The Texas Co.

National Labor Relations Board - Board Decisions

Aug 24, 1940

26 N.L.R.B. 1059 (N.L.R.B. 1940)

In the Matter of THE TEXAS COMPANY and OIL WORKERS INTER-
NATIONAL UNION, LOCALS No. 23 AND 254
Case No. C-1477.- Decided August 24, 1940
Jurisdiction : oil industry.
Unfair Labor Practices
In General: employer's responsibility for acts of supervisory employees.
Company-Dominated Union: formation after validation of Act of successor or-
ganization similar in structure, personnel, and purpose to predecessor found
company-dominated; failure of respondent to sever relationship with successor-
participation in formation of: suggesting organization; soliciting members-
contribution of support to: furnishing materials and facilities-indicia of domina-
tion: restricted opportunity for employees to select representatives and officers:
no provision in articles of Association for membership or dues.
A labor organization's use of company facilities, time, and property
constitutes company support, although it takes place without the Company's
express permission, where the labor organization's activities are such that
they must have been known to the Company's supervisory personnel and
where the Company makes no effort to forbid such activities or to contradict
publicly the inference of company approval arising therefrom.
Remedial Orders : disestablishment of company-dominated unions.
Mr. Alba B. Martin, for the Board.
Mr. 0. J. Dorwin, of New York City, and Mr. J. H. Pipkin, of
Houston, Texas, for the respondent.
Mr. W. J. Trombley, of Port Arthur, Texas, for Local No. 23.
Mr. Louis Newman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a second amended charge duly filed by Oil Workers Inter-
national Union, Locals No. 23 and 254, herein collectively called the
Union, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Sixteenth Region (Fort Worth,
Texas), issued its complaint dated August 18, 1939, against The Texas
Company, Port Arthur, Texas, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor
26 N. R. L. B., No. 111.
1059
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section 8 (1) and
(2) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat..449, herein called the Act. Copies of the complaint and accom-
panying notice of hearing were duly served upon the respondent and
the Union.'. .
With respect to the unfair labor practices, the complaint alleged in
substance that the respondent: (1) from July 1933 until May 1937
had sponsored, fostered, encouraged,- dominated, and interfered with
the formation and administration of the Employe Representation
Plan, a labor organization of its employees, herein called the Plan ;
(2) in May 1937 continued to sponsor, foster, encourage, dominate,
and interfere with the formation and administration of a labor organ-
ization of its employees by effecting the organization of, encouraging
membership in,, and dominating the administration of the Agency;
(3) since April or May 1937 has engaged in a continuous plan and
course of action to interfere with the self-organization of its employees,
to discourage them from affiliating with the Union, and to induce them
to change their affiliation from the Union to the Agency; and (4) by
other acts and conduct has interfered with, restrained, and coerced
its employees in the 'exercise of the rights guaranteed by the Act.
In accordance with leave granted by the Regional Director, the
respondent filed its answer to the complaint on September 6, 1939,
with counsel for',the'Board at Port Arthur, Texas. In effect; the
answer constituted a general denial of the unfair labor practices alleged
in the complaint. The answer. also contained affirmative allegations
as to the respondent's general policy towards labor organizations,
both prior and subsequent to the' effective date of the Act; as to
action taken by the respondent in carrying out this general policy;
and as to the respondent's dealings and relationship with labor organ-
izations of the employees at its various plants, including the Plan
and the Agency at its Port Arthur Works.
Pursuant to notice, a hearing was held at Port Arthur, Texas, on
September 7, 8, 9, 11, 12, and 13, 1939, before Mapes Davidson, the
Trial Examiner duly designated by the Board. The Board, the
respondent and Local No. 23.of the Union were represented by counsel
and participated. in the hearing. The Agency, by its secretary,
Euclid Hudson, entered ' its appearance on September 12, 1939, but
took no active part in the hearing. Full' opportunity to be heard,
to. examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues was afforded all parties.
1 Receipt of a copy of the complaint and notice of hearing on August 21, 1939, more than 10 days prior to
the beginning of the hearing herein, by the Employees Collective Bargaining Agency of The Texas Com-
pany, Port Arthur works, herein called the Agency, was admitted at the hearing. The Agency is a labor
organization , the formation and administration of which are alleged in the complaint to have been encour-
aged , dominated , and interfered with by the respondent,
THE TEXAS COMPANY .1061
At the opening of the hearing, the respondent filed written applica-
tion for a bill of particulars of the complaint. The application was
denied by the Trial Examiner, with the statement that the respondent
would he given adequate opportunity to meet any evidence as to
which it claimed surprise. On September 12, 1939, the Agency
appeared by its secretary and requested leave to file a document
captioned, "Motion to Intervene and Answer." The request and
the motion to intervene were both granted by the Trial Examiner but,
as stated above, the Agency did not actively participate in the hear-
ing. At the close of the hearing, counsel for the Board moved to
conform the pleadings to the proof as to dates, spelling of names, and
other formal matters. The motion was granted by the Trial Ex-
aminer without objection. Rulings on other motions and on objec-
tions to the admission of evidence were also made by the Trial Ex-
aminer during the course of the hearing. The Board has reviewed all
the rulings of the Trial Examiner and finds that no prejudicial error
was committed. The rulings are hereby affirmed.
The record made at the hearing includes a series of written stipula-
tions between counsel for the Board and for the respondent, which
were. placed in evidence.2 The Agency's secretary, Euclid Hudson,
stipulated on the record that the Agency should be bound by the
stipulations entered into by counsel for the Board and for the respond-
ent, as if each of them. had also been signed on behalf of the Agency.
Thereafter, the Trial Examiner issued his Intermediate Report
dated January 16, 1940, in which he found that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1) and (2) and Section 2 (6)
and (7) of the Act. He recommended that the respondent cease and
desist from its unfair labor practices, withdraw all recognition from
and completely disestablish the Agency as a collective bargaining
representative of any of the respondent's employees, and post. appro-
priate notices in its Port Arthur Works. Copies of the Intermediate
Report were duly served upon the respondent, the Union, and the
Agency.
Exceptions to the Intermediate Report were filed by the respondent
with the Board on March 15, 1940, in accordance with an extension
of time granted at the respondent's request. A brief in support of
its exceptions was filed by the respondent on March 20, 1940. Oral
argument, pursuant to notice thereof duly served on all the parties,
was had before the Board at Washington, D. C., on March 21, 1940.
The respondent was represented by counsel and participated in the
oral argument; the Union and the Agency did not appear.
The-Board has considered the respondent's exceptions and brief and,
2 These stipulations and a large number of exhibits placed in evidence by counsel for the Board and for
the respondent constitute the bulk of the record.
323429-42-vol. 9_6-68
1062. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent that the exceptions are inconsistent with the findings,
conclusions, and order set forth below, finds them to he without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation, having its principal
offices in New York City and Houston, Texas. It is a wholly owned
subsidiary of The Texas Corporation, which also owns or controls all
of the stock of a number of other subsidiary corporations engaged in
various phases of the oil industry in the United States and foreign
countries.
As one of the subsidiaries of The Texas Corporation, the respondent
is engaged in the production, manufacture, and marketing of crude oil
and its products in a number of States in the United States. At the
time of the hearing the capitalization of the respondent was in excess
of $250,000,000. Its gross receipts during the calendar year 1938 were
more than $280,000,000. According to the franchise tax return filed
by the respondent with the Secretary of the State of Texas for the
fiscal year ended December 31, 1938, less than 14 per cent of the
respondent's business was intrastate and more than 86 per cent of its
business was interstate in character.
The respondent operates 14 refineries in the United States, of which
7 are in the State of Texas, 2 are in the State of Wyoming, and 1 is in
each of the States of Colorado, Oklahoma, Illinois, Kentucky, and
Louisiana. The present proceeding involves only the refinery
operated by the respondent at Port Arthur, Texas.3 An average of
at least 75,000 barrels of crude oil per day is processed at the respond-
ent's Port Arthur refinery. Of this crude oil, approximately 60 per
cent is produced within the State of Texas, approximately 30 per cent
in Louisiana, and approximately 10 per cent in Oklahoma. Sub-
stantially all of this crude oil is transported to the Port Arthur
refinery in pipe lines, ships, or barges owned or controlled by the re-
spondent or by other wholly owned subsidiaries of The Texas Corpo-
ration. At least 90 per cent of the refined products manufactured at
the respondent's Port Arthur refinery are shipped by it to destinations
in foreign countries or, in States other than Texas by way of ships or
barges largely owned or controlled by the respondent or by rail in
tank cars largely leased to the respondent. At the time of the hearing
the respondent had more than 3,800 employees at its Port Arthur
refinery.'
3 The respondent's Port Arthur refinery includes, in addition to the refinery proper, the respondent's
Port Arthur terminal, the Nederland tank farm and the National tank farm.
4 The Board has already had occasion to consider the respondent's business and its relation to commerce.
Matter of The Texas Company and Oil Workers International Union, Locals Nos. 367 and 228, 17 N. L. R B.
843, curd, The Texas Co. v. N. L. R. B., 112 F (2d) 744 (C. C. A. 5).
THE TEXAS COMPANY
II. THE ORGANIZATIONS INVOLVED
1063
Oil Workers International Union, Locals No. 23 and 254, are labor
organizations affiliated with the Congress of Industrial Organizations,
herein called the C. I. 0. They admit to membership employees of
the respondent at its Port Arthur Works in Texas.
Employees Collective Bargaining Agency of The Texas Company,
Port Arthur Works, is an unaffiliated labor organization in which em-
ployees of the respondent at its Port Arthur Works are eligible to
participate.'
The Employe Representation Plan of The Texas Company and its
Council at the respondent's Port Arthur Works together constituted an
unaffiliated labor organization in which the employees of the respond-
ent at its Port Arthur Works were eligible to participate.' Opera-
tion of the Plan and Council at the respondent's Port Arthur Works
was terminated upon formation of the Agency in June 1937.7
111. THE UNFAIR LABOR PRACTICES
A. Interference with, domination, and support of the Plan
From 1920 until July 1933 8 no labor organization sought to repre-
sent the respondent's Port Arthur employees, and the respondent had
no dealings with any collective bargaining representative of those
employees. In July 1933 the respondent installed at its Port Arthur
refinery an Employe Representation Plan prepared and formulated
by it. Beyond participating in the first election of representatives
under the Plan, which they were invited and urged by the respondent
to do, the respondent's Port Arthur employees had no part in the
establishment of the Plan.
5 The Agency's articles of association make no provision for Agency membership . Article III, Section 1
provides instead that " Each employee of The Texas Company in the Port Arthur works (except those
employees in an administrative capacity and department foremen and assistant department foremen, or
any others so designated from time to time by the council of elected representatives ) shall be eligible to
participate in the plan herein set forth."
9 The Plan contained no provision for membership therein. The term "employe", as used in the Plan
to refer to those covered by its provisions and eligible to participate in its activities , was defined in Article
II, Section 1 as "any individual employed by The Texas Company not identified with the Management."
Section 2 of Article II defined generally the phrase "identified with the Management" and listed specifically
some of the categories of employees falling within its meaning.
7 The manner in which operation of the Plan and the Council was discontinued is discussed below in some
detail.
9 The respondent 's activities during this period and thereafter until July 5, 1935, the effective date of the
Act, cannot of course constitute unfair labor practices within the meaning of the Act. They are, however,
essential to an appraisal of those activities of the respondent subsequent to July 5, 1935 , which are called in
question by the present proceeding . It is now well settled that antecedent events , though not themselves
unfair labor practices , are material to a consideration of whether subsequent related events are unfair labor
practices within the meaning of the Act. N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261, 268-70;
N. L. R. B. v. Pacific Greyhound Lines, 303 U. S. 272 , 273; N. L. R. B. v. Newport News Shipbuilding & Dry
Dock Co., 308 U. S. 241 ; N. L. R. B. v. The Falk Corp ., 308 U . S. 453; N. L. R. B. v. II. E. Fletcher Co.,
108 F . (2d) 459, 464-5, (C. C. A. 1), cert . denied , 309 U. S. 678; N. L. R. B . v. American Potash & Chemical
Corp ., 98 F. (2d) 488, 494 (C. C. A. 9), cert. denied , 306 U. S. 643 ; Cudahy Packing Co. v. N. L. R. B., 102
F. (2d) 745, 747 (C. C. A. 8), cert . denied, 308 U. S. 565.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In structure, the flan was typical of the joint conference schemes
which employers were then widely sponsoring.' The essence of the
Plan was "equal representation" of management and employees at
periodic joint conferences of representatives selected by the employees
and an equal number of representatives appointed by the manage-
ment. These management and employee representatives constituted
a Council "at each plant or in each. Company or territorial subdivi-
sion." At all meetings of any Council established under the Plan,
the management representatives, regardless of how many were in
attendance, were to be entitled to cast as many votes as the employee
representatives.
Eligibility to serve as elected representatives under the Plan was
restricted to employees more than 21 years of age who were American
citizens and who had been continuously employed by the respondent
for at least one year. Any employee representative who left or was
transferred out of the plant or company subdivision which he repre-
sented thereby immediately lost his status. Only employees in the
plant or company subdivision for which representatives were being
elected were eligible to participate in the election, and then only if
they were regular employees at least 21 years old.
An aggrieved employee was required to present his grievance first
to his elected or appointed representative and then, failing settle-
ment, to the appropriate Council, which was to "endeavor to adjust
the grievance by a majority vote." Appeal from the Council could
,be taken, either by the local management or by the aggrieved em-
ployee, to the president of the respondent, whose decision was "final
and conclusive." The Plan also provided for review and arbitration,
after Council action, of "any question in respect to the standards,
as to the maximum hours of labor, minimum rates of pay, and other
.conditions of employment affecting the employes over which the
Council has jurisdiction."
In. addition, the Plan also contained a provision for its amendment
or termination only by "a majority vote of all the duly elected Em-
ploye Representatives together with a majority vote of all the Man-
agement Representatives" of a Council. In any event, the Plan
was not to be amended so as to "destroy or limit the equal voting power
of the Employe Representatives and the Management Representatives.
in the Council."
In accordance with the Plan, an election was held by the respondent
at its Port Arthur refinery early in July 1933, and a Council consisting
of 10 employee representatives and 10 management representatives
was immediately thereafter established. At its first meeting on July
7 Following the enactment of-the National Industrial Recovery Act, 48 Stat . 195, and during the period
1933-5, there was a very substantial increase in the number of company unions. See U. S . Dept. of Labor,
Bureau of Labor Statistics , Bulletin No . 634, Characteristics of Company Unions, 1935, pp. 28 , 50-51 78;
Republic Steel Corp . v. N. L. R. B., 107 F . (2d) 472, 474 (C. C. A. 3), cert . granted on other grounds , 309 U. S.
684. See also Daugherty, Labor Problems in American Industry (rev. ed . 1938), 643.
THE TEXAS COMPANY 1065
13, 1933, the Port Arthur Council "adopted" the Plan as prepared
and presented by the respondent. As provided in the Plan, the Coun-
cil at first met quarterly, but in January 1934 it voted to hold regular
meetings monthly. The Plan made no provision for membership
therein or for the payment of dues by employees who participated in
its activities, and accordingly no membership meetings could have
been or were held and no clues were collected. Also in accordance
with the Plan, an employee representative and a management repre-
sentative alternated each half year in the office of chairman and the
office of secretary of the Council. Minutes of Council meetings were
prepared and approved by the chairman and secretary of the Council;
the minutes were kept in the respondent's office, but were available for
inspection by Plan Council members at any time.
Early in 1936 F. L. Wallace, then assistant general superintendent
of the respondent's Port Arthur refinery, discussed at a Council meet-
ing the question of creating more interest in the Plan and indicated the
desirability, presumably for that purpose, of increasing the number of
employee representatives. Thereafter, the 10 zones or divisions into
which the respondent's Port Arthur Works had been divided for Plan
election purposes were subdivided by the Council into 48 subdivisions
or departments; and, at the 1936 election, the respondent's Port
Arthur employees- elected, in addition to the usual 10 zone represent-
atives or Council members, 45 department representatives who con-
stituted what was thereafter known as the Subcouncil.
Until 1936 the employee representatives did not meet with each
other except in regular Council meetings at which the management
representatives were also present.1° Following the 1936 election, how-
ever, the zone and department representatives met with each other
regularly once a month in the main dining room of the respondent's
refinery. Both the zone representatives and the department represent-
atives were paid at their regular rates for time spent at these monthly
meetings with each other, with a maximum of 2 hours' pay for any
single meeting; in addition, the zone representatives were paid for
time spent in attending the regular monthly meetings of the Council,
itself.
The respondent also bore all of the other expenses connected with
the administration of the Plan, and provided the election booths and
ballot boxes and ballots used in Plan elections and whatever steno-
graphic assistance was required. Plan elections were held on com-
pany time and property, though the ballots were secret and the re-
spondent did not influence the selection of representatives by the
10 This is stipulated by counsel for the respondent , though the minutes of meetings of the Council indicate
that the Council voted on July 3 , 1935, for monthly meetings of the employee representatives without the
management representatives present . It also appears from these minutes that the employee representatives
were to be paid at their regular rates for working time spent in attending these monthly meetings.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. Starting in 1934, the respondent annually gave a day's
outing, consisting of a boat trip, a picnic lunch, and refreshments, to
all employees who during the preceding year had represented em-
ployees for collective bargaining purposes. It is stipulated that repre-
sentatives of three American Federation of Labor unions, as well as
Plan Council representatives, were invited to, and did, attend these
outings during the years 1934-1937. It is also stipulated that these
annual outings were discussed at certain Council meetings; and it is
evident from the minutes of these meetings that the outings were
actually arranged by the respondent with the Plan Council and were
regarded as being primarily Plan social affairs.
With respect to the accomplishments of the Plan Council, it is
stipulated that new and higher minimum rates were established by it'
for many employees and that revisions in minimum rates were dis-
cussed or approved. at 6 Council meetings between August 1933 and
April 1937. It is true that, under the Plan, each Council was "em-
powered to determine finally, by majority vote, for the plant or sub-
division over which it has jurisdiction, all questions relating to maxi-
mum hours of labor, minimum rates of pay, and other conditions of
employment and to make agreements in respect thereto." It is also
true that minimum rates of pay were discussed at various Council
meetings, and that the Council on a number of occasions voted higher
rates for individual employees or adopted general schedules of mini-
mum rates for the Port Arthur refinery. An examination of the
minutes of the Plan Council meetings, however, reveals that these
were not the voluntary decisions of an independent organization,
based upon consideration of the merits and compromise of conflicting
views. These decisions on minimum rates of pay, like most of the
action taken by the Council during its existence, were merely a reflec-
tion of the respondent's desires and an acceptance of its unilateral
determinations as to what should be done. General revisions and
schedules of minimum rates of pay were invariably prepared and in-
troduced by the respondent. and adopted by the Council as pre-
sented." Attempts by employee representatives to have the Council
consider general raises in pay or the establishment of fixed rates for
given jobs met with a refusal by the management representatives to
consider adjustments in rates of pay except on an individual basis.
Not once, so far as the record shows, were the review and arbitration
provisions of the Plan invoked by either the employee or the manage-
ment representatives in order to settle a controversy between them.
Action taken by the management on requests presented to the Council
through the employee representatives was most often noted in the
Council minutes with the comment that it "met with the approval of
"This is true of each of the meetings at which , it is stipulated , the Council discussed or approved revisions
in minimum rates. With one exception , the minimum rate schedules prepared and presented by the man- -
agemcnt were adopted by the Council without change.
THE TEXAS COMPANY 1067
the Council", even when such action consisted of rejection of the
requests. Indeed, F. L. Wallace, then assistant general superintend-
ent of the Port Arthur refinery, flatly advised the Council at its
meeting of February 6, 1935, that it had no authority under the Plan
to deal with or settle questions of salaries or rates of pay, except in so
far as Article III, Section 2 of the Plan empowered it to determine
minimum rates of pay. In reality, the Plan Council at the respond-
ent's Port Arthur refinery constituted only an advisory council to the
respondent and served merely as a means for airing grievances and
for creating some semblance of employee participation in the determi-
nation of wages, hours; and working conditions. There was and could
have been no actual participation of employees in the determination
of these questions or in the settlement of grievances, because the Plan
provided no opportunity or method for crystallizing the collective
sentiment of the respondent's employees or for informing the employee
representatives of the desires or needs of their "constituents."
The Plan was not only instituted and established by the respondent,
but continued, thereafter to operate only with the respondent's con-
stant financial aid and outspoken support. The minutes of the
Council meetings clearly show that the decisions of the Council were
at all times dominated by the respondent and reflected its wishes and
policies. Control of the Council by the respondent was assured by the
Plan requirement of concurrence by the management representatives
,in any decision or action by the Council and by the provisions effec-
tively limiting the method and extent of amendment of the Plan. No
substantial changes in the structure or operation of the Plan were
made even after passage of the Act in 1935. On July 10, 1935, 5 days
after the Act became effective, Wallace at Port Arthur was instructed
by telegram from the respondent's New York office that no Plan
elections were to be held until further notice, that the respondent
would decide within a few days on a "definite policy as result of pas-
sage of Wagner bill," that Wallace would then be advised in detail,
and that in the meantime he was to keep "this information strictly
confidential." On July 18, 1935, after Wallace had in the meantime
been furnished by the respondent with a detailed analysis of the Act,
he was advised by the New York office that Plan elections could be
held by the employees, but that the management was not to assist in
any way in the holding of such elections. Other than that, there was
no change in the respondent's policy or in its relationship with the
Plan and the Council. at the Port Arthur refinery.12
12 The fact that the respondent was able to issue instructions that Plan elections be postponed pending
determination by the respondent of its general policy in view of the passage of the Act is , in itself, the strongest
kind of evidence of the respondent 's complete domination and control of the Plan . Of similar significance
was the respondent 's assumption that even a matter so vitally affecting the Plan as the effect upon its
existence of the passage of the Act could be decided by the respondent not only without consulting the em-
ployee representatives but with explicit instructions to the respondent 's supervisory personnel that they ,
were to keep confidential the fact that the respondent was even giving consideration to such a problem.
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Plan and the Council continued to function at the respondent's
Port Arthur refinery until June 1937 with the uninterrupted approval,
encouragement,, and material support of the respondent. The final
meeting of the Council was held June 2, 1937, when it voted that
"the present Council Plan be discontinued."
We find that the respondent dominated and interfered with the
formation and administration of the Plan and the Council at its
Port Arthur refinery and contributed financial and other support to
them, both prior and subsequent to the effective date of the Act and
until June 1937, and that, by continuing such domination, interference,
and support after July 5, 1935, the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.13
B. Interference with, domination and support of the Agency
1. Formation and administration of the Agency
Late in February of 1937 it was publicly announced that the C. 1. 0.
had decided on a general organizing drive in the oil industry to begin
April 5, 1937, on the Texas Gulf Coast. News of this decision was
featured in the February 20, 1937, issue of the Port Arthur News,
the only daily newspaper published in the community.of which the
respondent's Port Arthur refinery and employees are part. On Maf ch
18, 1937, General Superintendent Dodge delivered a speech at a
Rotary Club luncheon in which he referred to the C. I. 0. "threat"
to organize labor in Port Arthur, coupled the C. I. 0. with sit-down
strikes, and urged the city's merchants and business men to "line up"
against any such activities and to discourage any such movement in
Port Arthur. In its issue of April 5, 1937, the Port Arthur News
announced in large headlines that the C. 1. 0. had opened its drive
to unionize the oil industry, beginning with the workers in the south-
west oil fields.
On April 12, 1937, the Supreme Court of the United States sus-
tained the constitutionality of the Act.14 On April 27, 1937, the re-
spondent's manager of manufacturing, Halpern, and its counsel, 0. J.
Dorwin, discussed with the Board's Regional Director at Fort Worth,.
Texas, the question of whether the respondent should do anything
about terminating the operation of the Employe Representation Plan
at its various properties. Having been advised by the Regional
13 Activities such as those in which the respondent engaged with respect to the Plan have repeatedly been
held to constitute unfair labor practices within the meaning of section 8 (1) and (2) of the Act. N. L. R. B.
v. Pennsylvania Greyhound Lines , 303 U. S. 261 ; N. L. R. B. v. Pacific Greyhound Lines , 303 U. S. 261;
N. L. R. B. v. Newport News Shipbuilding & Dry Dock Co., 308 U. S. 241; N. L. R. B. v. Fansteel Metallurgical
Corp., 306 U. S. 240; N. L. R. B. v. The Falk Corp., 308 U. S. 453; The Texas Company v. N. L. R. B., 112
F. (2d) 744 (C. C. A. 5); Continental Oil Co. v N. L. R. B., 113 F. (2d) 473 (C. C. A. 10); Westinghouse
Electric & Mfg. Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2); N. L. R. B. v. Brown Paper Mill Co., 108
F. (2d) 867 (C. C. A. 5); N. L. R. B. v. Lane Cotton Mills Co., 111 F. (2d) 814 (C. C. A. 5).
'4 Jones & Laughlin Steel Corp. v. N. L. R. B., 301 U. S. 1, and companion cases.
THE TEXAS COMPANY 1069
Director that he believed nothing need be done co terminate the Plan
unless and until its legality was questioned, Halpern and Dorwin
returned to a meeting of the respondent's refinery managers . at
Beaumont, Texas. The refinery managers, including F. P. Dodge
and F. L. Wallace, respectively general superintendent and assistant
general superintendent of the respondent's Port Arthur refinery, were
informed of the Regional Director's opinion and were advised to
discuss the problem at the next meetings of their respective Councils,
leaving it up to the employees whether or not to continue the Plan.
At the next meeting of the Port Arthur Council, held on May 5,
1937, Wallace raised the question of what, if anything, was to be
done by way of continuing, modifying, or terminating the operation
of the Plan. He stated that the Plan "is satisfactory under the
Wagner Act", but nevertheless discussed the question of its continu-
ation or modification. He urged that "some action should be taken
by the Employee Representatives in this connection before the election
of representatives to be held next month so that the men may work
up the election procedure accordingly." He praised the Plan Council
and stated that"the main idea is to have proper representation among
the men and close contact with them for proper handling of their com-
plaints." He then requested comments from the employeere present-
atives with respect to the "bargaining agency desired." One
employee representative, E. Z. Lavelle, suggested that, while the
Plan Council had worked satisfactorily, there had been some objection
to having foremen act as members of the Council, and that the Sub-
Council "is more truely representative than the Employe Representa-
tives." Lavalle therefore suggested that the 10 zone representatives
be "abolished" and that the department representatives "meet with
the Management for bargaining purposes, using the present Employe
Representation Plan with this exception." Wallace expressed
approval of Lavelle's suggestions, although. he pointed out that the
employees and not the management would have to make any such
change and that "the men themselves should agree upon any Plan
they desire and put it into effect." Wallace also stated that, while
he believed it would be illegal for department representatives to be
paid for time spent at meetings with each other, they could be paid
for working time spent in meeting with management representatives.
Wallace ended by recommending that the employee representatives
"discuss this matter further among themselves following the regular
meeting in as much as this is their problem and they should decide
on what they want."
Shortly after the Council meeting of May 5, 1937, C. Otho Bennett,
who is employed by the respondent as an engineer and who was a
Plan employee representative and secretary of the Council, wrote
and sent to each zone and department representative a notice of "a
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special meeting of the Employees' Representative Council" to be held
in the main dining room at the respondent's plant on May 13, 1937,
"for the purpose of determining the proper course of action with
regard to the Employee-Management Representation Plan now in
effect at Port Arthur Works. At this meeting we shall determine
whether or not the present plan shall be continued or shall be dis-
continued in favor of a new plan which will be fabricated to more
favorably meet the requirements of a bargaining group under the
Wagner Act. . . . No compensation will be allowed for Employees
attending this meeting."15 Bennett also spoke personally to a
number of Plan representatives and asked them to urge other em-
ployees to attend the meeting.
Pursuant to Bennett's notice, a meeting was held on May 13, 1937,
in the main dining room at the respondent's plant. In attendance
at the meeting were 29 of the zone and department representatives
under the Plan and 10 other employees of the respondent; the 10
additional employees were given no voice in the meeting. Bennett,
who acted as chairman of the meeting, explained that its purpose was
to "reorganize the present employee-management council plan or to
develop a new plan to take its place." Bennett then read excerpts
from the minutes of the Plan Council meeting of May 5, 1937, "at
which Mr. Wallace expressed his views on the present plan and the
advisability of retaining it." There followed some discussion of
revising the Plan "so as to conform to Wagner Labor Act" and of
whether or not the Plan should be retained, but nothing definite was
agreed upon. It was then moved and unanimously carried "that
the present plan be abolished." Minutes of the meeting were taken,
at Bennett's request, by Claude Bourque, an employee of the respond-
ent, though E. G. Hacken.dorff, Jr., secretary of the Plan Sub-Council,
was present.
Approximately 10 minutes after adjournment of the meeting de-
scribed in the preceding paragraph, a second meeting of the same
employees of the respondent was convened at the same place. This
time, however, the 10 employees present who were not either zone or
department representatives under the Plan were permitted to partici-
pate fully. Minutes of this meeting were also taken by Claude
Bourque and were subsequently written,up by him on a company
typewriter, though not on company time. The minutes of the
meeting are captioned "Minutes of Meeting Held by Employees of
Port Arthur Works to Formulate a New Representation Plan," and
what took place at the meeting is of sufficient importance to the
present discussion to warrant being set forth in some detail.
IS There is no explanation in the record of how Bennett knew that employee representatives attending
this meeting would not receive compensation for time spent there. The notice was subscribed "C. Otho
Bennett, Chairman", though Bennett was then secretary of the Council ; he had been chairman of the
Council during the preceding 6-month period.
THE TEXAS COMPANY 1071
The meeting first selected Bennett chairman and E. G. Heckendorff,
Jr. vice chairman. Heckendorff is employed by the respondent in its
research laboratory and was secretary of the Sub-Council under.the
Plan. Bennett explained to the meeting that "This group is organiz-
ing temporarily for the purpose of formulating a plan whereby another
organization of a more permanent nature could be worked out for the
definite purpose of bargaining with the company." He then read to
the meeting the "Articles of Federation of the Humble Company's
Baytown Refinery Employees Plan." 16 The question of membership
in the proposed new organization was then brought up, and Bennett
"expressed himself as being opposed to membership." A suggestion
that advice be obtained from a representative of the -Board with
respect to the "possibilities of revising present plan'.' was voted down,
but a committee of seven was appointed by Bennett, pursuant to
approval of the meeting, for the purpose of drafting "organization
plans without membership to present to this group for adoption at a
later date." This committee was to report to the group at a meeting
to be held in the respondent's main office dining room on May 18, 1937.
Between May 13 and May 18, 1937, the committee thus appointed
held two night meetings in the respondent's main dining room.
Bennett was present at each of these meetings. Considered during
the deliberations of this committee were the Act, the constitution and
bylaws of the Employes' Federation of Baytown, Texas, the respond-
ent's Employe Representation Plan, and the constitution and bylaws
of other organizations not specified in the record. The meetings of
the committee resulted in proposed articles of association for the
Agency.
On May 17, 1937, notice of a meeting to be held the following day
was sent by Bennett to approximately 95 employees of the respondent
who were regarded as likely to be interested. The list of employees
to whom this notice or invitation was sent was compiled by Bennett,
at the suggestion of those who attended the second meeting on May 13.
The notice opened with the statement that "The present Employee
Representation Plan will soon cease to exist at Port Arthur Works."
It continued: "We believe that the Employees of Port Arthur Works
do not want to be without an organization thru which they can bar-
gain with the management regarding working conditions, etc. and
we believe that they do not want to do their bargaining through some
outside organization. . . . A committee was appointed to draft a
plan to be presented before a group of representative employees 17
at the Main Dining Room on Tuesday, May 18, at 7:30 P. M. You
16 There is no explanation in the record of how Bennett obtained these Articles. For a discussion of the
nature of the organization in question , see Matter of humble Oil & Refining Company and Oil Workers Inter-
national Union, Locals No. 333 and 316, 16 N. L. R. B., 112, set aside in part, Humble Oil & Refining Co.
v. N. L. R. B., 113 F. (2d) 85 (C. C. A. 5).
17 As the minutes of the second meeting of May 13 show , it was there voted that the drafting committee
present its recommendations or proposals to the same group, not to "a group of representative employees."
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
have been selected 18 to represent your department temporarily,
until the plan can be worked out and presented to all employees for
their approval and until an election can be held establishing a per-
manent representative from your department." 10 The notice was
subscribed "C. Otho Bennett, Chairman of Organizing Group."
Pursuant to the notice, a meeting was held in the respondent's
main dining room on May 18, 1937, with 64 employees in attendance.
In the course of an opening talk, Bennett, who acted as chairman,
explained " that the reason a new organization was needed was because
the present plan of representation has been outlawed by the Wagner
Act." 20 The proposed constitution or articles drafted by the com-
mittee appointed on May 13, 1937, were then read to the meeting
and-adopted section by section. Claude Bourque and Frank F.
Axtell were then elected secretary and treasurer, respectively, a
finance committee and an election committee were elected, and
Bennett was authorized to spend approximately $80 for the printing
of ballots and other papers.
The next meeting of the organizing group, which by this time called
itself the Agency, was held on May 27, 1937, in the respondent's
main dining room. The procedure to be followed in the forthcoming
election of representatives was agreed upon, the election divisions
and the: number of representatives for each division were established,
and the finance committee reported that a donation list was being
circulated. It was decided that the solicitation of donations should
be continued.
On June 1, 1937, Bennett sent to each of some 58 persons approxi-
mately 10 or 15 Agency contribution slips, together with a covering
memorandum.21 The memorandum was addressed to "Members of
the Temporary Council" and evidenced Bennett's preoccupation with
the problem of avoiding any possible accusation of management par-
ticipation in the .formation of the Agency. The memorandum in-
structed its recipients, in part, to "impress on employees the impor-
tance of the organization, non-management participation, difference
in cost of this and other organizations, and that we would like to have
an average of fifty cents (500) from each employee. . . . Do not
forget, we must be able to tell from whom every cent is collected in
order to clear our organization of possible criticism from the manage-
ment participation angle."
I s As we have pointed out above , the selection was made by Bennett.
19 The latter part of this sentence indicates an almost prophetic insight on Bennett 's part as to the action
which would be taken by the group engaged in organizing the Agency.
20 So far as the record shows, there had as yet been no unequivocal public statement by the respondent
that the Plan was invalid under the Act.
21 Each contribution slip was addressed to "Mr. F. F. Axtell, Temporary Treasurer , The Employees'
Collective Bargaining Agency of The Texas Company , Port Arthur W orks" and read as follows: "I am con-
tributing herewith $_ _ _ _ _ _, with the understanding that it will be used to defray necessary expenses in
connection with the establishment of a permanent Collective Bargaining Agency for the Employees of
The Texas Company at Port Arthur works."
THE TEXAS COMPANY 1073
The form of Agency contribution slip was written by Bennett, a
mimeographed stencil of it was prepared by Bourque 22 outside the
respondent's plant, and the slips were mimeographed by Bennett and
another employee of the respondent, Drake,23 at the latter's home.
Mimeographed copies of the contribution slips were sent by Bennett
to the "Temporary Council" members through the respondent's
plant mail system in envelopes obtained without the respondent's
permission from the engineering department's stationery storage.
Among the persons to whom contribution slips were sent was
Frederick, who in turn delivered some of the slips during- working
hours to another employee of the respondent, S. S. Faircloth. The
latter, also during working hours, distributed contribution slips
among several other employees and spoke to four or five of them,
taking approximately 40 minutes to an hour to do so. Both Frederick
and Faircloth were classified at the time as hourly paid first-class
carpenters, but both were then acting as gang pushers or strawbosses
on a construction project known as Estimate 5500. As two of the three
or four gang pushers employed in connection with Estimate 5500,
Frederick and Faircloth each had from three to as many as 25 or 30
men under him from time to time, whose work he supervised and
directed. After completion of Estimate 5500 in 1937, Frederick was
made an area foreman with admittedly supervisory status. Faircloth,
at the time of the hearing, was again acting as a gang pusher or straw-
boss. Both. Frederick and Faircloth voted in the Agency elections of
1937 and 1938, but were apparently regarded as ineligible to participate
in the 1939 elections because, of their supervisory status. We find
that Frederick and Faircloth, at the time they participated in the
distribution of Agency contribution slips and in the solicitation during
working hours of contributions for the Agency, were supervisory
employees for whose activities in soliciting and obtaining support for
the Agency the respondent is responsible.24
In contrast with this. support of the Agency by supervisory em-
ployees of the respondent is the approximately contemporaneous
action taken by W. R. Moser, then assistant to the general superin-
tendent of the respondent's Port Arthur Works, when he learned that
J. W. Reed, an employee of the respondent, had distributed C. I. 0.
handbills just outside the plant. Reed testified at the hearing that
he and two or three others distributed these handbills several days
after June 4, 1937, and that shortly afterwards lie was approached by
Moser in the respondent's plant and had an extended conversation
with him. Moser indicated to Reed that the latter's activities in
22 Bourque was employed by the respondent as a stenographer in its general office.
22 Drake is employed by the respondent as an engineer's helper.
2a Cf. H. J. Heinz Co. v. N. L. R. B., 110 F . (2d) 843 (C. C. A. 6); International Ass'n . of Machinists v.
N. L. R. B., 110 F . (2d) 29 (C. A. D. C.), aff'g, 311 U. S. 72; N. L. R. B. v . American Mfg. Co., 106 F. (2d)
61, 64, 67 (C. C. A. 2), affd., 309 U. S. 629; Virginia Ferry Corp . v. N. L. R. B., 101 F. (2d) 103, 105-6 (C. C.
A. 4).
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of the C. 1. 0. were regarded by Moser as a sign of dissatisfaction
on Reed's part with his employment with the respondent. In response
to a question from Reed as to why he did not want the men to join
the C. I. 0., Moser replied that it was because of the C. I. O. leadership.
Admitting the conversation, Moser explained at the hearing that he
spoke to Reed only because he wanted to learn whether Reed was
dissatisfied, it being part of Moser's job at that time to adjust em-
ployees' complaints and grievances. Moser also testified that, during
his conversation with Reed in June 1937, he told Reed that the latter
was free to join any labor organization he wished. Accepting Moser's
explanation of his motive, we nevertheless believe that it does not
detract from the impression which must have been and was conveyed
to Reed by the conversation with Moser.2b Moser's remarks made it
clear that Reed's activities in behalf of the C. I. 0., as, well as the
C. I. O. itself, met with the respondent's disapproval, and we so find.26
On June 2, 1937, the Plan Council held its last meeting. It first
disposed of its regular business, which included (1) an announcement
by General Superintendent Dodge that "a houseboat party will be
given the Council" the following Tuesday, June 8, and (2) an announce-
ment by Assistant General Superintendent Wallace that the respond-
ent's group life insurance and pension plan for its employees would go
into effect on July 1, 1937, if 75 percent or more of the employees
subscribed. Dodge discussed the insurance plan in detail, pointing
out its advantages and explaining the methods to be used by the Plan
representatives in "selling" it to the employees. At the close of the
meeting, Bennett, who was then secretary of, the Council, "stated
that at the special meeting of Council and Departmental Representa-
tives, which was called on May 13th for the purpose of discussing
whether or not the present Council should be reorganized or discon-
tinued, it was voted that the present plan be discontinued on about
June 30th with the idea in mind that the employes would organize
an employes' group to take the place of the present Council." . The
minutes of ,the meeting disclose that this statement by Bennett was
followed by discussion, but the nature of the discussion does not
appear. It is admitted, however, that the discussion included a
request by Assistant General Superintendent Wallace that the old
Plan not be "killed" until the new one was "workable."27 In accord-
76 Certainly Moser's explanation fails to justify his deprecation of C. I. 0. leadership and his admission
that he did not want the men to join the C. I. 0. because of its leadership. Neither was relevant, if Moser
was interested only in learning whether and why Reed was dissatisfied.
%e As to an employer's questioning his employees with respect to their union membership or activities,
see e. g., N. L. R. B. v. Botany Worsted Mills, 106 F. (2d) 263, 267-8 (C. C. A. 3); N. L. R. B. v. Hearst, 102
F. (2d) 658, 662 (C. C. A. 9), enf'g, Matter of William Randolph Hearst, et al. and American Newspaper Guild,
Seattle Chapter, 2 N. L. R. B. 530, 540ff.
27 Wallace testified at the hearing, apparently in the belief that his participation in determining the fate of
the Plan was thereby justified, that he wanted the Plan continued until the new organization was estab-
lished because he wanted to continue dealing with the Plan representatives in settling employee grievances.
The Act contains no such exception to its prohibition of employer interference with the complete freedom
of employees to select and, by the same token, to discard their collective bargaining representatives.
THE TEXAS COMPANY 1075
ante with his wishes, the effective date of the termination of the Plan
and the Council was postponed, Bennett moving "that the present
Council Plan be discontinued upon the date which the new Employe
Plan becomes effective." Bennett's motion was unanimously
carried, and the meeting was thereupon adjourned.
On June 7, 1937, Bennett sent notices to all members of the "Tem-
porary Council" of the Agency, announcing a special meeting to
be held "in the Main Dining Room at 7:30 PM on Wednesday, June
9th, for the purpose of distributing to the members of the Council
printed copies of the Articles of Agreement, and to give out further
instructions with respect to the promotion of Plant interest ..." in
the Agency.
The first election of representatives to the Agency Council was held
on June 16, 17, and 18, 1937.$ An election committee of the Agency
arranged on its own time for the printing of ballots and handbills,
provided the necessary voting booth and ballot boxes, and supervised
the election. The voting booth was placed outside the main gate of
the respondent's refinery, off its property. Of the five ballot boxes
provided by the committee, four were placed in the voting booth and
the fifth was placed inside the clock house at the north gate of the
respondent's property. The fifth ballot box was so placed, it is stip-
ulated, without permission from the management.29 The handbills
prepared by the Agency's election committee were distributed by the
members of the committee on their own time approximately 5 days
before the election was held. The distribution took place outside the
main gate of the respondent's refinery and off its property. The
handbill itself warrants some attention. It was divided into three
parts: (1) a fictitious conversation between two supposed. employees
of the respondent, "John" and "Bill"; (2) the names of the employees
who had participated in the work of the "temporary organization"; 30
and (3) a list of the election divisions into which the respondent's
employees were divided, together with the number of representatives
to which each division was entitled. In the course of the fictitious
conversation, "John" explained to "Bill" that the old Plan was to be
discontinued because of "some question about the company partici-
pation part of it"; that "there really wasn't anything wrong" with the
28 The election was originally scheduled to be held on June 16 and 17, but apparently it was subsequently
decided to continue the voting for an additional day. The extension of time was announced in handbills
which stated that the "election will continue through Friday at the request of groups of employees" and
which urged the employees to vote for reasons stated therein.
29 That the respondent did not give its permission does not, of course, mean that it was unaware of what
the Agency was doing. In this instance, as in others in which it is stipulated that the Agency's use of com-
pany facilities, time, and property was without permission from the management, the nature of the Agency's
activity was such that it must have been known to the respondent's supervisory personnel. The absence
of any effort on the respondent's part, at least until July 1939, to forbid such Agency activities, and its
complete failure to contradict publicly the inference of company approval arising from the Agency's use of
company facilities, time, and property, constituted just as effective support as if company approval and
permission had been expressly given.
30 Included among the names thus listed was that of S. S. Faircloth.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plan, "but it might have been questioned"; that a group of employees
had "worked out a new plan that there won't be any question about,"
viz., the Agency; that the Agency involved no membership and no
payment of dues; that funds necessary for the Agency's activities
would be raised by way of contributions from the employees; and
that it was important for every employee in the plant to participate
in the election.
With respect to the election itself, it is stipulated, in substance,
that the respondent was in no way connected with it, except that
some of the ballots were counted on company property, though not
on company time. Approximately 59 per cent of the eligible em-
ployees at the respondent's Port Arthur refinery voted in the election."
Of the 74 representatives to the Agency Council elected in the 1937
election, approximately 30 were former Plan Council or Subcouncil
members.32 Twenty-six of these 30 were representatives to the Plan
Council or Subcouncil during the election year 1936-37, just preceding
the formation of the Agency. Recasting the figures, 7 of the 10 rep-
resentatives to the Plan Council during the year just preceding the
formation of the Agency-became Agency representatives in June 1937,
and approximately 19 of the 44 Plan Subcouncil representatives for
the same year also became Agency representatives in June 1937.33
The first meeting of the new Council was held on July 7, 1937.
A chairman, vice chairman, secretary, and treasurer were elected.
As chairman, the Agency representatives elected C. O. Bennett, who
had been a representative to and successively chairman and secretary
of the Plan Council and who played so prominent a part in the forma-
tion of the Agency.34 A motion "to have the body adopt the bylaws
drawn up by the Temporary Organization" was carried. Bennett
requested and received "permission to contact the Management,
through the medium of a letter, for the purpose of gaining recognition
of the Agency." It was. decided "that the Third Wednesday of
each month would be the Council's Business Meeting Date, and the
First Wednesday of each month, to be the date of meeting with repre-
sentatives of the Management."
In accordance with the permission granted at the Agency Council
meeting of July 7, Bennett wrote to General Superintendent F. P.
Dodge on. July 14, 1937, informing him of the formation of the Agency
and enclosing a copy of its bylaws. Bennett also included in his
3' In the 1938 Agency election approximately 23 per cent of the eligible employees voted , and in the 1939
Agency election approximately 29 per cent of the eligible employees voted.
32 The number 30 is only approximate because slight differences in the spelling of three names creates some
uncertainty as to whether they were duplicated.
33 The necessity for this approximate figure has been explained in the preceding footnote.
31 At the Agency Council 's meeting of June 1, 1938, Bennett was reelected chairman of the Council for
another year.
THE TEXAS COMPANY 1077
letter complete details of the election of Agency representatives 35
and the names of the officers elected at the first Agency Council
meeting of July 7. He requested recognition by the respondent of
the Agency as "a bargaining agency for those employees desiring to
use it as such", and asked that management representatives meet
with the Agency Council "on Wednesday, August 4th, at a convenient
hour and on the first Wednesday of each month thereafter." Bennett
also told Dodge that the next regular business meeting of the Agency
Council would _be held on July 21, and suggested that Dodge reply
to the letter prior to that date. Dodge replied on July 17, 1937, that
"the Management will be glad to meet with representatives of your
organization Wednesday, August 4, at 12:30 P. M., in the Dining
Room at rear of the Main Office Building." Dodge made no mention
in his letter of Bennett's request for recognition of the Agency and
for regular monthly meetings, between representatives of the Agency
and of the management.
On July 21, 1937, the Agency Council held its second meeting,
with 38 representatives present. Bennett announced the prospec-
tive meeting on August 4 between Council and management repre-
sentatives. A finance committee was elected. Bennett then "dis-
cussed the method of handling grievances in detail." 36 The Council
voted "that the Management be requested to notify Department
Heads of the Council Meeting the first Wednesday of each month,
giving them the names of Representatives." It also appears from
the minutes that four representatives had already submitted griev-
ances to foremen, although the Agency had not as yet been formally
recognized by the respondent. The Council also voted "that a
brief of the minutes of the Meeting with the Management be posted
on the Bulletin Board."
'5 The letter contained the following tabulated information as to the Agency election:
Port Arthur
refinery
Port Arthur
terminal Total
Total employees------ ------------------------- 4,647 315 4,962Employees identified with management __________________ 250 21 271
Absent, sick, or on vacation ---- --------- ----------------- 250 29 279
Total eligible to participate- ------------ ------------------ 4, 147 265 4,412
Total voting in election__________________________________ 2, 450 158 2, 608
Percent of eligible employees voting ---------------------- 59.0% 59.6% 59. 1%
There is no explanation in the record of how Bennett obtained such detailed information as to the
respondent 's employees eligible and able to participate in the Agency election.
sa At this point the minutes of the meeting continue as follows:
Briefly, the method will be as follows : Grievances will be taken up with Foreman , unless otherwise
specified by employes , and every effort will be made to settle with the Foreman. Representative
will then, if not successful , either take the matter up through the Council or direct with the Manage-
ment . In all cases , however, the grievance will be reported to the Council , together with the action
taken.
This was substantially the same as the grievance procedure which had been followed tinder the old Plan
Council.
323429-42-69
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 2, 1937, Bennett sent notices to all Council members,
reminding them of the forthcoming meeting with the management
and giving them other information and instructions of a general.
nature. Although the record does not show that Bennett had, 'on
August 2, 1937, received any word from Dodge with respect to the
Agency's request for regular monthly meetings with the management,
Bennett felt free to state in his notice of August 2 to the Council
members that, "unless otherwise notified, these meetings will be held
on the first Wednesday of each month hereafter at the hour designated
above."
The first joint conference of management and Agency representa-
tives took place as scheduled on August 4, 1937. The first business
considered by the joint conference is captioned in the minutes of the
meeting as "unfinished business", and consisted of three items which
had originally been brought up for consideration by the old Plan
Council and which were carried over to the new Council. The first'.
of these three items, involving working conditions at the Furfural
Refining Unit, was "left open for further consideration. The
second, involving a long-standing request that the respondent's
employees be permitted to purchase gasoline at a discount, was dis-
posed of by a statement by Dodge, the respondent's general super-
intendent and one of the three management representatives present,
to the effect that "he had written to New York and had a reply whereas
New York declined to grant this request at this time." 'It was moved
and carried "that item be closed." The third of the three items,
involving a request that the driveways in the employee parking sheds
be oiled, was . granted. It was announced that seniority lists and
information as to employees' rates of pay would be available to Agency
representatives. Wallace, another of the three management repre-
sentatives present, explained "the new Jury Duty Pay Plan".37 and
further stated that Agency representatives would be paid at their
regular rates for working time spent in attending meetings. The
next meeting of management and Agency representatives was an-
nounced for September 1.
The organization which thus easily and naturally began functioning
in place of the disestablished Plan Council was substantially similar in
structure to the organization which it succeeded. The articles of
association of the Agency made no provision for membership or for
membership dues. Every employee of the respondent at its Port
Arthur Works, except "those employees in an administrative capacity
37 This plan had already been announced by the respondent in a notice to employees dated July 31, 1937.
Briefly stated , it provided that employees be paid at their regular rates for working time spent in serving on
juries. Such pay had first been requested in June 1934 by the employee representatives to the Plan Council.
The request was renewed or discussed at subsequent Plan Council meetings during 1936 and 1937 on at
least six different occasions , but was rejected by the respondent . At its meeting of May 5, 1937 , the Plan
Council voted not to take the matter up again with the respondent 's New York office; and there is no evi-
dence that the question was thereafter raised by any employee representative.
THE TEXAS. COMPANY 1079
and department foremen and assistant department foremen, or any
others so designated from time to time by the council of elected
representatives," was eligible to participate in the Agency's activities.
Eligible employees -were to. elect representatives, who "shall constitute
the governing body" of the Agency, known as the Council. Officers
of the Agency were to be elected by the Council from among its
members. Election divisions were to be set up, as under the old Plan,
for the purpose of election of representatiy es. Eligibility for election
as Agency representatives was limited to employees of the respondent
employed in the election divisions from which elected, who were
citizens of the United States and who had at least 1 year's service
with the respondent immediately prior to the election. Any repre-
sentative leaving "the service of the Company or the election division"
was automatically to lose his status.38 Representatives were to re-
ceive complaints and grievances, present them to the proper manage-
ment representatives for adjustment, and, if they were not settled,
refer them to the Council "for consideration." The Council was
given almost unlimited power over the aff airs of the Agency.39
Amendments. to the articles of association had to be approved first
by a two-thirds vote of, all members of the Council, and -then by a
vote of the employees eligible to participate in the Agency's activities.
The respondent's minutes of the first joint conference of manage-
ment and Agency representatives on August 4, 1937, state in part
that Bennett "advised that Mr. Dodge has-agreed that the Manage-
ment representatives would meet with the Council whenever desired
by the Council, and stated that it was voted at last regular meeting
of the Council on July, 21st that the Management would be requested
to'meet with them on the first Wednesday of each month."40 After
ae Such restrictions upon eligibility to act as employee representatives have been held indicative of em-
ployer domination . N. L. R. B . v. Pacific Greyhound Lines, 303 U. S. 272 ; N. L. R. B . v. Pennsylvania
Greyhound Lines , 303 U . S. 261. See N. L . R. B. v. Newport News Shipbuilding & Dry Dock Co., 101 F.
(2d) 841, 850 (C. C. A. 4), mod. and aff 'd, 308 U . S. 241; Titan Metal Mfg . Co. v. N. L. R B., 106 F. (2d) 254,
262 (C. C. A. 3), cert . denied , 308 U. S. 615.
89 Article X contained the following provisions as to the powers of the Agency Council:
Section 11 . The Council shall have full power and authority for and on behalf of the Employees'
Collective Bargaining Agency to negotiate a written agreement with the Company providing a method
of discussitln , adjustment , and settling all matters with respect to wages , hours, or working conditions;
provided , however, that before executing such an agreement on behalf of the Employees ' Collective
Bargaining Agency, the Council shall submit by secret ballot on whether or not such agreement shall be
entered into and such agreement shall be so entered into when approved by a majority of the votes of
the employees participating in said voting.
Section 12 . The Council shall have authority , if any agreement is entered into with the Company in
accordance with the provisions of Section 11 of this article , to negotiate , settle, and agree with the Com-
pany with respect to any matter referred to.it by the representatives ; provided , however , the Council
shall have no power or authority to agree with the Company on any change in said agreement , or as to
any general change in wages, hours , or working conditions which affect the whole or a majority of the
members, until such proposed changes are approved by a majority of the votes of the employees par-
ticipating in said voting.
Section 13 . The Council shall have such other powers , duties and authorities as maybe necessary to
accomplish the purposes herein set forth.
40 This does not appear in the Council 's minutes of the first joint conference . On the question of regular
monthly meetings between management and Agency representatives , counsel for the Board and for the
respondent stipulated that "members . of the Agency Council have assumed that Respondent 's representa-
tives would meet with them regularly once a month and monthly meetings have been held."
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussion, "it was agreed that the Council would meet with. the
Management representatives the first Wednesday of each month at
12:30 P. M. at the West Side Cafeteria." '
Thereafter, and until the hearing herein, management and Agency
representatives met jointly once each month. The employee repre-
sentatives, continuing the practice established under the old Plan,
met with each other regularly once a month with the management
representatives not present. It is unnecessary to describe in detail
what took place at both these series of meetings. We are satisfied
from the minutes of these meetings that the Agency, in function, was
a replica of the Plan Council which it had supplanted. The joint
conferences of Agency and management representatives, like the
Plan Council meetings which they succeeded, did not serve as oppor-
tunities for genuine collective bargaining by the respondent with the
representatives of its employees. Under the Agency, as under the
Plan, the periodic meetings between management and employee
representatives were only a forum for the discussion of employee
grievances and for their disposition in accordance with the respond-
ent's views. Like the employee representatives to the old Plan
Council, the Agency representatives at their joint conferences with
management representatives usually approved or accepted the re-
spondent's decisions on problems and requests presented for consider-
ation.- ilvianagenient representatives continued their use of joint
conferences as opportunities to defend the respondent and its policies
toward its employees, to enlarge upon the respondent's generosity,
and to praise the Agency and its representatives and accomplishments.
Despite the respondent's constant praise and encouragement of the
Agency and the joint conferences, and perhaps in part because of the
complete lack of general employee participation in Agency activities,
interest in the Agency among the respondent's employees was small
and was more than once the topic of discussion at Agency Council
meetings. This lack of interest extended even to the employee
representatives themselves, many of whom did not attend their own
monthly discussion meetings.
At the Council meeting of March 23, 1938, it was suggested that a
general meeting of the respondent's employees he held. The minutes
of the meeting state that "it was the consensus of opinion that it
would be well to build up interest in the Council proper before at-
tempting a mass meeting such as that." At a later time, however, a
meeting of the Agency representatives was held, to which. each
representative invited and brought a group of fellow employees to
observe the Council at work.
41 As appears above , Bennett , on August 2, 1937 , notified his Council members that meetings with manage-
ment representatives would be held the first Wednesday of each month at 12 : 30 p. m ., though the question
was apparently not decided until the joint conference of August 4, 1937.
THE TEXAS COMPANY 1081
At the joint conference of management and Agency representatives
on June 8, 1938, an employee representative from the Port Arthur
Terminal did not hesitate to bring up for discussion a request which
had been made to him that a separate bargaining agency be organized
for the Terminal employees. This was obviously a matter of internal
structure which a bona fide labor organization would determine for
itself rather than present to a joint body of employer and employee
representatives, to determine. At Bennett's suggestion, the matter
was held over for discussion at a following meeting.
At the same conference of June 8, 1938, the respondent's works
manager, Dodge, read a letter dated May 18 from an anonymous
employee requesting that the respondent give its employees a bonus
rather than declare extra dividends for its stockholders. Dodge
defended the respondent's declaration of dividends to its stockholders,
stressed "the numerous benefits now being given to Texas Company
employes," and declared that employees ought to keep their shoulders
to the wheel instead of asking for more money.
At the joint conference held on September 14, 1938, one of the
Agency representatives, J. F. McElyea, "inquired as to who the
Management is supposed to bargain with when complaints are brought
up to them." McElyea explained that he ` raised the question be-
cause "at times it appears that when the Representatives bring up
items the Management turns around and checks with the foremen
and bargains with the foremen and not with the employes." Wallace,
in answer, explained that it was necessary to check with the foremen,
but that the management did not always adopt the foreman's point
of view. He "advised that if the Management feels that the com-
plaint is justified ruling is made in favor of the employes, and vice
versa." This explanation "met with the approval of the Council."
At the joint conference of April 12, 1939, there was extended dis-
cussion of a request for a. general increase in rates of pay for all em-
ployees at the Port Arthur Works. Dodge asked for a statement by
the Agency representatives present of the reasons upon which the
request for an increase was based. Several of the representatives
stated their reasons, which included an alleged increase in the cost of
living, higher rates paid by competitive refineries, and dissatisfaction
among the men. One of the representatives, H. E. Turner, stated
that the men in his department, the grease plant, felt that the Agency
"is not worth a damn," and that the C. I. 0: was worth more to them
than the Agency. In answer, Dodge "advised that a lot of good has
been accomplished by the Employes" Collective Bargaining Agency,"
and stated that he "was sorry to hear such a statement made as he
did not feel that this represented the men as a whole in the Grease
Plant or any other part of the plant." Dodge also pointed to several
improvements in working conditions which had been made by the
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent, and said, "This organization is responsible for that."
Another representative, J. S. Fuller, stated that the men in the labor-
atory felt "that if the Company would give a small general increase
in rate of pay it would have a good effect on the men and the men
would have more respect for the Council in thinking that the Council
was instrumental in getting them a general increase. [He] Pointed
out that such action would offset influence of outside organizations."
A third representative, D. R. Harrington, stated that some time before,
while trying to get the men in one department to elect a representative
to fill a vacancy, in the Agency Council," he was very much embar-
rassed by the lack of interest taken in the election and remarks made
by the men to the effect that the Council is good for obtaining repairs,
et cetera, to Company equipment but not very good in the way of
obtaining advantages for the men. Informed that he was interested
in the future of the Council and that he hoped it would be successful
in winning the respect of the employes by accomplishing worthwhile
things for them."
In response, finally, to a direct demand by Fuller for a definite
answer, Dodge rejected the request for a general increase.41 The
upshot of the extended discussion was it vote by.the Council that a
copy of the minutes of each Council meeting be given to every rep-
resentative, "so that the men can explain to the employes in the
plant just what goes on in the meetings, and to prove to the men that
the Representatives do attempt to accomplish things for their benefit."
In addition, Dodge promised that the respondent would furnish its
employees with understandable reports on its business and on the
benefits provided by it for its employees.
A little later in.the meeting one of the representatives, E. P. Letulle,
reported that he had been asked to request two additional ping-pong
tables for one of the locker rooms. The request was granted, and
"F. P. Dodge advised would give you everything you asked for in
reason but no general increase."
At a meeting of the Agency representatives on April 27, 1.939,
42 The Council ' s minutes of this joint conference indicate that Dodge, in the course of rejecting the request
for a general wage increase , made statements in part along the following lines:
The Management here is interested in the welfare of the employes, but as far as raises are required,
it will be done without action on anybody 's part . . . . The investment The Texas Company has for
employes' benefits , Vacation Plan, and other things make each employe $5.34 per week . In answer
to this general proposition of wage increase , I cannot, and I have not heard any reasons, conscientiously
make any i ecommendation for a general increase in wages. I would not make any change in our present
program . We felt that increases are warranted for individuals but business conditions will not warrant
a general increase , and that is borne out by a survey of general business conditions over the country.
I have already pointed out that you men are enjoying higher weekly , higher monthly , and higher annual
earnings than any other industrial workers in the country . You have this to take back to the boys.
In answer to the matter of the Grease Plant talk of outside influence . Did you know that during the year
1938, Factory Management , in January 1938, published these facts . In the year 1937 strikes over the country
lost to the employes , working men who were working , 1,861,000 employes walked out and they lost 38,000,000
days of work . Did labor disputes benefit the working man? I don 't think so. [Italics supplied.]
THE TEXAS COMPANY 1083
Bennett reported that the Union had filed a charge with. the Board
alleging company domination and control of the Agency, and that a
representative of the Board had questioned him. Later in the meet-
ing there was : "considerable discussion relative to Departmental
Clerks being so closely identified with the Management," and the
Council voted "that Departmental Clerks in the Maintenance &
Construction Division be eliminated from those eligible to participate
in the Council." This action by the Council barred nine men from
serving further as. Agency representatives.
At the joint conference held on June 14, 1939, after the 1939 elec-
tion of Agency representatives, "Mr. Dodge was called upon by Chair-
man Fuller to make any remarks he cared to and advised that he was
glad to see new members in the organization. Expressed the hope
that the Council will carry on through the year and obtain considerable
good from the meetings. Advised will be glad to cooperate all possible
with the Council."
From its inception, the Agency made free and continued use of
company facilities in carrying on its activities." The preliminary
meetings of the group which organized the Agency were held in the
main dining room of the respondent's Port Arthur refinery, though
without express permission from the management. Later meetings
until July 1939 were held on company property with the knowledge of,
but without express permission from, the management. The Agency
paid no rental for the use of these meeting places and did not reimburse
the respondent for any expense incurred by its because of such use.
Unknown to the respondent and without its permission, the Agency
at times used typewriters, stationery, hectographing machines, and
other facilities of the respondent for Agency purposes, and delivered
notices of Agency. meetings by attaching them to time cards of the
employees at the respondent's Gate Office and also by way of the plant
mailing system. It is stipulated that information with respect to
such use of company facilities first came to the respondent at a meeting
in May 1939 between its representatives and the Board's Regional
Director at Forth Worth, at which the Regional Director indicated
that continuation of. the Agency's use of company property for meet-
ings and of other company. facilities for its business would constitute
support by the, respondent of the Agency. While the respondent
questioned the Regional Director's views, it nevertheless instructed
the Agency early in July 1939 to hold no further meetings on company
property, to discontinue the use of company facilities, for Agency
business, and not to perform Agency work on company time. No
13 Some mention of this use of company facilities by the Agency has been made incidentally in the pre-
ceding discussion. However, we here group together, for the sake of clarity and convenience, all such in-
stances of Agency use of company facilities , with no intention of stressing , by repetition alone , any particular
instances.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings have since been held by the Agency on company property,
and Agency use of company facilities has been discontinued.44
The Agency has financed itself by donations obtained from the
respondent's employees. These donations have usually been approxi-
mately 25 cents per employee, and neither the respondent nor any
member of its managment has made any donations. Agency cam-
paigns for donations are conducted about once a year, and the total
amount thus collected up to the time of the hearing herein was
$232.25. Agency expenditures have amounted to $217.75.
In accordance with the Working Rules in effect at the various
refineries of the respondent, it has been the respondent's practice to
pay employees for time spent by them as the representatives of any
labor organization in attending meetings with management rep-
resentatives. Such payments have been made to representatives of
the Oil Workers International Union and of American Federation of
Labor unions, as well as to representatives of the Agency and other
"independent" labor organizations.
2. The respondent's contentions; conclusions as to the Agency
A substantial part of the record relates primarily not to the im-
mediate controversy involved in this proceeding but rather to the
respondent's general policy toward its employees and their labor
organizations and to the nature of the relationship between the
respondent and the Oil Workers International Union at plants other
than the Port Arthur refinery. The respondent, for example, empha-
sizes the extended conference between its representatives and rep-
resentatives of the International Union in Chicago during March 1936,
the Working Rules which were there formulated, and the adoption of
these Working Rules at all the respondent's refineries, including those
at which the Oil Workers International Union did not represent or
claim to represent the employees. Attention is also directed by the
respondent to a second extended conference between representatives of
the respondent and of the International Union in Chicago during May
1937, at which the Working Rules formulated the preceding year were
reviewed and revised, and to the series of consent elections conducted
shortly thereafter at six of the respondent's refineries at which the
International Union claimed to be 'the majority collective bargain-
ing representative. At the oral argument before the Board on
March 21, 1.940, counsel for the respondent again stressed "the general
picture of The Texas Company," the fairness of the respondent's
relations with the International Union, and its record of dealing with
labor organizations of its employees. He referred to the efforts the
'4 Some of the details as to the extent to which the Agency used company typewriters and hectographing
machines and the plant mailing system, etc., were stipulated at the hearing . Without repeating the details
so stipulated , we find that the Agency 's use of company property and facilities in furthering its formation
and the subsequent administration of its affairs was substantial.
THE TEXAS. COMPANY 1085
respondent had made "in informing the supervisory personnel of their
obligation. under the Wagner Act"; explained that the respondent has
a total of 30,000 employees, of whom 10,000 are in the refining depart-
ment; and pleaded "the difficulty of getting policies and principles
carried out by the men on the firing line." Finally, he urged the
evidence of the respondent's general policies and practices as a basis
for our drawing inferences and conclusions favorable to the respondent,
even if the record revealed circumstances and events tending to create
suspicion of violation of the Act by the respondent.
It is to be noted, on the other hand, that the respondent has already
thrice been found to have engaged in labor practices condemned by
the Act as unfair.45 Ignoring these prior findings, however,, and
restricting ourselves to a consideration of the facts in the present
record and of the conclusions reasonably to be drawn therefrom, we
are not convinced that the respondent's general labor policies and
practices have been such as to justify the position taken by the
respondent. For example, the Working Rules promulgated by the
respondent at its various refineries pursuant to the understandings
reached by the respondent and the International Union at the Chicago
conferences were only public statements by the respondent of the
terms and conditions under which its employees were to be employed
for a specified period of time. Though the respondent places sub-
stantial reliance upon the "negotiation" and promulgation of these
Working Rules as evidence of its good faith in treating with. representa-
tives of its employees and in observing the mandate of the Act, we
have held on more than one occasion that such unilateral declarations
of employment policy, as distinguished from bilaterial written agree-
ments mutually enforceable by the parties, fail to comply with one of
the major requirements of the Act. We make no finding that pro-
mulgation of these Working Rules by the respondent constituted all
unfair labor practice within the meaning of the Act, that issue not
being before us here, but we do believe and find that their promulgation
is not such evidence of bona fide collective bargaining as would serve
as a basis for construing otherwise ambiguous events in favor of the
respondent.
We rest our decision, however, neither upon the prior findings we
have made as to the respondent's violations of the Act nor upon any
present finding that the respondent's general labor policy and practice
have or have not been indicative of a genuine attempt by the respond-
ent to comply with the Act. We believe that the facts as to the
formation and administration of the Plan and of the Agency at the
4' Matter of The Texas Company and Oil Workers International Union, Locals Nos. 367 and 228, 17 N. L. It.
B. 843, enrd, The Texas Company v. N. L. R. B., 112 F. (2d) 744 (C. C. A.5); Matter of The Texas Company,
Marine Division and National Maritime Union, Port Arthur Branch, 19 N. I,. R. B., 835; Matter of Citirs
.9eroice Oil Company. The Pore Oil Company, and The Texas Company and National Maritime Union of
America, C. I. 0., 25 N. L. R. B. 36.
1086 DECISIONS Or, NATIONAL LABOR RELATIONS BOARD
respondent 's Port Arthur refinery speak without ambiguity , and that
these considerations of a general nature which the respondent urges
upon us. are therefore unimportant.41
In any event , the respondent 's alleged general policy and practice
did not extend to the employees at its Port Arthur refinery. It is
admitted that the respondent 's dealings with the International Union
were not at any time concerned with the respondent 's Port Arthur
employees . The Working Rules upon which the respondent places
so much emphasis were formulated at conferences in which no person
or labor organization purporting or authorized to speak for the Port
'Arthur employees participated . It is true that the Working Rules
were, after consideration and revision by the respondent's supervisory
personnel , presented to the Plan Council at the Port Arthur refinery
in April 1936 , and were there made effective as of May 1 , 1936, after
discussion and acceptance by the Council. But this consideration by
the Council of the proposed Working Rules was not collective bargain-
ing between the respondent and the freely chosen representatives of its
Port Arthur employees . As we have found above , the Plan and its
Council at the Port Arthur refinery were dominated and supported
by the respondent : The adoption of Working Rules, like other
important decisions of the Council , was proposed by the respondent,
was an integral part of the respondent 's management policies, and
was merely another example of the Council 's amenability to the
respondent 's wishes.47
It is stipulated that, for a period of approximately 2 months follow-
ing the Supreme Court decisions of April 12, 1937, there was a great
deal of public comment as to the legality of employee representation
plans and unaffiliated labor organizations ; that the employee repre-
sentation plans of some of the large employers in and near Port Arthur
were discontinued ; and that newspaper . articles to that effect , and also
. 4 Evidence of the manner in which the Port Arthur Plan Council was formed and administered prior to
the effective date of the Act is directly related to the question of the Plan Council's status under the Act
subsequent to July 5, 1935 . The antecedent events are not an extrinsic aid in the interpretation of subse-
quent events which might otherwise be ambiguous in meaning but an organic part of the history of a particu-
lar labor organization which existed both prior and subsequent to the passage of the Act . The relevance of
this evidence of antecedent events cannot be doubted ; its competence , though questioned , is now settled.
On the other hand, the competence of the respondent 's evidence as to its general policies and practices is
not questioned by us; we exclude it from our consideration solely because we regard it, under the present
circumstances, as irrelevant to a determination of this proceeding . The direct evidence bearing upon the
formation and administration of the Plan and the Agency at the respondent 's Port Arthur refinery is not in
our opinion ambiguous , and we therefore see neither the necessity nor the relevance of any extrinsic aid in
its Interpretation.
4' As the minutes of the Plan Council meeting of April 29 , 1936 , indicate , copies of the Working Rules were
distributed to the employee representatives in printed form and were then unanimously adopted by the
Council. In presenting the Working Rules, F. L. Wallace pointed out "that the Company is offering these
Working Rules to the men strictly through its own initiative and not as a result of any influence exerted by
any source whatsoever." This was obviously intended to dispel any impression the respondent's Port
Arthur employees might have had as to the part played by the International Union in obtaining the Work-
ing Rules from the respondent . By the same token, however , it effectively repudicated the inference which
the respondent now seeks to create , viz., that the Working Rules adopted at the Port Arthur refinery were
the product of genuine collective bargaining between representatives of the respondent and of its employees
at Port Arthur.
THE TEXAS COMPANY 1087
to the effect that employees were organizing labor organizations
affiliated with neither the C. I. O. nor the A. F. of L., came to the
attention of many of the respondent's Port Arthur employees. The
inference which the respondent apparently wishes to have drawn
from these stipulated facts is that the formation of the Agency was a
spontaneous movement on the part of its Port Arthur employees,
growing out of the Supreme Court decisions and the consequent wide-
spread and well-publicized tendency towards replacing invalid em-
ployee representation plans with "independent" labor organizations .41
We do not believe that such an inference is justified by,the present
record. The initiative in terminating the old Plan 'and in beginning
the formation of its successor was taken not by the employees but by
the respondent. In. April 1937, following the Supreme Court decisions,
the respondent held a meeting of its supervisory personnel obviously
for the purpose of determining its policy towards labor organizations
in the light of the constitutionality of the Act. At the May 1937
meeting of the Port Arthur Plan Council, it was Assistant General
Superintendent Wallace who raised the question of continuance,
modification, or termination of the Plan. He at that time indicated
his approval of the form of labor organization embodied in the Plan
and of the formation of another organization substantially in the image
of the Plan. At the June 1937 meeting of the Plan Council, after the
employee representatives had in the meantime taken action in accord-
ance with' the suggestions made by Wallace at the May meeting, the
Council again followed Wallace's advice and voted that the Plan be
kept alive until the new organization, which was already under way,
became "workable." On these facts, we cannot but find that the im-
petus to form the Agency did. not come spontaneously from the re-
spondent's employees acting as part of or even in imitation of a general
movement towards the formation of such unaffiliated labor organiza-
tions, but sprang rather from the suggestions and advice of an execu-
tive employee of the respondent whose actions reflected a general
policy deliberately fixed by the respondent. The impetus thus fur-
nished by therespondent resulted in employee action along lines made
easy and natural by the habits formed during some 4 years of oper-
ation of the Plan. It was reasonably foreseeable, under the circum-
stances then obtaining, that even the slightest encouragement or sug-
gestion by the respondent of the advisability of continuing the form
of organization embodied in the Plan would result in precisely the
kind of employee action which actually followed Wallace's remarks at
the May 1937 meeting of the Plan Council. The respondent may not
now disclaim all connection with that result.
4 In paragraph "37" of its answer, the respondent alleges "that it was this information, coupled with a
desire, purpose and determination not to become affiliated with a nationally organized labor organization,
that led Respondent's employees at its Port Arthur Refinery to organize the said Employees Collective
Bargaining Agency ..."
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reference has been made to an earlier decision in which we dis=
missed a complaint with respect to activities of the respondent at its
Galena Park refinery. The constitution of the Federation at the
Galena Park refinery provided for membership therein, for monthly
membership meetings, and for initiation fees and regular monthly dues.
Adoption of the Federation's constitution was preceded by extensive
discussion through the summer of 1937 and until the latter part of
September. Only one of the Federation's organizers and subse-
quently elected officers and executive council members was a former
representative to the Plan Council. Provision was made in the Feder-
ation's constitution for strike calls. Shortly after adoption. of its
permanent constitution, the Federation presented the respondent
with an elaborate proposed agreement recognizing the Federation as.
exclusive representative of all the respondent's .nonadministrative
employees, and requested a general wage. and. salary increase of 15
per cent. In structure and administration, the Federation differed
"substantially" from the Plan and, as we there found, "the few vestiges
carried over were not such that employees might reasonably, on that
premise alone, identify the two organizations as a direct line of
descent."
The facts in the present proceeding are sharply different. The
effort to replace the Port Arthur Plan Council with a similar organiza-
tion which would not have the Plan's obvious illegalities was initiated
and. suggested by a major supervisory employee of the .respondent.
To a substantial degree, Plan employee representatives composed both
the temporary organizing group and the subsequently selected officers
and representatives of the Agency.49 The Plan representatives
neither resigned their offices nor abandoned the Plan until after forma-
tion of the Agency was well under way. The leader and dominant
personality in the.formation of the Agency, C. Otho Bennett, regarded
it as essentially a continuation of the Plan Council, with only such
changes as would confer immunity from attack under the Act. This
conception of continuity was given concrete expression in the dupli-
cation of Plan and Agency personnel, in the structural similarity of
the Plan Council and the Agency joint conferences, and in the un-
interrupted assumption by the Agency of the Plan Council's activities.
40 The significance of such duplication of personnel was noted in International Association of Machinists v.
N. L. R. B ., 110 F . (2d) 29 (App. D . C.), enf ' g Matter of The Serrick Corporation and International Union,
United Automobile Workers of America , Local No . 459, 8 N. L. R. B. 621 , cert . granted, 311 U. S. 72 , in which
the Court of Appeals said:
Acme Welfare was acorn pany union. It follows necessarily that its leading promoters were company
representatives . Men accustomed to such submission seldom regain independence overnight. The
interval , if these was one, required for the transfer of allegiance by Byroad , Fouts , Shock and Bolander
from Acme Welfare and the company to I. A. M. was too brief for disruption of the old and basic loyalty.
The evidence supports the conclusion that it was not disrupted , but continued , though manifested in
less obvious but more effective form . All that they did, therefore , is imputable to the company.
THE TEXAS COMPANY 1089
The respondent, itself, made no effort to inform its employees of any
demarcation or difference between the Plan and the Agency, or of any
change in its established policy of dominating and supporting the
organization which purported to speak for the employees in their
dealings with the respondent.6' As in the case of the respondent's
determination of policy following the passage of the Act in July 1935,
its determination of policy following the Supreme Court decisions of
April 12, 1937, was accomplished without any notice to.the respond-
ent's employees either that such a determination was being made or
that it in any way affected the respondent's relationship with its
employees. Neither when the Act became law nor when it was sus-
tained by the Supreme Court did the respondent advise the general
body of its Port Arthur employees that the Plan was invalid, that the,
Council was therefore being disestablished, and that the employees
were free to form or join any labor organization without interference
by the respondent. In May 1937, the respondent's decision was con-
veyed only to the members of the Plan Council, which we have found
was controlled and dominated by the respondent. Even this state-
ment of the respondent's position was made in the most guarded
fashion and only in conjunction with fulsome praise of the Plan, and
hardly disguised advice as to the form of organization which should
replace the Plan.
The respondent's initiation of the movement to form the Agency
was followed by active participation of supervisory employees in the
enlistment of employee interest and the solicitation of financial contri-
butions, coupled with discouragement of activities on behalf of the
Union. In purpose, in personnel, in structure, and in operation the
Agency was essentially a continuation of the Plan and its Council.
The most dramatic evidence of this continuity is the manner in which
the first joint conference of Agency and management representatives
proceeded to consider and dispose of three items of unfinished business
carried over from the Plan Council. Inspired by the respondent,
aided by the use of company facilities, and molded by the habits of
thought and action formed by employees and their "representatives"
during the operation of the dominated Plan Council, the Agency
became in effect the same joint conference scheme for the handling
of grievances which had been the essence of the Plan. As we found
with respect to the Brotherhood at the respondent's Port Neches
plant, the Agency at the respondent's Port Arthur plant "was a direct
50 With respect to a similar situation , the court in Westinghouse Electric & Mfg . Co. v. N. L. R. B., 112
F. (2d) 657 ( C. C. A. 2), enf'g Matter of Westinghouse Electric & Manufacturing Company and United Electrical
Radio and Machine Workers of America , Local #410 , 18 N. L. R. B. 300, stressed the consideration that "the
employees at large had not been advised that the company was wholly indifferent whether they joined the
new union , and that , as it might , and probably did, appear to be a successor of the old, the separation should
have been made plain, and with it the discontinuance of any continued countenance from the employer."
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outgrowth if not a mere transformation of the Plan, bearing the
impress of the respondent's domination." 51
We : find that the respondent dominated and interfered with the
formation- and. administration of the Employees Collective Bargaining
Agency of The Texas Company, Port Arthur Works, and contributed
support to it, and that the respondent thereby interfered with,
restrained;' and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III
A and B above, occurring, in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to-'trade, traffic, and commerce among the several
States- and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices within the meaning of the Act, we shall order it to cease and
desist therefrom and to take certain affirmative action designed to
dissipate the effects of the unfair labor practices and thereby to
effectuate the policies of the Act.
!e See Afatter of The Texas Company and Oil Workers International Union, Locals Nos . 367 and 228, 17
N. L. R. B., 843, enPd, The Texas Co. v. N. L. R. B., 112 F. (2d) 744 (C. C. A. 5). Cf. Matter of Republic
Steel Corp. and Steel Workers Organizing Committee , 9 N. L. R. B. 219, enPd as mod., Republic Steel Corp. v.
N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), cert. granted , 309 U. S. 684; Matter of H. E. Fletcher Co. and Granite
Cutters' International Association of America, 5 N. L. R. B. 729, enf'd, N. L. R. B. v. H. E. Fletcher Co.,
108, F. (2d) 459 (C. C. A. 1), cert. denied, 309 U. S. 678; Matter of The Falk Corporation and Amalgamated
Association of Iron, Steel and Tin Workers of North America, Lodge 1528, 6 N. L. It. B. 654, enf'd, N. L. R. B.
v. The Falk Corp., 308 U. S. 453, rev'g 106 F. (2d) 454 (C. C. A. 7) and aff 'g 102 F . (2d) 383 (C. C. A. 7);
Matter of American Manufacturing Company ; Company Union of the American Manufacturing Company;
The Collective Bargaining Committee of the Brooklyn Plant of the American Manufacturing Company and
Textile Workers ' Organizing Committee , C. I. 0., 5 N. L. R. B. 443, enf'd as mod ., N. L. R. B. v. American
Mfg. Co., 106 F. (2d) 61 (C. C. A. 2), enfd as mod., 309 U . S. 629 ; Matter of Continental Oil Company and Oil
Workers International Union, 12 N. L. It. B. 789, enfd as mod., Continental Oil Co. v. N. L. R. B., 113 F. (2d)
473 (C. C. A. 10); Matter of Westinghouse Electric & Manufacturing Company and United Electrical, Radio
and Machine Workers of America, Local #410, 18 N. L. R. B. 300, enf'd, Westinghouse Electric & Mfg. Co. v.
N. L. R. B., 112 F. (2d) 657 (C. C. A. 2); Matter of Swift and Company, a corporation and Local No. 530,
United Packing House Workers Industrial Union, affiliated with the Committee for Industrial Organization,
11 N. L. It. B. 809; enf'd as mod., N. L. R. B. v. Swift & Co., 108 F. (2d) 988 (C. C. A. 7); Matter of Brown
Paper Mill Company , Inc., Monroe , Louisiana and International Brotherhood of Paper Workers, affiliated
with the American Federation of Labor, 12 N. L. R. B. 60, enfd N. L. R. B. v. Brown Paper Mill Co., 108 F.
(2d) 867 (C. C. A..5); Matter of Swift & Company , a corporation and Amalgamated Meat Cutters and Butcher
Workmen of North America, Local No. 641, and United Packing House Workers Local Industrial Union No.
300; 7 N.• L. R. B. 269, enfd as mod ., Swift & Co. v. N. L. R. B., 106 F . (2d) 87 (C. C. A. 10); Matter of
E. I. du Pont de Nemours & Company, Belle , W. Va. and District 50, Chemical Division, U. M. W. of A.,
affiliated with the Congress of Industrial Organizations , 24 N. L. It. B. 919; Matter of Phillips Petroleum Company
and Oil Workers International Union, Local No. 212, 23 N. L. It. B. 741; Matter of Continental Oil Company,
a corporation and Oil Workers International Union, Local No. 231, 22 N. L. R. B. 61; Matter of Firestone
Tire and Rubber Company of California and United Rubber Workers of America, Local 100 , 22 N. L. R. B.
580; Matter of The Colorado Fuel and Iron Corporation and International Union of Mine , Mill and Smelter
Workers, Local 442, 22 N. L. R. B. 184; Matter of Swift and Company and United Packing House Workers
Local Industrial Union No. 874 through the Packing House Workers Organizing Committee (C. I. 0.), 21 N.
L. R. B. 1169; Matter of The Baldwin Locomotive Works and Steel Workers Organizing Committee , 20 N. L.
R. B. 1100.
THE TEXAS COMPANY 1091
.We have found that the respondent dominated and interfered with
the formation and administration of the Plan and the Council at its
Port Arthur refinery. Since it appears from the record that operation
of the Plan and the Council was discontinued in 1937, we shall , refrain
from ordering their disestablishment as collective bargaining represent-
ative of the respondent's Port Arthur employees. However, in
accordance with out practice in such cases, we shall include in our
Order an appropriate cease and desist provision barring any resump-
tion or repetition of the unfair labor practices in which we have found
that the respondent engaged with respect to the Plan and the Council.
We have found that the respondent also dominated and inter-
fered with the formation and administration of the Agency and con-
tributed support to it. The continued existence of the Agency as a
collective bargaining representative, and the respondent's recognition
of the Agency as such a representative, would not only make it impos-
sible for the respondent's Port Arthur employees to exercise freely the
rights guaranteed to them by the Act, but would also tend to negate
the remedial effect of the cease and desist provisions of our `Order.
To free the respondent's Port Arthur employees of this obstacle to
their exercise of the rights guaranteed by the Act and to make the
remaining provisions of our Order effective, we shall order the respond-
ent to withdraw all recognition from the Agency as the representative
of any of the respondent's Port Arthur employees for the purposes of
collective bargaining, and to disestablish the Agency as such repre-
sentative.52
Upon the basis of the above findings of fact and upon the entire
record in the case; the Board makes the following:
CONCLUSIONS OF LAW
1. The Employe Representation Plan of The Texas Company and
its Council at the respondent's Port Arthur Works were a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
2. Oil Workers International Union, Locals No. 23 and 254, and
Employees Collective Bargaining Agency of The Texas Company,
Port Arthur Works, are labor organizations, within the meaning of
Section 2 (5) of the Act.
3. By dominating and interfering with the administration of Em-
ploye Representation Plan of The Texas Company and its Council, at
the respondent's Port Arthur Works subsequent to July. 5, 1935, and
59 N. L. R. B. v. Pennsylvania Greyhound Lines, 303 U. S. 261, rev 'g 91 F. (2d) 178 (C. C. A. 3) and enf g
Matter of Pennsylvania Greyhound Lines, Inc ., Greyhound Management Company, corporations and Local
Division No. 1063 of the Amalgamated Association of Street , Electric Railway and Motor Coach Employees of
'America , 1 N. L. R. B. 1; N. L. R. B. v. Pacific Greyhound Lines, 303 U. S. 272, rev'g in part 91 F. (2d) 458
(C. C. A. 9) and enf'g Matter of Pacific Greyhound Lines, Inc . and Brotherhood of Locomotive Firemen and
Enginemen , 2 N. L. R. B, 431; Newport News Shipbuilding & Dry Dock Co. v. N. L. R. B:, 308 U. S. 241,
rev'g in part 101 F. (2d) 841 (C. C. A. 4) and enf 'g Matter of Newport News Shipbuilding and Dry Dock Com-
pany and Industrial Union of Marine and Shipbuilding Workers of America, 8 N. L. R. B. 866.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by contributing support thereto, the respondent engaged in' ulifair
labor practices, within the meaning of Section 8 (2) of the Act.
4. By dominating and interfering with the formation and adminis-
tration„' of Employees Collective Bargaining Agency of The Texas
Company, Port Arthur Works, and by contributing support to it, the
respondent has engaged in. and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. ,
ORDER
Upon the basis of the above findings of fact and conclusions of law;
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ent, The Texas Company, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from:
(a) In any manner dominating or interfering with the administra-
tion of Employe Representation Plan of The Texas Company and
its Council at the respondent's Port Arthur Works, or the formation or
administration of any other labor organization of its employees, and
from contributing support to said Plan and Council, or to any, other
labor organization of its employees;
(b) In any manner dominating or interfering with the administra-
tion of Employees Collective Bargaining Agency of The Texas Com-
liany, Port Arthur Works, or the formation or administration of any
other labor organization of its employees, and from contributing
support to Employees Collective Bargaining Agency of The Texas
Company, Port Arthur Works, or to any other labor organization of
its employees;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Withdraw all recognition from Employees Collective Bargaining
Agency of The Texas Company, Port Arthur Works, as the representa-
tive of any of the respondent's employees at its Port Arthur refinery
THE TEXAS COMPANY 1093
for the purpose of dealing with the respondent concerning grievances,
labor disputes , wages, rates of pay, hours of employment , or conditions
of work, and completely disestablish Employees Collective Bargaining
Agency of The Texas Company, Port Arthur Works, as such repre-
sentative;
(b) Post immediately in conspicuous places at its Port Arthur
Works, and maintain for a period of at least sixty (60) consecutive
clays from the date of posting , notices to its employees stating: (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs I (a), (b), and (c) of this
Order; and (2) that the respondent will take the affirmative action set
forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Sixteenth Region in writing,
within ten ( 10) days from the date of this Order, what steps the
respondent has taken to comply therewith.
323429-42-70