigned credits,
the contract between the Respondent and District 50 contains inter alia the following in-
teresting clauses: ( 1) A provision which Barnhart admitted upon interrogation by the under-
signed to be a 30 - day waiting period before the employees could join District 50.(2) a
provision for a dues checkoff; and (3) there is no provision in the contract for the truck-
drivers, and consequently they are excluded entirely from the contract at issue herein.
Since the contract with District 50 was entered into within less than 24 hours after District
50 presented its evidence of majority representation , Barnhart ' s testimony becomes of major
importance in the undersigned ' s ultimate resolution of the credibility of Fuller and other
witnesses who testified on behalf of the Respondent
Conclusion as Regards the Alleged Refusal to Bargain
From all of the foregoing , including a consideration of the independent violations of Sec-
tion 8 (a) (1) of the Act which the undersigned has found herein above and the events de-
scribed below as regards the recognition of District 50 as the exclusive bargaining repre-
sentative of the Respondent ' s employees , the undersigned is convinced and hereby finds
upon the record as a whole that the Respondent by its overall conduct "did refuse and is
now refusing and failing to bargain collectively with the Union " as the certified exclusive
bargaining representative of the employees in the unit described above, and thereby has
engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5)
and (1) of the Act
Many factors have entered into the undersigned's finding in this regard At the onset
lie desires to point out that this finding is predicated upon a host of derelictions upon the
part of the Respondent Quite frankly many of them as regards material matters at the bar-
gaining sessions even if they stood alone might well have been the basis of his ultimate find-
ings herein Unfortunately , they do not so stand, but on the contrary when considered as
a whole they present a picture that indicates to the undersigned that the Respondent never
had any real intention of reaching an agreement with the Union in fact, the undersigned is
convinced from the record as a whole that the Respondent , speaking particularly through
its president , Henry P. Smith , pursued a course of conduct throughout the bargaining ne-
gotiations that indicates a complete rejection of the principle of collective bargaining
To begin with , the negotiations started out in a bad atmosphere . For example , the under-
signed is convinced and finds that at the first meeting the Respondent agreed to the inclusion
of a provision for a union shop and dues checkoff in the proposed contract , and thereafter
shifted its position in this regard Smith according to Fuller, as the undersigned interprets
the record , rejected the Union's continual demands for the inclusion of such provisions
in the contract as a matter of principle . No one would question either the right of the Re-
i6 The record clearly shows that the employees themselves voted to strike the plant.
R. J. OIL & REFINING CO., INC. 675
spondent or of Smith as an individual to reject the idea of either a union shop or the check-
off of union dues for such a reason. Many employers do, that is their right. Nor does the Act
compel them to accede to the demands of the exclusive bargaining representative for such
provisions. All that the Act requires is that an employer must bargain in good faith with
the bargaining representative of his employees. The gravamen of the Respondent's posi-
tion is that it did agree to such provisions and then not only denied that it had done so, but
thrust aside discussions in this regard at all meetings thereafter What its position in this
regard amounts to is that it is indicia of bad faith in its bargaining negotiations with the cho-
sen representative of its employees.
It is quite true that Fuller in his testimony denied that President Smith had agreed to
the union shop and dues checkoff at either the first or at any other meeting between the
parties. However, the undersigned does not credit his denial in this regard, but on the other
hand credits the testimony of Burden, Freeman, and Hill that Smith agreed to the inclusion
of the disputed provision at the first meeting between the parties The undersigned does not
credit Fuller's denial in this regard for reasons which will be apparent hereinafter
Other compelling factors that have persuaded the undersigned to reject Fuller's testimony
as regards the union-shop and checkoff provisions are the following (1) The undenied and un-
contradicted testimony of Hill, which the undersigned credits, to the effect that at one of
the meetings he pointed out to Smith that he had contracts with the United Mine Workers
and Machinists Union at other of his enterprises which inter alia contained provisions for
both the union shop and the checkoff of union dues etc., which Smith admitted was the case,
but by way of explanation stated that he had no choice in the matter at such enterprises
because he had been compelled to accept such provisions on a "that or else" basis, (2) if
such was the case then the question is posed why did the Respondent, acting through Smith,
later enter into a contract containing somewhat similar provisions within less than 24 hours
after District 50 demanded recognition from the Respondent as the representative of the
employees with whom we are concerned herein, 17 and (3) the fact that the parties herein en-
tered into an agreement for a consent election among the Respondent's employees under
the auspices of the Boardb to determine whether or not they desired the Union to bargain
with the Respondent for such a provision in the proposed contract, before the parties herein
had their first meeting on May 16, 1951. From these facts the undersigned is convinced and
infers that Smith had no real objection to a union shop or checkoff of dues and consequently
made the statement attributed to him by Burden, Freeman, and Hill at the first meeting be-
tween the parties on May 16, 1951 Moreover, the fact that the Respondent did enter into a
consent-election agreement indicates to the undersigned that Fuller's denial that Smith
had agreed to a union-shop clause at the first meeting between the parties was not a true
account of what transpired at that meeting In other words the deeds and positive acts of
the Respondent belie its contention in this regard, primarily because the Act at that time
and the Board's Rules and Regulations then in full force and effect, provided for either
a Board-ordered election or for a consent election. Since the Respondent chose the latter,
this fact alone further belies Fuller's testimony in this regard.
The conduct of the Respondent in shifting its position as regards the union shop and dues
checkoff is in the considered opinion of the undersigned indicia of the Respondent's deter-
mination from the onset of the negotiations to thwart the efforts of its employees to bargain
with it through a representative of their own choosing.
Another compelling factor was the attitude of the Respondent towards its truckdrivers
(1) during the bargaining negotiations, (2) prior to the certification of the Union as the ex-
clusive bargaining representative of its employees, and (3) at the time it entered into a con-
tract with District 50. Here again we find the Respondent shifting its position as regards
a material issue. It must be remembered that at the time the Union filed its petition for de-
termination of representatives under the provisions of Section 9 (c) of the Act, it excluded
the truckdrivers from the unit it contended was appropriate for the purposes of collective
bargaining At the hearing on the question concerning representation on Princeton, Indiana,
on January 25, 1951, Case No 35-RC-463, the Respondent took the position that the truck-
drivers should be included in the appropriate unit. The Union vigorously opposed their
inclusion on the grounds that it was against the policy of theUnion to include such em-
ployees in a unit of production and maintenance workers, primarily because the interests
and problems of the truckdrivers as a group were different from that of oilworkers in
r' See infra under that section of this report styled "The alleged violation of Section 8
(a) (2)."
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general around a refinery and secondly , because they had traditionally been excluded from
a unit of production and maintenance workers in the industry . The Board , as indicated above
rejected the Union's contention in this regard and in its Decision and Order sustained the con-
tention of the employer (that is the Respondent herein ) and ordered that they be included
in the appropriate unit Consequently , the Union was under a legal obligation to bargain for
such employees in its negotiations for a contract with the Respondent . This it attempted to
do during the course of its negotiations with the Respondent , as the record amply demon-
strates.
Let us now look at the record as regards the position taken and the demonstrated attitude
of the Respondent towards the truckdrivers at the bargaining negotiations . At one of the
first meetings , the union proposed that seniority be recognized by the Respondent in its
assignment of work to the truckdrivers The Union pointed out to the Respondent that it
considered that the system then followed was grossly inequitable in that on occasions truck-
drivers with seniority were out of work while others with less seniority were not only
working full time but actually working overtime The system then in effect was that each
driver was assigned to a truck and was paid so many hours for each run. For example,
if the Respondent allowed 4 hours for a run to say Terre Haute , then if he made the trip
in 3 hours , he would nevertheless be paid for 4 hours work, and vice versa . If on the other
hand a truck was down for repairs , the driver assigned to that particular truck was laid
off until the truck was repaired and ready to roll again Thus a driver who had say for
example 5 years' service would be out of work while one with 6 months ' service would
continue working regardless of the seniority of the driver whose truck was down. The Union
proposed that the drivers with the highest seniority should be kept on the job regardless
of whose truck was down. At the meeting on June 4 , 1951 Smith speaking for the Respondent
"tentatively" agreed to a separate seniority list for the truckdrivers. At a later meeting the
Respondent receded from this position and stated that the system then in effect would con-
tinue. The Union was unable thereafter to persuade the Respondent to agree to its original
proposal as regards the truckdrivers . So when the negotiations broke off on February 5, 1952,
the parties were right back where they started from insofar as the truckdrivers were
concerned.
By shifting its position in regard to its earlier agreement concerning the truckdrivers,
the Respondent again evidenced its rejection of the principle of genuine collective bargaining.
To say the least, the undersigned considers the Respondent ' s conduct in this regard as
a most serious dereliction of its statutory duty to bargain in good faith with the Union. The
gravamen of its conduct in this regard is the fact that it created the situation itself. As
pointed out and discussed above, the Respondent insisted , indeed demanded , at the repre-
sentation hearing18 that the truckdrivers be included in the appropriate unit over the vig-
orous protest of the Union. The record clearly shows that throughout the negotiations between
the parties the Respondent treated them as step-children , so to speak . It not only shifted
its position regarding its tentative agreement with the Union that a separate seniority list
would be established for them, but vascillated as regards other issues concerning these
employees , particularly " money-matters " For example , when Smith made his "package-
deal" offer to the Union at the meeting on February 5, 1951, no provision whatever was made
for the truckdrivers in his proposal . This leads the undersigned to conclude that the Re-
spondent never intended to bargain in good faith with the Union as regards these employees
despite the fact that it itself had insisted upon their inclusion in the bargaining unit in the
first instance . If this were not enough to compel one to reach this conclusion , if indeed
more were necessary , then its conduct as evidenced by its contractual agreement with Dis-
trict 50 surely does . As pointed out above the truckdrivers were completely ignored and left
out of the bargaining unit altogether in its agreement with District 50 Clearly such conduct
justifies and indeed compels the conclusion that the Respondent never had any intention of
bargaining in good faith with the Union as regards these employees , who at all times material
herein represented approximately 25 percent of the employees in the unit found appropriate
by the Board.
The Board and the courts , in a long line of decisions too numerous to encumber this report
with endless citations therefrom , have consistently held that such conduct on the part of a Re-
spondent constitutes evidence of, and in fact is, a refusal to bargain in good faith.
That the conduct of the Respondent in shifting its position as regards the Union ' s proposal
for a union shop , checkoff, and seniority for the truckdrivers is clearly violative of the Act
12 Case No. 35-RC-463.
R. J. OIL & REFINING CO., INC. 677
was recently well stated by the Board in the Stanislaus Implement and Hardware Company
case , 101 NLRB 394. In that case under a somewhat similar set of facts the Board found,
inter aha , that the Respondent therein violated Section 8 (a) (5) and (1) of the Act by:
(1) In negotiating about the union-shop clause, the Respondent took shifting positions,
(a) at first , objecting to the Union 's proposal for a union-shop clause contingent on winning
a union-authorization election , because of the alleged propaganda value to the Union of
such a clause in advance of such an election , (b) then, contending that any discussion even
of a contingent union-shop clause before such an election was illegal , and (c ) finally,
after the Union had won a union -authorization election to which Respondent had agreed,
t e Respondent asserted that it would not agree to a union shop because of its opposition
to compulsory union membership . [Emphasis supplied.]
Like the Board , the undersigned finds that by the conduct described immediately above, the
Respondent herein violated Section 8 (a) (5) and ( 1) of the Act.
Further indicia of the Respondent 's refusal to bargain with the Union in good faith was its
refusal to permit Freeman to bring an accountant with him to Terre Haute to examine its
books for the purpose of substantiating President Smith's contention that the Respondent
was unable to grant an increase in wages due to business conditions , which was the reason
advanced by it in support of its refusal to discuss "money-matters " at the first three
meetings . Smith's offer to Freeman was first made at the meeting on June 4, 1951 . At the time
it was made Freeman informed Smith that he was not an accountant and for him to examine
the books would be a futile gesture . He then suggested in substance to Smith that he be
permitted to bring an accountant with him so that an intelligent appraisal could be made of the
Respondent's position in this regard . His requestwas flatly rejected by Smith , who at the time
again informed the representatives of the Union that Freeman alone would be permitted to
examine the books . The record clearly shows that Freeman was by occupation a production
worker in the Sinclair Oil Company 's refinery mtheChicago , Illinois , area, and had no training
whatever in accounting. Though the Respondent renewed its offer to Freeman at later meetings
it never receded from its original position that he alone would be permitted to see the books
and make the audit.
In the considered opinion of the undersigned , the Respondent 's position in this regard was
not only indicia of bad-faith bargaining , but standing alone a violation of Section 8 (a) (5)
and (1) of the Act . The Board with approval of the courts has consistently held that an employer
must make available to the exclusive bargaining representative of its employees information
that is essential to an intelligent discussion of issues which are the subject of collective
bargaining . Wages clearly fall within this category . A gesture in this direction is not enough,
especially where the offer of the employer is coupled with a proviso that is futile on its face.
Such is the situation herein . If the Respondent was motivated by good faith in the offer to the
Union to permit Freeman to examine its books and records to substantiate its position that
it would not discuss "money -matters ," then surely it could have had no objection to permitting
him to be accompanied by an accountant so that its offer could become a reality. Hence Smith's
offer was an idle gesture and futile on its face . Of course an employer is not required to furnish
information in the exact mode and manner requested by the representative of his employees.
All that he is required to do is to furnish it in a manner that is not so burdensome or time-
consuming to impede the process of bargaining . 19 In the considered opinion of the undersigned
the restrictions placed upon Freeman as spokesman for the Union by the Respondent in its
offer to permit him alone to examine its books and records were of such a nature that its
conduct in this regard falls within the purview of the Board 's policy as enunciated in a long
line of cases too numerous to encumber this report with excerpts and citations therefrom. 20
As indicated above , the Respondent 's employees went on strike on or about July 18, 1951,
and remained out until July 27 , 1951 . During this period representatives of the Union made
overtures to the Respondent and requested a meeting with President Smith . Thereafter, Fuller
informed representatives of the Union that the Respondent would not meet with the Union while
they were on strike. This conduct on the part of the Respondent was likewise violative of the
Act. The Board and the courts have so held for many years . Here again the undersigned deems
it unnecessary to clutter up this report with numerous citations and excerpts therefrom.
19 See The Cincinnati Steel Castings Company , 86 NLRB 592 and cases cited therein.
2i To cite but a few see N. L . R. B. v. J. H . Allison & Co ., 165 F. 2d 766 ( C A. 6); Cin-
cinnati Steel Castings Company, supra; Leland-Gifford Company , 95 NLRB 1306.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Suffice it to say however that their reasoning in this regard has been so firmly established
that the undersigned deems it unnecessary to deal with it extensively here. 21
As indicated above the fourth meeting of the parties was held on October 2, 1951. During
the course of the meeting the Union suggested to the Respondent that they reduce issues upon
which they were in agreement to writing , and leave those which were in dispute open for
further discussion , particularly as regards "money-matters ." The Union realized at the
time that there could be little progress made on this issue until the Respondent's new
fractionating tower had been in operation for a sufficient length of time to determine its
profit or loss from this venture . Both parties realized that this was so and for that reason
"money-matters " would of necessity have to be temporarily set aside until a reasonable time
had elapsed after the new tower went into operation and its effect on the Respondent 's earnings
was determined . As the union negotiators saw thesituation there would of necessity be a delay
of several weeks before this important issue could be discussed intelligently . zP It was in the
light of this situation that it made theabove suggestion to the Respondent as regards a written
agreement on the issues tentatively agreed upon . The Respondent rejected the Union's proposal
in this regard and took the position that it would only sign a complete contract . Though its
refusal to accept the Union 's proposalwas notviolative of the Act, the undersigned is convinced
that when its refusal in this regard is considered in the light of what had previously transpired
in their bargaining relations that it does , to say the least, lend support to the General
Counsel's contention in his brief that the refusal of the Respondent to enter into an interim
agreement pending the agreed upon 60-day hiatus in their negotiations was ".. one more
example of Respondent 's intransigence."
In its brief and on the record by its counsel the Respondent comments at great length its
displeasure over the fact that the Union herein was certified by the Board as the exclusive
bargaining representative of its employees. From what the undersigned can glean from
the record its displeasure stems from the fact that the Union for the most part represents
employees of large companies such as the Texas Company, Sinclair Oil and Refining Company,
and others of equal rank in the petroleum industry, and that for this reason it is not qualified to
represent employees of small or independent operators . For example , throughout the record
and in its brief it seems to take the position that the Union arbitrarily forced its employees
to become members of Local 268, which consisted for the most part of employees of the Texas
Company at its Lawrenceville, Illinois , refinery , with total disregard to the wishes of its
employees , whom it contends desired to be detached from Local 268 , and operate under their
own charter . The record does not support the Respondent's position in this regard. There
is not a scintilla of evidence in the record that either the International or Local 268 entertained
or enforced any such policy. The evidence is to the contrary . As a matter of fact, and as the
record clearly shows without contradiction, the Respondent 's employees who were members
of the Union took the following independent action during the time material herein, first,
at a meeting of the membership working at the Respondent 's plant they voted upon and rejected
the idea of forming their own local primarily for the reason that they felt that they constituted
too small a group, and secondly, that sometime following the bargaining meeting of October
2, 1951, they did attempt to act as an independent group on the local level and discuss their
problems with the Respondent with the full approval of Local 268 and the International Union.
Significantly enough when they did attempt to function as a group they were confronted with
the same vacillating tactics that Local 268 and the international negotiators had heretofore
experienced in their efforts to reach an agreement with the Respondent, as the record amply
demonstrates. Of course the Respondent 's ideas in this regard are of no moment and have
no material effect upon the issues with which we are confronted herein . Nor are they in any
respect violative of the Act. As far as the Act is concerned , the Respondent herein, or any
employer or citizen , can entertain any opinions or ideas they desire ; that is their privilege.
No sensible person would question their prerogative in this regard . Surely not the undersigned.
The only relativity that the Respondent 's position in this regard has to the issues involved
herein is that it impresses the undersigned to the extent that he feels compelled to point
out to the Respondent that Section 7 of the Act inter alia provides in unequivocal language that
"employees shall have the right to self-organization , to form, join, or assist labor organ-
izations , to bargain collectively through representatives of their own choosing , and to engage
zi To cite but a few cases in this regard see the following: West Fork Cut Glass Company,
90 NLRB 944; Old Town Shoe Company et al., 91 NLRB 240 and cases cited therein.
22 The record indicates that a 60-day hiatus in bargaining negotiations was agreed upon
by the parties.
R. J. OIL & REFINING CO., INC. 679
in other concerted activities for the purpose of collective bargaining or other mutual aid or
protection ...... [Emphasis supplied] Surely the Act means what it says, consequently
this compels the conclusion that the Respondent 's employees alone along with employees
of other employers whose activities come within the jurisdiction of the Board , have the
statutory right to choose their own representatives for the purposes of collective bargaining
without interference from any source . In other words it is no concern of either this Re-
spondent or any other employer similarly situated whom its employees choose to represent
them. Their agent may be either a labor organization , an individual such as an attorney,
minister, or any person capable of acting as such . As a matter of fact any interference by
an employer in this regard is in and of itself violative of the Act, as will be discussed and
disposed of hereinafter.
In the main the Respondent's defense to the General Counsel 's contention as regards its
refusal to bargain in good faith with the Union is that it was the Union 's adamant stand
and insistence upon a union -shop clause in its proposed contract that was the cause of the
breakdown in negotiations between the parties. There is support in the record for the Re-
spondent 's contention in this regard. It is quite true that at the time the negotiations abruptly
ended on February 5, 1952 , there yet remained three major issues upon which the parties
could not agree. They were ( 1) the union shop, (2) extra pay for holidays , and (3 ) grievance
procedure that provided for final settlement by means of arbitration . In addition there was
still at issue the following as the undersigned interprets the record : ( 1) Seniority for the
truckdrivers , (2) checkoff of union dues , and (3 ) a wage increase for the truckdrivers. As
the undersigned sees it there had been considerable discussion as regards these issues,
particularly as regards the Respondent 's policy concerning the assignment of work for the
truckdrivers , and its corollary the rate per hour for trip assignments . The record is not
altogether clear as regards the wages of the truckdrivers , except the fact that at the time
President Smith presented his so-called "package -deal" for the production and maintenance
employees , he, in answer to a query from one of the union negotiators as to this issue,
stated in substance that the Respondent was not in a position at that time to make an offer
as to these employees . At the same time Smith speaking for the Respondent reiterated its
previous position as regards seniority for these employees , and informed those present that
its past policy would be retained , that was so to speak that the "driver went with the truck.- 23
Though the undersigned agrees with counsel for the Respondent that the issues described
immediately above represented the major differences between the parties at that time, Feb-
ruary 5, 1952 , he cannot accept his theory that an impasse had been reached. In the first
place, counsel ignores the fact that the union negotiators informed Smith that the "package-
deal" offer was satisfactory providing other issues , which to the Union were of equal impor-
tance, were worked out and embodied into a written agreement . Secondly , that the Respondent
had shifted its position on at least three issues at one time or another during the course
of the negotiations , to wit, the union shop , dues checkoff , and seniority for the truckdrivers.
Third, that when Hill questioned the Respondent 's method of computing its wage increase
offer and was informed that itwas predicated on a year 's earnings and not for the period since
the installation of the new fractionating tower as had been promised by Smith at the meeting
of October 2, 1951, it was President Smith himself who, piqued at Hill 's questioning , abruptly
broke off negotiations and left the meeting . Hill's testimony in this regard which is credited
by the undersigned follows below.
Q. Now, during this meeting did Mr . Smith make any attempt in the course of the
meeting to leave?
A. Yes, he did.
Q. Could you tell us about that, tell us just what happened?
A. Well, about around 2:30 or 3:00 o'clock he got up out of his chair, kind of stretched,
said he was tired and he would have to be leaving , he didn't have time to stay any longer.
Just which meeting are you talking about?
Q. February 5th.
A. Yes, just that.
Q. What happened after that?
A. Mr. Herring asked him if he was breaking off negotiations , and he kind of stopped,
turned around , and started some conversation with Mr. Herring and went back to his
chair and sat down and started in talking again.
2SSee supra for further discussion in this regard.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Now, what finally broke up that meeting?
A. Well, I drawed his attention to a statement he had brought down, of profit and loss.
We had been talking about holiday pay, and he was figuring on his pay increase by so many
cents per barrel of oil that he had run through his refinery, and he brought the profit
and loss statement for the end of the year. He had asked for sixty days once to increase
his production before he talked money, and another time he asked to wait until he had
the figures for November, before he would be able to meet and talk, and I told him I
thought it looked like he should have brought the figures on the increased production,
and he jumped up out of his chair, walked out of the room and said he couldn't bargain
with me, we would have to get another committeeman to bargain, he was tired and he was
going to leave.
Q. Was that it?
A. That's the words I remember.
Q. I mean was that the end of the meeting?
A. Yes, it was.
It was at this point Smith left the meeting. What then transpired has been set forth above.
The undersigned is not unmindful of the fact that at the time President Smith left the
meeting he too had cause to be irked at some of the tactics of the representatives of the Union,
particularly the remarks made by Freeman to him at the meeting on October 2, 1952. At
that time Freeman told Smith, in substance, that in his opinion he could do two things (1) set
down and negotiate a contract that contained some of the benefits and wages that were
prevalent in the industry or (2) go out of the refinery business, and either let his plant rust
down or tear it down, lay the employees off after they had assisted him in its destruction,
and get out of the business entirely. Such conduct is not condoned by the undersigned. On
the other hand he must take into consideration the circumstances under which the remarks were
made. To say the least it must be remembered that much of the conduct described above
had preceded the occasion upon which the remarks were made. Moreover, it also must be
remembered that bargaining sessions are not tea parties and oftimes the parties become
restive and acrimonious in their conduct towards one another. They are not conducted in an
atmosphere where the niceties advocated by an Emily Post are a criterion to guide the conduct
of the individuals engaged in such business. Tempers flare up, things are said by both sides
that would be better unsaid. After all the negotiators are human beings and the subject
matter before them is most controversial. Though Roberts' Rules of Order might well be of
some benefit, the undersigned doubts very much that either side would pay the slightest
heed to its contents, or advocate its use as a disciplinary measure. In passing, the under-
signed desires to point out that remarks such as the above were made but once, and not
reiterated time and again as counsel for the Respondent would have it in his brief, and
particularly in his comments on the record. Again a perusal of the record as a whole convinces
the undersigned that in spite of the conduct described and found above, the meetings on the
whole were conducted in a remarkably clean atmosphere, and comparatively free from epithets
thrown back and forth compared with others that have come to his attention in one way or
another. That the Respondent itself was not entirely free from the stigma that it attaches
to the representatives of the Union is evidenced by Smith's letter to Burden dated January 12,
1952, which is set forth above, in which he insinuates in substance that Burden was conveying
confidential information to a competitor by reason of his being a member of the Union's
bargaining committee. Under all the circumstances the undersigned in convinced that the
less comment he makes on this matter, the better for all concerned. So may it be.
On February 8, 1952, the Respondent discharged Herschel Sollman and Henry Chandler.
On February 9, 1952, the employees in the unit at the Respondent's plant after considering
the discharge of the above employees, and the breakdown in the bargaining negotiations voted
to strike the plant.
In view of the findings made above, both as to the independent violations by the Respondent
of Section 8 (a) (1) of the Act and the separate and independent violation of Section 8 (a) (5)
and (1) of the Act, the undersigned finds that the strike which began on February 9, 1952,
was an unfair labor practice strike from its inception and continued as such until it was
terminated on June 23, 1952, at which time the striking employees unconditionally applied
for reinstatement to their jobs. Though the General Counsel insists that the discharge of
Chandler and Sollman in alleged violation of Section 8 (a) (3) and (1) of the Act were neces-
sary contributing factors to the decision of the employees to concertedly strike the plant,
the undersigned for reasons which will be apparent hereinafter deems it unnecessary to find
R. J. OIL & REFINING CO., INC. 681
at this stage of the case that the alleged discriminatory discharge of these employees was
in and of itself from a legal standpoint an essential and necessary factor to find that their
action in this regard constituted an unfair labor practice strike. Suffice it to say that viola-
tions of other sections of the Act are just as potent and necessarily would compel a like
finding as regards the nature of the strike.
Though one might labor no end and rationalize to his heart's content as regards the many
facts presented by the above-described conduct of the Respondent, the undersigned deems it
unnecessary, since the end result would be the same, that the totality of the Respondent's
conduct described and found above supports the undersigned's initial finding in the opening
paragraph of this section of his report. Suffice it to say that what has gone before is enough
for this phase of the case,
Even though the undersigned has found above that the strike which began on February 9,
1952, was from its inception an "unfair labor practice strike," as so called in the vernacular
of the day, he cannot ignore the proposition that assuming arguendo he had found the strike
to have been economic in its origin that events thereafter converted the activity into an
unfair labor practice strike. That such was the case is amply demonstrated in the record.
The uncontroverted facts therein show that on March 20, 1952, Burden, wrote the Respondent
as follows:
OIL WORKERS INTERNATIONAL UNION
C.I.O.
Lawrenceville Local No. 368
March 20, 1952
Mr. H. P. Smith, President
R.J. Oil & Refining Company, Inc.
111 North 7th Street,
Terre Haute, Indiana
Dear Sir:
I have been advised that you have returned from your vacation in Florida. Therefore,
I would like to arrange for a conference during the week of March 24th, at a suitable
place in Princeton, Indiana, for the purpose of settling the issues that are in dispute
between your company and this Union, so that your plant may again be put back in
operation and the employees who were on the payroll as of February 9th be returned
to their jobs.
I would appreciate as much notice as possible as to the date you select during the
week of March 24th so that those who have attended conferences in the past in behalf
of the Union may be present.
Yours very truly,
OIL WORKERS INTERNATIONAL UNION,
C. I. 0., LOCAL NO. 368
/s/ Hubert Burden
Hubert Burden
Secretary-Treasurer
HB-TC
On March 21, 1952, the Respondent replied to Burden's letter of the 20th as follows:
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
March 21, 1952
Mr. Hubert Burden, Sec.-Treas.
Oil Workers International Union, CIO
Lawrenceville Local No. 368
Lawrenceville, Illinois
Dear Mr. Burden:
I have your letter of March 20th asking for a conference during the week of March 24th
for the purpose of settling issues that are in dispute between our Company and your Union.
As you know I have always been willing to meet you in the past when it was convenient
to both parties, however, it is my policy not to meet and discuss any issues in dispute
while the plant is involved in a strike. If you will order the men back to work and they
go back to work, I will then meet you as soon as possible after they return. I will discuss
any and all issues involved. [Emphasis supplied.]
Since I returned from Florida I have been covered up with work. On top of the strike
at the Refinery, the Highway Machine Company struck over a minor dispute. Tom
Gallagher business agent for the Machinist Union called me but I refused to meet
with him until the men returned to work; they returned- to work and I met with Mr.
Gallagher and the Committee and the dispute was settled. Also, the strike on the New
York Central Railroad required some of my time and we now have a stampede strike
of Indiana coal mines which shut our mines down, the strike had nothing to do with our
local property, it is in sympathy with the strikers in the Terre Haute district. The
reason I am telling you this is if you have the men return to work the date that I will
be able to meet you will depend upon a time when I am not tied up with other matters;
I rather think I could meet you within two or three days' notice.
I want you to clearly understand that I do not intend to meet with you or any Union
Representative and discuss any issues involved as long as the Plant is on a strike.
[Emphasis supplied.]
Very truly yours,
R. J. OIL & REFINING CO., INC.
/s/ Henry P. Smith
President
HPS:1
That an employer is required to meet and bargain with the certified representative of his
employees during the course of a strike is so well settled that extensive comment in this
regard is deemed unnecessary by the undersigned. Suffice it to say that the Board and the
courts in a long time of decisions have so held. The gist of their reasoning in this regard is
that it is during precisely such periods that the bargaining process is needed more than
at any other time to assist the parties to amicably settle their differences. u As the Board
said in the Old Town Shoe Company case, 91 NLRB at page 243, where a similar issue
arose. " . . . In this connection the Board has held that the duty to bargain is not suspended
during a lawful strike, indeed, the fulfillment of the obligation to bargain becomes doubly
important during a strike...." 85
On June 23, 1952, the Union wrote the Respondent the following letter which is self-
explanatory:
24 See N. L . R. B. v. West Fork Cut Glass Co., 188 F . 2d 474 (C. A 4).
25 See N L . R. B. v. Highland Shoe , inc., 119 F. 2d 218, 222; Cathey Lumber Company,
86 NLRB 157; The American Laundry Machine Company , 76 NLRB 981.
R. J. OIL & REFINING CO., INC. 683
June 23, 1952
Mr. H. P. Smith, President
R. J. Oil & Refining Company, Inc.,
111 North 7th Street,
Terre Haute, Indiana
Dear Sir:
On behalf of your employees I request that each and all of them who went on strike
on February 9, 1952 be reinstated to their former or equivalent positions without
discrimination because of their Union or other concerted activities. This request for
reinstatement is unconditional and without strings.
All of your employees who went on strike February 9, 1952 desire reinstatement,
all are ready, willing and able to return to work.
Yours very truly,
OIL WORKERS INTERNATIONAL UNION,
C. I. 0., LOCAL NO. 368
Hubert Burden
Secretary-Treasurer
Thereafter followed an exchange of correspondence between counsel for the Respondent
and the Union as regards the reinstatement of certain of the striking employees. Since many
of the strikers are named in the complaint and are of course an issue herein the undersigned
will deal with each striker individually below, as well as dispose of the legal issues raised
by the pleadings and in accordance with the evidence as revealed by the record considered
as a whole.
B. The status of the strikers
The undersigned has found above that the strike which commenced on February 9, 1952,
and was abandoned on June 23, 1952, was from its inception an unfair labor practice strike,
and thereafter was prolonged as such by the Respondent's refusal to meet with representa-
tives of the Union on March 21, 1952. Consequently, the employees who were on strike
were "unfair labor practices strikers" and as such were entitled to reinstatement when
they unconditionally applied for such reinstatement on June 23, 1952. 26
In his complaint the General Counsel names the following employees who on or about
June 23, 1952, terminated their strike described herein above, and on said date and con-
tinuously thereafter requested the Respondent to reinstate them and each of them to the
positions held by each of them immediately prior to said strike or to positions substan-
tially equivalent thereto:
Bobby Eckiss
Joseph J. English
James Hayes
Amos P. Hill
Ray Jaquemai
John Osborne
Robert D. Roney
Billy Frank Scott
Dick Sloan
26 See infra.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint further alleges that since June 23, 1952, and at all times thereafter the
Respondent has failed and refused to reinstate said employees, because of their membership
in, sympathy for, and activity in behalf of the Union, and that by its conduct the Respondent
interfered with, restrained, and coerced, and in interfering with, restraining and coercing
its employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby
engaged in, and is engaging in unfair labor practices within the meaning of Section 8, sub-
section (a) (3) and (1) of the Act.
As indicated above, Burden wrote the Respondent a letter on June 23, 1952, in which he
requested that each and all of the striking employees be reinstated to their former or
substantial equivalent jobs. He further advised the Respondent in the above letter that each
of the striking employees was ready, willing, and able to return to work, and that their
"request for reinstatement is unconditional and without strings."
Thereafter on June 30, 1952, the Respondent wrote the Union and advised it in substance,
inter alia, that since many of the striking employees had been restored to their former or
substantially equivalent jobs, the Respondent was unable to determine just what employees
it had in mind in its letter of June 23, and asked for additional information such as the
names and addresses of the striking employees referred to.
On August 21, 1952, the Union sent the Respondent a list of names and addresses of the
striking employees referred to in its letter of June 23, 1952.
On August 28, 1952, the Respondent advised the Union by letter that many of the striking
employees named in its letter of August 21, 1952, had already returned to work and further
advised the Union that " ... we now wish to state that any employee who desires a job
with this Company should report within three days from receipt of this letter to Mr. J. R.
Fuller, R. J. Oil & Refining Company, Refinery at Princeton, Indiana."
Pursuant to the Respondent's letter of August 28, 1952, a group of the strikers reported
at the plant on September 9, 1952, and requested that they be put to work. Among those
reporting were Amos Hill, Joe English, Herschel Sollman, Henry Chandler, and Billy Frank
Scott. They met with Superintendent Fuller who told them that the Respondent at that time
had no vacancies but that they could leave their applications for jobs if they cared to do so.
At this point Amos Hill told Fuller that the strikers were not after new jobs but desired
reinstatement to their old jobs. The upshot of their meeting with Fuller was that none of
them were restored to their old jobs, nor did any of them file applications with Fuller for
new jobs.
After the incident of September 9, 1952, counsel for the Respondent wrote letters to all
of the strikers named in Burden's letter of August 21, 1952, except Billy Frank Scott of
whom more anon. These letters will be referred to hereinafter in that section of this report
where the individual strikers named in the complaint are disposed of.
Conclusion as Regards the Reinstatement of the Strikers Named in the Complaint
The Issue presented here causes considerable difficulty particularly as regards the time
element. Though the Union wrote the Respondent on June 23, 1952, that the strike was being
officially abandoned as of that date and requested that the strikers be reinstated uncondi-
tionally to their former or substantially equivalent jobs, there is no substantial evidence
in the record that either the Union or the individual strikers made any positive effort to
be reinstated to their jobs until September 9, 1952. True, Burden sent the Respondent a list
of the names and addresses of the strikers on August 21, 1952. However, this was almost
2 months after he, on behalf of the Union, notified the Respondent of the official abandonment
of the strike which began February 9, 1952, and requested reinstatement of the strikers.
Hence the question is posed, as the undersigned sees it, as to whether a 2-month delay was
"reasonable" under all the circumstances. It must be remembered that as far as the record
is concerned, there is no substantial evidence other than Burden's letter of June 23, that the
strikers individually or otherwise requested reinstatement until September 9, 1952. Since
the record shows that the Respondent's operations were comparatively small, and there is
no substantial evidence in the record showing that the striking employees were under such
a burden that it was impossible for them to either act concertedly through their exclusive
bargaining agent or as individuals to request reinstatement during this 2-month hiatus,
the undersigned is persuaded that the rule of reason should apply and that September 9, 1952,
is and should be the date that formal request for unconditional reinstatement was made to
R. J. OIL & REFINING CO., INC. 685
the Respondent . 27 In other words the undersigned is convinced that a delay of 2 months
without any positive action on the part of either the strikers or their agent to turn their
formal request of June 23 , 1952, into a reality until either August 21 or September 9, 1952,
was "unreasonable" and too great a delay under the circumstances present herein, and it
is so found, Consequently, the undersigned will in his determination of the status of the
individual strikers named in the complaint use September 9, 1952, as the date formal request
was made to the Respondent by the strikers for unconditional reinstatement to their former
or substantially equivalent employment.
As the undersigned sees it there is no dispute as regard the right of an unfair labor
practice striker to his job after the strike has been abandoned and an unconditional request
for reinstatement to his former or substantially equivalent employment is made to his
employer . The undersigned finds nothing either in the record or in the Respondent 's brief
questioning this well-settled rule . Consequently, no extensive rationale on this issue is
either necessary or desirable in this an already too lengthy report. Suffice it to say that
such has been the rule for years. 28
The record shows that after the striking employees made their request to the Respondent
for reinstatement on September 9, 1952 , that there was an effort made on the part of the
Respondent to contact the great majority of the individuals named in Burden's letter of
August 21, 1952. The Respondent 's efforts in this regard will be discussed below as the
undersigned disposes individually the employees named in paragraph 14 (a) of the amended
complaint.
1. Bobby Eckiss and James Hayes
Since the General Counsel dismissed the complaint as to these employees at the hearing,
the undersigned deems it unnecessary to comment herein as to them.
2. Ray Jacquemai
Jacquemai was not amongst the employees who reported to Fuller on the morning of
September 9, 1952 . However, he accompanied by one Clem Reinhart did so the next morning,
September 10, 1952. They likewise were told by Fuller that no jobs were available at that
time, but that they could file an application for employment if they so desired. This they
declined to do for precisely the same reasons that Hill and those with him did on the day
before when they reported for work. As indicated and found above, Jacquemai like the other
striking employees was entitled to reinstatement to his former or substantially equivalent
position upon his unconditional offer to return to work . Since he was an unfair labor practice
striker he was entitled to his job without any "ifs and ands" and the filing of an application
for employment with the Respondent under all the circumstances found herein would have
been a useless gesture. The undersigned has set forth above his reasoning in this regard
and sees no necessity for reiterating it here.
Under the circumstances described above the undersigned is convinced and finds that the
Respondent was under a legal obligation to reinstate Jacquemai to his former or substantially
equivalent job on the morning of September 10, 1952 , when he reported to Fuller ready,
willing , and able to perform his former duties as a laborer.
Having found as above there yet remains for disposition the effect of the Respondent's
formal offer to Jacquemai to reinstate him to his former or substantially equivalent position
in its letter of November 29, 1952. The record clearly shows that Jacquemai received the
letter referred to in due course . Pursuant to the offer contained therein , he went to the
Respondent 's office to see Fuller on the morning of December 3, 1952 , but was unable to
do so. That same evening he called Fuller on the phone and asked him about the letter and
its meaning . Fuller told him that it meant what it said , that is that the Respondent was
offering him reinstatement to his former job ; Jacquemai told Fuller that he would see him
27 See 'discussion on the question of reasonableness in Crosby Chemicals, Inc., 105 NLRB
152. The undersigned is well aware of the fact that the period of time in the Crosby case is
not comparable to that involved herein , but nevertheless , he is convinced that the rule is a
sensible one and applicable when circumstances fit the rule.
28See Crosby Chemicals Inc., supra, and cases cited therein for the principle in general.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the next day, presumably about the job. However, he did not report for work the next morning,
nor had he done so up to and including December 16, 1952, the date he appeared and testified
before the undersigned in the instant proceedings. ThoughJacquemai did not offer any explana-
tion for his failure to report to Fuller on the morning of December 4, 1952, the undersigned
infers that it was because he received in the mail on the morning of December 4, a subpena
from the Board requesting him to appear and testify in the instant proceeding which was to
begin Tuesday morning, December 16, 1952, in the Gibson County Court House, Princeton,
Indiana.
From all of the foregoing and upon the record considered as a whole, the undersigned is
convinced and he so finds that the Respondent's offer to Jacquemai to his former or sub-
stantially equivalent job as expressed in its letter to him dated December 3, 1952, was
bona fide and that his failure to accept its offer at that time, particularly in view of his
statement to Fuller that he would report to him the next morning, 29 relieves the Respondent
of any further liability as regards Jacquemai. As the undersigned understands the law,
all that an employer is required to do under the circumstances described above is to offer
to an employee, situated as Jacquemai and the other unfair labor practice strikers were,
immediate and full reinstatement to his former or substantially equivalent job. This the
Respondent did in its letter of November 29, 1952. The fact that he received a subpena
from the Board on the morning of December 4, 1952, matters not a whit, and cannot be set
up in mitigation of his failure to report to Fuller on the morning of December 4, 1952.
The undersigned's reasoning in this regard is predicated upon two principles; (1) The
hearing in the instant matter was scheduled to open on December 16, 1952, consequently
Jacquemai had a period of at least 11 days to report for work, and his failure to take advantage
of his opportunity during this hiatus was inthe considered opinion of the undersigned inexcus-
able; 30 and (2) the mere fact that he was served with a subpena cannot be used here in defense
of his failure to take advantage of the Respondent's offer for the simple reason that it would
not only be against the public interest to do so, but contrary to public policy as well. All
citizens are subject to subpena the same as they are required to serve as jurors when
called upon to do so. It is the duty and obligation, indeed the privilege of a citizen to accept
his role either as a witness or a juror without complaint regardless of how onerous it may
be to him at the time. Nor need he have fear in testifying in a matter involving the public
interest since the Congress has well protected him in this regard, if such was Jacquemai's
reasoning at the time the subpena was served upon him. Suffice it to say that if Jacquemai
felt that the mere service of subpena relieved him of his duty to either accept or decline
the bona fide offer of the Respondent then indeed he labored under an illusion.
Having found as above the undersigned will recommend that the Respondent make whole
Ray Jacquemal for any loss of earnings he may have sustained from the period beginning
September 9, 1952, 91 when he unconditionally requested reinstatement to his former or
substantially equivalent job and was discriminatorily refused such reinstatement, to December
3, 1952, at which time Respondent made a bona fide offer to reinstate him to his former or
substantially equivalent job, which the undersigned has found above he declined to accept,
in the mode and manner hereinafter described in the section of the report styled "The
Remedy."
3. Joseph J. English
English was one of the striking employees who reported for work on the morning of
September 9, 1952, and was denied reinstatement for the reason set forth above in the
case of Ray Jacquemai. He, like the others who reported that morning for work, refused
to file an application for employment for the same reasons as set forth hereinabove.
On November 1, 1952, the Respondent's counsel wrote English the following letter:
29 The letter to Jacquemai was on its face an unconditional offer of reinstatement. See
Kitty Clover, Inc., et al. 103 NLRB 1665.
30 See Crosby Chemicals, Inc., supra, in re time element.
31 While the undersigned has found that Jacquemai did not report until September 10, 1952,
nevertheless the undersigned finds that a positive request for reinstatement was made on
September 9, 1952, by the action of Amos Hill and others. For a full discussion of this
issue see supra.
R. J. OIL & REFINING CO., INC. 687
Mr. Joseph English
204 S. Willard Street
Ft. Branch, Indiana
Dear Mr. English:
The writer is attorney for the R. J. Oil & Refining Company of Princeton, Indiana,
and as such offers you your former position with the R. J. Oil and Refining Company.
You will be reinstated with your former seniority rights and privileges.
It is our understanding that you are now working at Servel, Inc., and under such
circumstances we believe that it is advisable for us to give you sufficient time to
terminate your position with Servel. For that reason this position, which we are now
offering you, will be held open for at least three (30) days from the date you receive
this registered letter.
However, if you are not desirous of returning we would appreciate it if you would
notify either Mr. J. W. Fuller, R. J. Oil & Refining Co., Princeton, Indiana, (Phone
404-W) or the writer, Evansville, Indiana, (Phone 3-3183) that you do not want your
job back at the R. J. Oil & Refining Company.
With best wishes, I am,
Cordially yours,
R. J. OIL & REFINING COMPANY
By Arthur R. Donovan
KAHN, DEES, DONOVAN & KAHN
Attorneys for R. J. Oil & Refining
Company
Pursuant to the above letter English called on Fuller on November 3, 1952. English's
version of what transpired at that time is set forth herein below:
Q. (By Mr. Marcus) Now, could you tell us what the conversation was on November 3?
A. Well, I went up there, it must have been around eight o'clock in the morning,
but he wasn't in, and Mr. Rebone said he would be in about noon, so I went back again
about noon, and he still wasn't there, and I went back again about one o'clock, and I
waited until about two, and Mr. Fuller came in, and he invited me into his office, sat
down, and he asked me, or else he got out a copy of the letter, read it, and I told him
about receiving the same thing, and he asked me if I wanted my job back. Well. I didn't
know. I was kind of in a daze about ft. I didn't understand exactly what it was all about.
He said the letter pretty well explained itself, and I could have my job back with the
company if I wanted it, with my full seniority rights and privileges, and so on, went
along with that part of it. Well, we talked a little bit and I asked him what his standing
would be if I did come back with the company and District 50, and he told me that the
boss is not supposed to have any standing with men, if a man done his job right, that
was it. So I told him that under that condition I thought I would let the job ride for a
while, an if the courts ruled in our favor I would come back with the group of men,
and if it ruled against us, I would probably be better off with the job I was on at the
present time, and that just about finished our conversation. [Emphasis supplied.]
On the next day, November 4, 1952, counsel for the Respondent sent English a letter in
which he reminded him that he had been offered his former position by Fuller, at their
meeting on November 3, 1952, and that he had declined the offer of reinstatement.
A few days later English changed his mind and went to Fuller on or about November 16,
1952, and requested that he be reinstated to his former job. From what the undersigned
gleans from the record this was agreeable to Fuller and it was agreed that he should report
to work on the following Monday, November 24, 1952. However on or about November 17,
1952, he received another letter from counsel for the Respondents in which his conversation
with Fuller on the night of the 16th was construed as an application for employment and
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was advised that it would be given due consideration as such if and when the Respondent had
a job open and available . After receiving this letter English did not report for work on
November 24, 1952, and since that time has made no further effort to secure his former
job with the Respondent.
Under the circumstances found above and for precisely the same reasons as set forth in
the case of Jacquemai above, the undersigned is convinced and finds that English foreclosed
himself from further consideration for employment by the Respondent by refusing its bona
fide offer of reinstatement in his conversation with Fuller on November 3, 1952.
Consequently , the undersigned will recommend hereinafter in that section of this report
styled "The Remedy" that English be awarded back pay for the period from September 9,
1952, to at which time he unconditionally requested reinstatement to his former job, which
was denied by the Respondent to November 3, 1952, at which time the Respondent made a
bona fide offer to reinstate him to his former job which he rejected for personal reasons.
4. Richard Sloan
Sloan testified that he had made no effort to be reinstated to his former job, but that about
3 weeks before the hearing herein he had a conversation with Fuller who at that time offered
to reinstate him to his former job, He declined the offer and told Fuller that he was not
interested because he was in business for himself . Sloan was named in Burden 's letter of
August 23, 1952, as one of the employees who desired reinstatement to his former job.
The Union, acting through Burden, was acting in its capacity as the exclusive bargaining
representative of all the striking employees, hence Burden's letter was in effect an uncon-
ditional request for reinstatement on behalf of Sloan to his former or substantially equivalent
job. For the same reasons as set forth above, the undersigned finds that Sloan made a valid
request for reinstatement to his former or substantially equivalent job on September 9, 1952,
which was denied by the Respondent herein in the mode and manner described above. It is
further found that the Respondent made a bona fide offer to reinstate Sloan to his former or
substantially equivalent job on or about November 23, 1952, which he declined to accept for
personal reasons.
Under the circumstances found above,. the undersigned will recommend that Sloan be
awarded back pay from September 9, 1952, to the date the Respondent made a valid offer of
reinstatement to him on or about November 23, 1952, which he declined for personal reasons,
in the mode and manner set forth hereinafter in that section of this report styled "The
Remedy."
5. Robert Lee Roney
Roney was employed by the Respondent as a truckdriver. He went out on strike with the
other employees on February 9, 1952. He made no effort to contact the Respondent for
reinstatement until after he received a letter from the Respondent 's counsel dated November
13. 1952 , offering him reinstatement to his former or substantially equivalent job. Upon
receipt of this letter he called the Respondent's refinery at once and asked for Fuller who
was not there at the time. Thereafter , he made no further effort to contact either Fuller or
any other responsible official of the Respondent. In the considered opinion of the undersigned,
Roney 's failure to make further reasonable attempts to contact the Respondent as regards
his reinstatement in response to the Respondent 's valid offer of November 13, 1952, pre-
cludes him from consideration after that date.
Roney's case is parallel to thatof Sloan, consequently for the same reasons the undersigned
will recommend hereinafter in that section of this report styled "The Remedy" that he like-
wise be awarded back pay from September 9 to November 12, 1952, the date the Respondent
made him a valid offer of reinstatement, which he, by his dilatory tactics, constructively
refused.
6. Amos P. Hill
Hill's activities have been described above. We are only concerned here with the disposi-
tion of his status as an unfair labor practice striker. As indicated above, he was one of the
striking employees named in Burden's letter of August 21 to the Respondent, and was also
amongst those who reported for work on September 9, 1952. At that time he, like the other
employees who were with him, was denied reinstatementto his former or substantially equiv-
R. J. OIL & REFINING CO., INC. 689
alent employment. Like the others he refused to file an application for employment with
Fuller. As a matter of fact it was he who reminded Fuller that the striking employees were
entitled to their jobs, that is that they had the status of employees, and that it was unnecessary
for them to file an application for employment with the Respondent.
On November 5, 1952, the Respondent's counsel wrote Hill the following letter:
Mr. Amos Hill
R. R. #2
Princeton, Indiana
Dear Mr. Hill:
The writer is attorney for the R. H. Oil & Refining Company of Princeton, Indiana,
and as such offers you your former position with the R. J. Oil & Refining Company.
You will be reinstated with all of your former seniority rights and privileges.
It is our understanding that you are now working at Servel, Inc., and under such
circumstances we believe that it is advisable for us to give you sufficient time to
terminate your position with Servel. For that reason this position, which we are now
offering you will be held open for at least three days from the date you receive this
registered letter.
However, if you are not desirous of returning, we would appreciate it if you would
notify either Mr. J. R. Fuller, R. J. Oil & Refining Co., Princeton, Indiana, (Phone
404-W) or the writer, Evansville, Indiana, (Phone 3-3183) advising that you do not want
your job back at the R. J. Oil and Refining Company.
With best wishes, I am
Cordially yours,
R. J. OIL & REFINING COMPANY
by Arthur R. Donovan
KAHN, DEES , DONOVAN & KAHN
Attorneys for R. J. Oil and Refining Co.
Hill did not receive the above letter until sometime around November 15, 1952, due to a
change in his mailing address. Shortly after he received it he called on Fuller at his home
on November 16, 1952, and talked with him about returning to his job. The upshot of their
conversation was that Hill was to report to work when notified by the Respondent. At that
time Hill was employed by Servel Inc., in Evansville, Indiana.
On November 17, 1952, counsel for the Respondent sent Hill the following letter:
Dear Mr. Hill:
With reference to your conversation with Mr. J. R. Fuller, in which you apparently
indicated that you wanted to return to work, in response to our unconditional offer
of November 5, 1952, please be advised that you may report for work on Wednesday,
November 19, 1952, at the usual reporting time.
You will at that time be reinstated with all your former seniority rights and privi-
leges and with the same wages that you were receiving plus any wage increases that
may have been given since that time. There will be no discrimination practiced against
you by the company.
Pursuant to the above letter, Hill reported to work on Thursday morning November 20,
1952. At that time he had a conversation with Fuller in which he was told in substance that
the Respondent could not place him on his old job as an operator immediately, but that he
would be assigned to the maintenance crew in the yard for a day or two until schedules and
the like were worked out. He would receive, however, an operator's rate of $ 2 per hour
while working as a maintenance man. Hill accepted Fuller's offer and worked for 3 or 4 days
at the job assigned him. In the meantime, he tried to see Fuller about his regular job as an
operator, but was unable to do so. On Monday morning, November 24, 1952, he saw Fuller
339676 0 - 55 - 45
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and asked him about being assigned to his regular job. Fuller tried to talk him out of the
idea, and suggested that he continue on with the maintenance crew with an operator's pay.
He also promised him that if he would continue on the job he would give him a "job over
some more men that would come up in the future." Fuller's suggestion was unsatisfactory
to Hill and he then asked him about being assigned to his former job as an operator. Fuller
told him that he could not do so at that time " ... because the employees at the plant had
come in and threatened they might strike if I come back into my former position." 2 Hill
told Fuller that he would think it over and let him know his decision later. He continued on
the job however and worked out the day. That evening he thought it over and decided to decline
Fuller 's offer. That same evening he wrote Fuller the following letter:
Dear Sir:
Since you are refusing to give me my former position as offered by letters dated
November 5th and November 17th, which I received on November 12th and November
19th from your Attorney, Mr. Donovan, and as promised by you, the morning of November
20th when I reported for work, I will not report back to work until you are ready to keep
your promise and offer.
This does not mean that I am quitting. I am still requesting my former position
with the R. J. Refining Company and stand ready to take it with a proper notice.
As indicated above, Hill did not return to work with Respondent, and at the time of the
hearing herein was working elsewhere in Evansville, Indiana.
Fuller's version of the events surrounding Hill's return to work in November 1952 was
about the same as that of Hill. The only material difference in their testimony in this regard
as the undersigned sees it was that Fuller insisted in his testimony that he could not put
Hill back on his regular job immediately because of the difficulty in changing the schedules
of the other operators and "bumping" at least one of those then employed as such back to
a pumper's job. Fuller did not deny Hill's testimony as regards the possibility of the em-
ployees striking if he were put back on his job as an operator as being one of the reasons
for his delay in replacing him on his former job. Nor did he deny that he offered him in the
future a job over certain maintenance workers that Respondent planned to employ in the
future.
Conclusion as to Hill
Upon the foregoing and the entire record considered as a whole, the undersigned finds that
Hill like Jacquemai and for the same reasons was entitled to his former job as an operator on
September 9, 1952, when he along with other striking employees reported at the Respondent's
refinery and unconditionally requested reinstatement to their former or substantially equiv-
alent positions. As an unfair labor practice striker he was entitled to his former job at that
time as a matter of law. Moreover, the undersigned is convinced and finds that the Respond-
ent's offer to Hill in November 1952 and his acceptance of that offer was not carried out in
good faith. By conditioning his acceptance of its offer on the grounds that to restore him to
his regular job might lead to a work stoppage amongst the employees who had replaced the
unfair labor practice strikers, Respondent clearly did not satisfy its legal obligation. Nor
did the Respondent satisfy its legal obligation to restore him to his former or substantially
equivalent job by placing him on a less desirable job even though it paid him at an operator's
rate per hour. He was entitled to his job as an operator without any reservations whatever.
It must be remembered that but for the Respondent's unfair labor practices he would under
normal conditions have been still employed as an operator.
Consequently, the undersigned will recommend hereinafter in the section of this report
styled "The Remedy" that Hill be restored to his former or substantially equivalent position,
and be made whole in the mode and manner set forth therein for any losses he may have
sustained as a result of the Respondent 's unfair labor practices.
32 Quotes from Hill's testimony on direct examination which is credited by the undersigned.
R. J. OIL & REFINING CO., INC. 691
7. John Osborne
Osborne was employed as a truckdriver at the tune the employees went on strike. February
9, 1952. After the strike was abandoned he went to the Respondent 's refinery sometime early
September 1952 and unconditionally requested reinstatement to his former or substantially
equivalent position , and was advised by Fuller that no jobs were then available , but that there
might be in a week or two.
Up to and including the date he testified before the undersigned on December 18, 1952,
Osborne had made no further effort to secure his former job with the Respondent, However,
while he was on the stand testifying in this proceeding , counsel for the Respondent offered
him full reinstatement to his former or substantially equivalent employment as soon as he
was physically able to report for work. 33 Though Osborne conditioned his acceptance of the
Respondent's offer on the condition that the Union herein would still be the exclusive bargain-
ing representative of the employees in the appropriate unit at the time he presented himself
for reinstatement , the undersigned is convinced that his remarks in this regard were mean-
ingless and by no stretch of the imagination could be construed as jeopardizing his original
unconditional request for reinstatement in September 1952. The undersigned 's reasoning in
this regard is predicated on two principles: (1) The condition imposed if it has any meaning
at all is a question of law, and (2) assuming that it was not such a question it still is of no
force or effect because he had already made an unconditional request for reinstatement in
September 1952, which had been denied by the Respondent.
Conclusions as to Osborne
Upon all the foregoing the undersigned is convinced and finds that Osborne made a valid
unconditional request for reinstatement to his former or substantially equivalent position on
or about September 12, 1952, and it will be recommended hereinafter that he be reinstated
to his former or substantially equivalent employment and awarded backpay for any losses he
may have suffered as a result of the Respondent 's unfair labor practices from September 9,
1952, the date the undersigned has found above that the Union made a valid and positive
request for the reinstatement of the striking employees to the Respondent . Such questions
as wilfull losses and the like will be discussed under that section of this report styled "The
Remedy.'
8. Billy Frank Scott
Scott was one of the employees who went out on strike on February 9, 1952. He was named
by Burden in his letter to the Respondent dated August 21, 1952, as one of the unfair labor
practice strikers who desired reinstatement to his former or substantially equivalent employ-
ment. In addition he was one of those who reported to Fuller on September 9, 1952, and
requested reinstatement to his former or substantially equivalent employment. He was not
only denied reinstatement at that time but it is the Respondent's position that it never will
reinstate him or reemploy him in any capacity because of his misconduct on the picket-
line during the course of the strike.
The misconduct referred to grew out of a fight he had with Superintendent Fuller. There
are three versions of the incident in the record, Fuller's, Sollman's, and Scott's. All are
exceedingly interesting and in the main are corroborative , except as to who participated
in the fight. As the undersigned sees it the incident grew out of an exchange of words between
Fuller, Sollman, and Scott. At the time it happened, Sollman and Scott were picketing one
of the gates to the refinery and were walking or standing on a public highway. It was a warm
summer night and during the baseball season, two employees, Lutz and Malone who had
been to a union meeting, came by the plant and asked Fuller if they could listen to a ball
game over the radio. He told them that they could. When the game was over, which was
at about midnight, they left the property. Shortly thereafter, Fuller walked down to the gate
and Sollman asked him what Lutz and Malone were doing on the property. A bitter exchange
of words followed and in the course of the argument, Scott called Fuller a "son-of-a-bitch."
Since these are fighting words anywhere, Fuller went out on the public highway after Scott
and the fight was on.
33 At that time Osborne had an injured arm.
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ordinarily, the undersigned would not discuss this incident further for the reason that
the record clearly shows that Sollman and Scott were the aggressors and as such should
have been either discharged forthwith ( since, legally they were still employees ) or denied
reinstatement if and when they legally were entitled to it. 34 However, since there are certain
portions of Fuller's testimony that go to the question of his credibility as a witness, the
undersigned feels that for this reason pertinent excerpts from his testimony therefrom are
in order. Consequently , they are discussed and set forth below. For Fuller's account of the
affray we turn now to the record:
Q. You pointed your finger at him, is that what you are doing on the witness stand?
A. That's right, and I looked over there and Sollman was moving, and as I looked
that way, Mr. Bill Scott kicked me between the legs in my privates, and as I doubled
up I was hit two or three times, two, three, four tunes, I couldn't exactly tell, in and
about the face, and Sollman was over there and went down on the ground, and I was
kicked in the privates again on the ground, and I was again kicked inside the yard
on my back and everywhere else.
Q. Who was kicking you?
A. Mr. Sollman and Mr. Scott. I was trying to get up, and when I did get up I was
kicked four or five times or maybe six times, in the stomach and in the privates,
and when I was on the ground Sollman would kick me in the back. Finally, why - -
Q. How many times would you say Scott struck you?
A. Oh, God, I would say thirty or forty times, but it just got to the point where
I was losing my senses, and I crawled on my hands and knees, and I had the car parked
in the yard, which is maybe twenty-five feet from there. I crawled on my hands and
knees and got to the car and pulled myself up and sat there on my back bumper for a
while until I could catch my breath, and walked into the office and looked at myself,
and I had a big gash here on the chin and my face was swollen, and I was pretty well
bruised all over, and Mr. Tom Stallings, who was to relieve me on the midnight shift,
he come in and asked me if I had been run over by a steam roller and suggested - -
After the fight was over Fuller went to a doctor for examination, who patched him up and
put him to bed. He was away from work for several days as a result of the beating administered
to him by Scott, and at the time of the hearing herein was still having some trouble with his
back.
At this time, the undersigned feels compelled to state that since Fuller's account of the
affray came after the testimony of both Scott and Solltnan, that if a separate motion had
been made to dismiss as to Scott by either the General Counsel or counsel for the Respondent,
it would have been granted forthwith by the undersigned. Such conduct cannot be condoned;
consequently, the undersigned will recommend hereinafter that the complaint in so far as
Scott is concerned be dismissed in its entirety.
In passing however, the undersigned also feels compelled to say that though Fuller names
Sollman as a participant in the affray, theundersigned finds to the contrary; Sollman admitted
he was present at the time and that it was he who started the argument that led up to the
fight, but denied' that he struck any blows. He further testified that he let Fuller and Scott
fight it out, and did not participate in the affray one way or another. Scott corroborated
Sollman's testimony in this regard. The undersigned saw both Sollman and Scott, and he is
convinced that if Sollman had thrown his 195 pounds into the affray with the fury described
by Fuller, that the results of the fight would have been either fatal or have necessitated
a long period of hospitalization for Fuller. Scott was a small man, an ex-jocky, with lean
and muscular arms, and had a well-knit appearance. From the undersigned's observation
of both him and Fuller, he is convinced that Scott needed no assistance to whip Fuller in
the mode and manner described above. Upon all the foregoing the undersigned credits the
testimony of Sollman and Scott that Sollman did not physically engage in the affray. This
is not to say that Sollman's role in the incident is to be condoned. On the contrary, the
undersigned finds that he was just as guilty as Scott since he was the provoker of the inci-
dent, and as such engaged in the sort of misconduct which the undersigned cannot and will
34As indicated hereinafter, the undersigned finds that Sollman had been discharged for
cause, but Scott was still an employee.
R. J. OIL & REFINING CO., INC. 693
not condone. Consequently, the undersigned will recommend hereinafter that no considera-
tion be given him as one of the unfair labor practice strikers.35
At the conclusion of Fuller's testimony, he was queried by the undersigned as to whether
or not he reported the assault upon him to the proper law enforcement officials of the county.
His reply and statement in the record in answer to this questioning impressed the undersigned
and also carried great weight in his ultimate appraisal of Fuller's credibility as a witness.
The gist of his answer was that the prosecuting attorney of Gibson County, Indiana, told him
that it was useless to file charges against Sollman and Scott. 36 For reasons that are shown
in the record itself, the undersigned has no further comment in this regard. Suffice it to say
that the undersigned credits only that portion of Fuller's testimony as regards the fight with
Scott where it is corroborated by that of other witnesses, for the same reasons here as set
forth below in that section of this report dealing with the alleged anonymous threats against
himself and family.
c. The discharge of Herschel Sollman and Henry Chandler
The undersigned has found above that the strike which began on February 9, 1952, was
occasioned by the unfair labor practices of the Respondent. As indicated, the discharge of
Herschel Sollman and Henry Chandler was the "spark" which touched off the unrest amongst
the employees which in turn was due to the futility of their represeitatives to secure a
collective-bargaining agreement with the Respondent. Itmustbe remembered that negotiations
between the Union and the Respondent had dragged along for approximately 10 months following
the Board's certification of the Union as the exclusive bargaining representative of the
Respondent's employees. The final meeting of the parties was held on February 5, 1952.
As found above, this meeting ended in an atmosphere, which to say the least, was anything
but amicable. The negotiators were in a nasty and belligerent mood occasioned by the
intemperate remarks of representatives of both sides. It was in such an atmosphere that
Sollman and Chandler were discharged, on the morning of February 8, 1952.
The Respondent contends that both Sollman and Chandler were discharged for cause, and
that their membership in and activities on behalf of the Union had nothing whatever to do
with its action in this regard. In the main the Respondent contends that both employees were
found asleep on the job by Superintendent Fuller on the morning of February 8, 1952, and
that it was for this reason alone that he was compelled to summarily discharge them in
view of the fact that their dereliction endangered the property of the Respondent and the
lives of their fellow workers.
Superintendent Fuller's version of the events leading up to the discharge of Sollman and
Chandler was as follows: At about 3 a. in., on the morning of February 8, 1952, he was
awakened by a telephone call from an unknown truckdriver who informed him that he had just
unloaded a load of crude oil and that he was unable to find anybody around the refinery to sign
a receipt for it and asked for instructions as to what he should do. Fuller told him to leave the
receipt on the pumphouse desk, and that he would sign it in the morning. The statement of the
unknown truckdriver that there was nobody around the refinery at that time of morning caused
Fuller great concern. At first he decided to put his clothes on and hurry out to the refinery
and see what was wrong, on second thought, however, he decided to call the refinery which he
did. He let the phone ring a few times, perhaps for a minute or two and receiving no reply
hung up. Since the telephone at the refinery is connected with a large "clanging" bell out in the
open where it can be heard by over a large area, he was more concerned than ever and de-
cided to leave for the plant at once. He then proceeded to his bedroom and put on his clothes
in preparation to go to the plant. This finished he decided to call the plant again which he did,
and after listening to the bell ring 4 or 5 times and again receiving no answer he hung up.
Fuller then called Joseph Rebone, the Respondent's office manager, and requested that he go
to the plant with him. His reasons for requesting Rebone to accompany him were two-fold,
first, if something was wrong at the refinery then he would have somebody with him to help
out, and secondly, he was afraid to go to the plant alone at that hour, because he was afraid of
being waylaid and attacked by unknown persons. His fears in this regard were based upon the
35 Even though the undersigned finds hereinafter that Sollman was discharged for cause, he
feels that his position as regards his role in the Fuller incident should be stated here.
36 The record is silent as regards action or consideration by a grand jury.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fact that during the period of negotiations between the Union and the Respondent, he had re-
ceived telephone calls from anonymous persons in which they threatened bodily harm to him-
self and family. After dressing Fuller got in his car and drove over to Rebone's house which
he estimated to be about one-half mile away. After picking up Rebone he drove out to the re-
finery which he estimated to be about 32' miles from Princeton, Indiana. On the way out to the
refinery they met one of the Respondent's trucks, but did not stop it. Fhller assumed that it
was the truck that had delivered the load of material at the refinery, and was manned by the
unknown driver who had a few minutes earlier called him at his home. Fuller also assumed
that the driver was one of the Respondent's employees since he called him "Scotty" in their
telephone conversation, this being his "nick-name" amongst the employees. They arrived
there at about 3:15 or 3:20 a. m. What occurred thereafter is best told in Fuller's testimony
on direct examination, since it is in narrative form the undersigned feels that it should be set
forth herein as it appears in the record. Accordingly it follows below:
A. We drove out to the plant and went in the West gate, which was customary, and I
drove in on the property there, and we parked down there by what we call our gasoline
pump, which is down on the roadway, and I got out and looked around, and I didn't see a
person around there at all.
Q. Approximately what time was this?
A. This was after three o'clock, I would estimate it might have been 3:15 or 3:20,
something like that.
Q. All right.
A. I got back in the car and pulled it over to the West side of the office, which is the
regular parking place for office employees, and we got out of the car and we walked be-
tween two buildings, one happens to house the lavatory and the shower room, and the other
houses the office and stock room, and as we walked up through there, there is a floodlight
on the corner of the stock room, and it was lit, and we looked in the stock room and all
of the lights were on in the stock room, but no person was in there. Ordinarily that is
allowed as a smoking place in the plant, the stock room. I looked to see if anybody was in
there, and I turned around and noted all of the lights were out in the shower room and the
window open.
Q. The windows what?
A. The windows were open in the shower room.
Q. How much open?
A. They were wide open, they were held open with wire.
Q. This was in the winter time. Would you explain why the windows would be open?
A. I had seen them open during the daytime, owing to the fact that we had just had a
standard valve on the radiator there, and from throttling it at different times, I imagine
the valve would leak out partially, and they usually during any other time leave the windows
open to kind of control the heat.
Q. Okay, go ahead.
A. I stuck my head in under the window, looked in there, and Mr. Sollman was stretched
out on the bench with a jacket or some piece of wearing apparel under his head, and he had
another jacket over his shoulder, in fact, he was snoring. I brought this to Mr. Rebone's
attention, and Mr. Rebone stuck his head through the other window, there were two windows
right there that were open, and he noted it, and Joe said, "Boy, listen to him snore."
We walked from there, and went over towards the control room, which is north of there,
approximately fifty feet from the shower room, and as I walked up there, there was a
window open on the corner of the building, and I noticed Chandler sitting in the chair,
leaning back against what we callour crude pick-up pump, and as I went to the door, which
is also a glass and steel door, he was still there, and I opened this door and walked in
there, and Mr. Rebone was following me, and I walked right past Mr. Chandler in the con-
trol room, and looked up on thecontrolboard to see if our flow control which controls the
amount of fluid going through the unit, plus our top tower temperature controls were on
there, and noted our still temperature, which is number 7 on the potentiometer, which we
ordinarily leave on there, showed the heater was running between 6:25 and 6:30, which
happened to be our crude, our finalheatingof our crude before it goes into the fractionat-
ing column, and again I walked on over and checked his log sheet, and there was no
weigh-up on there for three o'clock.
R. J. OIL & REFINING CO., INC. 695
Q. What time was this, by the tire you got there?
A. I would say close to 3:30.
Q. And he should have put this reading down at three o'clock?
A Yes.
Q. When you open this door and shut it, is it a quiet, well-greased door, or what is the
reaction?
A. It is well greased, but the thing is, it has a steel latch on it, and the door is all steel
frame, and there is no possibility, unless -- you couldn't possibly close it without mak-
ing some noise.
Q. Did Mr. Chandler wake up at all during the opening and shutting of the door?
A. He did not.
Q Did he wake up while you were in the room?
A No, sir.
Q. Then what did you do?
A. I brought the log sheet, the three o'clock reading that was not on there, I brought it
to Mr. Rebone's attention, and we turned around, and I said, "Come on, Joe, let's go and
look around the boiler house," so we went over there to the boiler house, to the south
door of the boiler house and proceeded north to the number 1 boiler, and Mr. Ferguson
was sitting in front of the boiler, facing the boiler, reading a magazine, and I touched him
on the shoulder, and he jumped, and I said, "Mr Ferguson -- or Verner -- follow me,
will you? ", and he followed me until we go to, I would say about half way between the
crude heater and the shower room, and I told him to go on over and wake up Mr. Chandler
and Mr Sollman was asleep in the shop. As I reached in there, I looked around and
Ferguson was still there and Itoldhim, "I want you to go on over and wake up Chandler",
and he mumbled something and said, "I have to go check my boilers" and headed for the
boiler house, and I reached in and turned on the light, and hollered to Mr. Sollman "Get
up, Soll "
As indicated above Ferguson, the boiler attendant or fireman, did not immediately comply
with Fuller's instructions as regards awakening Chandler but returned to his own working
place for the alleged purpose of checking the boilers that he was responsible for.
Ferguson was called as a witness for the General Counsel, on cross-examination he testi-
fied in substance that he did not immediately comply with Fuller's instructions to go to the
control room and awaken Chandler for the reason that he felt that Chandler might be asleep
or dozing, and he wanted to givehim a chance to awaken so that he would not be an eye witness
to the incident. His reasoning in this regard was based on the fact that in the past he had gone
into the control room and found Chandler dozing , but had never discovered him actually sleep-
ing on the job. He also testified that the same was true as regards Sollman. He did not report
these derelictions to either Fuller or any other person connected with management.
Rebone, who as indicated above accompanied Fuller to the refinery and was with him at the
time of the Sollman and Chandler incidents, testified at the hearing herein and in the main
corroborated Fuller's version of what transpired at the time.
Shortly after Fuller instructed Ferguson to go over to the control room and awaken Chandler,
he made a quick trip around the refinery, and finding everything else in order got in his car
and accompanied by Rebone returned to Princeton.
The next morning Fuller called Chandler and Sollman into his office and summarily dis-
charged them for sleeping on the job. Here again Fuller's testimony in this regard is likewise
recited in narrative form, and the undersigned feels that since such important testimony is
best told in the witnesses' own words, it is set forth herein below,
Q Will you relate the conversation to the Trial Examiner that you had with each one
of these individuals? What was said to you and what was said by them?
A. Mr Chandler come on in and I called him into the office and told him about his
sleeping in there, and Mr. Chandler admitted dozing He said, "You know a man will
doze", and I said, "Chandler, whenever I walked in there and walked in front of you,
opened the door and everything else, and you didn't even move, I would call that more
than dozing, you were actually sleeping" Ialsobrought up about him not being up at three
o'clock, and brought to his attention that he had already got it on now, according to me
it was on there to cover up, and he didn't have any comeback on that, and I told him "I
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
am sorry, but we just couldn ' t stand to have a man sleeping on the job , due to the tre-
meious amount of danger", and I discharged him
Q Now, in the case of Sollman9
A. He come in , I called him into the office and told him about sleeping in the shower
room, and he admitted that he was on the bench with wearing apparel under his head, but
he said he was just resting , and I told him that Joe and I had heard him snoring and looked
in there and saw him fast asleep, and I was discharging him for sleeping on the job, neg-
lect of duty. [Emphasis supplied.]
Herschel W. Sollman was first employed by the Respondent in April 1948. He first worked as
a laborer or maintenance man, and then as a boiler fireman . In the fall of 1949, he was pro-
moted to a pumper's job , and was employed as such up to the time of his discharge on Feb-
ruary 8, 1952.
As indicated above, Sollman was the first employee of the Respondent contacted by Messrs.
Burden and Freeman in October 1950, at the time they decided to organize the Respondent's
employees . At the time he met with the union officials he was given application - for-member-
ship cards in the Union to distribute amongst the Respondent's employees . He was also
instructed to secure as many signed cards as he could so that the Union could file a petition
for certification of representatives with the Board He agreed to cooperate with the Union
organizers and to distribute the cards amongst his coworkers . Later he turned the cards over
to Henry Chandler . Between the two of them they succeeded in signing up a majority of the
production and maintenance employees in the plant. The record clearly shows that thereafter
Sollman continued his activities on behalf of the Union up to and long after his discharge on
February 8, 1952.
According to Sollman ' s credible and undenied testimony in the record , he was reprimanded
and disciplined by Fuller in the early part of November 1950 for negligence in handling a
storage tank full of casing-head gasoline , in that he allegedly permitted a safety valve on the
tank to freeze over during a sleet storm causing the tank to expand . He was discharged by
Fuller for this offense , but rehired a few days later . At the time he was rehired he had the
following conversation with Fuller:
Q. At the time Mr Fuller discharged you, did he say anything to you9
A. He just said I was through . He said I was nothing but a troublemaker , and he would
get rid of me and get rid of all of the trouble.
Q. Did he say what the trouble was9
A. Not at that time , but when I came back - -
MR. DONOVAN . You have answered the question.
TRIAL EXAMINER SHAW: Just a minute . He is qualifying his question. He said he
didn't say it at that time. Well, go ahead.
THE WITNESS: The next day when I came to get my check , he still didn 't have it, and
he told me then that he could use me working around there if I kept my nose clean, so I
asked him what he meant by keeping my nose clean, and he said for me not to have any
further dealings with the union in any way, shape or form.
Q. (By Mr. Marcus ) Did you have a long talk with Mr. Fuller at that time, or was it
short, just a short chat?
A. I would say about half an hour or forty-five minutes.
Q. What other things did you talk about, do you recall9
A. Well, he told me my work was alright, but he just didn 't like my attitude.
Q. What did you say to Mr. Fuller's statement or proposition
A. Well, I told him at that time I would have to think it over.
A few days later he had another conversation with Fuller at which time he agreed to accept
Fuller's terms and return to work. His testimony in this regard is also set forth below:
Q. Now, following this talk with Mr. Fuller, didyou have any further contact with him?
A Yes.
Q. Could you tell us what that was9
A. It was on Sunday morning
Q Was that the next day or two days afterwards or when
A. That was two days afterwards . I was fired on Friday, and I never saw him on Satur-
day, and on Sunday I went back and talked to him at the office, and I told him then that I
would accept his proposal.
Q. This was on Sunday9
R J. OIL & REFINING CO., INC. 697
A. Yes
Q. What did Mr Fuller say to that?
A He said he would put me back to work on my old job , and we would shake hands and
start off with a clean slate
Q. Was anything said at this time on Sunday about the union?
A Well, it was brought up again about my not having any dealings with the union, it was
refreshed for me not to have anything to do with it
Q. You say Mr. Fuller said this?
A. Yes.
Q Then you did go back to work, did you not?
A. Yes
Q. As a matter of fact, you were compensated for the two days' work that you missed,
weren't you?
A Yes.
Since the above incidents occurred more than 6 months prior to the filing of the charges
herein they are barred by the provisions of Section 10 (b) of the Act, and of course no findings
of fact can be predicated thereon. The only reason that testimony in this regard was permitted
and admitted in evidence at the hearing herein was because it has been in the past and still is
the policy of the Board to admit such testimony for "background " purposes only, as will be
shown hereinafter the undersigned has so considered it in his ultimate findings as regards the
issues herein
Sollman's version of his discharge and the events leading up thereto was as follows. As
indicated above, the Respondent operates its refinery on a 3-shift basis, each shift being 8
hours. On each shift, except during the daytime there are only 3 employees on duty, the opera-
tor, the pumper , and the boiler fireman The shift that Sollman worked on was the 11 p. m. to
7 a. m. shift. On duty with him at the time the events with which we are concerned herein
occurred were Henry Chandler , operator in the control room , and Vernor Ferguson , the boiler
fireman According to Sollman the night of February 7-8 was cold and damp and that after
making his usual rounds , and engaging in other duties, he went to the dressing room to warm
up Here again the undersigned is convinced that the witnesses ' version of what transpired is
best told in his own words, consequently it likewise follows below:
Q. Now, on this night of February 7 and morning of February 8, could you tell us what
you did after you went on the shift, do you remember?
A. The first thing I did was go out and gauge the crude tank for Chandler , and brought
the gauge in and put it on the sheet , and then I went and checked my rundowns to see how
full they was, to see if any of them was getting full or not, and see if I had to switch the
tanks, or transfer any out, and wehad a temporary air compressor sitting out in the yard,
and it got to acting up, and I had to refuel it and add a little oil to the engine, and it
wasn't running right, and I worked on it, from oh, I guess about an hour and a half or two
hours, something like that, anyhow , out there in the cold , and after -- it was about three
o'clock , I guess , when I went over to the stock room Then Chandler went to the control
room, and I went to the rest room
Q You went where?
A. The rest room, the dressing room.
Q Now, how was the weather that night?
A. It was damp and cold.
Q What did you do in the dressing room?
A. Well, first I went to the toilet and then I went over to the radiator to warm up
Q. Have you ever done that on any other nights?
A Sure, it was the only warm place you had to get warm. Everything else was cold
around there.
Q. How is the power house, is that warm?
A. Well , it is fairly warm , but it is noisy in there too . You couldn ' t hear nothing, if a
truck came in you couldn ' t hear nothing
TRIAL EXAMINER SHAW: Where?
THE WITNESS: The boiler house.
TRIAL EXAMINER SHAW: That' s where you went to get warm?
THE WITNESS: No, I went to the dressing room.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chandler's version of the events leading up to and following his discharge follows below after
the undersigned's disposal of the issue as to Sollman
Conclusion as Regards the Discharge of Herschel Sollman and Henry Chandler
It has been well said that "hard cases make bad law " Such is the case here. The disposition
of the issue as regards the alleged violations 8 (a) (3) by the Respondent's discharge of the
two employees has been a hard one It has required long and careful consideration by the
undersigned. The difficulty in this case as well as in so many others of like nature is the res-
olution of credibility. This is always difficult and requires long and careful analysis by a trier-
of-the-facts before he is able to satisfy himself as to the issue Having resolved it after such
contemplation he has no alternative but to be specific in his findings and let the chips fall where
they may.
At this time, the undersigned feels compelled to dispose of and set forth herein his impres-
sion as regards Fuller and his credibility as a witness Frankly, he impressed him as
garrulous and thoroughly unreliable There is much of his testimony that simply is unworthy
of belief. In fact one would of necessity have to be most naive and gullible to find otherwise.
For example, the undersigned cannot accept his version of the events that led up to his hurried
trip to the refinery at 3 a. in. on the morning of February 8, 1952. Disregarding the time
element, that is the business of telephoning here and yonder, dressing, picking up Rebone at
the latter's home a half mile away, and then driving 32' miles to the refinery in the space of
20 minutes by his own calculation, there is one phase of the incident that is most amazing, and
that is that he had no idea who called him on the phone. When this testimony is considered in
the light of the entire record, it simply doesn't have the slightest ring of truth for the following
reasons. To begin with the record is replete with testimony by witnesses called by both the
General Counsel and the Respondent to the effect that each truckdriver drove only the truck
that was assigned him. Since at this particular time the Respondent had in use only 5 or 6
trucks 37 and each had its own driver, then why was he unable to state to the record who was
driving the Respondent's truck, that according to his own testimony passed him on his way out
to the refinery that morning and which he assumed in his testimony before the undersigned was
manned by the truckdriver who had so recently called him at his home? This testimony be-
comes of increasing importance when it is considered in the light of his other testimony, that
the so-called unknown truckdriver called him "Scotty" in the telephone conversation which he
stated on the record vfas his nickname amongst the employees at the plant. Again why did he
not produce the delivery slip for the alleged truckload of oil that was supposed to have been
delivered by the unknown truckdriver, when he was queried about it at the hearing? So His
explanation in regard to the anonymous telephone calls in which he and members of his family
were threatened with bodily harm during the course of the bargaining negotiations calls for
sober reflection and careful consideration. The undersigned cannot and does not credit his
testimony in explanation of his failure to notify the responsible officials of the county as re-
gards the alleged threats for the simple reason that he does not believe that law and order has
deteriorated to the extent that a citizen considers it useless to report,such matters to those
entrusted to enforce the laws. A further reason is the fact that he admittedly never mentioned
it to the responsible officers of the Union at the negotiating meetings when the incidents are
supposed to have occurred, and the further fact that the only incident that he could specifically
recall was the occasion when sugar allegedly was found in the gasoline tank of his car
Singularly enough he first testified that the alleged misconduct of the anonymous persons oc-
curred during the course of the bargaining negotiations, however, he later admitted on cross-
examination that the sugar incident occurred some 35 or 40 days after the strike began on
February 9, 1952.
While we are on the question of credibility, the undersigned feels compelled to dispose of
the issue as regards Herschel Sollman here. To begin with he impressed the undersigned as
an honest and forthright witness In his testimony he admitted without hesitation incidents
which were adverse to his interests He testified in a forthright and impressive manner. His
demeanor was excellent. Consequently, the undersigned finds that he was a credible witness.
In order to understand the issue presented by the alleged discriminatory discharge of
employees Herschel Sollman and Henry Chandler, the undersigned is convinced that a resume
37 The undersigned takes judicial notice of the transcript of the record in Case No. 35-
RC-463.
38 His explanation in this regard is rejected by the undersigned.
R. J. OIL & REFINING CO., INC. 699
of the Respondent 's operations insofar as they are entwined with the duties of the employees
involved is concerned . As indicated above, the Respondent is engaged in the refining of petro-
leum products . It is a matter of common knowledge that petroleum products, particularly
gasoline , oils, and the like are highly inflammable ; that gases and vapors that necessarily are
either byproducts of the refining process or present in the raw materials are dangerous per
se, and that great care must be exercised by those employed around a refinery to keep both
the raw and finished materials under control It goes without more ado that fire and resulting
explosions and the like are a hazard that must be guarded against . The record is replete with
uncontradicted , undenied , and credible testimony that employees around a refinery must be
careful and alert in the performance of their duties.
The record also shows without contradiction that at the time the events with which we are
concerned herein occurred there were three employees on duty . They were as follows; Henry
Chandler , still operator , Herschel Sollman , pumper , and Vernor Ferguson , boiler fireman.
Each has his separate duties. Chandler as the still operator was vested with more authority
than the other employees on duty. 39 It was his duty to record the readings of the various
instruments in the control room at regular intervals on a specially designed chart. Conse-
quently, he was required to be alert at all times. Both he and other witnesses called by both
the General Counsel and the Respondent testified without contradiction that his lob was of such
great importance that if the operator on duty went to sleep on the job he should be discharged
immediately . In addition , they testified that the job was of such a nature that a momentary
dereliction of duty on the part of the operator on duty might well endanger the lives of other
employees and cause considerable damage to the property of the Respondent . As the under-
signed sees it the control room was the "nerve - center" of the Respondent ' s operations, and
it goes without more that the operator in charge was under great responsibility not only for
his own safety but also that of his fellow workers.
The pumper 's duties were for the most part out in the open. It was his job to check the tanks,
pipelines , valves, and other equipment , particularly that which was not under the direct view
and responsibility of the operator and the boiler fireman . Like the operator , the pumper was
required to be up and around and 4lert at all times to guard against breakdowns , explosions,
fires, and the like.
The boiler fireman's duties require him to be near the boilers in the boilerroom . He like-
wise was charged with great responsibility , particularly to watch the water level and the fires
and the various "gadgets" that areappurtenant thereto . Like the still operator and the pumper,
he too must be alert and up and around at all times.
The undersigned is convinced from the record as a whole that Fuller ' s testimony as regards
the motivation for his trip to the plant on the morning of February 8, 1952, was pure fabri-
cation. He is also convinced that there never was a telephone call from a truckdriver or any
one else for that matter , and that he went to the plant with the idea in mind of catching either
Sollman or Chandler asleep on the job In the considered opinion of the undersigned there is
ample support in the record for this finding. For example Fuller , according to his own testi-
mony as the undersigned interprets it, had a phobia for having witnesses to actions he felt
compelled to take against employees under his supervision for derelictions of duty. This is
evidenced in the record by his testimony as regards the circumstances surrounding the dis-
charge of Clifford Hill. In the case of Hill he caught him asleep on the job on two occasions.
On the first occasion he had no witnesses to Hill 's condition and had done nothing one way or
another , such as awakening him at the time or summarily discharging him for his dereliction
of duty, but on the second occasion he took pains to secure a witness before he took any action.
His testimony in this regard follows below:
Q Will you relate to the Trial Examiner the time, date and place , and incident, of Mr.
Hill's discharge?
A I don't remember the date. I remember the time. I come out one morning about six
o'clock, out to the plant , and it is customary for the boiler fireman on the midnight shift,
which is eleven to seven shift, to clean up the shower room and the stock room, and I
noted it hadn't been done , and I walked over to the boiler house to tell the boiler fireman
39 Though the undersigned finds that neither Chandler nor the other operators were super-
visory employees within the meaning of the Act , nevertheless , the record clearly shows that
they have a greater degree of responsibility than either the pumpers or firemen.
The record also refers to Chandler as still operator , operator , and control - room operator,
since all titles are descriptive of his duties they are used interchangeably herein.
7 00 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about it, and askhimifhewasgoing to do it before he went off shift, and I couldn't find the
boiler fireman. I walked back to the stock room, and lit a cigarette in the stock room and
stood in the doorway. It was warm weather at that time, and I noted Mr. Clifford Hill
getting up from theback seatofa car, from the stock room to where he had his car parked
by the boiler house, you could definitely see sleep in his eyes, and I let the issue go by at
that time , figured possibly he might straighten up, and the next morning I come out at
six o'clock and this Clifford Hill, I looked for him again, because the shower room and
stock room was not cleaned up, and I walked up to the car again and he was fast asleep in
the back end of the car, so Iwent on over and looked for the pumper who was Jim Osborne
that night, and he was up on this number 9 tank, gauging, taking morning inventory, and I
told him to come on down and lay his gauge tape down, and I took him to the boiler house
and out to the south side of the boiler house where Clifford Hill had his car parked, and
showed Clifford Hill sleeping there, and I woke Clifford Hill up and told him to get up and
when his shift was through, to please come in the office.
Q. This time you really caught him sleeping9
A. Yes, sir.
Q. The first day you didn't have real proof?
A. That's right.
Q Then what happened9
A. He came into the office and he denied sleeping, and I told him, I said, "Jim Osborne
and myself saw you sleeping," and I said, "I am sorry, but you are going to have to be
discharged, we don't allow that on our property."
Q. And he was discharged?
A. Yes, sir.
Such is the case here as theundersigned sees it. It explains Fuller 's reasons for requesting
Rebone to accompany him to the plant and his statement to employee Vernor Ferguson on the
morning of February 8, 1952, to follow him and to go over and wake up Sollman and Chandler.
Upon the foregoing and upon the record as a whole , the undersigned is convinced and finds
that the reasons advanced by Fuller as the motivation for his trip to the refinery at around 3
a. m. on the morning of February 8, 1952 , were mere pretext and that the real reason was
because he had an idea that he might possibly catch either Sollman and Chandler asleep on the
job, and thus not only have a justifiable excuse for discharging them but also a witness to the
incident. The undersigned is also convinced that Fuller had a "hunch" that there was a good
chance of catching at least one of these employees in a compromising position that would
justify disciplinary action . His reasoning in this regard is predicated upon the fact that at the
times material herein , there were about 25 employees at the plant including production and
maintenance employees and truckdrivers . Surely under such circumstances, knowledge that
the employees had been careless in this regard may be imputed to the plant superintendent
For example , Fuller ' s experience in the Hill incident described above compels such an in-
ference.
Having found as above, the question next arises as to what was Fuller's real motive for mak-
ing the trip to the plant at the hour he did9 After long and careful consideration, the under-
signed is convinced that it was to find an excuse to discharge either the one or the other or
both under the pretense of cause but actually because of their well -known activities on behalf
of the Union in order to discourage the remaining employees in their attempt to exercise the
rights guaranteed them by virtue of Section 7 of the Act. It must be remembered that Sollman
and Chandler not only were instigators of the union activities amongst the employees, but
were also on the bargaining committee. A further factor is that the Respondent was well aware
at the time that its employees were in a mood for strike action. That this is so is evidenced by
the uncontradicted and undenied testimony of Herring to the effect that President Smith in their
conversation following the latter's withdrawal from the meeting of February 5, 1952, told him
what the employees should do if and when they struck the plant. 90 As the undersigned sees it
Fuller reasoned that by discharging these 2 outstanding union members the remaining em-
ployees would be impressed to such an extent that they would follow 1 or perhaps 2 courses,
(1) abandon their potential strike, or (2) so weaken and divide them that they would repudiate
the Union. Of course there is no direct evidence in the record that this was Fuller's intention
and that his activities and conduct were predicated on such an assumption, on the other hand,
40 See above.
R. J. OIL & REFINING CO ., INC. 701
however , there rarely is any direct evidence of an employer ' s motivation in such situations
and it is only from facts such as found above that such inferences may and have been drawn by
the Board in innumerable cases with full approval of the various circuit courts of appeals and
the Supreme Court. Consequently , the undersigned finds that the Respondent ' s real motive for
discharging Sollman and Chandler was to discourage its employees in the exercise of their
rights as guaranteed in Section 7 of the Act.
Having disposed of the motivation behind the discharge of Sollman and Chandler, let us
now look at the record as a whole for the purpose of disposing of the General Counsel's con-
tention that the discharge of these employees was likewise violative of Section 8 (a) (3) and (1)
of the Act. To say the least we are here confronted with as difficult a problem as one will run
across in many a day regardless of the fact that the undersigned has found above that the
motivation for the discharges was the Respondent ' s animus towards the Union and the fact that
it had been certified as the exclusive bargaining representative of its employees.
In passing the undersigned feels compelled to make the observation that as he sees the
record, the Respondent ' s briefs, and the general tone of the whole affair, he is convinced that
President Smith had a particular dislike for the Oil Workers Union as such, and not against
unionization of his employees generally so to speak. In other words , the undersigned is con-
convinced that Smith personally simply had nousefor the particular Union involved herein Of
course this impression means nothing one way or another from a purely legal standpoint since
it is the right of the employees alone to select their bargaining agent: but it does go to ex-
plain much of the above -described conduct.
Having disposed of the question as regards the Respondent ' s motivation for Fuller 's trip to
the plant and his subsequent conduct on the morning of February 8, 1952 , we must now face the
issue as regards the actual discharge of Sollman and Chandler . The question posed is this,
were these employees discharged for cause or for their membership in the Union and their
activities on its behalf? If the former , the Respondent has not violated the Act, if the latter, it
has. Even though an employer may have been motivated in the first instance to discharge an
employee on account of his union sympathies and activities , he may nevertheless discharge
him for cause if the cause is of such a serious nature that its continuance or repetition in the
future will or does at the time endanger the lives of his fellow workers and the property and/or
investment of his employer . Mere membership in and /or activities on behalf of a labor organi-
zation neither places a halo around him-or guarantees him against discharge under such cir-
cumstances. 41
In the case of Sollman , the undersigned is persuaded by his own testimony that grounds for
discharge existed It must be borne in mind that Sollman admitted that after having been out in
the cold and damp air for about 11 hours , that he retired to the lockerroom , pulled up a bench
close to a radiator , removed his jacket , rolled it up and placed it beneath him and stretched
out on the bench with his feet propped up against the warm radiator . He was in this position
when Fuller saw him . He denied he was asleep . Though this may be true , nevertheiess, the
undersigned cannot ignore the fact that hehad at least assumed the posture , and to all appear-
ances had settled himself for a long winter ' s nap Even though the undersigned has found that
Fuller in the main was an unreliable witness and that Sollman was otherwise , he cannot ignore
the facts as set forth above. Moreover , theundersigned is convinced that regardless of whether
Sollman was sleeping , dozing , or resting he at least was in a position that was most conducive
to the encouragement of either state. Where one slides off from resting to dozing and then to
"blessed sleep" is too deep a question for the undersigned to fathom , particularly when such
a state of being has disturbed and baffled others better qualified than he to resolve. Suffice it
to say that most of us have atone time or another experienced and enjoyed each in its separate
state.
Upon all of the above and the record considered as a whole , the undersigned is convinced
and finds that at the time Fuller came upon Sollman in the lockerroom under the circumstances
described above , that he as the Respondent ' s superintendent was justified in concluding that
Sollman was asleep and that his subsequent action in summarily discharging him was a proper
exercise of an employer 's prerogative to discharge an employee for cause . It must be re-
membered that we are dealing with a refinery that uses casing-head gasoline , an unpredictable
and volatile fluid inter alia in its refinery process. There is a real and present danger to life
and property around such an enterprise using this and other highly explosive materials at all
times. Alertness of necessity must be the rule, rather than the exception . While it is true that
a refinery such as the Respondent ' s might operate for years without mishap , nevertheless, it
4' See West Texas Utilities, 94 NLRB 1638.
7 02 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
need happen but once. Experience has shown that one who works in such an atmosphere needs
to doze off to sleep but once to cause irreparable injury There are no rehearsals after the
accident occurs. The atmosphere is unlike that found say in a bookstore or a china shop. The
rules against sleeping in any of its various stages is a reasonable and necessary rule around
a refinery.
For the reasons set forth above, the undersigned is convinced and he so finds that Herschel
Sollman was discharged for cause. Consequently, the undersigned will recommend that the
allegation in the complaint as to him insofar as it alleges that he was discriminatorily dis-
charged by the Respondent in violation of Section 8 (a) (3) and (1) of the Act be dismissed in
its entirety.
Now as to Chandler. The undersigned has set forth above Fuller's version of the incidents
that lead up to the discharge of Chandler. They will not be reiterated here He has also
commented upon and described Chandler's duties at the time of his discharge, consequently,
no further comment is necessary herein in this regard. All that remains to be done as regards
this issue is to dispose of it. This is done below.
Chandler was first employed by the Respondent on March 22, 1948, as a still operator. He
was so employed continuously until his discharge on the morning of February 8, 1952. As
indicated above, he joined the Union in October 1950, and was active on its behalf up to the
time of his discharge His activities in this regard have been fully described above. They
likewise will not be reiterated in this section of the report. He not only was the chairman and
spokesman for the local group, that is themembers of the Union at the Respondent's refinery,
but also was vice president of Local 368.
Chandler's account of his discharge was as follows On the morning of February 8, 1952, he
went over to the office at about 7 a. m. to turn in log sheets, which contained a record of the
night's operations, and at that time saw Fuller who told him to report back to the office after
he had been relieved. Shortly thereafter, he returned to the office and saw Fuller, who told
him without any preliminaries that he was discharging him because he had caught him asleep
on the job at 3 a m. At the time Fuller did not relate to him the story about the truckdriver
and the delivery of the oil which has been described in detail above. Chandler denied that he
had been asleep. He also denied on cross-examination that he told Fuller that he had been
"dozing." He further testified that it was nothing unusual for truckdrivers to deliver oil and
other materials on the night shift, but that since it was not his responsibility to receipt for
merchandise or to deal with the truckdrivers, he consequently knew nothing of the incident as
related by Fuller in his testimony. He further testified that at the time he delivered the record-
ing charts to Fuller on the morning of his discharge, the 3 a in. recordings were inserted
therein
In Fuller's account of the events surrounding the discharge which has been set forth in
detail above, he testified in substance that he and Rebone first saw Chandler sleeping when
they went by the window in the control room They next opened the steel door to the office
with some difficulty and walked over and around in front of Chandler and picked up the chart
of the night's operations. During all this time Fuller and Rebone carried on a conversation
particularly as regards the fact that there was no notation for the 3 a. m readings of the
various gauges, gravity tests, etc., that was a necessary and important function of the opera-
tor.42 From what the undersigned gleans from the record, their conversation was carried
on in ordinary tone and ina natural manner. During all this activity Chandler slept on. Neither
Fuller nor Rebone awakened him. As the undersigned understands Fuller's testimony, he
didn't awaken Chandler because he wanted Ferguson to witness his condition, as for Rebone
even though he was the office manager and occupied an important position on the Respondent's
staff, he according to Fuller did not have the authority to awaken a sleeping employee.
After checking up on Chandler's reports, Fuller and Rebone left him asleep in the chair and
proceeded to the boileroom, where they found Ferguson propped up in a chair reading a
magazine. Though this too was a violation of the Respondent's rules and regulations, Fuller
for the time being disregarded Ferguson's dereliction of duty, and ordered him to come along
with him and Rebone to awaken Sollman and Chandler. When they got outside the boilerroom
Fuller ordered Ferguson to go over and awaken Chandler. Ferguson, for reasons set forth
above, returned to the boilerroom in complete disregard of Fuller's instructions. Though
Fuller admonished him in this regard hewenton over to his working place. Fuller and Rebone
42 When Chandler turned the chart in for the night that morning, the readings for 3 a. m.
were inserted on the chart. See supra.
R. J. OIL & REFINING CO., INC. 703
then proceeded to the locker room and awakened Sollman. In the meantime , as the undersigned
understands Fuller 's testimony , he let Chandler sleep on while he made a check around the
refinery to see if anything else was amiss. Finding everything else o. k., he and Rebone got
in the car and drove home.
Shortly before they left, Ferguson after checking up on his boilers went over to the control
room where he found Sollman and Chandler. Both asked Ferguson if he had seen Fuller and
Rebone and he told them he had. There was no further conversation between them.
Conclusions as to Chandler
From all of the foregoing , the undersigned is convinced that the answer to the issue as re-
gards Chandler is, simply stated, one of credibility. If one is to believe the testimony of Fuller
and Rebone then of course Chandler should have been fired On the other hand, if Chandler's
denial is credited then in the face of all that has been found above as regards the conduct of the
Respondent and the concerted and union activities of Chandler become of major importance
particularly when considered in the light of the undersigned ' s findings as to the motivation for
Fuller ' s actions on the morning of February 8, 1952 . Viewed in this light, the undersigned is
persuaded that once having resolved the issue as regards Chandler's credibility, then the
answer must be that he was discharged because of his membership in and activities on behalf
of the Union.
In the considered opinion of the undersigned the answer to the credibility issue lies not so
much in Chandler's denial as it does in the testimony of Fuller himself The undersigned has
found above that there is a clear and present danger at all times around the Respondent's
refinery operations. The record is replete with testimony by witnesses for both the Respondent
and the General Counsel to this effect. Fuller in his testimony described in great detail the
potential danger inherent in the operations of the control room and the dire consequences that
could result from the derelictions of theoperator in charge. There is page after page of testi-
mony in this regard in the record. The undersigned recognizes this condition . Of course a still
operator such as Chandler should be discharged if he went to sleep on the job for the simple
reason that he not only puts his own life in jeopardy but those of his coworkers as well, let
alone the damage that might result to his employer ' s property It was precisely for this very
reason that the undersigned found above as to Sollman, because the preponderance of the sub-
stantial, reliable, and probative evidence considered upon the record as a whole indicated that
he had been derelict in his duties and by his conduct endangered life and property. This being
so let us look at the record and see just what Fuller did in the face of the clear and present
danger he purportedly found as regards Chandler ' s conducton the morning of February 8, 1952
By his own testimony , he let him sleep on regardless of the potential danger that existed right
under his nose . More than that he left him asleep in the control room and went over to the
boilerroom to get Ferguson to go over and awaken Chandler All through this business Chandler
according to Fuller slept peacefully on. Even in the face of Ferguson's disregard of his in-
structions he made no move to awaken him, nor did he order Rebone to go over and do so.
Despite all this and the fact that time went on just the same, he went about other business and
according to his own testimony did not again return to the control room to see if Chandler was
awake or not His testimony in answer to a query as to why he did not do so was that when he
and Rebone got in the car to drive back to Princeton he saw Chandler up and around the con-
trol room and that this was unnecessary.
The undersigned simply does not believe that Fuller caught Chandler asleep on the job.
Fuller's testimony in this regard whenconsideredinthe light of his other testimony as regards
the inherent danger of having a sleeping operator on duty simply doesn't ring true Asa matter
of fact, it is incredible that the superintendent of the plant would permit an employee occupying
the position of Chandler to go on sleeping in the face of clear and present danger. Why didn't
he awaken him at the time he caught him asleep and summarily discharge him on the spot? He
not only had the authority to do so but owed a duty to his employer to take prompt action in
view of the inherent danger. Again why would he delegate the awakening "process" to an under-
ling and then when the latter disregarded his instructions walk off and let the operator sleep on,
regardless of the clear and present danger which to say the least was still present? It may be
that he felt he should have his witness to Chandler's condition, but the answer to that proposi-
tion is that he already had his witness, Rebone, whom the undersigned has found above was
brought along for precisely that reason.
7 04 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chandler impressed the undersigned as an honest and forthright witness. His demeanor was
excellent, and he answered questions posed him by counsel for all parties in a courteous and
forceful manner. At no time was he hesitant or evasive. That he must have so impressed
counsel for the Respondent in a like manner is evidenced in the record on pages 183-184
where counsel in a comment as regards the testimony and credibility of the witness Amos Hill
had the following to say in a reference to Chandler's previous testimony as regards certain
matters:
TRIAL EXAMINER SHAW: It was the testimony of Mr. Chandler they couldn ' t agree
on a union shop, and that's all I said.
MR, MARCUS: There were more than three articles in disagreement at the end.
TRIAL EXAMINER SHAW: I am taking his testimony as I heard it.
MR DONOVAN Your own witness , not Donovan ' s, said that . Your own witness said at
the end there was union shop, grievances , and holiday pay.
MR MARCUS: I don't want to get into any argument.
TRIAL EXAMINER SHAW: We won't get in any argument.
MR MARCUS: The witness was asked , and those are the only three he remembered.
TRIAL EXAMINER SHAW: That was his testimony, and that's all I can go by. You go
ahead and handle your case in any way you see fit. Don ' t get the idea you are precluded,
except I don ' t see much point in just going back over and reiterating something that has
been stipulated or could be.
MR DONOVAN: Would it help you, Mr . Marcus , if I stipulated at the end of the bar-
gaining , just before the strike , theparties had agreed to all issues except the three issues,
namely , union shop , holiday pay and grievance procedure?
MR MARCUS: I don't think that is quite accurate . There was no agreement on the
check-off. There was no agreement on the -- a number of other matters , not all of the
matters which are set forth in this contract -were --
MR DONOVAN: The only thing I am saying , the witness wasn ' t primed to testify. He
testified willingly and honestly he was on the bargaining committee and there were only
three issues, and this man has a sheet in front of him, apparently well prepared, and I
don't mean disrespect to you, but he has indicated what is bad bargaining and what is good
bargaining , and I think the testimony of a spontaneous witness is much better than that of
a well coached witness.
MR MARCUS: First of all, I don't coach my witnesses
MR DONOVAN: I say no disrespect to you, Mr Marcus.
MR MARCUS . There is a nice distinction, and this man attended all the negotiation
sessions and Mr . Chandler did not . Mr Chandler was asked questions on cross examina-
tion that did not have all of the lee-way that may have --
TRIAL EXAMINER SHAW: Proceed , Mr. Marcus . Just try your case in your own way.
MR MARCUS We are just wasting time.
TRIAL EXAMINER SHAW: All right . I merely threw that out as a suggestion.
Upon all of the above the undersigned credits Chandler's denial that he was asleep on the
morning of February 8, 1952, and discredits the testimony of Fuller and Rebone in this
regard.
Having found that Chandler was not asleep on the morning of February 8, 1952, we next must
determine the issue as to what was the motivating force behind his discharge. In the considered
opinion of the undersigned it was because of his membership in and in particular his activities
on behalf of the Union. In the considered opinion of the undersigned such a finding is inescap-
able in the light of the record as a whole. The undersigned has heretofore discussed and found
that the motivating force behind Fuller's trip to the refinery on the morning of February 8,
1952, was to secure if possible, some evidence of either Chandler's or Sollman's derelictions
of duty and if successful in his venture, discharge them under the pretext of cause. Since all
of this has been discussed above, the undersigned deems it unnecessary to reiterate it here.
Suffice it to say the undersigned is convinced and finds that the reasons advanced by the
Respondent for the discharge of Chandler were mere pretext and the real motive for their
action in this regard was because of his union membership and activities. Consequently, the
undersigned finds that by discriminatorily discharging Henry Chandler on the morning of
February 8, 1952, the Respondent herem violated Section 8 (a) (3) and (1) of the Act
R J. OIL & REFINING CO., INC.
D. The alleged violation of Section 8 (a) (2)
In his complaint the General Counsel alleges inter alia that ...
705
commencing on or about June 1, 1952, and continuing thereafter to the present time,
Respondent , through its officers , agents, and employees , interfered with, lent support to,
assisted and directed the formation, organization, and administration of District 50 by,
inter alia:
(a) Recognizing District 50 as the exclusive bargaining representative of its employees
described in paragraph 6 above;
(b) Entering into a contract with District 50 covering the hours, wages, and other terms
and conditions of employment of the employees in the unit described in paragraph 6 above.
And that by we above-described conduct Respondent did engage in and is now engaging in
unfair labor practices within the meaning of Section 8 (a) (2) of the Act.
In his brief the General Counsel makes the following comment:
There is no evidence in the Record that Respondent dominated, formed, or actively
supported District 50. This allegation covers a technical violation of 8 (a) (2), flowing from
the 8 (a) (5) allegations . Obviously, if on March 21, 1952, or any prior date, Respondent
unlawfully refused to bargain with the Oil Workers, thus converting the February 9 strike
into an unfair labor practice strike and prolonging it, then it would be a further violation
of 8 (a ) ( 5) for Respondent to recognize another labor organization during the course of
the strike. It would aslo, under the theory of Julius Resnick, Inc., 86 NLRB 38, be a vio-
lation of 8 (a) (2).
The Respondent denies each and every allegation of the General Counsel's complaint in this
regard. As the undersigned sees it the Respondent takes the position that its employees became
"disgusted and disillusioned" with the Union because it called "unnecessary strikes,"43 made
"false promises and so forth," 44 and as a result of their disaffection voluntarily went to an
organizer for District 50 and through him selected it as their bargaining representative, pri-
marily because it was the dominant labor organization in the community where they lived and
worked. 45 That after having made their determination in this regard, District 50 "did as any
43 Quotes from the Respondent's brief.
44See the Respondent's brief at pages 46 and 47 where the following comment will be found
and which in the considered opinion of the undersigned sums up the Respondent's position:
We call to your attention in this case the many reasons why the Union could have and
did, as a matter of fact, lose its majority status as the bargaining representative, with
this Company. This Union called two strikes during the year's certification. Each strike
was unnecessary and as a matter of fact, the second strike was called to enforce the
Union's illegal bargaining demands, when it was insisting on a "Union Shop" or no
contract. Also, a strike to force the rehire of employees who had been properly dis-
charged for sleeping on the job. No other company in its local had granted a Union
Shop to this Union. Further, this Union only made threats but no other proposals.
Thus, the CIO Oil Workers Union was not bargaining in good faith. The CIO also claims
to have called the strike to force the Company to reinstate two employees (Chandler
and Sollman) who were discharged for good and sufficient cause.
The Union also made false promises to the employees which were not kept.
All or any one act as enumerated above was sufficient cause for the R J. employees
to leave this CIO Union, which they admittedly did.
The Union has maintained no discipline of its members, and has allowed them to call
two unnecessary strikes. This, along with the Union's own "Bad Faith" bargaining with
the -Company, has caused the Union's loss of majority to District 50. Again I say, any
one of the above, and certainly all of them put together, would be, and was, good and
sufficient reason for the employees to decide to leave the CIO Oil Workers Union and
join another union which is respected and well thought of in this community.
45 Presumably Gibson County, Indiana.
339676 0 - 55 - 46
7 06 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legitimate Union should do -- went ahead and demanded recognition from the Company, re-
ceived its recognition and consummated a contract after collective bargaining with the Com-
pany. All of this recognition and contract signing was performed after the CIO Oil Workers
Union had already been certified for over a period of one year ." 46 As the undersigned in-
terprets the record and in particular the Respondent brief he is convinced that the main de-
fense of the Respondent as regards this particular issue is that since more than a year had
elapsed since the Union was certified by the Board at the time it recognized District 50 as the
exclusive bargaining representative of its employees , it had no alternative as a matter of law
since (1) the certification of the Union herein was now invalid, and (2) District 50 now repre-
sented a majority and it was required by the Act to recognize it as the bargaining representa-
tive of its employees.
The record shows that on or about May 22, 1952, Joe Batey, an organizer for District 50,
called Frank Barnhart its regional director in Terre Haute , Indiana , and told him that certain
employees of the Respondent had contacted him about joining District 50 Thereafter, Barnhart
went down to Princeton , Indiana , where District 50 already had an active local , and met with
two of the Respondent's employees, John English and one Maloney. According to Barnhart these
employees told him that they along with other employees were dissatisfied with the Union, and
in particular its failure to secure a contract with the Respondent and in addition were vexed
with the strike which at that time had been in progress since February 9, 1952. The upshot of
the conference was that Barnhart told them that if they secured the signature of a majority of
the employees on authorization cards designating District 50 as their bargaining agent then it
would accept them into membership and charter the group as a local. Shortly thereafter Eng-
lish and Maloney secured the signatures of 15 employees and turned them over to Joe Batey,
the local representative of District 50. Batey then turned the cards over to Barnhart, who
called Henry P Smith, the Respondent's president, and advised him that District 50 had the
signatures of a majority of the Respondent's employees and requested a meeting to discuss
inter alia the authenticity of the signatures and the terms of the contract. Smith agreed to his
suggestion and a meeting was set for June 12, 1952.
The parties met as agreed on June 12, 1952. Present for District 50 were the following:
John J. English, Silas ,V Miller, and one Patterson, as employees of the Respondent, and Joe
Batey and Barnhart as officials of District 50. The Respondent was represented by Super-
intendent Fuller and President Smith. After the authorization cards were checked against the
payroll by Fuller and found to be authentic, Barnhart told Smith that they were there for the
"purpose to make the contract " Smith agreed, and the representatives got down to the
business of negotiating an agreement. After about 4 or 5 hours of negotiation they were in
agreement on a contract. It was drafted and taken back to Princeton for approval by the em-
ployees of the Respondent who had designated District 50 as their bargaining agent, which they
did by unanimous vote. On June14, the parties signed the contract at issue herein. The follow-
ing persons affixed their signatures thereto as the representatives of the parties for District
50 - Joe Batey, representative, John J. English, Silas V. Miller, Frank Barnhart, regional di-
rector, and approved by A. D. Lewis, Chairman Organizing Committee District, #50 U.M.W.A.,
and for R. J. Oil & Refining Co., Henry P. Smith, president
Though the undersigned deems it unnecessary to dwell at length on th%provisions of the
contract in view of his ultimate findings herein, as regards the issue raised by the allegations
in the complaint concerning violations of Section 8 (a) (2) of the Act, nevertheless, he feels
compelled to set forth herein certain provisions which he has heretofore referred to in the
resolution of his findings as regards the alleged violations of Section 8 (a) (5) and (1) of the
Act and in his resolution of the credibility of the witness, Fuller.
First, let us look at "Article II - Coverage" section I. Here it will be noted that the con-
tract covers only the production and maintenance employees, with the usual exclusions of
office, clerical, and supervisory, employees etc., and nothing is said as regards the truck-
drivers. At the reopened hearing herein Barnhart, when queried by the undersigned as to the
truckdrivers, stated that they were not covered by the contract. Consequently, the undersigned
finds that the Unit which District 50 claims to represent is inappropriate in view of the finding
of the Board in Case No. 35-RC-463 concerning which there has been much said above and in
the considered opinion of the undersigned nothing more needs now to be said or added here `n
4sQuotes from Respondent's brief.
47 While it is true that the undersigned approved a stipulation proposed by counsel for the
Respondent and approved by the General Counsel to the effect that District 50 as of December
R J. OIL & REFINING CO., INC. 7 07
The contract speaks for itself, and its implication is apparent. This being so, a valid question
of majority might well be raised.,4s That this is likewise true is the fact that there were at
the times material herein approximately 8 truckdrivers or approximately 25 percent of all the
employees in the unit found appropriate by the Board. When this fact is considered and the
truckdrivers are added to the employees who were still on strike at the time the contract was
entered into, then clearly District50didnothave a valid majority when it entered into its con-
tract with the Respondent, for the reason that since the strikers were engaged in an unfair
labor practice they were still employees within the meaning of the Act and its interpretation
by the Board and the courts ina long line of decisions too numerous to treat extensively here-
in. 49 Hence, any persons hired by the Respondent as replacements, and the record shows that
such was the case, were not "employees" within the meaning of the Act and were subject to
replacement by striking employees upon their abandonment of the strike and their uncondi-
tional offer to return to their employment.
Looking at the contract in the light of the record adduced at the original hearing in Decem-
ber 1952 causes one to ponder at great length the testimony of Fuller as regards the bargain-
ing negotiations, particularly concerning the Respondent's position as regards the "checkoff"
and the personal animosity of President Smith to the inclusion of such a clause in the contract
proposed by the Union herein. A perusal of Fuller's testimony at the time he testified before
the undersigned in December 1952, and the plain language of the contract that was offered and
received in evidence at the reopened hearirgon May 6, 1953, clearly shows that the two are in
direct contradiction particularly as regards his testimony concerning the Respondent's stand
on the "checkoff" clause proposed by the Union. Frankly, the undersigned was persuaded more
than a little by this inconsistency in his final appraisal of Fuller's credibility as a witness.
When this is considered in the light of the Respondent's stand as regards the truckdrivers in the
representation hearing , at the bargaining meeting, and finally as disposed of in the contract
with District 50, the undersigned is convinced that such a consideration buttresses his ultimate
findings above as regards the Respondent's violation of Section 8 (a) (5) and (1) of the Act.
The contract betweenDistrict 50 and the Respondent is for a period of 2 years, from June 14,
1952, to June 14, 1954. As indicated above the contract contains many interesting provisions.
As far as the issues herein are concerned the most important is article III--Recognition.
Since it has been referred to above it is inserted below:
ARTICLE III- -RECOGNITION
Section 1. The Company agrees to recognize the Union as the sole collective bargain-
ing agent for all employees specified in Article II, Section i, above.
Section 2. The parties hereto agree that new employees will be on probationary basis
for thirty (30) days from the date of his employment, after which, if his work is satis-
factory, his seniority shall start from the date of his employment.
Section 3. The Company agrees to check off from the wages of each employee, in
accordance with the expressed terms of a signed voluntary authorization so to do, mem-
bership dues, including initiation fees and assessments, in amounts designated by the
Union. Said deductions shall be made on the first pay-day of each month and immediately
forwarded or delivered to the Financial Secretary of the Local Union Such remittances
shall be accompanied by an itemized statement showing the name of each employee and
the amounts checked off, together with a list showing employees from whom collections
were not made.
The undersigned has no further comment as regards the above contract except to say that
section 2 of article III is interesting to say the least, since it is part of the "Recognition"
clause, and when considered mthehghtofBarnhart's testimony at the reopened hearing herein
18, 1952, had been recognized by the Respondent as the exclusive "bargaining agent for all
employees in the bargaining unit" at the hearing herein, his action in this regard is not to be
construed as an approval of the unit of employees actually set forth in the contract between
District 50 and the Respondent which came to the attention of the undersigned for the first
time at the reopened hearing herein at Terre Haute, Indiana, on May 6, 1953.
48However, in view of the undersigned's preliminary remarks above he deems it unneces-
sary to dwell at length on this question.
49 See Crosby Chemicals Inc., supra, and cases cited therein.
7 08 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on May 6 , 1953, at which time he testified that at that time District 50 had 100 percent mem-
bership at the Respondent ' s refinery amongst the employees in the unit it purports to represent
Be that as it may, however , the important question herein remains to be disposed of. That
question is what was the legal effect of the contract between District 50 and the Respondent
insofar as the issues raised by the pleadings here is concerned9
Conclusion
From what the undersigned gleans from the briefs of the parties, particularly that of the
Respondent's, the vital question concerns the legality and application of the Board's policy as
regards the "certification year." As the undersigned sees it that principle means a year dur-
ing which the certified union is permitted, without unlawful hindrance by the employer, to per-
form the functions of a certified representative. The position of the Board is and has been for
years that a certification is ordinarily valid for 1 year unless it can be shown that some
extraordinary or unusual circumstance has arisen to rebut the presumption of majority status
of the certified agent. Its policy in this regard is and has been in the past predicated upon the
rule of reason and from a practical standpoint in the light of its role as the administrator of
the Act. In other words, the Board in order to administer the Act in an effective manner must
insist on at least some semblance of stability in the relations between labor organizations
and employers. To adopt a contrary approach would soon lead to chaos in the administration
of the Act and render ineffectual the will of the Congress as expressed in the Act.
Fortunately, at the time the undersigned is engaged in disposing of this troublesome issue
there are before him two United States Circuit Court of Appeals decisions which at first blush
appear to be divergent views on the question . Careful examination of the decisions, however,
reveals that both reach the same conclusion insofar as the issue herein is considered in the
light of the facts found above. The two cases referred to are Mid-Continent Petroleum Corp.
v. N. L. R. B., decided by the Sixth Circuit Court of Appeals, and N. L. R. B. v. Brooks, de-
cided by the inth Circuit Court of Appeals.
In the Mid-Continent Petroleum case which the undersigned considers in line with the
theory advanced by counsel for the Respondent insofar as the 1-year rule is concerned,
Judge McAllister speaking for the court had the following to say:
On the issue whether an employer is required to bargain with a union agent selected by
the employees as their representative where the union thereafter loses its majority status
and the employees subsequently discontinue their support of, or repudiate , the union, the
various courts of appeals are in conflict. There is no doubt, of course, that where the
employer's obstructive tactics, delays, and other unfair labor practices may have con-
tributed to a loss of majority status, the employer is guilty of an unfair labor practice in
not recognizing the bargaining agents selected before such unfair labor practices took
place Franks Brothers Co. v. N. L. R. B., 321 U. S 702.
Finally and in summation the court says:
It is our conclusion that whenever the will of the employees to revoke the power of their
bargaining agent is clear and unquestioned, effect must be given to such revocation, and
the employees, in such a case, are thenceforth free to bargain collectively through an
agent of their choice, if they so desire.
The small unit of six truck drivers in this case had the right to revoke the powers of the
bargaining agent theretofore elected by them. The employer having been guilty of no un-
fair labor practice in bringing about such revocation, is not guilty of an unfair labor
practice for having failed to bargain with the agent in question after its powers had
been revoked,
In accordance with the foregoing, a decree will be entered setting aside the order of the
Board.
50 See 32 L. R. R. M. at pages 2127 and 2118, respectively, for a full account of these
cases. See also comment in "Summary of Developments" at page 3 in the same Labor
Relations Reporter, No. 32, No 9, 32 analysis 17, dated June 1, 1953.
R. J. OIL & REFINING CO , INC. 709
It is to be noted that in the Mid-Continent case the Sixth Circuit spells out and distinguishes
a situation absent the commission of unfair labor practices by an employer and a situation
where they have as found herein above preceded the revocation of the bargaining agent's author-
ity. So in that respect there is no conflict between the Brooks case as decided by the Ninth
Circuit and the Mid-Continent case discussed above
It is quite true that the record herein shows that the so-called revocation of the Union
by the Respondent's employees occurred more than 1 year after the Union was certified
by the Board, but here the undersigned has found above that the strike, which began on
February 9, 1952, and was officially abandoned on June 23, 1952, was caused in the first
instance by the unfair labor practices of the Respondent, and thereafter prolonged by its
refusal to meet with the Union during the pendency of the strike as evidenced by President
Smith's letter to the Union dated March 21, 1952, then under such circumstances the decision
of the Sixth Circuit in the Mid-Continent case would not apply to the factual situation found
herein.
That being so and upon the facts found above the undersigned is convinced that by its
unfair labor practices the Respondent unlawfully deprived the Union of a substantial portion
of its "certification year."Si Hence, if the principle of the "certification year" is to mean
anything at all, then surely it must mean a year without unlawful hindrance by the Respondent
so that the Union can function and perform its duties as the certified representative of the
employees.
Under all the circumstances the undersigned finds that the Respondent herein by virtue of
its prior unfair labor practices was under a legal duty to continue to recognize and to deal
with the duly certified Union herein. It was not for the Respondent to determine whether or
not the Union had lost its majority, it was for the Board, consequently it acted at its peril
when it entered into its agreement with District 50.52 Therefore, by granting exclusive
recognition to District 50 during the pendency of the unfair labor practice strike found
above, at a time when the Union was the certified bargaining representative of its employees,
the Respondent has assisted and lent support to53 District 50 in violation of Section 8 (a) (2)
and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connection
with the operations of the Respondent described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States, and such
of them as have been found to constitute unfair labor practices, tend to le. ,, and have led,
to labor disputes burdening and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of Section 8
(a) (1), (2), (3), and (5) of the Act, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that Respondent on or about April 23, 1952, and at all times thereafter, has
refused to bargain collectively with the Union as the certified bargaining representative of
its employees in an appropriate unit, the undersigned will recommend that the Respondent,
upon request, bargain collectively with the Union as the certified exclusive bargaining repre-
sentative of all the employees in the unit found appropriate by the Board in Case No. 35-RC-
463, and by the undersigned herein mentioned above and, if an agreement is reached, embody
such understanding in a signed agreement.
Having found that the Respondent discriminated against Henry Chandler with respect to
his hire and tenure of employment and the terms and conditions of his employment because
51 As the undersigned interprets the Respondent's brief it accepts the principle of the
"certification year" as ennunciated by the Sixth Circuit Court of Appeals in the Mid-Con-
tment case cited, supra.
52 See N. L. R. B. v. Sanson Hosiery Mills, 195 F. 2d 350, 352 (C. A. 5), certiorari denied
344 U. S. 863; Poole Foundry and Machine Company, 95 NLRB 34; see also National Carbon
Division, Union Carbide and Carbon Corporation, 100 NLRB 689; Toolcraft Corporation, 92
NLRB 655, 656.
53By virtue of the checkoff agreement in its contract with District 50.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had joined and assisted the Union and had engaged in other protected concerted activities,
the undersigned shall recommend that the Respondent offer to him immediate and full rein-
statement to his former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and that the Respondent also make him whole for any loss of
pay he may have suffered by reason of the Respondent's discrimination against him, by pay-
ment to him a sum of money covering his loss of pay, such loss of pay to be computed on the
basis of each separate calendar quarter or portion thereof during the period from the Re-
spondent's discriminatory discharge on February 8, 1952, to the date of a proper offer of
reinstatement. The quarterly periods hereinafter called "quarters" shall begin with the first
day of January, April, July, and October. Loss of pay shall be determined by deducting from
a sum equal to that which he normally would have earned for each quarter or portion thereof,
less his net earnings,54 if any, in other employment during that period Earnings in one
particular quarter shall have no effect upon the back-pay liability for any other quarter.
The undersigned shall further recommend that the Respondent, upon request, make available
to the Board or its agents, for examination and copying, all payroll records and reports, and
all other records necessary to analyze the amount of back pay due him 55
Having found that the Respondent discriminated against six named strikers, whose names
appear under Appendix A annexed hereto, with respect to their hire and tenure of employment
and the terms and conditions of their employment because they had gone on strike in protest
against Respondent's unfair labor practices and had engaged in other protected concerted
activities, the undersigned will recommend that Respondent offer to the employees named
immediately below immediate and full reinstatement to their former or substantially equiva-
lent positions,
1. Amos Hill
2. John Osborne when able to work
without prejudice to their seniority or other rights and privileges. The reinstatement shall
be effected in the following manner: Employees hired during the strike shall, if necessary
to provide employment for those to be offered and who shall accept their former or sub-
stantially equivalent positions, be dismissed. It will also be recommended that the Respondent
make whole in addition to the two employees named above, the remaining employees named
in Appendix A and in particular below, for any loss of earnings they may have suffered by
reason of the Respondent's discrimination against them by the payment to each of them a
sum of money equal to the amount which he normally would have earned as wages from Sep-
tember 9, 1952,56 which the undersigned has found above to have been the date a valid request
for reinstatement was made by the strikers, to the date the Respondent made a valid offer to
reinstate him to his former or substantially equivalent position, and which each declined to
accept, which is set opposite the name of each striking employee as listed below:
1. Ray Jacquemai From September 9 to December 3, 1952.
2. Joseph J. English From September 9 to November 3, 1952
3 Richard Sloan From September 9 to November 23, 1952.
4. Robert Lee Roney From September 9 to November 12, 1952.
The computation of the amounts due each of the above-named striking employees shall
be subject to the deduction of the net earnings of each during the periods of time shown op-
posite their names
Having found that the Respondent illegally assisted and supported District 50 by, among
other things, executing a contract with it on June 14, 1952, hereinabove referred to, the un-
dersigned will recommend that Respondent be ordered to cease and desist from giving effect
to said agreement and such other understanding, supplements, or other agreements, if any,
as may relate thereto, or to otherwise unlawfully assist or support District 50 as the repre-
sentative of the employees in the bargaining unit found appropriate hereinabove and by the
Board in Case No 35-RC-463
Having found that there is insufficient evidence in the record to sustain the allegations of
the complaint that Hershel W. Sollman and Billy Frank Scott were discriminated against,
the undersigned will recommend that the complaint as to them be dismissed
54See Crossett Lumber Company, 8 NLRB 440.
55 See F W. Woolworth Company, 90 NLRB 289.
56 See Crossett Lumber Company, 8 NLRB 440.
R J. OIL & REFINING CO , INC. 711
The unfair labor practices found to have been engaged in by Respondent are of such a
character and scope that in order to insure the employees here involved their full rights
guaranteed by the Act it will be recommended that Respondent cease and desist from in any
manner interfering with, restraining , and coercing its employees in their right to self-
organization.67
Upon the basis of the foregoing findings of fact, and upon the record as a whole, the under-
signed makes the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union, CIO, and District 50, United Construction Workers of
America, and its Local 13695, affiliated with United Mine Workers of America, are labor
organizations within the meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, including truckdrivers employed at the
Respondent's refinery at Princeton, Indiana, but excluding office and clerical employees,
gaugers, professional employees , chemists , guards, the dispatcher , and supervisors as
defined in the Act , constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. Oil Workers International Union, CIO, was on April 23, 1951, and at all times since
has been, the certified exclusive representative of all the employees in the appropriate unit
for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on April 23, 1951, and thereafter, to bargain collectively with Oil Workers
International Union , CIO, as the exclusive representative of all the employees in the appro-
priate unit , Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to hire and tenure of employment of the six employees
whose names appear on Appendix A. annexed hereto, because they and each of them par-
ticipated in a strike at Respondent ' s refinery and engaged in other protected concerted
activities, thereby discouraging membership in the Union , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act
6 By discriminating in regard to the hire and tenure of Henry Chandler on February 8,
1952, Respondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) of the Act
7. By giving illegal assistance and support to District 50, United Construction Workers
of America, and its Local 13695, affiliated with United Mine Workers of America, thereby
encouraging membership in Oil Workers International Union , CIO, Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the
Act.
8 By interfering with, restraining , and coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 ( 6) and (7) of the Act.
10. Respondent did not discriminate against Hershel Sollman and Billy Frank Scott as
alleged in the complaint.
[Recommendations omitted from publication.]
APPENDIX A
1. Ray Jacquemai From September 9, 1952 to December 3, 1952.
2. Joseph J. English From September 9, 1952 to November 3, 1952.
3. Richard Sloan From September 9, 1952 to November 23. 1952.
4. Robert Lee Roney From September 9, 1952 to November 12, 1952.
5. Amos Hill From September 9, 1952 to the date a valid offer
of reinstatement is made.
6. John Osborne From September 9, 1952, to the date he is phys-
ically capable of performing his former
duties.
57 See May Department Stores v. N . L. R. B., 326 U S. 376.