The Ohio Fuel Gas Co.

National Labor Relations Board - Board Decisions

Jul 16, 1940

25 N.L.R.B. 519 (N.L.R.B. 1940)

In the Matter of THE OHIO FUEL GAS COMPANY, A CORPORATION and
INTERNATIONAL ASSOCIATION OF OIL FIELD, GAS WELL & REFINERY
WORKERS OF AMERICA
Case No. C-079.-Decided July 16, 1940
Jurisdiction : gas utility industry.
Unfair Labor Practices
In General: employer responsible for acts of its supervisory employees.
Interference, Restraint, and Coercion: anti-union statements; interrogation con-
cerning union activities ; threats of interference with conditions of employ-
ment; requests of employees not to join or remain in union; offers of wage
increases for not joining or remaining in union.
Discrimination: lay-offs for union membership and activities; charges of dis-
crimination as to certain employees, dismissed.
-Remedial Orders : reinstatement and back,pay awarded.
Seasonal or intermittent nature of employment of employees discrimina-
torily laid off to be taken into consideration in determining amount of
back pay.
An employee discriminatorily laid off changed his status to that of unfair
labor practice striker by his rejection of offer of reinstatement and was
awarded back pay from date of discriminatory lay-off to date he refused
offer of reinstatement.
Mr. Harry L. Lodish and Mr. Peter DiLeone, for the Board.
Eagleson ct; Laylin, by Mr. Freeman 7'. Eagleson, of Columbus.
Ohio, and Mr. John A.' Weber, of Medina, Ohio, for the respondent.
Mr. Raymond B. Bennett, of Medina, Ohio, for the Union.
Mr. Ben Law, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by International Association of Oil Field,
Gas Well & Refinery Workers of America, herein called the Union,'
the National Labor Relations Board, herein called the Board, by the
'On June 7, 1937, International Association of O.1 Field, Gas Well & Refinery Workers
of America changed its'name to Oil Workers International Union. As used hereafter, ",the
Union" refers to the organization accoidmg to its p,oper designation as of the time under
discussion . The Union is f,equentty referred to erroneously as International Association of
-Oil Workers of America.
25 N. L.. R. B., No. 64.
. 519
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Director for the Eighth Region (Cleveland, Ohio), issued-
its complaint dated March 26, 1937, against The Ohio Fuel Gas
Company, Columbus, Ohio, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce, within the meaning of Section
S (1) and (3) and Section 2 (6) and (7) of the National Labor Re-
lations Act, 49, Stat. 449, herein called the Act. The complaint and
accompanying notice of hearing to be held at Cleveland, Ohio, on
April 5, 1937, was duly served upon the parties. By a supplementary
notice the hearing was set for April 12; 1937, at Medina, Ohio.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent between January 13 and 21,
1937, discharged or laid off 34 named individuals, and has since re-
fused to reinstate them, for the reason that they joined and assisted
the Union; (2) that the respondent between January 13 and 21, 1937,
has kept under surveillance the activities of its employees, has offered
bonuses, privileges. and special considerations to them in an effort
to effect the abandonment of the lawful exercise of their rights, and
has otherwise coerced, intimidated, and interfered with them in
the exercise of the rights guaranteed in Section 7 of the Act; (3)
that on January 21, 1937, many of the respondent's employees work-
ing in the Medina, Ashland, and Wayne county fields, struck because
of the aforesaid unfair labor practices of the respondent. No answer
was filed by the respondent.
Pursuant to notice, a hearing was held on the complaint at Me-
dina, Ohio, on April 12, 13, and 14, 1937, before Emmet P. Delaney,
the Trial Examiner duly designated by the Board. The Board, the
I osporiclent, and the Union were represented by counsel. The re-
spondent participated in the hearing to the extent of cross-exam-
ining the Board's witnesses, but presented no evidence on its own
behalf
At the commencement of the hearing, counsel for the respondent.
appeared specially and made an oral motion to dismiss the complaint
on the ground (1) that the complaint did not state a cause of action
within the scope of the Act; and (2) that the Act was unconstitu-
tional as applied to the respondent, in that the respondent was not
engaged in interstate commerce. The Trial Examiner denied the
motion on the first ground and reserved his ruling on the second
ground. At the conclusion of the hearing counsel for the Board
made an oral motion to amend the complaint to conform to the
evidence, which was granted by the Trial Examiner. _
On April 20, 1937, subsequent to the decisions of the United States
Supreme Court upholding the constitutionality of the Act,. the re-
spondent filed a written motion for leave to plead or answer. This
f
THE OEIIO I'UEL GAS COMPANY 521
-motion was granted, and on May 19, 1937, the Board issued its
amended complaint against the respondent, which differed from the
original complaint only in that it added the names of 13 more indi-
viduals who were alleged to have been discharged or laid off 'by the
respondent because of their union activities.
On June 3, 1937, the respondent filed an answer to the amended
complaint admitting the allegations as to the general nature of its
business, that it caused a large part of its supplies and replacements
to be purchased and transmitted in interstate commerce, that it pur-
chased outside of Ohio 60 per cent of the gas it distributed, and
that it distributed small quantities of gas in Indiana and Michigan,
but denying that there was any direct,connection between its produc-
tion business, where the alleged unfair labor practices took-place,
and interstate commerce. The answer denied that the respondent
laid off any of its employees for union activity, but averred -that
they were laid off because of unexpected weather conditions. It also
denied, that the respondent coerced, intimidated, or interfered with
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
Prior to the continuation of the hearing the Board and the re=
spondent entered into a stipulation which provided that the testimony
adduced at the original hearing in the case might be considered as'
'evidence upon the amended complaint, and that a further hearing
-would be held at which time either party might offer testimony.
On June 29, 1937, the parties were duly served with a notice of
the continuation of the hearing. Pursuant to this notice, the hear-
ing was continued at Medina, Ohio, on July 12 and 13, 1937, before
Charles E. Persons, another Trial Examiner duly designated by the
Board. The Board, the respondent, and the Union were represented
by counsel, and the respondent took this occasion to present its side
of the case. Full opportunity to be heard, to examine and cross-
-examine witnesses, and to produce evidence bearing upon the issues
was afforded all parties at the hearings in April and in July 1937.
At the conclusion of the continued hearing the respondent made
an oral motion to dismiss the complaint as to 21 nailed individuals
for the reason that they did not appear in the proceedings and that
no testimony was adduced on their behalf. The Trial Examiner
reserved his ruling on this motion. The respondent then made a
second oral motion to dismiss the complaint on the ground (1) that
the evidence in the record failed to bring the respondent within the
concept of interstate commerce as envisaged by the Act, and (2) that
the Act was unconstitutional. The Trial Examiner denied the mo-
tion on the second ground, and reserved his ruling on the first ground.
Both the Board and the respondent filed briefs with the Trial
Examiner.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD)
On October 21, 1937, Trial Examiner Persons filed an Inter-
mediate Report, finding that the respondent had engaged in unfair
labor practices affecting commerce, within the meaning of Section 8,
(1) and (3) and Section 2 (6) and (7) of the Act, and recommend-
ing, inter alia, that the respondent reinstate with back pay 27 named
individuals; that it give back pay to 10 other individuals who had
already been reemployed, from the date each was laid off to the date,
of his reinstatement; and that it give back pay to 7 other individuals
who had become ineligible for reemployment, from the date each
was laid off to the (late when each became ineligible for
reemployment.
The Trial Examiner also ruled on various motions. The respond-
ent's motion to dismiss the complaint as to 21 named individuals
because they failed to appear and because no testimony was adduced
on their behalf, was denied as to 20 of the individuals named. It
was granted as to Harold Schoonover. The Trial Examiner also
denied the, respondent's motion, to dismiss • the complaint on the
ground that the evidence in the record failed to bring the respondent
within the concept of interstate commerce as envisaged by the Act.
The Board has reviewed the rulings made by the Trial Examiners
on motions, objections, and other matters during the course of the
hearing, and finds that such rulings, as modified in the findings,
conclusions, and order set forth below, were not prejudicial to the
parties. The rulings, as modified, are hereby affirmed.
On November 11, 1937, the respondent filed exceptions to the Inter-
mediate Report. At the same'time it moved the Board to reopen the
record in order that further evidence might be received on certain
matters. In the event such motion was denied it requested an
opportunity for oral argument before the Board and an opportunity
to file a brief on its exceptions. On April 22, 1938, the Board granted
the respondent's motion to reopen the record, and authorized the
Regional Director to issue notice,of further hearing.
On May 2, 1939, counsel for the respondent, the Union, and the
Board entered into a stipulation of fact which was made a part of
the record of the proceedings. The stipulation was entered into
in lieu of further hearing, and the parties thereby introduced such
further evidence into the record as they desired.
On May 25, 1939, the Board approved the stipulation. At the
same time, in- accordance with the respondent's request, the Board,
acting pursuant to Article II. Section 38 (d), of National Labor
Relations Board Rules and Regulations-Series 1, as amended,
ordered that proposed findings of fact, proposed conclusions of law,
and a proposed order be issued in this proceeding, and that the parties
THE OHIO (FUEL GAS COMPANY 523:
should have the right, within 10 days 2 after their receipt, to file
exceptions, to request oral argument before the Board, and to request
permission to file a brief with the Board.
On April 23, 1940, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order in these pro-
ceedings, copies of which were duly served upon all parties. On May
10, 1940, the respondent filed its exceptions-to the Proposed Findings-
of' Fact, Proposed Conclusions of Law, and Proposed Order and re-
quested that it be given an opportunity for oral argument before-
the Board. On May 23, 1940, the respondent filed a brief in support
of its exceptions.
Pursuant to notice a hearing for the purpose of oral argument-
was held on May 28, 1940, before the Board in Washington, D. C._
The respondent and the Union were represented by counsel, the-
former participating in the argument.
The Board has considered; the respondent's exceptions to the
Proposed Findings of Fact, ^ Proposed Conclusions of Law, and
Proposed Order and its brief in support thereof and, in so far as the.
exceptions are inconsistent with the Findings, conclusions, and order-
set forth below, finds no merit in them.
Upon the entire record in the, case, the Board makes the following:-
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Ohio Fuel Gas Company is an Ohio corporation engaged in,
the production, purchase, transmission, distribution, and sale of
natural gas in the State of Ohio, and in the purchase, distribution,
and sale of artificial or manufactured gas in the city of Toledo, Ohio.
It is a wholly owned and controlled subsidiary of the Columbia Gas,
and Electric Corporation. The parent or holding company controls
the so-called Columbia System, comprising about 40 separate wholly
owned and controlled subsidiary corporations which, among other
things, carry on commerce in 'natural gas in New York, Pennsyl-
vania, Ohio, Virginia, West Virginia', Indiana, Kentucky, and
Michigan. The natural gas transmission and distribution lines of
the Columbia System are interconnected, and the transmission and
distribution system of the respondent is an integrated part thereof.
2The Proposed Findings of Fact , Proposed Conclusions of Law , and Proposed Order
stated, "we deem this Oider to be altered to the extent that it is inconsistent with Article
II, Section 37 (c), of National Labor Relations Board Rules and Regulations-Series 2, as=
amended In accordance with those rules we will consider the Order amended to grant
the parties 20 days from the date of the proposed findings of fact, proposed conclusions-
of law, and proposed order within which to file exceptions and to request oral argument
before the Board. Any party may , within 30 days after the date of the proposed findings-
of fact, proposed conclusions of law , and proposed order, file a brief with the Board."
.524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parent company has provided some of the necessary financing for
-the development of the respondent's properties.
The respondent's properties are operated as an integrated system.3
The entire natural gas transmission and distribution system of the
respondent is interconnected within itself. Gas enters the system
from pipe lines from outside of the State of Ohio, from the respond-
ent's own wells in Ohio, and from the wells of other producers in
Ohio from which the respondent purchases gas. Gas from all three
sources is intermingled throughout the transmission and distribution
system. Gas is admitted into the system by opening valves located
at the wells or at various places on the pipe lines. Gas flows through
-the pipe lines in part under its own pressure. This pressure is aug-
-mei'ted by compressor stations located along the pipe lines. The
transmission and distribution -of gas through the network of pipe
lines which connect the producing and purchasing areas-with the
marketing areas are controlled by the dispatcher at the respondent's
:main office in Columbus. _ The dispatcher receives weather reports,
reports., of line pressures, and other data indicating the trend of
demands in the various markets. He considers this data in the light
of his knowledge of the location of every well, both contract and,
company owned, the classification of the respondent's wells, the, re-
quirements of and the amount of gas available under each purchase
contract, the location of the point of purchase under each, and all
other facts bearing upon the amount and location of the supply of
gas. As the demand conditions vary from hour to hour and place
-to place the dispatcher meets those demands by telephoning instruc-
tions to the field and to the compressor stations in pursuance of
which ilistructiolls, valves are turned, compressor station operations
are adjusted, and gas is directed from points of purchase - or
-production where it is available to the points of increasing demand.
The respondent has a central labor policy covering wages, hours,
and working conditions, emanating from its main office in Columbus
and effective throughout its system. Provision is made under this
policy for the transfer of employees in the 'transmission department
-under the rank of foreman from one district to another as needed.
Such transfers are cleared through the respondent's main office in_
Columbus upon the basis of the information there received from
the various district supervisors. The respondent's central labor
policy contemplates that wages for unskilled labor in particular-
areas are to be set in accordance with prevailing local wage rates.
3 Cf , for example, Matter of Pennsylvania Greyhound Lines, Inc, Greyhound Manage
ment Company, Corporations and Local Division No 1063 of the Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of America, 1 ,N. L. R. B 1 ; Matter
of Wisconsin Power and Light Company and United Electrical, Radio and Machine Workers
of America, Local No. 1134, 6 N. L. R B 320; Matter of Tennessee Electric Power Company-
,
and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24.
THE OHIO FUEL GAS COMPANY 525'
The respondent operates under leases about 400,000 acres of proven-
gas lands, and holds leases on.about 1,700,000Facres of land in Ohio,
which it has the right to explore for gas. It owns and operates in
Ohio about 3,500 gas wells, 11,000 miles of gas pipe lines, and 35
compressor stations generating over 60,000 horsepower. In •connec-
-tion with-the distribution and sale of manufactured, gas in Toledo,
-the respondent maintains a purification plant for the removal of
sulphur from manufactured gas and a stand-by manufactured gas,
plant for the production of reformed natural Las.
During the year 1936,• which was a typical year, the respondent--
-handled 55,947,028 MCF (thousand cubic feet) of gas. Approximately
34 per cent of this gas was produced in Ohio by the respondent.
About 29 per cent was purchased in Ohio from other producers. The
.remainder, amounting to approximately 36 per cent, was purchased
by the respondent at State lines from gas produced in West Virginia.
and Indiana and piped into Ohio for resale. In 1937 the respondent
imported across State boundaries 56 per cent of the total amount of
gas, it htindled. In' the conduct of its business the respondent pur-
chases pipes, meters, and other kindred products. During the month
of June 1938, which was a typical month, 22 per cent of such products
.purchased by the respondent, valued at $23,000, originated outside of-
Ohio. During the first 3 months of 1937, 34 per cent of such products
valued at $106,700, were imported by the respondent from outside of
Ohio.4
The respondent's system for the distribution of manufactured gas in-
-Toledo is operated largely as a separate enterprise, there being through-
out most of each year no physical connection between it and the re-
spondent's other properties. Manufactured gas distributed in the-
Toledo system is obtained almost entirely by purchase from the Inter-
lake Iron Corporation, an independent company, in Ohio. To meet
"peak load" demands on the manufactured gas-distribution system,.
however, the'resp'ondent maintains a stand-by plant for the production
'of reformed natural gas. The natural gas so used in the stand-by
plant comes from the respondent's integrated production and distri-
bution system. In 1936 the stand-by plant was operated 16 days and
in 1937, 11 days. In carrying on such operations in 1936 the respond-
ent used 1,050 tons of coal mined in Kentucky and West Virginia and
100 tons of coke produced in Pennsylvania. For the same purposes
4 See Newport News Shipbuilding d Dry Dock Co, at at v. National Labor Relations Board,
101 F (2d) 841 (C. C A 4), enf'g as modified as to other issues, Matter of Newport News
Shipbuilding and Dry Dock Coinpany and Industrial Union of Marine and Shipbuilding
Workers of America ( modification of Board's order reversed in Newport News Shipbuilding
it Dry Dock Co. et at. v. N . L R. B. 308 U S . 241) ; N. L. R B. v. Bradford Dyeing Associa-
tion (U: S. A ), 60• S: Ct 918 , decided May 20, 1940 , enf'g, Matter of Bradford Dyeing
Association ( U S. A ) (a Corporation ) and Textile Workers' Organ izing, Committee of the.
C. I. 0., 4 N. L. R. B. 604.
.526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in 1937 it obtained from States other than Ohio 1,500 tons of coal and
100 tons of coke. In addition, in connection with the operation of a
purification plant for the removal of sulphur from the manufactured
gas which it purchased, the respondent brought into Ohio 864 tons of
"material" in 1936, and 648 tons in 1937.
In 1936, and customarily, the respondent distributed approximately
:99.2 per cent of the gas it sold within the State of Ohio. About eight-
tenths of 1 per cent of the gas was distributed in Indiana and West
Virginia. However, a large part of the latter amount consisted of
emergency sales, non-recurrent in character.
The respondent's customers include domestic, industrial, commer-
cial, and wholesale purchasers. The respondent sells natural gas to
instrumentalities of interstate commerce such as railroads, motor-
vehicle transportation companies, radio-broadcasting stations, tele-
phone companies and telegraph companies, and the like, for domestic
or commercial purposes. In 1936 the respondent sold 8,343,325 MCF
of gas to industrial users for $4,501,761.98. In reply to letters sent to
-them, some 60 of the respondent's customers stated that they purchased
raw materials and made deliveries of finished products in interstate
commerce; that they used gas for various purposes in the production
of their finished products; and some 25 stated that, in the event that
their gas supply was cut off, they would be forced to close their plants,
-while some 35 stated that they would be forced to install substitute
methods of heating which would in many cases entail serious delays
and extensive expenditures. Among the industrial users furnishing
such information were the following : American Can Company, Ameri-
can Radiator & Standard Sanitary Corporation, Chevrolet Division of
• General Motors Corporation, International Harvester Company,
Kroger Grocery & Baking Company, Libbey Glass Company, National
Tube Company, United States Glass Company, Westinghouse Electric
-& Alan ufacturing Corporation, and Willys-Overland Motors, Inc.
According to the stipulation entered into by the parties on May 2,
1939, if there should be a total cessation of the production of gas by
-the respondent in Ohio and by other producers in Ohio from whom
the respondent buys gas, the respondent could procure and deliver
gas from West Virginia and from other sources outside Ohio in suf£i-
. cient quantities to supply its markets during the warm months of
summer. During the cold months of winter, however, the respondent's
pipe-line system handling the quantities of gas available under present
conditions from sources outside of Ohio would not supply more than
approximately one-half of the demand of the respondent's consumers
-in Ohio.
The parties further stipulated that in the event of a complete cessa-
tion of work by the respondent's employees below the rank of foreman
THE OHIO FUEL OAS COMPANY 527
in the districts immediately involved in the instant case 5 the wells in
such area would continue for a time to produce gas into the pipe-line
system. The operation of turning the well valves could and would
in that event be performed, as it often is performed, by foremen.
After the lapse of some time some of the wells would partially fill
up with water and their productivity would be impaired, but the flow
of gas to the markets would not be affected in total unless the system
demands, as related to the total available supply of gas, should require
that all of the respondent's wells be turned into the lines.6 Such a con-
dition did not exist in 1937. A cessation of work in the districts im-
mediately involved in this case would, due to the interconnection of the
respondent's entire pipe-line system, have no greater effect on deliveries
(;f gas in an adjacent market area than in any other market area. All
markets would suffer, if at all, alike.
II. TILE ORGANIZATION INVOLVED
The Union is a labor organization affiliated with the Congress of
Industrial Organizations. It admits to membership all production
and maintenance workers employed by the respondent in production,
transmission, and distribution of natural gas, exclusive of employees
in the respondent's main office at Columbus, Ohio, and clerical workers
in any of the respondent's field headquarters. Wooster Local, No. 380,
the local branch of the Union herein involved, claims jurisdiction in
and around Medina, Ashland, and Wooster, Ohio.
The contention that a showing of a partial or complete stoppage
of operations resulting in an actual impairment of the flow of inter-
state commerce is it prerequisite to the Board's jurisdiction has been
expressly rejected by the courts. In N. L. R. B. v. American Potash cg
Chemical Corporation, 98 F. (2d) 488 (C. C. A. 9), cert. denied 306
U. S. 643, enf'g Matter of American Potash cC Chemical Corporation
and Borax c6 Potash Workers' Union No. 20181, 3 N. L. R. B. 140, the
court stated, "The Act is designed primarily as a preventive measure.
Actual stoppage or impairment of commerce is not required before
the Board is authorized to act." In N. L. R. B. v. Bradford Dyeing
Association (U. S. A.), 60 S. Ct. 918, decided May 20, 1940, enf'g
Matter of Bradford Dyeing Association (U. S. A.) (a Corporation)
and Textile Workers' Organizing Committee of the C. I. 0., 4
6 As set forth in greater detail below , events giving iise to this proceeding occurred for
the most part in the respondent ' s pipe lines and production departments in the vicinities
of Wooster , Medina, and Ashland, Ohio . These departments , within such areas , comprise
only a part of the respondent 's operations in Ohio.
a In its brief in support of the exceptions to the Proposed Findings of Fact , Proposed
Conclusions of Law , and Proposed Order the respondent alleges that there is no showing
on the record that a shut -down in any particular area of its operations has ever occurred
under conditions such as to affect the respondent 's capacity to supply natural gas to its
customers For that reason ( as well as for other reasons ) the respondent contends that
the Board lacks jurisdiction in the instant case.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. L. R. B. 604, the court stated under a somewhat different factual
situation than that here involved but on the same legal question, "Since
,the purpose of the Act is to protect and foster interstate commerce,
the Board's jurisdiction can attach, as here, before actual industrial
gt'rife materializes to obstruct that commerce." See also Consolidated
,Edison Co. et al. v. National Labor Relations Board et al., 305 U. S.
197 (221, 222), enf'g Matter of Consolidated Edison Company of New-
York Inc. et al. and United Electrical and Radio Workers of America,,
affiliated with the Committee for Industrial Organization, 4 N. L. R. B.
71; Clover Fork Coal Co. v. N. L. R. B., 97 F (2d) 331 (C. C. A. 6),
enf'g Matter of Clover Fork Coal Company and District 19, United
Mine Workers of America, 4 N. L. R. B. 202.
From all the evidence in the instant case it is clear that a stoppage
of work due to industrial strife in even a part of the respondient's
producing and distribution system might, under certain conditions,,
seriously impair the respondent's ability to supply the demands of its
customers engaged in interstate commerce and to carry, on its other
functions. The Board, however, is not limited to a consideration of
the effect of only a partial stoppage or of a stoppage in a particular
area. Widespread industrial strife covering all or nearly all of the
respondent's operations in Ohio would tend to seriously jeopardize
and impair interstate commerce. As pointed out above, the Board is
not required to wait until interstate commerce is impaired before it
takes jurisdiction.
III. THE UNFAIR LABOR PRACTICES
. In so -far as the record discloses, the first action toward formation
of a union among employees of the respondent occurred during the
first. part of January 1937; when a paper was circulated by, A. J.
Larson and Gordon Gano to secure signatures of those willing to
form a union. On January 13, 1937, a meeting was held at Mallet's
Creek, Ohio, with some 300 men present. On January 15, 1937,
Wooster Local No. 380 received its charter' from the Union. Of the
19 charter members, 10 are involved in the present proceedings.
On January 15 and 16, 1937, extensive lay-offs were put into effect
by the respondent and on January 17 and 20, 1937, meetings, of the
Union .were held. There is some evidence that at the meeting of
January 20, the men laid off requested strike action against the re-
spondent. On January 21, 1937, seemingly without a formal vote
having been taken, the Union called a strike. Picketing started
immediately at Wooster and Medina and was extended to Ashland
on February 13, 1937.
On January 22, 1937, pursuant to an agreement between H. M.
Cox, superintendent of drilling for the respondent, the chief of police
THE OHIO FUEL GAS COMPANY 529,
at Wooster, and possibly the Union, the respondent shut down oper-
ations in the Wooster and Medina areas except for certain emergency
work. Two members of the Union, Guiles Bigley and Clayton Okey,
remained on duty in order to do such emergency work. On January
23 they were prevented from working further by pickets who told
them that by employing other men the respondent had broken its
part of the agreement. On the same day the respondent. resumed
operations despite the Union and the strike.
Some 6 weeks later a citizens' committee composed of representa-
tives from Medina and Lorain County met with C. I. Weaver, presi-
dent of the respondent, to see if a basis for settlement of the dispute
could be found. At this meeting Weaver stated to the committee,
and the committee announced publicly the following day, that the r e-
spondent - would confer with its employees singly or collectively.
Shortly thereafter a committee of members of the Union met with
Tharpe, vice president and general manager of the respondent, F. C.
•Overbeck, superintendent of production, and C. C. Phillips, manager
of transmission. According to accounts of the meeting given by
Lewis Dobson and Frank Carver, both members of the committee,
two matters were discussed, the reinstatement of the strikers and an
increase in wages. No settlement was reached as to either matter.
Dobson testified that the Union was not mentioned at the meeting.
Carver's testimony would indicate that it was mentioned at least
incidentally. There is no evidence of further attempts to settle the
strike. '
Picketing by some members of the Union was continued until April
1937. At various times during the strike and thereafter the respondent
rehired certain of the employees it had laid off on or about January 16,
and it also reemployed many strikers who were willing to return to
work. Other facts connected with the strike, and pertinent to our
decision will appear hereinafter.
A. Interference, restraint, and coercion
Thirty-five witnesses, all employees of the respondent prior to Jan-
uary 16, 1937, and all members of the Union, testified at the hearing
concerning interference by the respondent's officials with the organi-
zation of the Union and with the conduct of its affairs. The evi-
dence thus presented is voluminous and, since it is substantially
uncontradicted by the respondent, needs only to be discussed briefly.
A majority of the 35 witnesses testified that between January 13
and 21, 1937, they were questioned by the respondent's officials con-
-cerning their connection with or interest in the Union and that in
many cases such interrogation. was followed by pointed warnings
that the respondent was opposed to the Union. For example, John
11
530 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roush, who had been employed by the respondent for more than S
years, testified that on January 13, 1937, Stanley Harward, a district
foreman, and Dick Parcell' engaged Roush au_l William S. Bigley,
also an employee, in conversation. Roush gave the following ac-
count of what was said: "Well, they asked us if we was going to
the meeting that night and we told then we was. They asked us not
to go. They said they didn't think the union would do us any good.
They told us there was a lot of ways of getting rid of men. Every
once in a while they would say, `What do you say? Do you figure
on going? Sign a paper to go?"'
Phillip Kobb, an employee of the respondent for about 17 years,
testified that on January 13 E. C. Overbeck, general superintendent.
of production, " . .. called me to one side and he wanted to know
if I knew anything about a meeting at Mallet's Creek that night . . .
I said yes. He said, `Are you goin?' I said, `Yes, if we get done
here in time.' And he talked a little while, I couldn't say what the
conversation was. He said quite a bit. He said, `You got a nice,
wife and a nice boy and I hate to see you do anything you would-
be sorry for.' "
Weldon Anderson testified that on January 15, Jim Ryan, a fore-
man, asked the group with whom Anderson was working whether
they "were going to stick with the company or join the union."
The men replied that they "were going to stick with the union."
On the following day, according to Anderson, "Jim Ryan wanted
to know final whether we were going to stay with the company or
stay with the union, and he asked us whether if the, production boys
decided to drop out we would . . ."
Paul Hoffman, an employee of about 11 years' service, testified
that prior to the meeting of January 13, Carl Hawk, a foreman,
asked if he was going to attend. Hoffman answered that he was.
On January 16 Hawk and Zoid Morgan, another foreman, visited
Hoffman at his home. Concerning the ensuing conversation Hoffman
testified, "Well, they didn't come right out and tell me I shouldn't'
go, but they tried to convince inc that I should stay away and drop
the union . .."
There is considerable undisputed evidence that the respondent
attempted to discourage union activity among its employees by offer-
ing pay increases to men of influence among them. Thus, Phillip
Kobb, Frank Ashdown, and William Adams, with service records of
17, 15, and 111/2 years respectively, all testified that Ray Adams, a
district superintendent of production, offered them wage increases
of $30 a month if they would forego the Union. Roy Faught and
It is c'ear that the witness refers to S I Paicell, superintendent of pipe lines for
the Northeastern division
THE-01410 FUEL GAS COMPANY 531
Irvin Woodruff testified that John Rice, a foreman, told them they
would get more money if they dropped the Union. Glenn Snoddy
testified that he had been similarly approached by A. D. McClaren,
a foreman.
Frank Ashdown also testified that Zoid Morgan told him on Jan-
uary 13 that the respondent would probably take away his insurance
if the'Uhion went through.8
Interference by the respondent with formation of the Union was
not confined to talk. It is undisputed that on January 14 Ray Sweet,
a foreman, requested eight or nine of the men under his supervision
to explain in writing on slips of paper he passed out to them whether
or not they had attended the meeting of January 13 and, if so, their
reasons for so doing. Two days later Ray Adanis and Sweet spoke
to a group of "Sweet's men." Earl Feist, one of the group, testified
that ". . . they wanted us to drop the union. Ray Adams said it
was- all right for a company union, but he couldn't see where they
would get in this union. He said it was all right to have a company
union, and if we were ready to drop it if the Valley City would
drop it and there was no answer to that."
On January 15 or 16 Frank Byard, a foreman, circulated a paper
among the 32 or 33 men under his supervision asking that those who
wished to drop the Union should sign. The evidence concerning this
incident will be fully discussed in the section below.
The accounts set forth above of occasions upon which the respond-
ent's supervisory officials questioned employees concerning their in-
terest in the Union-and warned theni against attending its meetings
or joining only sample a record replete with such evidence. There is
considerable additional testimony that on various occasions super-
visors asked employees if they were going to "stick with the com-
pany or with the Union," or if they would drop the Union if others
would.
Of the respondent's supervisory employees to whom anti-union
statements or acts, or both, were attributed by witnesses for the Union
only Carl Boudinot, Frank Byard, A. D. McClaren, Stanley Harward,
Zoid Morgan, and Harrison Walker were called as witnesses. Except
for Frank Byard none of them denied or explained the anti-union
statements or acts so attributed to them. It seems clear therefore,
and 'we find, that between January 13 and 21, 1937, the respondent's
officials and supervisory employees engaged in a concerted campaign
to discourage membership in the Union.
The respondent is accountable for the anti-union statements and
acts of its officials and supervisory employees. This' is especially true
'Ashdown described the insurance referred to as . a thousand dollars that the
company gives us and a thousand dollars that we-pay for."
.532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where, as here, the statements were made not only by foremen pur-
porting to speak for the "company," but also by important 'officials,
and where the nature and similarity of the statements and their
widespread utterance were such as to strongly suggest central direc-
tion. We find that by questioning its employees concerning their
knowledge of and interest in the Union, by asking them not- to attend
-meetings of the Union, by seeking to force them to choose between
-joining the Union and staying with the respondent, by offering to
certain of its employees substantial wage increases on'the condition
that they drop the Union, by threatening one employee with the loss
of his insurance if the Union should organize successfully, by request-
ing certain of its employees to explain in writing if and why they
had attended meetings of the Union, by seeking to encourage its
employees to resign from the Union by telling then that other em-
ployees were doing so and by playing one group against another,
and by otherwise expressing to its employees a hostile attitude toward
the Union and its leaders, the respondent has interfered with, coerced,
and restrained its employees in the exercise of their rights guaranteed
in Section 7 of the Act. _
B. The lay-offs and discharges -
For administrative and other purposes the respondent divides its
production operations in Ohio into geographical areas which it terms
the Northern, the Mt. Vernon, the Eastern, the Lancaster, and the
;Stewart divisions. Similarly the respondent divicles its transmission
operations into the Northeastern, the Northwestern, the Western, and
-the Southeastern divisions.
The Northeastern transmission division, covering all or parts of
seven or eight counties, is subdivided into the Knox district with
'headquarters at Mt. Vernon, the Lake district with headquarters at
Medina, and the Wayne district with headquarters at Wooster. The
Northern production division covers most of the northeastern part
,of Ohio including the Lake and Wayne districts, but not the Knox
district, of the Northeastern transmission division.
All of the persons alleged in the amended complaint to have been
laid off or discharged because they joined and assisted the Union
were employed by the respondent substantially within the area covered
by the Lake and Wayne districts (about five counties) of the North-
eastern transmission division. With one exceptions they worked in
either the respondent's production or pipe-lines departments. While
the evidence is not entirely clear, it appears that in general the pro-
'duction department is engaged in drilling and maintaining-natural
9 The exception is Cecil Eberhardt who was employed in the 'Medina distribution
,department.
THE OHIO FUEL GAS COMPANY 533
gas wells, while the pipe lines department, frequently referred to as
the transmission department," constructs, operates, and maintains
the pipe lines carrying natural', gas from the wells to the corporate
limits of municipalities where it is consumed.
The respondent classifies its employees in the production and pipe-
lines departments as regular and casual. Joseph H. Lang, superin-
tendent of lines for the respondent, defined the two types of employees
as follows, "The casual employee is the person that we employ to
take care of any increase of work that we have over our normal
operations. The regular employees take care of our regular
operations."
Of the 47 employees named in the amended complaint, the respond-
ent admitted that it had laid off 42, discharged 1, and alleged that 4
had voluntarily abandoned their work at the time of the strike.
With regard to its reasons for making the lay-offs complained of,
the respondent introduced undisputed evidence that some of its work
is of a seasonal nature leading to wide variations in employment.
The respondent alleges more specifically that due to the severe winter
of 1935-1936 its system was hard pressed' to meet the demand for
natural gas. This condition stimulated a program of well-boring and
pipe-line extension during the summer and fall of 1936 for which
a large number of casual employees were hired. When the winter of
1936-1937 proved to be unusually mild, the respondent contends, it
determined to curtail its program of expansion, part of which was
already completed, and to reduce the number of its employees.
To illustrate the contraction of its employment during the winter
of 1936-1937' the respondent introduced the following data :
Employment in pipe-lines department. 11
Sept Oct Nov Dec Jan Feb. Mar. Apr May
1936 1936 1936 1936 1937 1937 1937 1937 1937
Northeastern Division_-_ 219 212 205 189 184 96 108 114 116
Total of all divisions- _ _ _ 689 758 685 426 391 324 347 367 566
Ii The first horizontal line of figures shows the number of employees, both casual and regular, whose
names appeared on the respondent's pay-roll lists for the pipe-lines department in the Northeastern division
alone during each'month from September 1936 to May 1937 The second horizontal line shows correspond-
ing figures for the respondent's entire pipe-lines department including the Western, Southeastern, and
Northivestein divisions, as well as the Northeastern division The differences between figures in the first
horizontal line and in the second horizontal line for each given month would, therefore, represent the number
of employees in the pipe-lines departments of the Western. Southeastern and Northwestern divisions
The above figures represent the number of employees who v, orked during any part, if only for a day, of a
given month Hence the terminations of employment in the Northeastern division during January 1937,
are not reflected in the figure for that month, but rather in the figure for February 1937
H. M. Cox, a superintendent of drilling for the respondent, testified
that the number of employees in the Northern division production
10 Joseph II. Lang , superintendent of lines for the respondent , explained that strictly
speaking the pipe-lines and transmission departments are not the same thing The trans-
mission department apparently includes the pipe -lilies department as well as certain other
smaller departments - -
283030-42-vol 2a 35
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department during the months covered by the chart above was as
follows: September 1936, 213; October 1936, 214; November 1936, 213;
December 1936, 199; January 1937, 185; February 1937, 122; March
1937, 56; April 1937, 76; and May 1937, 63.
Joseph H. Lang testified that the first substantial lay-offs induced
by curtailment of the respondent's program of expansion occurred in
the Southeastern division of the transmission department where em-
ployment in the pipe-lines department 12 was reduced from 459 to
148 during October and November 1936. In the Northeastern division
during November 1936, the respondent laid off 21 casual employees,
none of,whom are named in the complaint.
As the winter continued mild and as work was completed, the re-
spondent contends, the need for further contraction of operations
arose. In January 1937 the respondent laid off at least 94 additional
men, most of them casual employees in the pipe-lines department, and
the work of some others ceased as a result of the strike. Among those
laid off were 33 casual employees in the Knox district; none of whom
are named in the amended complaint. Among the others who were
laid off in January 1937, or whose work ceased then as a result of the
strike, are 46 of the 47 persons named in the amended complaint. As
previously stated, all of this latter group were employed in the Lake
or Wayne districts. Their cases will be considered in detail below.
The stipulation of May 2, 1939, entered into by all the parties in
lieu of further hearing, sets forth much of the history of employment
in the production and pipe-lines departments of the respondent's
Northeastern division subsequent to January 1937. It is unnecessary
to set forth that history in detail here. Suffice it to say that up to the
date of the stipulation employment in those departments remained
about the same or less than before the lay-offs. As stated, a number
of the persons laid off or out on strike have returned to work. In the
Lake and Wayne districts only one new man was employed by the
respondent. He worked from April 7 to 20, 1937.
On the basis of all the evidence it appears that from October 1936
to February 1937, the respondent steadily ieduced the number of its
employees, particularly in the pipe-lines department. In so far as is
shown on the record this reduction started about 2 months before
organization of the Union and proceeded in districts outside as well
as inside the Union's jurisdiction. , The respondent's alleged reasons
for making such a reduction in the number of its employees are not
successfully contradicted. We find, therefore, that the respondent
had legitimate business reasons for curtailing its operations prior to
and during January 1937. It still remains to be determined however,
whether or not selection of the employees to be laid off or discharged
was made on a discriminatory basis.
12 See footnote 10, supra.
THE OHIO FUEL GAS COMPANY 535
The Wayne district pipe-lines department
The largest group of lay-offs which figure in the amended complaint
occurred on January 16, 1937, in the Wayne district pipe-lines depart-
ment under the supervision of Carl Boudinot, district foreman, and
Frank Byard and A. D. McClaren, foremen under Boudinot.13 The
lay-offs made by each of these supervisory employees will be considered
separately.
1. Lay-offs by Boudinot
- Carl Boudinot testified that beginning as early as November 1,
1936, and thereafter as the various jobs progressed, he and S. I.
Parcell, the division superintendent, had frequent- discussions rela-
tive to laying men off. In November 1936, as mentioned above, a
group of 21 casual - employees ahd 1 regular employee (Harold
Schoonover) were laid off. About January 10, 1937, Boudinot testi-
fied, he and Parcell decided that because of the warm weather it
would be necessary to reduce the number of employees still further.
They did not determine the actual number to go, however, until about
January 15. Boudinot selected the individuals to be laid off.
On January 16, 1937, Boudinot laid off 12 men, of whom 2 were
regular and 10 were casual employees. Seven of the men laid off,
including the two regular employees, were named in the amended
complaint. Of the seven so named, one regular, Gordon Gano, and
two casual employees, Arthur Miller and Harold Gwin, testified
at the hearing.14
Gordon Gano
At the time of his lay-off Gano had a record of 51/2 years of service
with the respondent. His work had been continuous except for a
time during the winter of 1935 when he went on a schedule of 3 days
per week due to temporarily curtailed operations. Boudinot trained
Gano to be a welder, apparently sometime in the first part of 1936,
and thereafter the respondent employed him primarily in that ca-
pacity. Gano also did some blacksmithing as needed.
Early in January 1937 Gano helped to circulate a petition among
the respondent's employees for the purpose of determining which
of them were interested in organizing a union.
Is Just before January 16 , 1937 , there were in the Wayne district pipe-lines department
78 casual employees of whom a total of 32 were laid off on January 16, by Boudinot, Byard,
and McClaren . Of the 32 laid off, 19 are named in the amended complaint . In addition,
Boudinot laid off two regular employees , both named in the amended complaint. The
exact number of regular employees in the Wayne district pipe-lines department does not
appear It is shown , however , that just before the lay-offs there were 58 regular employees
in the pipe -lines department for the entire Northeastern division, which includes the Wayne
district , and that the employment of 9 of these terminated during January 1937. .
14 Those laid off and named in the amended complaint , but who did not testify, were
Clair Neil , Thomas L. Reid , Howard Underwood , casual employees , and Walter - Shy; a-
regular employee Clair Neil, Thomas L Reid, and Walter Shy were all rehired prior to
the first hearing in this case.
536 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Gano testified that on January 13, 1937, at quitting time Boudinot
approached him and asked if he knew about the meeting to be held
at Mallet's Creek that night. Gano answered that he did, where-
upon Boudinot asked if it was to be a union meeting. Gano replied
that it was to be an organization meeting. Boudinot then advised
Gano to stay away, telling him that it would do no good to attend.
Gano, however, attended the meeting that night and became one of
the charter members of the Union.
According to Gano, his next conversation with Boudinot occurred
on January 15 when the latter asked him at work if he was going to
the meeting on Sunday, January 17. Concerning the ensuing con-
versation, Gano testified, "I told him I was [going to the meeting].
We had quite a talk there, and he called me out to his car and we
had quite a talk there in regard to the way he and the company
stood on unionization. He said that the company did not like the
union and he knew that they would take steps to prevent it if pos-
sible . . . I told him that I had already joined the union and that
I was going to stick with the rest of the boys."
Although Boudinot testified at the hearing, he failed to deny or
explain any of Gano's testimony above. We find that Boudinot
made the remarks attributed to him by Gano.
On the afternoon of January 16, 1937, a Saturday, Boudinot saw
Gano at the latter's home. Saying, "Gordie, I hate to do this,"
Boudinot gave Gano his pay check in full and told him that he was
temporarily laid off for lack of work.
According to Gano's testimony, in, the department in which he
worked at Wooster the respondent employed four welders and two
or more welders' helpers before January 16, 1937. The ,record in-
dicates that the welders were Gano, Walter Shy, Thomas L. Reid,
and George Webster.15 Gano testified that all of the welders except
Webster had joined the Union and that all were laid off on January
16, 1937..
Aside from the evidence of the respondent's general need to cur-
tail operations on and about January 16 there is no showing on the
record of legitimate business reasons for closing down all welding
operations at Wooster. Such specific evidence as there is concerning
welding operations at Wooster points to a contrary conclusion. Thus,
Gano testified that on January 15, the last day he worked, he and
two other welders had just started on a job which would have re-
quired them 3 weeks to complete. Arthur Miller, who at the time
of the lay-off was' a, welders' helper assisting Shy, testified that 2
weeks previously he had asked S. I. Parcell, superintendent of pipe
lines for the Northeastern division, what the outlook was for work
15 Described by Gano as Joe Webster.
THE OHIO FUEL GAS COMPANY 537
.and that Parcell replied that there was "all kinds" of work ahead.
.Shy and Reid, both of whom were named in the amended complaint,
did not testify. As to particular circumstances surrounding their
,lay-off the record is incomplete. The evidence is convincing, how-
ever, that Boudinot had a definite discriminatory intent to penalize
Gano in the event that he should join and assist the Union. In the
absence of a satisfactory explanation by the respondent of the need
for laying Gano off, and in view. of the showing that Gano was laid
off on the day after he told Boudinot that he had joined the Union
and intended to "stick with the rest of the boys;" we find that the
respondent laid Gano off because he had joined and assisted the
Union.
During the strike which started on January 21, 1937, Gano assisted
in picketing. He did not thereafter apply for his former job nor
did the respondent recall him to work.
On February 1, 1937, Shy returned to work. On February 16,
rather than recalling Gano who had been- a regular welder before
his lay-off, the respondent recalled Thomas L. Reid, who had been a
casual welder, and reinstated him as a regular welder. According
to Gano's uncontradicted testimony, the respondent had by the time
of the hearing, transferred two additional welders, both of whom,
he alleged, had less experience than himself, from other districts to
Wooster."
For the purpose of showing that Gano was ineligible for reinstate- -
ment the respondent introduced the following evidence. Boudinot
testified that Gano was a good workman, listed by the respondent as
a "Class A" welder, and that one of the prerequisites to obtaining
such a listing was that the welder "must be recommended by his
superior as having a good personality and being an agreeable man
to work with." Boudinot had trained Gano in welding and, had
recommended him for the "Class A" listing. He explained, however,
that soon after Gano became a "Class A" welder he became a chronic
complainer and "griper"; that Gano gave the impression that if he
were "allowed to sit in the shade of a tree all day he would not be
satisfied."
Boudinot admitted that he said nothing to Gano about his alleged
"griping" at the time he laid him off. The record does not disclose
that Boudinot ever had cautioned or reproved Gana for complaining,
although his testimony was that the practice had been going on for
a period of months. In view of his efforts on January 13 and 15
to discourage Gano from membership in the Union, and on the basis
' It is clear that all welders employed by the respondent at Wooster soon after 'the
lay-offs of January 16, 1937, had previous experience in the respondent 's employ. The
parties stipulated as of May 2 , 1939, that the respondent had hired no new welders since
the lay-offs, although some of those laid off had returned to work.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,of all the evidence, we are not impressed by Boudinot's testimony
that Gano was an objectionable employee, either as a reason for
his being laid off or as disqualifying him from reinstatement.
As has been stated, Boudinot told Gano that he was temporarily
laid off. All evidence on the point indicates that it was the re-
spondent's custom to recall laid-off employees as they were again
needed for work. During the period after January 16, a number
of persons laid off on that date were so recalled. The respondent
also requested various strikers to return to their jobs. Under such
circumstances, and in view of the showing that his original lay-off
was discriminatory, Gano's right to reinstatement was not condi-
tioned upon application by him to the respondent. Although the
respondent was under It duty to restore Gano to his former position,
it recalled Thomas L. Reid, promoting him from his former classi-
fication of casual welder to regular welder, and also transferred two
welders in to Wooster from other districts. The evidence indicates
that the respondent's failure to reinstate Gano at a time when it
clearly needed welders at Wooster was caused by its discriminatory
intent toward him. We find that upon the first day after January
16, 1937, upon which the respondent 'transferred a welder from
another district for work at Wooster, or rehired any casual welder
as a regular welder for work at Wooster, it refused to reinstate
Gordon Gano because he had joined and assisted the Union.
Arthur Miller and Harold Gwin
Miller and Gwin were casual laborers hired by the respondent on
September 12, 1936, and May 20, 1936, respectively.
Shortly before the lay-offs of January 16, 1937, Miller was work-
ing as a welders' helper assisting Walter Shy. On January 13, 1937,
he attended the meeting at Mallet's Creek and joined the Union.
About 4:00 p. m. on January 16, 1937, Boudinot and Clarence
Cornell, a division engineer in the pipe-lines department, approached
Miller while he was working alone. Boudinot started a conversa-
tion concerning which Miller testified, "He asked me if I was going
to stay with the company or drop out of the union or whether I
was going to stay with the union." Miller replied that he "was
going to stick with the boys." At this point Boudinot was called
away temporarily and Cornell proceeded with the conversation, tell-
ing Miller that he heard that he was a good workman, that the best
.thing for him to do was to consider his job and financial circum-
stances, and that the judgment of Boudinot was far superior to that
of Larson, the president of the Union. Boudinot then returned and,
.after speaking with Cornell privately for a short time, told Miller
THE OHIO FUEL GAS COMPANY .'539
'and Clair Neil,17 another casual employee who had been working
nearby, that there was .a. partial shut-down and that they were
laid off. '
Neither Boudinot nor Cornell denied any part of Miller's testi-
mony. Cornell agreed that he and Boudinot engaged Miller in con-
versation just before he was laid off, but insisted that he did not
remember just what was said. Cornell admitted, however, that he
may have made some of the statements attributed to him by Miller.
At the time of his lay-off, Harold Gwin was working as a helper
to Wade Gwin, a casual acetylene cutter. About quitting time on
January 13, 1937, Boudinot spoke to Harold Gwin concerning the
meeting scheduled for that evening at Mallet's Creek. Gwin gave
the following account of the conversation : "Why, he asked me if I
knew there was to be a meeting that night and I told him I did.
He asked me if I was going and I told him I was, and he asked
me if I thought it was the right thing to do, and I told him we had
to do something to get more money, and he said they tried to form a
union before in one of the big pumping stations and it failed. He
said that I better think it over before doing anything."
Gwin attended the meeting at Mallett's Creek on January 13 and
joined the Union. As stated, on January 16, he was laid off-.18 As in
the cases of Gano and Miller, Boudinot made no denial of Gwin's tes-
timony. We find that Boudinot made the statements attributed to
him by Miller and Gwin.
Walter Shy and Wade Gwin, the welder and acetylene cutter, re-
spectively, whom Miller and Harold Gwin were helping immediately
before January 16, were also laid off on that date. Wade Gwin was
not named in the complaint and we do not consider the evidence
concerning Walter Shy sufficient to establish that he was discriminated
against because of his membership in the Union.
Despite the lay-offs of Shy and Wade Gwin, Boudinot's questioning
of Miller and Harold Gwin concerning their activities and interests
in the Union immediately prior to the time they were laid off, his blunt
request that Miller choose between the respondent and the Union, and
his pointed warnings to both men to refrain from joining, are a com-
pelling indication that he would not have laid them off had they
heeded his advice. The respondent retained in its employ in the
Wayne district pipe-lines department a large number of casual laborers
17 See footnote 14, sUpsa
18 In laying off casual employees on and about January 16 , 1937, the respondent did not
base its selections on any rule of seniority . This the respondent freely admits , alleging
in its Exceptions to Record and Intermediate Report that , " . . . to disregard seniority
in making necessary lay-offs is not an unfair labor practice within the letter or spirit of
the National Labor Relations Act ; and that in work such as that in which these [ persons
named in the amended complaint ] and other employees of the respondent were engaged the
alleged rule of seniority is not applicable."
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after January 16.19 Under these circumstances, we find that the
respondent selected for lay-off and laid off Arthur Miller and Harold
Gwin because they had joined and assisted the Union.
2. Lay-offs by Byard
Shortly before January 16, 1937, Frank Byard, a foreman under
Boudinot, was in charge of 32 or 33 casual employees engaged in taking
up and laying pipe lines about 2 miles outside of. Perrysville, Ohio, and
approximately 25 miles from Wooster. Boudinot testified that about
January 10 he informed Byard that it would be necessary in the near
future to lay some of the group off, and that thereafter he instructed
Byard to select the employees he wanted to keep according to their
ability to transport themselves to and from the job.
On January 16, between 10: 00 a. m. and 10: 30 a. m., Boudinot noti-
fied Byard by telephone that he should make the contemplated lay-offs
that day. Byard testified that after receiving Boudinot's message he
went along the line of work and obtained the signatures of those'men
he wanted to keep, telling each of them privately that there was
going to be a lay-off that day but that they should disregard it and
return to their jobs-as usual on the next working day, Monday, Jan-
uary 19. Accordingly, at quitting time Byard announced to the entire
group of men under his supervision that they were laid off because
of the unexpected warm weather conditions.
Those men whom Byard had told to do' so returned to work on
-January 18. As a result, only 18 of the 32 or 33 men directly under
Byard's supervision were actually laid off on January 16. Of the 18
men laid off 12 are named in the amended complaint. Nine of the 12
so named testified at the hearing.20 All those who testified attended
the meeting of January 13 at Mallett's Creek and joined the Union.
Four of the nine witnesses for the Board testified in substance that
on January 15, 1937, Byard approached various groups of his men
and announced that he had heard a union was being organized and that
the respondent did not approve of a union. According to these wit-
nesses Byard then proffered a blank paper and urged all who wished to
drop the Union to sign it, telling them at the same time that it would
be to their advantage to sign. For example, Lester Smith testified
that on Friday, January 15, Frank Byard came around and said,
"I understand that the union formed here., The gas company that
you are working for do not approve that. You better think it
over and I will be around this afternoon to see what you fellows think
18 See footnote 13, supra.
20 These nine men were Lester Smith, Frank Phillips, Kenneth Gwin, Clifford Woodruff,
Albert D. Peyers, Charles Haney, Roy Faught, Carl Klinger and Laverne Chenevey. Those
named in the amended complaint who did not testify were Cecil M. Craig, Kenneth Shindle-
decker, and William Gray.
THE OHIO FUEL GAS COMPANY 541
about it." According to Smith, Byard returned in the afternoon and
called about 25 of the men together. Smith's account of Byard's state-
ments to the men was as follows : "He said that `there is a union here
I understand.' He said, `There is a company . . . anybody that
wishes to drop away from it sign a paper,' and he brought out, and he
explained a few more things about it and he said he thought we
would be dollars and cents ahead to sign up there. The company was
not in favor of it." Smith testified that Byard then passed a paper
out and all but three men refused to sign it. The three who signed
were among those who returned to work January 18.
The testimony of Frank Phillips concerning the same event was that
Byard approached a group and announced, "This company is not in
favor of a union and I understand that is one started here, and I don't
think you will get any place with it, and my advice to you boys is to
sign this paper and drop it."
Kenneth Gwin and Clifford Woodruff gave similar accounts con-
firming Smith's and Phillips' versions of events on January 15.
Albert D. Peyers testified that on January 16 Byard passed a paper
among the men asking them if they were "going to join this paper and
stay out of the union."
Charles Haney testified that on January 15 another workman handed
him a paper telling him that if they signed it they would have work
and if they did not the respondent would not recognize the Union,
Roy Faught testified that on the same day John Rice, a foreman,
attempted to dissuade him from continuing as a member of the Union,
telling him that the men would get more money if they "stayed with
the company" and "dropped the union." Rice did not appear as
a witness.
Carl Klinger and LaVerne Chenevey testified that they did not work
on January 15. They were laid off with the others on January 16.
• There is considerable evidence in the record that those men whoa
signed Byard's paper were retained in the respondent's employ, while
those who did not were laid off. This the respondent admits, alleging
further that those who signed, were the ones Byard asked to do so
because he wished to keep them at work. Byard did not specifically
deny making the statements attributed to him by witnesses for the
Board. He testified, however, that he had privately offered the paper
only to certain of the men who could transport themselves to and from
work and that their ability in that respect was the basis for his selec-
tions. The respondent's explanation of Byard's reasons for obtaining
their signatures was that he was not very "adept" at writing himself.
Byard admitted knowing that the Union was being organized but
alleged that during the period herein involved he did not know who
the individual members were.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On cross-examination Byard testified that of the 18 men he laid
off, 9 did not transport themselves to the job while 8 did. As to one
he was uncertain. Byard was questioned specifically as to only nine
of the men he retained. Of these nine he testified that five could
transport themselves and four could not. Byard explained that the
four men who could not transport themselves were temporarily in the
group under his supervision for only the one day of January 16.
There is unrefuted evidence, however, that at least two of these four
men were among those who signed Byard's paper.
About March 1, 1937, Frank Phillips and Harold Gwin met Byard
in a restaurant in Wooster and asked him about the work at Perrys-
ville. According to the testimony of both Phillips and Gwin, Byard
replied that there "wasn't much doing" and that the only reason the
respondent was keeping men on at Perrysville was to prevent them
from joining the Union. Byard did not testify concerning this
alleged conversation.
On the basis of all the evidence we are not convinced by Byard's
explanation of his reasons for selecting the men to be laid off.
It appears, and we find, that Byard circulated the paper for the
purpose of encouraging and securing renunciations of the Union.
We find that the respondent selected for lay-off and laid off Charles
Haney, Clifford `Woodruff, Kenneth Gwin, Roy Faught, Lester Smith,
Frank Phillips, LaVerne Chenevey, Carl Klinger, and Albert D.
Peyers because they had joined and assisted the Union.
3. Lay-offs by McClaren
Shortly before January 16, 1937, A. D. McClaren, a foreman under
Boudinot, had charge of a group of nine casual employees engaged
in "tying in" natural gas wells in various parts of the Wayne district.
McClaren testified, as did Byard, that about January 10 Boudinot
told him that the respondent was considering laying off some more
men. On January 16, about 10: 00 a. m., according to McClaren,
Boudinot personally told him to lay off Glen Snoddy, Clarence
Harding, Carl Franks, and Milton Seivers at quitting time that after-
noon. McClaren testified that he knew of no reasons for Boudinot's
selections. - '
At about 4: 00 p. m. on January 16 McClaren laid off the four men
named above. Snoddy and Harding are named in the amended com-
plaint. Franks and Seivers are not. Snoddy, Harding, and Franks
were members of the Union.
Snoddy testified that during the morning of January 15 McClaren
told his entire group that the "officials" had a meeting the previous
night and that they had decided to give the men more money if they
"stopped the union." Snoddy alleges that he was the only one of
THE OHIO FUEL GAS COMPANY 543
the group to make a reply and that he said to McClaren , ". . . - if we
hadn't talked about the union they would not have thought of giving
us a raise ." When McClaren laid Snoddy off he told him that.the
lay-off was temporary and due to the unfavorable weather conditions.
Harding gave the following account of his conversation with Mc-
Claren when the latter laid him off, "Well , he asked me if I was going
to join the union or stay with the company , and I told him I didn't
just fully decide. He said, `I will have to lay you off , then.' "
Irvin Woodruff, a casual employee not named in the amended com-
plaint and who apparently worked most of the time under John Rice,
a foreman, attended the meeting at Mallet's Creek and joined the
Union. Woodruff testified that on January 15 Rice told him that his
work had been very satisfactory and that if he would "stick with
the company" he would have a chance for a better job and an increase
in pay. Rice did not work on January 16 . For that one day, Wood-
iuff joined McClaren 's group.
Woodruff testified as follows concerning a conversation he had
with McClaren on January 16, "Well ,- he came around and asked me
if I had made a decision to stick with the company or join or stay
with the union and I said I was going to stay with the company .. .
He said that it all he wanted to know; that is all Carl Boudinot
wanted to know that night." Woodruff was not laid off on January
16; instead his pay was raised from 40 cents to 50 cents an hour.
McClaren did- not deny making any of the remarks attributed to
him by Snoddy, Harding, and Woodruff.
Concerning the five men regularly under McClaren's supervision
who were not laid off on January 16, Snoddy testified that either they
had .not joined the Union or they had signed a . paper agreeing to drop
it. Woodruff testified that to his knowledge none of the five had
joined the Union. ,
We find that the respondent selected for lay -off and laid off
Glen Snoddy and Clarence Harding because they had joined and
assisted the Union.
On the basis of all the evidence we find that by laying off Gordon
Gano, Arthur Miller, Harold Gwin, Charles Haney, Clifford Wood-
ruff, Kenneth Gwin, Roy Faught , Lester Smith, Frank Phillips,
LaVerne Chenevey , Carl Klinger , Albert D. Peyers, Glen Snoddy, and
Clarence Harding, and by refusing to reinstate Gordon Gano, the
respondent has discriminated with respect to their hire and tenure of
employment , thereby discouraging membership in the Union and in-
terfering with, restraining , and coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
We find that the evidence fails to sustain the allegation that
the respondent laid off or discharged , and refused to reinstate, Clair
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Neil,, Thomas L. Reid, Howard Underwood, Walter Shy, Cecil M.
Craig, Kenneth Shindledecker, and William Gray, or any of them,
because they had joined and assisted the Union.
The Lake, district pipe-lines department
The second largest group of lay-offs which figure in the amended
complaint occurred on January'16 and 17, 1937, in the Lake district
pipe-lines department under the supervision of Stanley Harward, dis-
trict foreman.
` Shortly before January 16, 1937, Harward was in charge of 30
men, both regular and casual employees, of whom about 22 were
engaged in laying pipe lines under the immediate supervision of
James Ryan, a foreman. Harward testified that by January 16 this
work was practically completed and that accordingly on that day and
on January 17 he laid off all of the group of about 22 men except Ryan,
the foreman, and Guiles Bigley and Clayton Okey.
Of the 19 or 20 men laid off by Harward, 11 are named in the
amended complaint. Of the 11 men so named, 6 testified at the
hearing.
Those who testified were Clarence E. Bigley, Guy Anderson, and
John Roush, regular employees; and Robert Adams, Weldon Ander-
son, and Gilbert Gross, casual employees. Employees named in the
amended complaint who did not testify were Stanley Burton and
Carl J. Burton, regular employees, and William S. Bigley, Theodore
J. May, and Jacob Durbin, casual employees.
The men who testified described various occasions shortly before the
lay-offs when the respondent's supervisory officials, including S. I.
Parcell, division superintendent, Harward, and Ryan, urged them
to abandon or not to join the Union. Such testimony is substantially,
undisputed. As stated, however, all of this group except two, ex-
clusive of the foreman, were laid off. Apparently both of the men
retained were members of the Union. Of the 19 or 20 men laid off
it is uncertain whether more than half were members of the Union.
Under the foregoing circumstances we find that the evidence fails
to sustain the allegation that the respondent laid off or discharged,
and refused to reinstate Clarence E. Bigley, Guy Anderson, John
Roush, Robert Adams, Weldon Anderson, Gilbert Gross, Stanley
Burton, Carl J. Burton, William S. Bigley, Theodore J. May, and
Jacob Durbin, or any of them, because they had joined and assisted
the Union.
. Guiles Bigley and Clayton Okey are, both named in the amended
complaint. Only Bigley testified at the hearing. Both men worked
until the strike was declared on January 21, 1937. On January 22
they' were selected by the respondent, apparently with the consent
THE OI310 FUEL GAS COMPANY 545
of the Union, to do certain emergency work. After that day, how-
ever, they were notified by pickets that the respondent had hired
other men as well in violation of an alleged agreement not to do so
and both Bigley and Okey joined the strikers. The respondent
offered Bigley employment about March 5, 1937, and thereafter, but
he refused it. Okey was reemployed on April 1, 1937.
We find that the evidence does not sustain the allegation that the
respondent laid off or discharged. and refused to reinstate Bigley and
Okey, or either of them, because they joined and assisted the Union.
Northern production division
Lawn Hall, Harley A. Brown, and W. C. Brophy, all named in the
amended complaint and all members of the Union, were employed by
the respondent in the Northern production division working out
of Medina.
Hall, a casual employee, was engaged as an acetylene cutter, cutting
pipe from abandoned wells into serviceable length for reuse. Hall
testified that on January 16, 1937, Z. Z. Morgan, a foreman, asked
him, " . . . if I wouldn't sooner have- a guy of the company run
my business rather than outsiders." Hall replied, "No sir, I
wouldn't." On January 20. 1937,-Morgan notified Hall that he was
temporarily laid off "until things were better."
Morgan testified that Hall was the only man in the department.
engaged as a cutter and that subsequent to his lay-off there had been
no work for him to do. It seems clear that no new man has 'been.
hired to fill Hall's place. There were 15 men in the group with which
he worked on January 20, 1937. During the following month the
number was reduced to 10 and within 2 months to 8. From then
until May 2 1939,21 no more than nine men had at any time been
employed in this group. We find that the evidence fails to sustain
the allegation that the respondent laid off or discharged, and refused
to reinstate Lawn Hall because he had joined and assisted the Union.
Brophy and Brown were employed by the respondent as truck
drivers. Both men had extensive service records with the respondent.
Brophy testified that before 6 o'clock on the morning of January
21, 1937, Morgan telephoned him and told him not to come in to the
shop, that there "wasn't any 'vork." Brophy went to the shop and
joined, the strikers. Morgan testified that he did not remember
telephoning Brophy on the morning in question. It seems clear
that whether or not the telephone call was made both Brophy and
Morgan knew at the time that a strike had been or was shortly to
be called. Under the circumstances we do not consider that Morgan's
"The date of the stipulation hereinbefore mentioned.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged telephone call, even if made, constituted a discharge or lay-
off in so far as the purposes of this case are concerned.
When Brown went to work the morning of January 21 lie entered
the office where he met Morgan. According to Brown, Morgan said
to him, "If you had a telephone, I would have called you up and said
not to come to work." Morgan denied making this statement. Both
Brown and Morgan agreed , however, that Brown was then called
outside by a striker . Brown thereupon joined the strikers.
We find that the evidence fails to sustain the allegations that the
respondent laid off or discharged and refused to reinstate Harley A.
Brown and W. C. Brophy, or either of them, because they joined
and assisted the Union.
1. Lay-offs by Walker
Shortly before January 16, 1937, Harrison Walker, a foreman
under H. M. Cox, superintendent of drilling in the Northern division
of the production department , was in charge of a group of 10 men
engaged in what was described at the hearing as "cleaning out'' work.
On January 16 or 17, Harrison Walker laid off 6 of the 10 men
under his supervision . Four of the six men laid off, Thomas Walker,
Chauncey Eddington, Janies Green, and Gerald Laidly, are named
in the amended complaint.
According to Thomas Walker, the only one of the four to testify,
H. M. Cox asked him on January 13 if he was going to the union
meeting that night . Walker replied that he was going. At the meet-
ing he joined the Union. On January 17, Harrison Walker gave
Thomas Walker his check and told him that he was laid off but that
he could return to work as soon as the ground was frozen.
Harrison Walker testified that he laid the six men off because
warm weather had made the ground so soft that it was no longer
possible to haul equipment . He stated that in so far as he knew
all 10 of the men under his supervision were members of the Union;
that he had seen their buttons.
We find that the evidence does not sustain the allegation that
the respondent laid off or discharged, and refused to reinstate,
Thomas Walker, Chauncey Eddington , James Green , and Gerald
Laidly, or any of them, because they joined and assisted the Union.
Cecil Eberhardt
Eberhardt was hired by the respondent in June or July of 1936
as a-casual employee in the Medina district distribution department.
The record does not disclose the nature of his work . He testified
that about January 11, 1937 , Fred Haas, manager of the distribution
department, asked him if he was going to join the Union. Eber-
THE OHIO FUEL GAS COMPANY 547
hardt answered that he was thinking about it and alleged that Haas
then said, "If I were you, I would hold off for awhile and see what
the rest of the boys would do."
Eberhardt attended the meeting at Mallet's Creek on January 13
and joined the Union. On January 14, Haas laid him off saying,
"No more work until further notice." About 2 weeks later the
respondent asked Eberhardt to 'come back to work.22 He refused to
do so after consulting the Union. The record does not show whether
Eberhardt was replaced.
-Eberhardt testified that one Jerry Lenihan, in the same depart-
ment, joined the Union. Eberhardt was the only one laid off. The
record does not show how many casual employees were working for
the respondent in the Medina district distribution department at
the time Eberhardt was laid off.
While this case is not free from doubt, we find that the evidence
does not sustain, the allegation that the respondent laid off or dis-
charged, and refused to reinstate Cecil Eberhardt because he joined
and assisted the Union.
Harold Schoonover
As previously stated, the Trial Examiner granted the respondent's
motion to dismiss the amended complaint as to Schoonover. The
Union filed no exceptions to this ruling. We have examined the
evidence and affirm the ruling of the Trial Examiner as to Schoonover.
0. J. Larson, Raymond C. Coss, Russell Dickerman, and
George John
Larson and Coss were named in the amended complaint but
did not testify at the hearing. There is some evidence in the record
concerning them, but it does not establish the details of or the reasons
for the termination of their employment with the respondent. Dick-
erman and John also are named in the amended complaint, but did
not testify. There is no evidence in they record concerning them.
We find that the evidence does not sustain the allegation that the
respondent laid off, or discharged, and refused to reinstate O. J.
Larson, Raymond C. Coss, Russell Dickerman, and George John, or
any of them, because they joined and assisted the Union.
C. The strike
As heretofore stated, the amended complaint alleged that, as a pro-
test abainst and because of the respondent's unfair labor practices,,
22 Eberhardt testified that 2 weeks after he was laid off Joe Street, a foreman, offered him
a job at Rittman The record does not show the nature of the job ofteied or the location
of Rittman.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
many of its employees went on strike on January 21, 1937. In its
answer 'to the amended complaint the respondent admitted that on
that date a considerable number of 'its employees in the Medina,
Ashland, and Wayne county fields went on strike, but alleged that
it was without knowledge as to their reasons for doing so. Appar-
ently, at the hearing and thereafter the respondent did not change
its position from that taken in its answer to the amended complaint.
It does not appear that prior to the strike representatives of the
Union sought to meet or negotiate with the respondent. Further-
more, the evidence is incomplete as to what occurred at the, meeting
or meetings of the Union at which strike action was considered and
decided upon. -It is clear from the entire record, however, that
during January 1937 in the area herein involved the following events
took place in prompt succession. First, certain of the respondent's
employees took preliminary steps toward organization of the Union
and scheduled an organization meeting for January 13. Beginning
on or about January 13 and continuing thereafter, the respondent's
supervisory employees engaged in a vigorous and concerted cam-
paign to discourage membership in the Union. Starting on January
16 the, respondent made extensive lay-offs, some of which were
openly discriminatory. Soon thereafter many of the persons so laid
off urged strike action against the respondent and on January 21
the respondent's employees struck.
There is evidence that many of they respondent's employees were
dissatisfied with their wages and working conditions. Undoubtedly
such dissatisfaction was to some extent responsible for the willing-
ness of the employees to go on strike. In view of the sequence of
events as outlined above, however, it seems apparent, and we find,
that the respondent's unfair labor practices were the proximate cause
of the strike, and that the strike would not have occurred but for
such unfair labor practices.-3
IT. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with its operations described in Section I
above, have a close, intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend to lead to labor
23 See N. L R R v. Stackpole Carbon Company , 105 F ( 2d) 167 ( C. C A 3 ), enf'g
Matter of Stackpole Carbon Company and United Electrical & Radio Workers of America,
Local No . 502, 6 N L R. B 171 ; Matter of Republic Steel Corporation and Steel Workers
Organtizing Committee , 9 N. L. R B . 219, enf'd as modified , Republic Steel Corporation v.
N L R B, 107 F (2d) 472 (C. C. A 3), cert denied April 8, 1940; Matter of Remington
Rand, Inc and Remington Rand Joint Protective Board of the District Council Ogee Equip-
,ment Workers, 2 N. L R. B 626, enf'd Remington Rand, Inc. V. N. L. R B, 94 F (2d) 862
,(C. C. A 2 ), certiorari denied, 304 U. S 576
THE OHIO FUEL GAS COMPANY 549
disputes burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies of
the Act and to restore as nearly as possible the condition which
existed prior to the commission of the unfair labor practices.
We have found that the respondent discriminated in regard to
hire and tenure of employment, within the meaning of the Act, in
laying off Gordon Gano on January 16, 1937, and in thereafter re-
fusing to reinstate him. We shall therefore order the respondent
to offer Gano immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his seniority
or other rights and privileges, dismissing, if necessary, any person
not regularly employed in the Wayne district pipe-lines department
at the time Gano was laid off who has since been employed to- fill
Gano's former position, or a substantially equivalent position, or
a position which Gano is qualified to fill. We shall further order
the respondent to make Gano whole for any loss of pay suffered
by him by reason of the discrimination against him by payment to
him of a sum of money equal to the amount which he normally
would have earned as wages from the date of the respondent's dis-
crimination against him to the date of the offer of reinstatement,
less his net earnings,24 during said period.
We have found that the respondent discriminated in regard to hire
and tenure of employment, within the meaning of the Act, in laying
off the casual employees listed in Appendix A. We shall, therefore,
order the respondent to offer to these casual employees reinstatement,
or placement on a preferential list, as hereinafter provided, and to
make them whole for any loss of pay they have suffered by reason
of their respective lay-offs, by payment to each of them of a sum
of By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
discrimination against him and the consequent necessity of his seeking employment else-
where. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters
and Joiners of America , Lumber and Sawmill Workdrs Union , Local 2590, 8 N. L . R. B. 440.
Monies received for work performed upon Federal, State , county , municipal , or other work-
relief projects are not considered as earnings, but, as provided below in the Order, shall
be deducted from the sum due the employee , and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal ; State, - county , municipal , or other government
or governments which supplied the funds for said work-relief projects Matter of Republic
Steel Corporation and Steel Workers Organizing Committee, 9 N. L. It . B. 219, enf'd as
modified-as to other issues, Republic Steel Corporation v. N L R B, 107 F. (2d) 472
(C. C. A 3), cert granted as to this issue, May 20, 1940.
283036-42-vol 25-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of money equal to the amount which he normally 25 would have
earned as wages from the date of his lay-off to the date of the
offer of reinstatement or placement on a preferential list, less his
net earnings 26 during said period.
We have also found that by laying off Clarence Harding on Janu-
ary 16, 1937, the respondent discriminated against him in regard to
hire and tenure of employment.' The parties stipulated that after
his lay-off the respondent offered to reinstate Harding and that he
refused such offer. The date of the offer and the refusal is not clear
from the record. By reason of Harding's rejection of the respon-
dent's offer of reinstatement his status changed on the date of the
refusal from laid-off employee to striker.21 We shall order the re-
spondent to make Harding whole for any loss of pay he has suffered
by reason of his lay-off by payment to him of a sum of money equal
to the amount which he normally 28 would have earned as wages from
the date of his lay-off to-the date upon which he refused the re-
spondent's offer of reinstatement, less his net earnings 29 during such
period.
We have found that the respondent's unfair labor practices were
the proximate cause of the strike which started on January 21, 1937.
The respondent has, introduced some evidence of acts of violence
committed during the strike. We have examined this evidence and
are of the opinion that there is no showing that any of the strikers
except, W. C. Brophy 3e have committed acts of violence warranting
our disqualifying them from reinstatement as hereinafter discussed.
The casual employees listed in Appendix A whom we shall order
to be made whole, as well as the employees of the respondent who
25 The record shows that the work in which the casual employees listed in Appendix A
and Clarence Harding , discussed hereinafter , were engaged prior to their lay-offs was in
large part of an intermittent or seasonal nature Accordingly, even if they had not been
discriminatorily selected for lay-off on January 16, 1937, the casual employees so listed might
not, in the normal course of the respondent' s operations , have been employed during all of
the period elapsing between the time they were laid off and the offer of reinstatement or
placement on a preferential list It is the intent of our order herein that the casual
employees listed in Appendix A shall be paid what they would have earned during the
above-described period had they not been discriminatorily selected for lay-off, taking into
account the seasonal character of the work in which they were engaged See N L R B v.
Planters Manufacturing Company , Inc, 106 F (2d) 524 (C C A 4), denying petition for
rehearing in N L . R B v Planters Manufacturing Company , Inc., 105 F. (2d) 750
(C C A 4), enf'g Matter of Planters Manufacturing Company, Inc and United Veneer
Box and Barrel Workers Union, C I. 0., 10 N. L. R B. 735
2 See footnote 24, supra
2 Matter of McGlolditck Lumber Company, a corporation: Industrial Tmploilees' Union,
Inc , a cot poration ; and Industrial Employees' Union, Inc , Local No 76, District D, and
Lumber and Sawmill Workers Union, Local No. 2552, et al, 19 N L R B 887, and
cases cited therein
i See footnote 25, supra.
29 See footnote 24, supra.
31 We have found that W C Brophy, who was named in the amended complaint,, was
not discriminatorily discharged or laid off . It appears, rather, that he voluntarily joined
the strikers on January 21, 1937, and accordingly is classed as a striker
THE OHIO FUEL GAS COMPANY 551
went on strike on January 21, 1937, or thereafter left their employ-
ment to join the strike caused by the respondent's unfair labor prac-
tices and who have not since been fully reinstated, including Clarence
Harding but excluding W. C. Brophy, shall upon application, be
reinstated by the respondent in'the manner set forth below. We are
of the opinion that such remedy is here necessary to effectuate the
purposes and policies of the Act.
Such reinstatement shall be effected in the following manner :
Each employee in the two groups described in the paragraph above
shall be entitled to reinstatement , upon application , to his former
or substantially equivalent position . In the case of the casual em-
ployees listed in :Appendix A, all casual employees not employed
on January 16, 1937, who were hired by the respondent after that
date and who occupy the former positions or substantially equivalent
positions of casual employees listed in Appendix A, shall, if necessary
to provide positions for those to be reinstated , be dismissed; and in
the case of strikers to be reinstated all employees hired after the com-
mencement of the strike who occupy the former positions or sub-
stantially equivalent positions of the said strikers shall, if necessary
to provide positions for these to be reinstated , be dismissed.
If, thereafter , by reason of a reduction in force there are not
sufficient positions available for the remaining employees , including
those to be reinstated , all available positions shall be distributed
among such remaining employees in accordance with the respondent's
usual method of reducing its force, without discrimination against
any employee because of his union affiliation or activities and follow-
ing a system of seniority to such extent as has heretofore been applied
in the conduct of the respondent's business. In making such distri-
bution the employees to .be offered reinstatement shall be considered
as entitled, to the seniority and other rights and privileges which
would have been theirs had they not gone on strike, or had they not
been discriminatorily laid off by- the respondent. The employees
remaining after'such reduction, for whom there are then no available
positions, 'shall be. placed upon a preferential list prepared in ac-
cordance with the principles set forth in the previous sentence, and
shall thereafter , in accordance with such list , be offered employment
in their former or in - substantially equivalent positions, as such em-
ployment becomes available and before other persons are hired for
such work.
We. shall further order the respondent, upon any refusal by it
to-offer reinstatement, upon application, to any of, the employees who,
on January 21, 1937, went on or thereafter joined the strike, to whom-
we shall order that such an offer of reinstatement b'e made, including
Clarence H4'rding but excluding W. C. Brophy, to make such em-
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee whole for any loss of wages thereby sustained, by payment to
him of an amount of money equal to that which he normally 31 would
have earned as wages during the period from 5 days after the date
of application to the date he is offered reinstatement or placed on a
preferential list, less his net earnings 32 during said period.
We have found that the evidence fails to sustain the allegations
in the amended complaint that the respondent laid off or discharged
and refused to reinstate the persons listed in Appendix B in violation
of the Act. Accordingly, in so far as it so alleges, we will dismiss
the amended complaint as to the persons listed in Appendix B.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Association of Oil Field, Gas Well & Refinery
Workers of America was a labor organization, within the meaning of
Section 2 (5) of the Act.
2. Oil Workers International Union is a labor organization, within
the meaning of Section 2 (5) of the Act.
3. By discriminating against Gordon Gano, Arthur Miller, Harold
Gwin, Charles Haney, Clifford Woodruff, Kenneth Gwin, Roy
Faught, Lester Smith, Frank Phillips, I.aVerne Chenevey, Carl
Klinger, Albert D. Peyers, Glen Snoddy, and Clarence Harding,
in regard to hire and tenure of employment, thereby discouraging
membership in the Union, the respondent has engaged in and is
engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
6. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to the persons
listed in Appendix B.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Taking into consideration the.seasonal character of the respondent 's business in so far
as the employment of casual employees is concerned . See footnote 25, supra.
- 82 See footnote 24, supra.
THE OHIO FUEL OIL COMPANY 553
Act, the National Labor Relations Board hereby orders that the re-
spondent, The Ohio Fuel Gas Company, Columbus, Ohio, and its of-
ficers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union,
or any other labor organization of its employees, by laying off or dis-
charging, and refusing to reinstate any of its employees, or in any
other manner discriminating in regard to their hire and tenure of
employment, or any terms or conditions of their employment, be-
cause of membership or activity in connection with any such labor
organization;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to bar-
gain collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection as guaranteed by Section 7 of
the Act.
2. Take the,following:-afrmative• action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Gordon Gano immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges, dismissing, if necessary, any
person not regularly employed in the Wayne district pipe-lines de-
partment at the time Gano was laid off who has since been employed
to fill Gano's former position, or a substantially equivalent position,
or a position which Gano is qualified to fill;
(b) Make whole Gordon Gano for any loss of pay he may have
suffered by reason of the respondent's discrimination against him by
payment to him of a sum of money equal to that amount which he
normally would have earned as wages from January 16, • 1937, the
date he was discriminatorily laid off, to the date of the offer of re-
instatement, less -his net-earnings-33 during such period ; deducting,
however, from the amount otherwise due to him monies received by
him during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount to deducted to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(c) Upon application, offer to the casual employees listed in Ap
pendix A, hereto attached and hereby made a part hereof,-and to all-
persons in its employ on January 21, 1937, who went on strike on Janu-
ary 21, 1937, or who thereafter left their employment with the re-
Is See footnote 24, supra
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent to join said strike, including Clarence Harding but exclud-,
ing W. C. Brophy, who have not been fully reinstated, reinstatement
to their former or substantially equivalent positions without prejudice
to their seniority and other rights and privileges, in the manner pro-
vided in the section entitled,"The Remedy" above; and place those
employees for whom employment is not immediately available upon
a preferential list in the manner set forth in said section, and there-
after, in said manner, offer them employment as it becomes available;
(d) Make whole the employees listed in Appendix A for any loss
of pay they have suffered by reason of their respective lay-offs by
payment to each of them of a sum of money equal to the amount which
he normally 34 would have earned as wages from the date of his dis-
criminatory lay-off to the date of his reinstatement or placement on a
preferential list in the manner provided in the section entitled "The
Remedy" above, less his net earnings 35 during said period; deducting,
however, from the amount otherwise due to each such employee,
monies received by him during said period for work performed upon
Federal, State, county, municipal, or other work-relief projects, and
pay over the amount, so deducted, to the appropriate fiscal agency of
the Federal, State, county, municipal,-or other government or govern-
ments which supplied the funds for said work-relief projects;
(e) Make whole Clarence Harding for any loss of pay he has suf-
fered by reason of the, respondent's discrimination against him by pay-
ment to him of a sum of money equal to that which he normally 36
would have earned as wages from the date of such discrimination to
the date of his refusal of the respondent's offer of reinstatement, less
his net earnings 37 during such period; deducting, however, from the
amount otherwise due to him monies received by him during such
period for work performed upon Federal, State, county, municipal, or
other work-relief projects; and pay over the amount so deducted to the
appropriate fiscal agency of the Federal, State, county, municipal, or
other government or governments which supplied the funds for said
work-relief projects;
(f) Make whole all of the employees, who went on strike on Janu-
ary 21, 1937, or who thereafter left their employment with the re-
spondent to join said strike, including Clarance Harding but exclud-
ing W. C. Brophy, for any losses they may suffer by reason of any re-
fusal of reinstatement or placement upon the preferential list required
by paragraph 2 (c) above by payment to each of them of a sum of
U See footnote 25, sup1ra.
ss See footnote 24, supra.
86 See footnote 25, supra.
87 See footnote 24, supra.
THE OHIO FUEL OIL COMPANY 555
money equal to that which he would normally have earned as wages
during the period from five (5) days after the date of application to
the date of the offer of reinstatement or placement upon the prefer-
ential list, less his net earnings 33 during said period; deducting, how-
ever, from the amount thus to become owed to him monies received
by him during said period for work performed upon Federal, State,
county, municipal, or other work-relief projects, and pay over the
amount, so deducted, to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which
supplied the funds for said work-relief projects;
(g) Post immediately in conspicuous places in its shops and yards,
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1)- That the
respondent will not engage in the conduct from which it is ordered to
cease and desist in paragraphs 1 (a), and (b) of this Order; (2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), (e), and (f) of this Order; (3) that the re-
spondent's employees are free to become or remain members of Oil
`Yorkers International Union, and that the respondent will not dis-
criminate against any employee because of membership or activity
in that organization;
(h) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this order what steps the re-
spondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the amended complaint, in so far
as it alleges that the respondent has discriminated in regard to the
hire and tenure of employment or terms or conditions of employment
of the persons listed in Appendix B, attached hereto and hereby made
a part hereof, within the meaning of Section 8 (3) of the Act, be, and
it hereby is, dismissed.
MR. WILLIAM M. LEISERSON took no,part in the consideration of the
above Decision and Order.
APPENDIX A
Arthur Miller
Harold Gwin
Charles Haney
Clifford Woodruff
Kenneth Gwin
Roy Faught
Lester Smith
Frank Phillips
LaVerne Chenevey
Carl Klinger
Albert D. Peyers
Glen Snoddy
88 See footnote 24, supra.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clair Neil
Thomas L. Reid
Howard Underwood
Walter Shy
Cecil M. Craig
Kenneth Shindledecker
William Gray
Guiles Bigley
Clayton Okey
Lawn Hall
Harley A. Brown
W. C. Brophy
Cecil Eberhardt
Harold Schoonover
Clarence E. Bigley
Guy Anderson
John Roush
APPENDIX B
Robert Adams
Weldon Anderson
Gilbert Gross
Stanley Burton
Carl J. Burton
William S. Bigley
Theodore J. May
Jacob Durbin
Thomas Walker
Chauncey Eddington
James Green
Gerald Laidly
Russell Dickerman
Raymond C. Coss
O. J. Larson
George John