The Standard Oil Co.

National Labor Relations Board - Board Decisions

Oct 25, 1965

155 N.L.R.B. 302 (N.L.R.B. 1965)

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sented at the hearing and in its brief were made in good faith. Rather,
we find that the Union's entire course of conduct was inconsistent with
its expressed disclaimers.1 7
Accordingly, we find that questions affecting commerce exist con-
cerning the representation of certain employees of the Employer-
Petitioners within the meaning of Section 8(c) (1) and Section 2(6)
and (7) of the Act.
4. The Employer-Petitioners request elections in separate units of
their respective employees employed in the Market.'8 The Union takes
no position on the scope of the appropriate units. In view of the posi-
tion of the parties, the history of bargaining in separate units in the
Market, and the fact that no claim is made that only an overall unit
is appropriate, we find the requested units to be appropriate and shall
grant the Employer- Petitioners' requests.
We find, therefore, that the employees of each Employer-Petitioner
employed at the Grand Central Public Market in Los Angeles, Cali-
fornia, excluding professional employees, guards, and supervisors as
defined in the Act, constitute separate units appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Elections omitted from publication.]
17Rochelle ' 8 Restaurant, supra; Kenneth Wong, et al . d/b/a Capitol Market No. 1, 145
NLRB 1430. Martin's Complete Home Furnishings , 145 NLRB 604 , Andes Candies, Inc.,
133 NLRB 758 ; Miratti's Inc., 132 NLRB 699, in which the Board accepted unions'
disclaimers , are distinguishable on their facts . In Martino 's almost 2 years had elapsed
between the union's last demand for recognition and the date of the hearing ; here, on the
other hand , the Union ' s last demand for recognition was not more than 3 months prior
to the hearing ; moreover , in Martin's, unlike here , the union continually disclaimed a
present recognitional objective in its leaflets to the public . In Andes Candies, unlike
here , the employer had never been presented with a claim to recognize the union. And
in Miratti's, also unlike here, the union , prior to the commencement of the picketing and
before the hearing took place, informed the employer that it was not seeking to represent
its employees . See Capitol Market No . 1, supra ., 1432, footnote 5.
18 At the hearing , Anco Central Corporation amended its requested unit to include "all
employees of the Employer at Grand Central Market and at its Hill Street and Broadway
stores ." We find this amendment to be without merit and deny it.
The Standard Oil Company (an Ohio Corporation ) and The Inde-
pendent Oil Workers Association Local #1. Case No. 9-CA-
3393. October 25,1965
DECISION AND ORDER
On August 2, 1965, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
not engaged in certain unfair labor practices, and recommending that
155 NLRB No. 38.
THE STANDARD OIL COMPANY (AN OHIO CORPORATION) 303
the complaint be dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision and a supporting brief, and the Respondent
filed an answering brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and finds merit in certain exceptions of the General
Counsel. Accordingly, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the extent consistent
with this Decision and Order.
1. The Trial Examiner found that the Respondent did not violate
Section 8(a) (1) of the Act on November 10, 1964, when its service
station managers, Mortor, Gray, and Petzhold, told employees Simons,
Ditty, and Goodin, respectively, with respect to a union meeting to be
held the next day to consider a strike vote, that they had better "watch"
or "be careful" how they voted at that union meeting, because the
Respondent could "dealer out" its service stations 1 and they might be
out of a job. In so doing, the Trial Examiner attached no coercive
significance to these statements primarily because he regarded them
as merely an explanation of what the Respondent lawfully could do
in the event of a strike, namely, consign its stations to dealers, and
that such statements were, therefore, protected under Section 8 (c) of
the Act.
We do not agree with the Trial Examiner that the Respondent's
remarks were no more than privileged expressions of opinion. Con-
trary to the Trial Examiner, by these remarks the Respondent was not
merely advising the employees that the Respondent could meet the
impact of a strike by contracting out its operations for the duration of
a strike. Rather, we find that the clear implication of these statements
is that if the employees engaged in strike activity, they would be dis-
charged, and that this would be accomplished by a consignment of
Respondent's service stations to dealers with attendant permanent
severance of the existing employer-employee relationship. These
threats of economic reprisal, we find, interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed by Section
7, and therefore violated Section 8 (a) (1) of the Act.
'The record shows that the Respondent operates 37 service stations directly, 57 sta-
tions on a "consignment basis," 67 on a "dealer rental basis," and 160 on a "full dealer
basis."
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Contrary to the Trial Examiner, we agree with the General Coun-
sel that Robert Elliott, the Respondent's service station manager,
,violated Section 8 (a) (1) of the Act in a conversation with employee
'Simons on November 19, 1964. In this conversation, according to
uncontradicted testimony of Simons, Elliott told Simons that :
... the Company could dealer stations or consign the stations if
they saw the upcoming Union vote for affiliation or strike did not
go through, I guess the way they wanted it, but he said the Com-
pany could consign the stations to the managers for a nominal fee
and the employees would be discharged and the managers would
hire their own employees for the duration of that if anything
happened.
The Trial Examiner construed Simons' testimony as too ambiguous
to support a conclusion that Elliott's remarks constituted a threat to
"dealer out" the stations as a means of reprisal should the Union
affiliate with an International union. We do not agree. In our view,
Simons' testimony, which we credit, indicated that Elliott warned
that affiliation with an International union could lead to a consign-
ment of the Respondent's stations and discharge of the employees if
they voted on union affiliation contrary to Respondent's wishes. Such
threat of economic reprisal clearly constituted interference, restraint,
and coercion of employees in the exercise of the rights guaranteed by
Section 7, in violation of Section 8 (a) (1) of the Act, and we so find.
3. Although the Trial Examiner noted that employee Goodin had
testified on direct examination that he had asked by Petzhold, the
Respondent's service station manager, "How many was in the Union
at that particular station," the Trial Examiner refused to find unlaw-
ful interrogation on the ground that Goodin admitted on cross-
examination that he was mistaken in so testifying. We do not so,
construe Goodin's testimony. The record shows that, on cross-
examination, Goodin, corroborating a previous written statement that
he had given a Board agent, testified that "Bob [Petzhold) asked me if
I was active in the Union? .... I told him I was," and-that Petzhold
said, "There are two at this station that are in the Union, you and
Gene...." It was with respect to the'last remark only that Goodin
admitted that it constituted a statement by Petzhold and not an inquiry.
Contrary to the Trial Examiner, Goodin's testimony, both on direct
and cross-examination, thus reflected interrogation as to union activity.
We also note that this interrogation occurred in the same conversation
in which Petzhold admonished Goodin to be' "careful" how he voted at
the union meeting the next day, referred to above. Under these cir-
cumstances, we find that Petzhold's interrogation of Goodin was
THE STANDARD OIL COMPANY (AN-OHIO CORPORATION) 305
coercive, and constituted interference, restraint, and coercion in viola-
tion of Section 8 (a) (1) of the Act.
4. We also find merit in the General Counsel's exception to the Trial
Examiner's finding that the Respondent did not violate Section 8(a)
(1) by unlawful surveillance of union activity or by creating an
impression of such surveillance. The record shows that the Union
scheduled a meeting at 9 :30 a.m. on December 9, 1964, to consider the
matter of affiliation with an International union. At 10 a.m. on the
day of the meeting, two of the Respondent's sales managers, Glasscock
and Ford, drove slowly past the front of the union hall, and one of them
waved at Pencil, the union president, who was in, the company of a
representative of the Teamsters Union. The Trial Examiner reasoned;
that, in the circumstances, any information Glasscock and Ford might
have been. able to glean when driving by the union hall could not have
been used to interfere with, restrain, or coerce the Respondent's,
employees, and that their conduct was not reasonably calculated to
give the impression that they were seeking information as to the
employees' protected- activities. We do not agree. It is possible, of
course, that the presence of Glasscock and Ford in the immediate area
of the union meeting could have been for a purpose other than surveil-
lance, but such an explanation, if available, is peculiarly in the
Respondent's possession, and the Respondent gave no explanation.2
In view of the circumstances shown, and the Respondent's failure to
rebut the prima facie case thus established, we conclude that the pur-
pose of their presence was union surveillance .3 We find, therefore,
that the Respondent engaged in surveillance of union activity, or
fostered the impression that it was engaged in such surveillance, and,
accordingly, violated Section 8 (a) (1) of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-_
nection with its operations described in section I of the Trial Exam-
iner's Decision, have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that the Respondent has engaged in certain unfair.
labor practices prohibited by Section 8(a) (1) of the Act, we shall
order that it cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes of the Act. .
2Neither Glasscock nor Ford testified concerning this incident.
8 Texas Coca-Cola Bottling Company, 146 NLRB 420, 433-434.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire
record in this case, we make the following :
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Independent Oil Workers Association Local #1 is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act in the
manner and on the occasions herein found above, the Respondent has
engaged in unfair labor practices within the meaning of Section 8(a)
(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, The Standard Oil Company (an Ohio corporation), Day-
con, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Threatening its employees to "dealer out" or "consign" its serv-
ice stations, if the employees voted to strike, or to affiliate with an
International union.
(b) Interrogating employees concerning their activities on behalf
of the Charging Union herein, or any other labor organization, in a
manner constituting interference, restraint, or coercion, in violation of
Section 8 (a) (1) of the Act.
(c) Engaging in, or attempting to engage in, surveillance of the
union activities of its employees.
(d) In any like or related manner, interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the purposes of the Act :
(a) Post at its service stations in Dayton, Ohio, copies of the
attached notice marked "Appendix." 4 Copies of said notice, to be
* In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
THE STANDARD OIL COMPANY (AN OHIO CORPORATION) 307
furnished by the Regional Director for Region 9, shall, after being
duly signed by the Company's authorized representative, be posted by
the Company immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter , in conspicuous places , including
all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the Company to insure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the said Regional Director for Region 9, in writing,
within 10 days from the date of this Order, what steps have been taken
to comply herewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the purposes of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten our employees to "dealer out" or "con-
sign" stations in the event the employees vote to strike or to
affiliate with an International union.
WVE WILL NOT interrogate our employees concerning their activi-
ties on behalf of the Charging Union herein or any other labor
organization , in a manner constituting interference , restraint, or
coercion within the meaning of Section 8 (a) (1) of the Act.
WE WILL NOT engage in , or attempt to engage in, surveillance of
union activities of our employees.
WE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act, except to the extent that such
rights may be affected by an agreement requiring membership in
a labor organization as a condition of employment , as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-
Managenlent Reporting and Disclosure Act of 1959.
TIIE STANDARD OIL COMPANY (AN OHIO CORPORATION),
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board' s Regional
Office, Room 2407, Federal Office Building, 550 Main Street, Cincin-
nati, Ohio, Telephone No. 684-3627, if they have any question concern-
ing this notice or compliance with its provisions.
212-809-66-vol 155-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Based upon a charge filed November 27, 1964, by The Independent Oil Workers
Association Local # 1, hereinafter referred to as the Union, the complaint herein
was issued on January 20, 1965. An amended complaint was issued on March 1,
1965, which was amended during the course of the hearing.' The complaint, as
amended, alleges, in essence, that The Standard Oil Company, hereinafter referred
to as the Company or the Respondent, violated Section 8(a)(1) of the National
Labor Relations Act, as amended, by threats of discharge, by unlawful interrogation,
by surveillance or creating the impression thereof, and by an unlawful promise of
benefits. Respondent in its answer, as amended, denied that it committed the unfair
labor practices alleged.
Pursuant to notice, a hearing was held on March 29, 1965, in Dayton, Ohio, before
Trial Examiner Stanley Gilbert. At the close of the hearing, oral argument was
waived. Within the time set therefor, briefs were submitted by counsel for the
General Counsel and the Respondent.
Upon the entire record herein, and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Standard Oil Company, an Ohio corporation, with a plant in Dayton, Ohio,
is engaged in the business of marketing petroleum products. During the preceding
calendar year, a representative period, Respondent had a direct outflow of its prod-
ucts in interstate commerce of a value in excess of $50,000 which were sold and
shipped directly from its Dayton, Ohio, plant to points outside the State of Ohio.
During the said period Respondent made purchases of goods and materials from
firms located outside the State of Ohio which goods were shipped directly to its plant
in Dayton, Ohio.
Respondent is, and has been at all times material herein, an employer engaged in
commerce and in operations affecting commerce as defined in Section 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent, the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent markets its petroleum products in the Dayton, Ohio, area through
stations operating under various arrangements. At the time of the hearing, it oper-
ated approximately 37 stations directly (i.e., the personnel in said stations were
employees of Respondent). It also operated 57 stations in the area on a "consign-
ment basis," 67 on a "dealer rental basis," and approximately 160 on a "full dealer
basis." The Union represents employees of the Respondent (for the purposes of
collective bargaining) at both the bulk and service stations operated directly by
Respondent.
The collective-bargaining contract which had been entered into between the
Respondent and the Union covering Respondent's service station employees was due
to expire in September 1964.2 Negotiations for a new contract between Respondent
1 Paragraph 1 of the amended complaint was amended to recite that an amended charge
was filed by the Union on February 12, 1965, and served on the Respondent by registered
mail on February 16, 1965. Paragraph 2(a) was amended by striking the words "refining
and." Paragraph 5(e) was amended by substituting the date December 9, 1964, for
November 9, 1964. Paragraph 5(f) was added to the complaint which alleged as follows:
"On or about March the 9th, 1965, the Respondent, through its agents Mr. 0. S. Haynes
and Mr Thomas Glasscock, attempted to coerce the Union to withdraw its unfair labor
practice charge in NLRB Case Number 9-CA-3393 and to Influence the Union members
not to affiliate with any International Union by offering the employees wage Increases
and certain other benefits in violation of Section 8(a) (1) of the Act."
2 Upon its expiration, the contract was continued in effect, subject to termination "by
either party upon a 10'-day written notice," and, at the time of the hearing, was still in
effect. The bulk station employees were covered by another contract not involved in this
proceeding.
THE STANDARD OIL COMPANY (AN OHIO CORPORATION) 309
and the Union were started in July. After several bargaining sessions which failed
to produce agreement, the Union held a membership meeting in October at which
the membership was asked "to authorize the committee the right to call for a strike
vote if no progress was made." At a meeting in November, it was stated to the
membership that there still was no progress and that the Union was not financially
able to support a strike. Thereafter, notice was issued of a meeting of the member-
ship to be held on November 11. The notice stated that "there would be a vote."
However it did not indicate the question on which the vote was to be taken. Wayne
L. Pencil,3 a witness called by the General Counsel, testified that the vote to be taken
at the November 11 meeting "was to find out if they [the members] wanted to affiliate
with an International Union or still whether they would want to go on strike." How-
ever, the record will not support an inference that Respondent was aware, at the time,
that consideration was to be given to the question of affiliation with an International
union. While there is reference in the testimony of employee Roy W. Ditty to
affiliation which would appear to support such an inference, that portion of Ditty's
testimony (which was contradicted by Charles A. Gray, a station manager) is not
credited? Furthermore, the record does not disclose whether the membership was
given advance notice of the fact that the issue of affiliation was to be the subject of
a vote.
On November 10, the day preceding the meeting in which the vote was scheduled
to be taken, representatives of management held conversations with employees with
respect to the vote. It appears that Respondent anticipated that the Union might
resort to a strike in support of its bargaining demands. One of the issues in this
proceeding is whether or not in the course of said conversations Respondent violated
Section 8(a)(1) of the Act. Other than the aforementioned contradiction in the
testimony of Ditty and Gray, there is no conflict in the testimony.5
Joseph Simons, one of the employees who testified as to a conversation he had on
November 10 with a representative of management, also testified to a subsequent
conversation with a representative of management on November 19. An issue in
this case is whether or not the Respondent violated Section 8(a)(1) of the Act in
the course of said conversation on November 19.
On December 9, a membership meeting of the Union was held to consider the
matter of affiliation and an issue in this case is whether or not Respondent engaged
in surveillance of said meeting, or created an impression thereof, in violation of
Section 8(a)(1) of the Act. The record does not disclose whether the matter of
affiliation was or was not considered at the prior meeting (on November 11).
Bargaining continued between Respondent and the Union, and, on March 9, 1965,
Respondent offered a proposed contract to the union negotiators which included
among its provisions a wage increase and agreements on the part of the Union to
withdraw the charges in the instant case and not to affiliate with any International
union. An issue in this case is whether or not by such action Respondent violated
Section 8 (a)( I) of the Act.
$ During the period material herein, he was an employee of Respondent and president of
the Union, and he participated in the contract negotiations, but approximately 2 months
prior to the hearing he was promoted by the Respondent to a supervisory position.
*Ditty testified that on November 10, 1964, his supervisor, Charles A. Gray, in a con-
versation with him about the meeting to be held the next day, referred to the vote as
being "for a strike or to affiliate." Gray testified as to their conversation and according
to his testimony the only reference to the purpose of the vote was whether to strike.
Gray, who had been instructed by Respondent's sales manager, Thomas Glasscock, to talk
to the employees at his station about the forthcoming vote explained that the basis for
his belief that affiliation was not mentioned was that he did not remember the matter
of affiliation being brought up in his conversation with Glasscock. Furthermore, in the
latter portion of his direct testimony, Ditty mentioned only a strike vote as the subject
of his conversation with Gray and, when asked on cross-examination if he knew on
November 10 what the business of the union meeting was going to be, he replied, "We
knowed that we was going to take a vote on whether to strike or come to some kind of
agreement with the company." It is concluded that in the conversation between Ditty
and Gray no reference was made to the matter of affiliation and that Ditty was confused
in that portion of his testimony which included a reference to affiliation.
5 On the contrary, Respondent called no witnesses other than Gray, and his testimony
supported that of Ditty except with respect to the one point indicated in the preceding
footnote.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The alleged threats
The record discloses that on November 10, Retail Sales Manager Thomas Glasscock
telephoned three of Respondent's service station managers, Paul Mortor, Charles
Gray, and Robert Petzhold. According to the credited testimony of Gray (the only
witness called by Respondent) his telephone conversation with Glasscock was as
follows:
A. He told me they knew of this meeting [the union meeting scheduled for
the next day] and they assumed it was going to be a call vote and they thought
it would be a strike vote and he wanted me to talk to the Union members in my
station and explain the situation to them that if they did vote for a strike there
was the possibility they might put the Company in the position that they could
not afford to close down the station. They might possibly put them in the posi-
tion that they would have to dealer out the station or certain stations.
Q. Did Mr. Glasscock tell you anything about, at this time, about a vote to
affiliate? He said there was going to be a vote to affiliate?
A. I don't remember anything being mentioned about affiliations.
It is inferred that Glasscock's telephone conversations with the other two service
station managers were similar in content.
The record further discloses that, immediately after their respective conversations
with Glasscock, Mortor had a conversation with employee Simons, Gray had a con-
versation with employee Ditty, and Petzhold had a conversation with employee Perry
Thomas Goodin, Jr., at their respective service stations. In essence, the station
managers stated to them that they had better "watch" or "be careful" how they vote
at the union meeting to be held the following day, because Respondent could "dealer
out" the stations and they might be out of a job. It is clear that Respondent intended
to communicate the thought to its employees that Respondent could meet the impact
of an economic strike by converting the operation of the stations where employees
go on strike to a dealer basis, in order to insure the continued operation of the
station as an outlet for its products and that the conversion might result in a loss
of jobs of employees in said stations. The statements clearly implied that, as a result
of putting the stations in the hands of dealers, the dealers, as independent operators,
might engage the services of persons other than the striking employees. The issue
is whether such statements and the clear implication thereof constituted interference,
restraint, and coercion within the meaning of Section 8(a)(1) of the Act.
It is well established that an employer, when faced with a strike, may engage in
self-help in order to continue his operations or service his customers, subject of
course to certain requirements with respect to bargaining with the representative of
its employees concerning the action the employer may takes One of the methods
of self-help that an employer may engage in is that of hiring permanent replacements
for economic strikers. N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333,
345 (1938). In Armstrong Cork Company, 103 NLRB 133, 134, the Board held
that the employer in said case did not violate the Act by declaring an intention to
replace future strikers. It appears that the conduct of the employer in the instant
proceeding is somewhat analogous to that of an employer announcing to employees
who are contemplating going out on strike (an economic strike to bring pressure
upon the employer in negotiations with the Union) that he would meet the impact
of such a strike by replacing them. The effect of consigning the stations to dealers
might very well be the same as replacing striking employees, that is loss of the
striking employees' jobs. There is no evidence in this case of the Respondent attempt-
ing to avoid its statutory obligation to bargain with the representatives of its employ-
ees, nor is there any allegation or contention that the Respondent refused to bargain
in good faith. Furthermore, there is no evidence that Respondent was hostile to the
Union. On the contrary, the collective-bargaining contract which had expired was
continued in effect and the Respondent continued to bargain with the Union with
respect to a new agreement. Just 3 weeks prior to the date of the hearing, Respond-
ent offered a proposed contract to the Union which included a provision for a wage
increase.
It is inferred that Respondent's statements to the employees (with respect to con-
signing stations to dealers) were not intended as threats of reprisal, should the
employees vote to strike or go out on strike. The credited testimony of Gray as to
6For example, according to Israel Taub, d/b/a Dove Flocking and Screening Co., 145
NLRB 652, 693-694, an employer may move his plant to another area, when it appears
necessary in order to operate and the move is not discriminatorily motivated
THE STANDARD OIL COMPANY (AN OHIO CORPORATION) 311
his conversation with Glasscock indicates that Respondent 's intention was to "explain"
to the employees means to which the Respondent might have to resort in order to
continue the operation of its stations (where employees might be on strike) as out-
lets for its products. It is further inferred that, in the context of the circumstances
of this case, the employees could not reasonably have construed the statements as
threats of reprisal. The employees had no reasonable basis for a belief that Respond-
ent was hostile to the Union or that it desired to avoid its statutory obligation to
bargain with the Union. They were undoubtedly aware of the fact that Respondent's
most common method of operating stations was through dealers. Therefore, it must
have been clear to the employees (to whom the statements were made) that consign-
ing the stations to dealers might well be a reasonable method of continuing their
operation, should a strike at such stations accomplish its intended effect.
Furthermore, it does not appear that by making these statements Respondent
exceeded the reasonable necessities of the situation in which it found itself.? While
the purpose of such statements was undoubtedly to dissuade the employees from
resorting to the tactic of striking, it is concluded that such an objective, in the cir-
cumstances of this case, did not convert Respondent' s statements into threats. The
statements enabled the employee to determine the advisability of resorting to the
tactic of a strike. While it is reasonable to assume that the statements might have
had the effect of deterring the employees from engaging in the protected activity of
striking, it is concluded that such an effect does not, per se, constitute interference,
coercion , and restraint within the meaning of Section 8 (a) (1) of the Act. It does
not appear appropriate to hold that Respondent should have remained mute in face
of the knowledge that its employees were contemplating going out on strike and be
deprived of the opportunity of averting a strike by stating what the Company lawfully
could or would do to meet such action. It is concluded that said statements were
protected within the meaning of Section 8 (c) of the Act.
On November 19 Station Manager Robert Elliott made a statement to employee
Simons which Simons testified , without contradiction, was as follows:
A. Mr. Elliott said that the Company could dealer stations or consign the
stations if they saw the upcoming Union vote for affiliation or strike did not go
through, I guess the way they wanted it, but he said the Company could consign
the stations to the managers for a nominal fee and the employees would be dis-
charged and the managers would hire their own employees for the duration of
that if anything happened.
The General Counsel contends that this constituted a threat to "dealer out" the
stations as a means of reprisal, should the union affiliate with an International union.
This contention is apparently predicated on the first half of the above-quoted testi-
mony. However, a careful reading of the testimony discloses that it is too ambigu-
ous to support such a conclusion. The phrase "I guess the way they wanted it"
indicates that the preceding portion of his testimony was subjective in nature. Fur-
thermore, the second half of the above-quoted testimony, which appears to be an
attempt on the part of the witness to clarify what was said to him, would indicate
that the action of consigning the stations (referred to in his testimony) was in con-
nection with strike action, rather than action to affiliate, for it appears that Elliott
spoke of such action being taken "for the duration of that if anything happened."
This phrase could only reasonably be construed as applying to strike action. It does
not appear reasonable to conclude that the-term "duration" would be used in the
context of a reference to affiliation with an International union . Although it appears
that Elliott in making his prediction used the term "would" instead of "could," it
does not appear to be of any significance. At most it indicates that if the Respondent
should arrive at a decision not to try to operate those stations directly where employ-
ees were to go on strike, it would follow, as a result of such action, that it would no
longer have any personnel at such stations in its employ. It appears that the conclu-
sions with respect to the November 10 statements are applicable to the statement
made by Elliott on November 19.
It is concluded that the above-mentioned statements made on November 10 and 19
do not constitute interference, restraint, or coercion within the meaning of Section
8(a)(1) of theAct.s
7 Cf. Southland Cork Company, 146 NLRB 906, 908.
8 The cases cited by the General Counsel, in support of his argument that the contrary
conclusion would be appropriate, are not applicable to the circumstances of the instant
case.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The alleged unlawful interrogation
It is alleged in the complaint that Mortor stated to an employee that Glasscock
had asked him (Mortor) to inquire of an employee "how many union members there
are at the station and the identity of these members." There is no evidence in the
record to support this allegation. Although employee Goodin did testify on direct
examination that Petzhold (not Mortor) had asked him "how many was in the Union
at that particular station," on cross-examination, Goodin admitted that he was mis-
taken in so testifying. Therefore, it is concluded that there is nothing in the record
upon which a finding may be based that the Respondent engaged in unlawful
interrogation.
C. The alleged surveillance
Pencil, who at the time of the alleged surveillance was president of the Union,
testified that he saw Glasscock and Leon Ford, both retail sales managers, drive
slowly past the union hall during the time of one of two union meetings held on
December 9, 1964; that they saw him (Pencil) in front of the meeting hall with a
representative of "Teamsters Local 10 from Cleveland" on their way into the hall;
and that, as they drove by, either Glasscock or Ford waved to him. Pencil further
testified that the meeting was scheduled for 9.30 a m.; that it was at 10 a.m. when
Glasscock and Ford drove by; and that they were not in a position to see any of the
employees other than himself, but could observe the number of cars that were there.
There is no evidence that Glasscock or Ford were in the vicinity of the union hall
at the time of the meeting scheduled for the evening of the same day.
General Counsel contends that the conduct of Glasscock and Ford constituted
surveillance or conveyed to Pencil the impression that he was being kept under sur-
veillance in violation of Section 8(a)(1) of the Act. There is no explanation in the
record as to why Glasscock and Ford happened to be driving by the union hall at
the particular time. However, it does not appear in the circumstances of this case
that the testimony as to their action would support a conclusion that they were
engaged in surveillance of protected activities of Respondent's employees or that their
action reasonably could have given that impression. In view of the fact that Glasscock
and Ford drove by the hall a half hour after the meeting was scheduled to start, and
of all of the circumstances in this case, it does not appear appropriate to conclude
that Glasscock and Ford were attempting to engage in surveillance or to create such
impression. It does not appear that any information Glasscock and Ford might
have been able to glean when driving by the union hall half an hour after one of the
two scheduled union meetings commenced could have been used to interfere with,
restrain, or coerce Respondent's employees or could have been reasonably calculated
to give the impression that they were seeking information as to the employees' pro-
tected activities. The fact that they did see Pencil about to attend a union meeting
could not reasonably have had a coercive effect upon him. Certainly Respondent
could have assumed without the need of engaging in surveillance that Pencil, being
president of the Union, would be attending the meeting.
Therefore it is concluded that the record will not support a conclusion that
Respondent engaged in surveillance, or created an impression thereof, in violation
of Section 8(a) (1) of the Act as alleged.
D. The alleged unlawful promise of benefits
General Counsel contends that it can be concluded from the testimony of Larry
Lackey "that on March 9, 1965, Respondent, during contract negotiations, attempted
to influence the Union to withdraw its unfair labor practice charge in this case and
to enter into an agreement not to affiliate with any International Union in return for
certain concessions," in violation of Section 8(a)(1) of the Act. Lackey testified
that a representative of management asked for a meeting with the Union' s nego-
tiating committee on March 9, 1965. He further testified that at this meeting
Respondent's representatives handed the union representatives a proposed collective-
bargaining agreement and asked the committee to sign it and recommend it to the
membership. The union committee signed the agreement, but did not agree to
recommend to the membership that it be accepted. He further testified that the con-
tract was not to go into effect unless it was ratified by the membership. The record
discloses that the agreement purported to be a complete collective-bargaining agree-
ment and that among its provisions was a provision for a wage increase . It also
provided that the Union would withdraw its charges in the instant case and it further
provided that the Union would agree not to affiliate with any International union.
OETTINGER LUMBER COMPANY, INC., ETC. 313
The General Counsel argues that this action on the part of Respondent constituted
an attempt "to interfere with Board process and to influence employees' decisions on
internal union affairs" in violation of Section 8(a)(1) of the Act. In support of
this argument General Counsel cites Wix Corporation, 140 NLRB 924, which
embraces a finding that the conditioning of reemployment on withdrawal of charges
before the Board is an unfair labor practice. Such conduct cannot be equated with
including in a proposed collective-bargaining agreement a provision to withdraw
-charges such as those in the instant proceeding. There is no evidence that either of
the above-mentioned provisions (re withdrawal of charges and affiliation) consti-
tuted a condition precedent to bargaining or to the execution of a collective-bargaining
agreement. It is quite common for representatives of management and unions to
attempt to resolve all their differences by an agreement which includes withdrawal
of charges of unfair labor practice 3.9 Considering the nature of the unfair labor
practices herein, it would appear that the execution of the proposed collective-
bargaining agreement, if it had be,.i satisfactory to the Union and its membership,
would have obviated any significant need for the resolution of the issues in this
proceeding.
Therefore, it is concluded that by offering the aforesaid agreement Respondent
did not violate Section 8 (a) (1) of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2 ( 6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. General Counsel has failed to prove by a preponderance of the evidence that
Respondent interfered with, restrained , or coerced its employees within the meaning
of Section 8(a)(1) of the Act by threats of economic reprisal, by unlawful interro-
gation, by surveillance or creating the impression thereof, or by an unlawful promise
of benefits , as alleged in the complaint.
RECOMMENDED ORDER
It is recommended that the complaint be dismissed in its entirety.
9 The withdrawal would necessarily be subject to approval by the Board's Regional
Director, thus insuring that such a resolution of the charges would effectuate the policy
of the Act.
,Oettinger Lumber Company, Inc., The Leon Corporation and
Elm Trucking Co., Inc. and United Brotherhood of Carpenters
and Joiners of America , AFL-CIO, Local 2230. Case No. 11-
CA-2644. October 25,1965
DECISION AND ORDER
On August 17, 1965, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that Respondent's
had engaged in and were engaging in certain unfair labor practices
:and recommending that they cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondents filed exceptions to the
Decision.
155 NLRB No. 32.