Cactus Petroleum, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1961

134 N.L.R.B. 1254 (N.L.R.B. 1961)

1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent cease and desist therefrom and take certain affirmative action designed
to effectuate the policies of the Act.
As it has been found that the Respondent discriminated with regard to the hire
and tenure of employment of Mary Neiman in violation of Section 8 (a) (3) and (1)
of the Act, the Trial Examiner will recommend that the Respondent offer her im-
mediate and full reinstatement to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privileges . See The Chase
National Bank of the City of New York, San Juan, Puerto Rico, Branch , 65 NLRB
§27. It will be further recommended that the Respondent make the aforesaid em-
ployee whole for any lass of pay suffered by reason of the discrimination against
her. Loss of pay shall be based upon earnings which Neiman normally would
have earned from the date of the discrimination against her, to the date of her re-
instatement , less net earnings , computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v.
Seven -Up Bottling Company of Miami, Inc., 344 U.S. 344. It will also be recom-
mended that the Respondent preserve and , upon request , make available to the
Board payroll and other records to facilitate the computation of the backpay due.
As the unfair labor practices committed by Respondent involved discrimination
and are therefore of a character striking at the root of employee rights safeguarded
by the Act, it will be recommended that the Respondent cease and desist from
infringing in any manner upon the rights guaranteed in Section 7 of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local 1, American Bakery and Confectionery Workers' International Union;
AFL-CIO, is a labor organization within the meaning of the Act.
2 By discriminating in regard to the hire and tenure of employment of the em-
ployee named above in the section entitled "The Remedy ," thereby discouraging
membership in the Union, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) and (1) of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. The Respondent did not engage in the independent 8(a) (1) conduct as alleged
in the complaint.
(Recommendations omitted from publication.]
Cactus Petroleum , Inc. and International Union of Operating
Engineers , AFL-CIO, Local No . 351. Case No. 16-CA-1393.
December 14, 1961
DECISION AND ORDER
On November 18, 1960, Trial Examiner John F. Funke issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief, and-the Respondent filed -a brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
134 NLRB No 126.
CACTUS PETROLEUM, INC. 1255
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and, as it finds merit in some of the General Counsel's ex-
ceptions, adopts the findings, conclusions, and recommendations of the
Trial Examiner, only to the extent consistent herewith.
The Respondent is a carrier of petroleum and petroleum products,
having its principal place of business in Houston, Texas, and operating
a truck terminal in Spearman, Texas. The Union claims to repre-
sent the employees at the Spearman terminal, the only employees of
the Respondent here involved.
On July 1, 1960, McCarthy, the Union's business agent, came to the
Spearman terminal; told Curry, the dispatcher who was in charge
during the absence of the manager and assistant manager, that the
Union represented a majority of the employees; and demanded recog-
nition. Curry stated that he would give the message to Covington,
the ter'lninal manager, and, noted'McCar"thy's telephone number. On
July 2, 1960, Covington, who had received McCarthy's message, dis-
cussed the matter on the telephone with York, the president of the
Respondent, whose office was in Houston. Neither York nor Coving-
ton telephoned McCarthy.
On July 3, 1960, York visited the Spearman terminal and called a
meeting of the employees. There was discussion of prospects for new
business, improvement or elimination of undesirable runs, and a wage
cut which had recently been put into effect.' -
1 At the hearing and in the Intermediate Report, the Trial Examiner denied a motion
of the General Counsel to amend the complaint by adding an allegation that Smotherman,
assistant terminal manager, violated the Act ,by telling Brewer, a striker , that if Brewer
withdrew from the Union and went back to work he could have a job indefinitely He
denied the motion on the grounds that "The facts which constituted ground for the motion
to amend were , as the counsel for the General Counsel admitted , available during the
investigation . ." and ". . . the Trial Examiner did not believe the allegations so
material to the General Counsel's case as to warrant the adjournment of the hearing to
give Respondent sufficient time to amend its answer and prepare its defense" We find
that this motion was properly denied under the circumstances The Trial Examiner, how-
ever, both at the hearing and in the Intermediate Report, criticized certain administrative
practices of the General Counsel. We hereby dissociate ourselves from such criticism,
and do not adopt the Trial Examiner ' s remarks pertaining to the General Counsel's
administrative practices set forth under "Statement of the Case" and in footnote 2 of
the Intermediate Report.
2 During this meeting, Ross Rogers, one of the drivers who had signed a union card,
engaged in an argument with York concerning his rate of pay. The next day, Rogers
was dtscharged on York's instructions The Trial Examiner recommended dismissal of
the allegation of the complaint that this discharge violated Section 8(a) (3) of the -Act
Although Rogers had joined the Union a few days before his dismissal, there is nothing
in the record to indicate that the Respondent was aware of this On the contrary, the
record shows that York , angered by statements made by Rogers concerning his earnings,
discharged him the following day after York verified from his records that Rogers' state-
ments were untrue. We shall , therefore , dismiss this allegation of the complaint
We also agree with the Trial Examiner that the wage increases on or about July 3 were
given in the normal course of business . The shop had been housed in temporary quarters
for several months, and the men had been promised increases upon opening of the new
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having received no response to his July 1 request, McCarthy went
to Covington's home on July 4, 1960; told him that the Union repre-
sented a majority of the employees; and demanded recognition. Cov-
ington stated that he had no authority to recognize the Union but
would get in touch with York. McCarthy left with Covington a letter
addressed to the Respondent demanding recognition. Neither Coving-
ton nor York replied to McCarthy's oral or written demand for union
recognition.
McCarthy called Covington again on July 5, 1960, was told he was
talking on another telephone and would call back, but Covington did
not do so. - On July 6, 1960, McCarthy called York in Houston, re-
peated his claim to represent a majority of the employees, and de-
manded recognition. York stated that he would reply by mail.
On July 6, 1960, Smotherman, assistant manager of the terminal
asked Kilpatrick, an employee who had been a leader in the union
activity, whether Kilpatrick had considered talking to York, rather
than going with the Union ; Smotherman stated that the men did not
need a union because York was willing to discuss their problems with
them. Later that day, Smotherman told Ledford, another employee
who had also been active in the union campaign, that he, Smotherman,
had spoken to York and that York was willing to meet with the men
individually. On July 8,1960, Smotherman told Brewer, an employee
then on strike, that if he withdrew from the Union and went back to
work he could have a job indefinitely.
Sometime between July 1 and 6, 1960, 5 employees who had signed
union authorization cards withdrew such authorizations. As the
Union had originally obtained 23 cards, it had 18 on July 7, 1b60. The
Trial Examiner found that the appropriate unit consisted of 36
employees, and concluded that the Union did not have a majority after
the last withdrawal on the night of July 6, 1960, although it had a
majority at all pertinent times prior to that time.
Early on the morning of July 7, 1960, McCarthy and a committee
of the Respondent's employees met with Covington and demanded
recognition of the Union. Covington said he would have to speak to
York. When the committee returned several hours later, Covington
said that he had spoken to York, that York could not come to Spear-
man that day, and that Covington did not have authority to recognize
the Union. McCarthy threatened that the men would go on strike.
When Covington continued his refusal to recognize the Union, the
strike was called that day.
facilities. The raises were given to those who were entitled to them, and there is nothing
in the record to show that union membership was a factor. We shall, accordingly, dismiss
the allegations of the complaint as to this matter
s The Respondent contends that Smotherman is not a supervisor The Trial Examiner
found that Smotherman exercises supervisory authority, including the making of effective
recommendations as to hiring of job applicants. We agree, and find, that Smotherman is
a supervisor within the meaning of the Act
CACTUS PETROLEUM, INC. 1257
On July 8, 1960, York sent a letter from his Houston office to
McCarthy's union office at Borger, Texas, in which York stated :
As I told you on the telephone, I am not very familiar with mat-
ters of this kind, but after talking to several of the people in my
organization, I have come to the conclusion that most of the
men working for Cactus are not-interested in a Union, and I' do
not want to be in a position of forcing them into a Union against
their will, but I can certainly assure you that if any Cactus man
desires to join a Union, I will not hold it against him.
The strike continued until July 11, 1960, when a group of strikers
went to Covington's office and offered to return to work. The parties
stipulated' that Covington told them that their failure to come to
work constituted a "quit," and he had no authority to return a man
to a job that he had quit. The strikers insisted they had not quit but
had been on strike. After some discussion, Covington declared, "Well,
if you have got to hear me say it, you are fired." Subsequently, sev-
eral- strikers made individual offers to return to work. No strikers
have been reinstated.
I. THE REFUSAL TO BARGAIN
A. The appropriate unit
We find, in agreement with the Trial Examiner, that the following
employees constitute an appropriate unit for the purposes of collective
bargaining herein within the meaning of Section 9 (b) of the Act :
All truckdrivers, shop employees, and fieldmen employed at the Re-
spondent's Spearman, Texas, plant, excluding office clerical employees,
guards, and supervisors as defined in the Act.
The Trial Examiner further found that from July 4 to 7, 1960, the
appropriate unit consisted of 36 employees, including 2 driver-
dispatchers, Curry and Harper, whom he found not to be supervisors.
In view of our findings below as to the Union's majority, we find it
unnecessary to determine whether Harper or Curry had supervisory
status.
B. Representation of a majority in the appropriate unit
We agree with the Trial Examiner that the Union made an effective
demand for recognition on July 4 when McCarthy informed Coving-
ton of the Union's claim to represent a majority of the employees,
and left the letter addressed to the Respondent. We also agree that
the Union did, in fact, represent a majority on that day. We find,
moreover, that the Union was the majority representative at all rele-
vant times thereafter. We do not agree with the Trial Examiner that
the refusal to recognize the Union occurred on July 7, when Covington
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told the union committee that York was unable to come to Spearman,
and that the Union had, by then, lost its majority without "encour-
agement on the part of any representative of management." As we
find below that the Respondent engaged in unlawful conduct on and
after July 4, and as four of the five effective withdrawals found by
the Trial Examiner took place after July 4, any loss of majority is
attributable to the Respondent's unfair labor practices 4 Accordingly,
we find that the Union represented a majority of employees in the
unit found appropriate on July 4, 1960, and at all relevant times
thereafter.
C. Refusal to bargain
Between July 4 and 7, the Union demanded recognition at least
four times, only to have the Respondent ignore its demands or post-
pone making any response. On none of these occasions did the Re-
spondent question that the Union represented a majority. Instead,
while it delayed giving the Union an answer, the Respondent inter-
fered with its employees' efforts to achieve collective bargaining by
telling Kilpatrick and Ledford before the strike that the men did not
need a union and that York was willing to talk to them individually,
and, after the employees had gone on strike, by promising Brewer
a job for an indefinite period if he would withdraw from the Union
and abandon the strike.
It was not until July 8, a day after the strike began, that the Re-
spondent sent the Union a letter rejecting its bargaining demand,
implying doubt of the Union's majority, and indicating that such
doubt arose "after talking to several of the people in my organiza-
tion." When asked at the hearing to state to whom he had- talked
concerning this matter, York testified that he had talked to two of
the Respondent's vice presidents and to its treasurer, none of whom
had offices in Spearman.
Failure to respond to a union's bargaining request may be justified
by an employer on the ground that it had a good-faith doubt as to
the union's majority and needed time to determine whether the union
represented a majority of the employees. In order to determine the
validity of a claim of good faith, however, the Board looks to the em-
ployer's entire course of conduct. An employer who fails without
good reason, as here, to respond to the several successive bargaining
requests of a union which represents a majority of its employees, and
embarks, instead, on a course of improper conduct which is either
calculated to or tends to destroy that majority, does not demonstrate
the good faith required to justify its failure to bargain.'
s Kickert Brothers Ford, Inc, 129 NLRB 1316, 1321
5Joy Silk Mills , Inc., 85 NLRB 1263, enfd 185 F 2d 732 (CAD.C.), cert denied
341 U S 914.
CACTUS PETROLEUM, INC. 1259
Nor do we agree with the Trial Examiner's conclusion that York
was entitled to wait until the Union obtained a Board determination
of the question concerning representation. The Trial Examiner based
this conclusion on the Union's letter of July 4 to,the Respondent and
the telephone conversation which McCarthy had with York on July 6.
The letter stated :
I take this means of notifying you that your nonsupervisory
employees of the Cactus Petroleum, Inc., in and around Spear-
man have affiliated with this Local Union and the International
Union of Operating Engineers, AFL-CIO.
I am requesting your recognition of said organization for the
purpose of collective bargaining within the meaning of the Na-
tional Labor Relations Act.
If such recognition is refused, I shall petition the National
Labor Relations Board for an election and certification thru
that agency.
We find that this letter constituted a clear and unequivocal claim to
represent the employees and an unconditional request for recognition,
and that the statement concerning a Board petition merely indicates
what action the Union would take if recognition was refused.° This
situation is distinguishable from cases where a union lists alterna-
tive methods of determining whether it represents a majority, one of
which is the filing of a Board petition, and the employer chooses
this alternative 7
Concerning the telephone conversation with McCarthy on July 6,`
York testified, "He told me that he had a sufficient number of the em-
ployees at the Spearman terminal to constitute a majority and that he
wanted to know if he could represent them." York also testified, "Mr.
McCarthy and I had a nice conversation. . . . I thought it was under-
stood I was going to take it to the National Labor Board." Mc-
Carthy testified in regard to the same conversation, ". . . he [York]
said something about, `Why don't we send a petition to the Board,'
and I said, `I am in the process of doing that, sir.' "
We do not think that the conversation, as testified to by either York
or McCarthy, supports the finding of the Trial Examiner that the
Union abandoned its claim of majority representation and its uncon-
ditional demand for recognition, substituting in their place a proposal
for a Board election. It is noteworthy that York's alleged under-
standing that he was to file a petition was never followed up, and
neither Covington's statements to the employee committee on July 7
nor the Respondent's letter of July 8 unequivocally refusing to recog-
nize the Union mentioned reliance on a Board election as a reason
B Rural Electric Company, Inc., 130 NLRB 799.
7 S. Frederick Sansone Co., d/b/a S. Frederick Sansone Co., 127 NLRB 1301.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for such refusal. We find, instead, on the basis of the totality of the
Respondent's conduct, that it ignored the Union's several requests for
recognition and refused to grant recognition, not because it doubted
the Union's majority or was awaiting a Board election, but because
it was seeking time to undermine the Union's majority status, and
thus acted in bad faith .8
Accordingly, we find 'that the Respondent, on and after July 4,
1960, refused to bargain in good faith with the Union as the repre-
sentative of its employees in an appropriate unit, and thereby vio-
lated Section 8(a) (5) and (1) of the Act.
II. DISCRIMINATORY DISCHARGE AND REFUSAL TO REINSTATE STRIKERS
The Trial Examiner found that the strike, which began on July 7,
1960, was for the purpose of gaining recognition of a minority union,
that such a strike is unprotected activity, and, therefore, that the dis-
charge of the strikers did not violate the Act. We have found, how-
ever, that the Union was the majority representative when it de-
-manded- recognition, and that the Respondent unlawfully refused to
bargain with the Union on July 4, 1960, and thereafter. We further
find that the strike was caused by the Respondent's unlawful refusal
to bargain, and hence it was an unfair labor practice strike. The
strikers were, therefore, entitled to reinstatement upon their uncon-
ditional application, regardless of whether they had been replaced.'
Nor could the Respondent lawfully discharge them for their failure
to appear for work during the strike.10
A group of strikers applied for reinstatement on July 11, 1960.
Their applications were rejected, and, in fact, Covington told them,
when they denied his assertion that they had quit their jobs, "Well, if
you have got to hear me say it, you are fired." Subsequently, five
strikers•made,individual applications for reinstatement. None of the
strikers have been reinstated. The Trial Examiner found that the
Respondent was justified in rejecting these applications on the ground
that : ". . . it was understood that the [strikers'] offer was condi-
tioned upon reinstatement of all the strikers. They were unwilling to
accept employment on individual basis despite the fact that some of
them, at least, had been replaced." But the record shows that both
the group and individual applications for reinstatement were made in
unconditional terms, and, as unfair labor practice strikers, they were
entitled to reinstatement upon their unconditional application, with-
out regard to whether they had been replaced. Although, as stated,
the requests for reinstatement were unconditional, there is testimony
in the record that some of the strikers would not have returned to
8 Porter County Farm Bureau Co-operative Association, Incorporated, 133 NLRB 1019.
9 Fitzgerald Mills Corporation, 133 NLRB 877.
10Ekco Pioducts Company ( Sta-Brite Division ), 117 NLRB 137, 145.
CACTUS PETROLEUM, INC. 1261
work unless all of them were reinstated. It is well established, how-
ever, that applications for reinstatement by unfair labor practice
strikers are not made conditional merely by insistence that all be given
their jobs back or none would return."
The Respondent discharged and refused to reinstate, these em-
ployees because of their participation in the strike and adherence to
the Union. We find, therefore, that such conduct of the Respondent
on and after July 11, 1960, violated Section 8(a) (3) and (1) of the
Act.
III. INTERFERENCE, RESTRAINT, AND COERCION
The Trial Examiner found that Smotherman's conversation with
Kilpatrick was improper, "Viewed either as a solicitation to Kil-
patrick to withdraw from the Union or an effort to bypass the Union
and deal directly with the men...." He concluded, however,, that,
the Respondent did not thereby violate Section 8 (a) (1) because this
incident was isolated from any other improper conduct. He also
found no violation in Smotherman's conversation with Ledford on the
ground that, although Smotherman stated that York would be willing
to meet with the men individually, he made no promise of benefit for
withdrawal from the Union.
We find merit in the General Counsel's exceptions to these findings.
As these conversations occurred in a context of the Respondent's un-
lawful refusal to recognize the majority representative of its em-
ployees, its unlawful discharge of, and refusal to reinstate, unfair
labor practice strikers upon application, and its offer to Brewer of a
job contingent upon his withdrawal from the Union,12 it is clear that
such conduct was not isolated. We find, therefore, that, by Smother-
man's remarks to Kilpatrick and to Ledford, the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7, and thereby independently violated
Section 8 (a) (1) of the Act.13
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in con-
nection with its operations described in the Intermediate Report,
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.
u Fred Snow, et al. d/b/a Snow & Son, 134 NLRB 709; Rice Lake Creamery Company,
131 NLRB 1270; National Gas Company, 99 NLRB 273 , 285; Draper Corporation, 52
NLRB 1477, 1479-1480, revised on other grounds 145 F. 2d 199 (CA 4) ; Rapid Roller
Co, 33 NLRB 557, 586.
12 As pointed out in footnote 1, supra, this Smotherman-Brewer conversation is not in-
cluded in the allegations of the complaint , but, as the matter was fully litigated at the
hearing, we have considered it, not as an independent violation of the Act, but as part of
the Respondent 's coarse of conduct in discouraging its employees ' union activities
12 Porter County Farm Bureau Co-operative Association, Incorporated, 133 NLRB 1019.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor
practices, we'shall order it to cease and desist thereform and to take
certain affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent, on July 4, 1960, and thereafter,
violated Section 8(a) (5) and (1) of the Act by refusing to bargain
collectively with the Union as the exclusive representative of the em-
ployees in the appropriate unit, we shall order the Respondent, upon
request, to bargain collectively with the Union as such representative,
and, in the event an understanding is reached, embody such under-
standing in a signed agreement.
Having found further that the Respondent discriminated in regard
to,the hire and tenure of employment of its employees who engaged
in an unfair labor practice strike, we shall order it to (1) offer to the
striking employees, named in the list attached hereto marked "Ap-
pendix A," immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
or other rights and privileges, dismissing, if necessary, any replace-
ments hired since the strike began on July 7, 1960, and (2) make these
striking employees whole for any loss of pay they may have suffered
by reason of the discrimination against them by paying to each of
them a sum of money equal to that which he normally would have
earned during the period, from the date of the Respondent's dis-
criminatory discharge or refusal to reinstate, to the date of, the Re-
spondent's offer of reinstatement, less his net earnings during that pe-
riod. The amount of backpay due shall be computed according to the
Board policy set forth in F. W. Woolworth Company, 90 NLRB 289.
Payroll and other records in possession of the Respondent are to be
made available to the Board, or its agent, to assist in such computa-
tion. Because the Trial Examiner recommended dismissal of the com-
plaint, and in accordance with Board practice, we shall exclude the
period from the date of the Intermediate Report to the date of the
Order herein in computing the amount of backpay due.
Having found that the Respondent independently violated Section
8(a) (1) of the Act, we shall order the Respondent to cease and desist
from such conduct. As we are convinced that the Respondent's unlaw-
ful conduct goes to the very heart of the Act, and that it may be an-
ticipated from such conduct that the Respondent may commit other
violations of the Act in the future, we shall issue a broad cease-and-
desist order.14
1' N.L R B. v. Entwi8tle Mfg Co , 120 F. 2d 532, 536 (C.A. 4) ; N.L.R.B. v. Central
Mercedita , Inc, 288 F. 2d 809 , 812 (C.A. 1).
CACTUS PETROLEUM, INC. 1263
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, AFL-CIO, Lo-
cal No. 351, is a labor organization within the meaning of Section 2 (5)
of the Act.
2. Since July 1, 1960, said labor organization has been the exclusive
representative of all the employees of the Respondent in an appro-
priate unit.
3. By refusing to bargain collectively with the aforesaid labor or-
ganization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (5) and (1) of the
Act.
4. By discriminatorily discharging and refusing to reinstate cer-
tain of its employees, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3) and
(1) 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 Re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (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 entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cactus Petroleum,
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with respect to rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployment, with International Union of Operating Engineers, AFL-
CIO, Local No. 351, as the exclusive representative of its employees
in the following appropriate unit : All truckdrivers, shop employees,
and fieldmen employed at the Respondent's Spearman, Texas, plant,
excluding office clerical employees, guards, and supervisors as defined
in the Act.
(b) Discouraging membership in, or adherence to, International
Union of Operating Engineers, AFL-CIO, Local No. 351, or any other
labor organization of its employees, by discriminatorily discharging,
or by failing or refusing to reinstate, any of its employees or by dis-
criminating in any other manner in regard to their hire or tenure of
employment or any term or condition of employment.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Soliciting or encouraging its employees to withdraw from the
above-named Union, or any other labor organization; offering to deal
directly with the employees in disregard of the employees' duly chosen
bargaining representative; or in any other manner interfering with,
restraining, or coercing employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist the above-
named Union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any or all such
activities.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Upon request, bargain collectively with International Union
of Operating Engineers, AFL-CIO, Local No. 351, as the exclusive
representative of all employees in the above-described unit with re-
spect to rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Offer to the employees named in Appendix A attached hereto
immediate and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any loss of
pay he,may have suffered as a result of the discrimination against
him, in the manner set forth above in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of backpay
due and the rights of reinstatement under the terms of this Order.
(d) Post at its plant in Spearman, Texas, copies of the notice
attached hereto marked "Appendix B." 15 Copies of said notice, to
be furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that such notices are not
altered, defaced, or covered by any other material.
151n - the event that this Order is enforced by a decree of a United States Court' of
Appeals, there shall be substituted for,the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
CACTUS PETROLEUM, INC. 1265
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the allegations of the complaint based
upon the discharge of Ross Rogers on or about July 4, 1960, and
upon the wage increase given shop employees on or about July 3,
1960, be, and they -hereby are, dismissed.
C. A. Brewer
Herman A. Byrd
Preston H. Byrd
James J. Davis
Spencer M. Hogan
Robert L. Kilpatrick
B. H. Kinslow
APPENDIX A
A. J. Ledford
James Lermon
Albert O. Phelps
Dowan Summers
Jerry T. Swink
Bill Tweedy
Willie L. Wilkerson
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with International
Union of Operating Engineers, AFL-CIO, Local No. 351, as the
exclusive representative of the employees comprising the appro-
priate unit described below.
WE WILL NOT discourage membership in, or adherence to, In-
ternational Union of Operating Engineers, AFL-CIO, Local
No. 351, or any other labor organization of our employees, by
discriminatorily discharging or failing to reinstate any of our
employees or by discriminating in any other manner in regard to
their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT solicit or encourage our employees to withdraw
from International Union of Operating Engineers, AFL-CIO,
Local No. 351, or any other labor organization of our employees;
or offer to deal directly with our employees, in disregard of the
employees' duly chosen bargaining representative; or in any
other manner interfere with, restrain, or coerce them in the exer-
cise of the right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union or any other labor
organization, to bargain collectively through representatives of
630849-62-vol. 134-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and to refrain from any or all of such activities.
WE wILL, upon request, bargain collectively with the above-
named Union, as the exclusive representative of all our employ-
ees in the appropriate unit described below, with respect to rates
of pay, wages, hours of employment, and other conditions of em-
ployment, and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All truckdrivers, shop employees, and fieldmen employed at the
Respondent's Spearman, Texas, plant, excluding office clerical
employees, guards, and supervisors as defined in the Act.
WE WILL offer to the following-named employees immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges previously enjoyed, and we will make each of them
whole for any loss of pay he may have suffered by reason of our
discrimination against him :
C. A. Brewer A. J. Ledford
Herman A. Byrd James Lermon
Preston H. Byrd Albert 0. Phelps
James J. Davis Dowan Summers
Spencer M. Hogan Jerry T. Swink
Robert L. Kilpatrick Bill Tweedy .
B. H. Kinslow Willie L. Wilkerson
All our employees- are free to become or remain, or to refrain from
becoming or remaining, members of the above-named Union or any
other labor organization. 'We will not discriminate against any em-
ployees because of membership in or activity on behalf of any labor
organization or because of refraining from such membership or
activity.
CACTUS PETROLEUM, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner at Spearman, Texas, on September 27, 28, 29, and 30, upon the
complaint of the General Counsel and the answer of Cactus Petroleum, Inc ., herein
called the Respondent.
The complaint , as amended , alleged that on or about July 1, 1960 , and at all
times thereafter the Respondent refused to bargain in good faith with the Interna-
tional Union of Operating Engineers, AFL-CIO, Local No. 351, herein called Local
351 or the Union, in volation of Section 8(a) (5) of the Act; that on or about July 4,
CACTUS PETROLEUM, INC. 1267
1960 , Respondent discharged Ross Rogers in violation of Section 8(a)(1) and (3)
of the Act; that on or about July 11, 1960 , Respondent discharged and refused
to reinstate the employees named in paragraph 14 of the complaint because they
had become members of the Union and had engaged in a strike, thereby violating
Section 8(a)(3) and ( 1) of the Act; that on or about July 3 , 1960, Respondent
promised wage increases to its employees and bargained unilaterally with its em-
ployees in violation of Section 8(a)(1) and ( 5) of the Act ; and that on or about
July 6 , 1960, Respondent promised employees it would bargain with them individu-
ally in violation of Section 8(a) (1) of the Act.
Respondent 's amended answer was a general denial.
During the hearing the General Counsel moved to amend his complaint to add
paragraph 10-a alleging:
Respondent by and through its officer and agent , to wit : B. M. Smotherman,
and on or about about July 8, 1960, threatened that employees would be fired
from their job if they did not resign from the union:
and to add paragraph 10-b alleging:
Respondent through its officer and agent , B. M. Smotherman , on or about July 8
promised employees that if they returned to work the would have a job
immediately.
The motion to amend was denied by the Trial Examiner on the ground that, as
a matter of discretion , the Trial Examiner did not believe the allegations so mate-
rial to the General Counsel 's case as to warrant the adjournment of the hearing
to give Respondent sufficient time to amend its answer and prepare its defense.'
The facts which constituted ground for the motion to amend were, as the counsel
for the General Counsel admitted , available during the investigation but were not
discovered due to current administrative requirements in the office of the General
Counsel . 2 The counsel for the General Counsel was advised of his right to take
special appeal to the Board from the Trial Examiner 's ruling.
The parties waived oral argument . A brief was received from the Respondent
on November 4.
Upon the entire record, and from my observations of the witnesses , I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
Respondent is a Texas corporation having its principal place of business at
Houston , Texas. Respondent operates a place of business at Spearman , Texas,
known as the Spearman terminal. At the Spearman terminal Respondent operates
as a carrier of petroleum and petroleum products . During the past 12-month
period Respondent purchased petroleum valued in excess of $50 ,000 shipped to
Spearman from points outside the State of Texas. During the same period Respond-
ent sold and shipped to various companies , including Phillips Petroleum Company,
petroleum valued in excess of $50,000. Said companies , including Phillips, each
and severally did business valued in excess of $50 ,000 outside the State of Texas
during the same period.
I The Trial Examiner was motivated in part by the distances involved in travel by
the parties . Respondent 's president and both its counsel had come from Houston, Texas,
and the counsel for the General Counsel had come from Fort Worth , Texas Substantial
expense would necessarily have been incurred by adjournment . ( The amendment related
to a single conversation between Smotberman and a driver, C. A. Brewer , discussed infra).
2 The following colloquy took place before the motion was denied:
By Mr. CRAWFORD : Your Honor, for the record I would like to explain why this
amendment is made. The counsel for the General Counsel has been unable to inter-
view the witness on the stand until the hearing closed yesterday afternoon. A num-
ber of attempts had been made to reach him . This witness had moved and-
By the TRIAL EXAMINER : Isn't that due in part to the requirement that the General
Counsel must complete his investigation within 30 days?
By Mr. CRAWFORD : Yes, sir.
The rights of respondents under Section 5(a) of the Administrative Procedure Act and
under Sections 102.20 and 102.23 of the Board 's Rules and Regulations cannot be ad-
versely affected by administrative practices of the office of the General Counsel . In mak-
ing his ruling the Trial Examiner intended no criticism of the generally excellent trial
and preparation of the case by counsel for the General Counsel.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent concedes and I find it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers , AFL-CIO, Local No. 351, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The facts
1. The demand and refusal to bargain
L. V. McCarthy, business agent of Local 351, testified that on June 29, 1960, he
was requested by an employee of the Company named B. H. Kinslow to discuss
union organization with the Company's employees at the Spearman terminal. On
that day he and J. W. Rigdon, an International representative, met with a
group of employees at a cafe in Spearman. Authorization cards were distributed
to the employees who attended and 23 cards were signed and returned on that day
or on the immediately following days.3
On July 1, McCarthy and Rigdon went to the Company's office at Spearman,
asked for the terminal manager, and were told by Dispatcher Kenneth Curry that
both the manager and assistant manager were out of town. Curry stated that he
was in charge during their absence. McCarthy then introduced Rigdon and himself
as representatives of the Union, stated the Union represented a majority of the
Company's employees, and demanded recognition. Curry, according to McCarthy,
said he knew about the Union but would have to reach Covington, the terminal
manager. McCarthy then gave Curry his name and telephone number for Coving-
ton to call and left with Rigdon.
Covington did not call McCarthy but on July 4, McCarthy received a call from
Kilpatrick, an employee, stating that there had been a safety meeting called by Re-
spondent's president, W. D. York, on July 3 and that on July 4 an employee named
Ross Rogers had been fired. McCarthy then returned to Spearman with Heneger,
president of Local 351, and saw Covington at his home. He told Covington that
the Union represented a majority of the employees and again demanded recognition.
When Covington said he would have to call York in Houston McCarthy gave him
a letter 4 reading as follows:
1960JULY 1 .,
(r) Mr. Aubrey Covington.
CACTUS PETROLEUM INC.,
Spearman, Texas
(Att: Mr. W. D. York).
DEAR SIR: I take this means of notifying you that your nonsupervisory em-
ployees of the Cactus Petroleum Inc. in and around Spearman have affiliated
with this Local Union and the International Union of Operating Engineers,
AFL-CIO. I am requesting your recognition of said organization for the
purpose of collective bargaining within the meaning of the National Labor
Relations Act.
If such recognition is refused, I shall petition the National Labor Relations
Board for a election and certification thru that agency. In the meantime we
shall look upon any change in policy toward employees or change in employee
personnel from the stand point of whether or not such changes may be made
for the purpose of intimidating, coercing, or otherwise influencing the em-
ployees in their choice or determination to bargain collectively.
Trusting that I shall hear from you at your earliest convenience, I am,
Yours truly, [s] L. V. McCarthy,
L. V. MCCARTHY,
Business Representative.
Again McCarthy left with the expectation that he would hear from Covington
and again he did not hear. He then called Covington on either the 5th or 6th and
finally called York at Houston. On the basis of testimony which is substantially
O General Counsel's Exhibits Nos. 5-8 and 10-28. Although some of the cards were
undated I find from the testimony of the witnesses, fixing the time in relation to other
events, that all were signed and returned prior to July 7.
1 General Counsel's Exhibit No. 2.
CACTUS PETROLEUM, INC. 1269
without contradiction I find that in this conversation McCarthy repeated his claim
of majority status and his demand for recognition and was advised by York that he
would receive an answer from York by mail.
On the 6th McCarthy also had a meeting with Respondent's employees, who
formed a committee consisting of Kilpatrick, Kinslow, and Ledford, to meet with
Covington the next day to demand recognition under threat of strike.5 A meeting
was held early the next morning (14 employees attended) and the committee, with
McCarthy, went to see Covington. Again McCarthy demanded recognition and
again, after discussion of the Rogers' discharge, Covington said he would have to
call York and asked the men to return at 9 o'clock.
When the committee returned they were told by Covington that York was busy,
and could not come to Spearman. Covington stated that he could not recognize
the Union but that he could listen to their complaints. Whatever discussion took
place was inconclusive and McCarthy stated that unless an understanding was
reached the men would strike. The committee returned to the meeting place and
the men struck.
On the basis of the foregoing testimony, which I credit, I find that the Union
made a demand for recognition and bargaining status on July 4 by the delivery of
its letter to Covington and its oral request for recognition, that the request was re-
peated in the telephone conversation between McCarthy and York, that it was re-
peated again in the meetings at Covington's office on the morning of July 7, and that
the -demand was refused on that day.6
2. The unit and the Union's majority
I find, and the Company proposed no alternative unit at the hearing, that all
truckdrivers, shop employees, and fieldmen employed at Respondent's Spearman
terminal, excluding clerical employees and supervisors, constituted a unit appropri-
ate for the purposes of collective bargaining.
The parties agree that Respondent's Exhibit No. 3 accurately represents the em-
ployment rolls at Spearman terminal July 4 through 7. The parties agree that A. M.
Covington, terminal manager, and Don Bellomy, shop foreman, are supervsiors
within the meaning of the Act. There is disagreement as to the supervisory status
of Kenneth Curry and Carroll Harper, dispatcher-drivers, Joe Harmond, gauger-
driver, and B. M. Smotherman, chief gauger. (The designations are the Com-
pany's.) The General Counsel would exclude all of these employees, the Respond-
ent would include them.
On the testimony of .the General Counsel's own witness I find that the dispatchers
had no authority to hire or fire and no authority effectively to recommend such
action and that the direction and control which they exercised over the drivers were
purely routine and required meager employment of judgment or discretion?
On the uncontradicted testimony of Harmond, I find that he was field gauger
who acted as dispatcher when so needed and that he at no time exercised super-
visory authority.
I find Smotherman to be a supervisor within the meaning of the Act. This find-
ing is based on a combination of factors and reliance is placed on no single one of
them. Foremost is the fact that except for Smotherman there is no intermediate
supervisory authority between Covington and the 23 drivers, 2 dispatchers, and the
gauger-driver. Smotherman, like Bellomy, the shop foreman, and Wilde, the office
manager, was paid a salary. Covington testified that on construction work Smother-
5 Subsidiary purposes of meeting with Covington were the reinstatement of Rogers, can-
cellation of a wage reduction, and discussion of alleged discrimination by the dispatchers
in driving assignments. (General 'Counsel's Exhibit No. 3.)
61 find no refusal on either July 4 or in the telephone conversation with York I find
no evidence that the Company had formulated any policy with respect to the request until
the Union's ultimatum was extended on July 7.
7A. J. Ledford testified that he had been employed as a dispatcher at Spearman for
about 7 months He told the drivers what leases to go to, how much oil to pick up, and
where to deliver it, information he received from Covington. He was carried on the pay-
roll as an extra driver, paid $1.70 an hour, and averaged about $450 a month. He made
more money as a driver, but he also worked longer hours. Asked by the Trial Examiner
if it made much difference which driver was assigned to which truck and to which destina-
tion he replied that it did not. He quit dispatching because his pay was cut and because
he was tired of being a "flunkey." Asked by the Trial Examiner to explain, he stated
that he had to wax floors, take tank inventories, strap tickets, and perform miscellaneous
jobs. Reliance in making the above finding is also placed on the testimony of Covington.
Harper, and Curry.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man checked on the manner of performance and that it was Smotherman who got
bids from the contractors. He also testified that Smotherman could and had
recommended the hiring of employees. Smotherman at least once identified himself
as Covington's assistant at a company dinner without contradiction. It is not
without some significance that Smotherman's name , like that of Wilde and Bellomy,
was omitted from the list of employees 8 prepared by the Company and submitted
to the National Labor Relations Board in the representation proceedings in July.
In accordance with the above findings with respect to the disputed supervisory
status of certain employees, I now find that the appropriate unit on July 4 through
7 consisted of 36 employees, including 23 drivers, 10 mechanics and helpers, 2 driver-
dispatchers, and 1 gauger-driver. The General Counsel submitted 23 cards desig-
nating the Union as collective-bargaining agent and all were from employees in the
unit. The objection on the part of Respondent to the introduction of those cards
which bore no date was overruled in view of the testimony of the signers fixing the
date with reasonable accuracy. Were no other issue involved the Union clearly
represented a majority of the employees on July 7.
The designations, however, have been attacked on two other grounds. Under
cross-examination and in response to leading questions by counsel for the Respond-
ent, several witnesses , all of whom were in the employ of Respondent at the time of
the hearing, testified that at the time they signed they were told that all or a majority
of the employees had signed authorization cards and that they would not have
signed had they not believed such representations. To say that their testimony in
this respect is suspect is an understatement .9
I discount this testimony as utterly worthless. Each of the witnesses who so testi-
fied gave every indication by his demeanor and his responses of his anxiety to ad-
vance the interests of his Employer at the expense of veracity. Moreover the state-
ment, if made, that a majority of the drivers were signing was a truthful statement
and not misleading-all but four of the drivers signed and a majority of the em-
ployees signed. Such testimony, relating as it does to the state of mind of the
witness himself at a prior date but revealed only after the interests of the witnesses
have been fixed by the passage of time and events, is not susceptible of cross-
examination . When the demeanor of the witness does not convey any impression
of solicitude for the truth to the trier of the facts then the testimony must be re-
jected. The providence of the Board's rule, affirmed by the courts, that "the testi-
mony of a signer as to his subjective state of mind at the time of signing, cannot
operate to overcome the effect of his overt action in having signed the application
card" has no better attestation than it receives from this case.I° This questioning
by counsel for the Respondent was permitted only because of the contrary hold-
ing of the First Circuit in N.L.R.B. v. H. Rohtstein & Co., Inc."
The second attack upon the validity of the cards rests on the testimony of certain
employees that they withdrew from the Union before July 7.
Billy Wright and Kenneth Beavers testified that they withdrew their designations
by telephoning L. V. McCarthy from Oklahoma and advising him that they were
withdrawing. There is no evidence that any representative of management induced
or encouraged their withdrawal and the fact of withdrawal is corroborated by
McCarthy. The date of the withdrawal is fixed as probably July 5 but it is definitely
fixed as prior to July 7 and I find that the withdrawals were made effective prior to
that date.
J. L. Griffith, a driver , testified that the night before the strike he-withdrew his
designation by oral communication to drivers Ledford and Swink. (Ledford was a
member of the union committee and Swink was the driver who had obtained
Griffith's card.) Again there is no evidence of inducement or encouragement on the
° General Counsel's Exhibit No. 9.
° Cross-examination of Lindner was typical :
Q. (By Mr. WITT.) When he [Ross Rogersl came around to ask you about signing
up in the union did he tell you that everybody else had signed up?
A. They said all but two had signed up.
Q (By the TRIAL EXAMINER .) Was this the drivers?
A. Yes, sir.
Q (By Mr. WITT.) Would you have signed up if you thought the majority had not
signed up?
A. No, s1r.
10 E. H Sargent and Co , a corporation , 99 NLRB 1318, 1323 ; N 7, R B. v. Sunshine
Mining Co, 110 F. 2d 780, 790 (CA. 9).
11 266 F 2d 407, reversing on this point H. Rohtstein & Co., Inc., 120 NLRB 1556.
CACTUS PETROLEUM, INC. 1271
part of any representative of management 12 and the fact of withdrawal is cor-
roborated by Swink. I find, under the circumstances of this case, that Griffith
effectively withdrew his designation of the Union prior to July 7.13
Cecil Miller testified that on the night before the strike he informed Swink that
he was "pulling out of the Union." Swink testified that Miller told him he would not
hurt the Union but could not do anything to help it. I find this constituted effective
notice of withdrawal and was so understood by Swink.
Wheeler Marksberry testified that he signed an authorization card on or about
June 30 at the request of employees Kilpatrick and Swink. He did not pay the $10
initiation fee. Less than 10 hours later he told Swink to count him out. This
testimony is not denied by Swink and I find that Marksberry withdrew his
designation before July 4. (Marksberry's reasons were that he had his wife and
children to consider.)
Paul Lindner testified that he withdrew his designation at the strike meeting on
July 7. He then recanted this testimony and stated he withdrew only after he
received a call from the Company to go to work. This was at 1 p.m. on July 7 and
he and Nash notified Swink before returning to work. He did testify that the
Union was still representing him when it made its demand for recognition upon
Covington on the morning of July 7. On his own testimony I find that he did
not withdraw until after the demand and refusal had taken place and after the strike
began.
W. T. Ives, a hesitant and evasive witness, testified that he attended the strike
meetings on July 7 but decided in his own mind that he was not going to strike if a
strike was called. He did not communicate this intention to anyone nor did he
withdraw from the Union. Sometime after the strike he called Curry to see if he
could go back to work. I find that Ives did not withdraw from the Union until after
July 7, if, in fact, he ever withdrew.
This record establishes and I find that of the 23 men who signed authorization
cards for Local 351 5 effectively withdrew their designations prior to the demand
for recognition made upon Covington on July 7. The Union therefore represented
18 men in a total unit of 36, 1 less than ,the required majority. I therefore find it
unnecessary to reach the question as to whether or not the refusal to grant recogni-
tion was motivated by a good-faith doubt of majority status on July 7. Simple
arithmetic has eliminated that vexatious problem.
3. The applications for reinstatement
On July 11 Kilpatrick and 13 other strikers 14 went to Covington's trailerhouse
and offered to return to work. Kilpatrick told Covington that the men had com-
mitted themselves to go back to work and that they had not quit their employment
but had gone out on strike. On the basis of the testimony of several of the strikers
themselves it was understood that the offer was conditioned upon reinstatement of
all the strikers. They were unwilling to accept employment on individual basis
despite the fact that some of them, at least, had been replaced. The men crowded
the trailerhouse and Covington credibly testified that he felt some fear of physical
harm. No threats were made, however, but Covington did ask them to leave and
told them he had no authority to reemploy them. After some further discussions to
their present status as employees Covington said, "Well, if you have got to hear me
1' Griffith was a brother-In-law of Smotherman. On a night between July 4 and 7 he
was with Ledford and, according to Ledford, suggested abandoning the Union. Griffith
called Smotherman, who then talked to York on the telephone and then met with Griffith
and Ledford at a cafe. About all that can be found in relation,to their conversation is
that Smotherman did advise them that York, when he had time, would be willing to meet
with the men individually. Ledford did testify that he received no promise of any benefit
if he withdrew from the Union-he was only asked by Griffith how he felt about it. I find
no evidence of interference, restraint, or coercion on the part of Smotherman in this
conversation, solicited by Griffith.
11 The offices of Local 351 are located in Borger, Texas, 42 miles from Spearman. None
of the men had ever attended a meeting there and there is no evidence that they knew
the address or telephone number of the union office. It was natural that they should
consider communication of their withdrawal to either a member of the union committee
or to the employee to whom they had given their card sufficient notice. I therefore accept
oral notice of withdrawal, ratified as it was by nonparticipation in the strike
11 These men were Herman A Byrd, Preston H Byrd, James J. Davis, Spencer M.
Hogan, Robert L. Kilpatrick, B. H. Kinslow, A. J. Ledford, James Lermon, Albert O.
Phelps, Dowan Summers, Jerry T. Swink, Bill Tweedy, and Willie L Wilkerson.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
say it, you are fired." This terminated the meeting and none of the strikers was
ever reemployed by the Company.
When the men struck the Respondent made immediate efforts to replace them.
New men were hired, drivers were transferred from other terminals, and some
transportation was done by other companies.15 However, the record of hirings
does establish that there was work available for some of the strikers on July 11 and
that the Company did continue to hire new men during both July and August.
C. A. Brewer was offered employment by Smotherman and Davis on July 8
but could not accept at that time because of sickness at home.16 In early August
Brewer went to see Covington and asked for work. Covington told him the
question of reinstatement was out of his (Covington's) hands and Brewer was
never reemployed. In addition to Brewer, B. H. Kinslow, Dowan Summers,
W. L. Wilkerson, and J. J. Davis all made individual applications after the mass
application on July 11.17 According to Covington, and I credit his testimony
in this respect, these men were told either that there was no work or that the
matter (of reinstatement) was out of his hands. Although Covington had the
authority to hire new men he did not have the authority to rehire the men who
had gone out on strike. This authority had to be obtained from the Houston
office. It was never given.
4. The discharge of Ross Rogers
Ross Rogers, a driver, was discharged by President York on July 4. Rogers
had signed an authorization card designating Local 351 on June 29 but there is
no evidence that knowledge of this fact was communicated to any representative
of management.18 The discharge was occasioned by a heated discussion between
Rogers and York which took place at the safety meeting on the evening of July 3.
The dispute centered on the wages Rogers received for the hours he had worked
and it was York's belief that Rogers had misrepresented his wages in the presence
of the other drivers. The next day York checked Rogers' figures against the
Company's records and concluded that he (York) was right. He then discharged
Ross before he started work. Without making any determination of the merits of the
dispute, it is clear that it did not relate to the union activity on the part of
Rogers. Neither did it stem from any protected concerted activity guaranteed
by Section 7. Although other employees were present when the argument took
place and there was a general discussion of working conditions at Spearman,
Rogers' statement was with respect to his own earnings. iI do not find that this
discharge can fairly be said to have been motivated by a desire to silence the
other drivers and end complaints-4 find that York was angered by the untruthful-
ness of the protest and the manner in which it was voiced.
I shall recommend that the complaint be dismissed insofar as it alleges that
Rogers was discharged in violation of Section 8(a)(1) and (3) of the Act.
5. Unilateral bargaining and wage increases
On or about July 3, 1960, Respondent granted wage increases to six employees
in the machine shop. (These men were Nelson, Herman Byrd, Wilkerson, Morri-
son, Marksberry, and Howdyshell). On testimony which I credit and which is
substantially uncontradicted I find that these wage increases had been denied the
men when they would normally have been granted because of the destruction
of the machine shop by the explosion about March 1, and the fact that the tempo-
1s E. R. Flowers was hired July 7; John Gray was hired July 8; John Dodson was hired
July 9; and 'Cleveland Hill and O. L. Lane were hired July 10. In addition C. B Lane
was transferred to Spearman on July 10, and on July 11 Donald Lane and H. R Lane
were transferred. Between July 11 and the time of the hearing seven more men were
hired, Cochran, Landrum, Close, Nash, Myrick, Henderson, and Prachar.
"Brewer testified that Smotherman told him he could have a job if he quit the Union
but that if he did not then he had "automatically quit." It was on this testimony that
the General Counsel moved to amend his complaint.
17 On the basis of credited testimony I find that these individual offers to return were
unconditional.
18 Rogers testified that on July 2 he asked Joe Harmond, the field gauger, if he would
like to join the Union. Harmond, according to Rogers, made no reply. Harmond denied
that Rogers asked him and testified that Kilpatrick was the one who asked him to join.
I credit Harmond, but in any event I would be unwilling to draw any inference of company
knowledge from such a request made to a fellow employee.
CACTUS PETROLEUM, INC. 1273
rary use of a quonset hut as a machine shop had impaired the efficiency of op-
erations with consequent unusual overtime costs to Respondent. At the end of
June 1960, the new shop was completed and Bellomy, shop foreman, was granted
authority to give the wage increases which had been postponed. I find nothing
in this record to support the allegation that these increases were conferred to
defeat union organization or to bypass the designated collective-bargaining rep-
resentative of the men. No effective demand for recognition or bargaining status
was made upon any representative of management prior to July 4, 1960. No
knowledge of the union membership of any of these employees can fairly be
imputed to management at the time the increases were given.
I shall therefore recommend that the complaint, insofar as it alleges that the
Respondent promised wage increases in violation of Section 8(a)(1) and bargained
unilaterally with its employees in violation of Section 8(a) (5) and (1) be dismissed.
6. Other violations of Section 8(a) (1)
Kilpatrick testified that about 2 p.m. on July 6, he and Smotherman were sitting
in Smotherman's car when Smotherman asked if he had given any consideration to
talking to York rather than "go Union" and stated that York would talk to the
men about their problems-that the men did not need a union. Kilpatrick replied
that he had already joined the Union and that if the men tried to bargain on
their own the Union would drop them and that he did not know if York would
talk to them or not Smotherman then asked Kilpatrick to talk'to the men and
see if they would deal directly with York and Kilpatrick refused.
I credit Kilpatrick's testimony. Viewed either as a solicitation to Kilpatrick to
withdraw from the Union 19 or an effort to bypass the Union and deal directly with
the men , Smotherman 's conduct was improper .20 I do not , however, find it con-
stituted a violation of Section 8(a)(1) standing, as it does, isolated from any
other improper conduct on the part of Respondent's supervisors and agents. It
appears that the conversation took place when the men were engaged in a friendly
and casual conversation and that Kilpatrick was neither summoned nor sought
out for the purposes of making the offer . All of these men worked together in
a small community.21 The terminal itself was not a large one , and there was
testimony that there existed considerable interchange of jobs and duties between
the men 22 Under these circumstances a greater degree of intimacy in both per-
sonal and employment relationship is to be expected and a greater freedom of
exchange in opinion and belief, especially between the lower echelons of supervi-
sion and the employees. For these reasons I find no violation of either Section
8(a)(1) or (5) in this conversation between Smotherman and Kilpatrick. Even
when considered in association with the subsequent offer made by Smotherman
to Brewer on July 8 of a job contingent upon withdrawal from the Union, I do
not find it to have sufficient impact to constitute interference, restraint, or coercion
within the meaning of the Act.23
B. Conclusions
1. The refusal to bargain, the strike, the discharges, and the refusal to
reinstate the strikers
Since I have found, that the Union did not represent a 'majority of the employees
on July 7, then it follows that the Respondent did not commit an unfair labor
practice by refusing to recognize the Union on that day. Prior to that day I find
no refusal to recognize the Union. The first communicated demand was made
on July 4 when McCarthy saw Covington, made on oral demand, and gave Cov-
ington the letter to York. This letter stated that "if such recognition is refused,
I shall petition the National Labor Relations Board for an election and certifica-
tion thru that agency." Covington was without authority to recognize the Union
and properly referred McCarthy to York. Upon receipt of the letter and the
16 Mrs Owen E. Brennan, at al d/b/a Brennan's French Restaurant , 129 NLRB 52.
20 Medo Photo Supply Corporation v. N L R B , 321 U S 678. (The Union represented a
majority of the employees on the afternoon of July 6 since Miller did not withdraw until
that night )
21 The population of Spearman is approximately 1,800
v Both Smotherman and Covington drove trucks from time to time.
za The Walmac Company, 106 NLRB 1355 ; Gibbs Automatic Dsvxsion , Pierce Industries,
Inc., 129 NLRB 196.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
telephone call from McCarthy, I believe that York was reasonably entitled
to believe that the Union was willing to accept the Board's determination of
the question concerning representation. In any event I can find no obligation to
accord immediate and precipitate recognition to the Union.
While I have found that the Union did represent a majority of the employees
prior to July 7 and presumably on July 4, I find that the dissipation of this ma-
jority cannot be attributed to any unfair labor practices on the part of Respond-
ent. The case, therefore, is not within the Joy Silk rule.24
In view of the Union's loss of majority status by the voluntary withdrawal of
designations it becomes unnecessary to pass upon the sufficiency and clarity of the
unit description 25 or upon whether or not the refusal was motivated by a good-faith
doubt of the Union's majority.
The next question, which must be squarely faced, is whether or not the strike
was protected activity. The testimony of the strikers establishes that the primary
purpose of the strike was recognition of the Union and the reaching of an "under-
standing" regarding working conditions. Recognition of a minority union, how-
ever, is an unfair labor practice on the part of an employer.26 Incalculable though
the odds against it would seem to be, it does not appear that there has been any
Board determination of the protected character of a strike for recognition by a
minority union.27 I am convinced that such a strike loses the protection afforded
employees by Section 7 of the Act.
In N.L.R.B. v. Brashear Freight Lines, Inc., 119 F. 2d 379, the Eighth Circuit
refused enforcement to a Board order directing the employer to reinstate minority
strikers.28 The court found that the sole purpose of the strike was recognition by
the employer and despite the finding of other unfair labor practices it held, page 382:
The Union membership never included a majority of the employees in the unit.
There was no legal obligation to bargain with this representative of a minority.
Even if the position of the Respondent, at the time of the refusal to bargain
with the minority representative, was that it would not bargain with a union,
yet such minority is in no position to strike because of the failure to bargain
with it and then receive compulsory reinstatement. Just as the employer, if he
refused to bargain with the representative of a majority of a proper unit, acts
at his peril; so a minority of the employees, who strike because the employer
refuses to bargain with their representative, do so at their peril insofar as com-
pulsory reinstatement is concerned. Upon the finding of the Board that the
representative was of a minority only of the proper unit and upon the undis-
puted evidence that the sole reason for the strike was the failure to bargain
with such representative, there was no substantial evidence to sustain that por-
tion of the order requiring reinstatement of preferential listing of these strik-
ing employees.
I rest my conclusion, however, not solely on the authority of Brashear 29 but on
principles which the Board and the courts have applied to strike activity deemed un-
lawful in its objectives. When the purpose of a strike is to compel any breach of
law or of congressional policy implicit in the statute then the employees no longer
enjoy immunity from discharge. In N.L.R.B. v. Sands Manufacturing Co., 306 U.S.
332, the Supreme Court, reversing the Board, held that a strike to compel an em-
ployer to breach his lawful contract was unprotected. In Southern Steamship Com-
pany v. N.L.R.B., 316 U.S. 31, the Court again reversed the Board and refused re-
instatement to strikers who had struck in violation of the mutiny sections of the
Criminal Code. The Court held, page 48:
We cannot ignore the fact that the strike was unlawful from its very inception.
It directly contravened the policy of Congress as expressed in §§ 292 and 293,
24 Joy Salk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A D C.).
$ See C. L. Bailey Grocery Company, 100 NLRB 576, holding that the request for recog-
nition must clearly define the unit before the obligation to comply is imposed.
° Ken-Rad Tube cf Lamp Corporation, 62 NLRB 21; Barlow-Maney Laboratories, Inc.,
65 NLRB 928 (Member Houston dissenting).
7As recently as Ekco Products Company (Stn-Brite Division ), 117 NLRB 137, the
Board escaped decision on this point , finding that the strikers in that case represented
a majority.
28Bra8hear Freight Lines, Inc, 13 NLRB 191. (The Board , unlike the court, found
that the strike was not for recognition but to protest unfair labor practices on the part
of the Respondent.)
22 Cf. N.L .R.B. v. Buzza -Cardozo, 205 F. 2d 889 (C .A. 9).
THE IDEAL ELECTRIC AND MANUFACTURING COMPANY 1275
and it was more than a "technical" violation of those provisions . Consequently,
and despite the unfair labor practice which caused the strike , we hold that the
reinstatement provisions of the order exceeded the Board 's authority to make
such "requirements as will effectuate the policies of the Act."
In The American News Company, Inc., 55 NLRB 1302, the Board refused to re-
instate strikers who struck to compel a wage increase in violation of wage stabiliza-
tion laws and regulations , finding that the strike was neither provoked nor preceded
by unfair labor practices on the part of the employer . In Scullin Steel Company, 65
NLRB 1294, affd. 161 F. 2d 143 (C.A. 8), the Board refused to reinstate strikers
who struck in violation of a no-strike agreement in the collective -bargaining contract,
a holding reaffirmed in National Electric Products Corporation, 80 NLRB 995, and
Mid-West Metallic Products, Inc., 121 NLRB 1317. In W. L. Mead, Inc., 113
NLRB 1040, the Board held that, absent an express no-strike clause in the contract,
the Union's summary resort to strike action in disregard of its obligation to proceed
through a final binding arbitration award constituted legal ground for the discharge
of the strikers.
The trend of both Board and court decisions has been to require employers, labor
organizations , and employees to observe the law, the congressional policy as ex-
pressed in the statute , and the obligations of their own collective-bargaining con-
tracts. I cannot say that the trend is not a salutary one. Accepting that principle
as guidance to the instant situation I find that the strike to compel the Employer to
recognize a minority union as exclusive representative of his employees in violation
of Section 8(a)(2) and (1) of the Act is unprotected activity. If the application
seems harsh in the instant case the consequences could have been avoided by resort
to the Board's procedures for determining the issue which occasioned the strike
instead of risking the hazards of self-help.
I find that neither the discharge of the strikers nor the failure to reinstate them,
either upon the conditional mass offer made on July 11, or upon subsequent indi-
vidual unconditional application , violated Section 8(a)(1) or (3) of the Act.
Upon the basis of the above findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2) of the Act and
is engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers , AFL-CIO, Local No. 351, is
a labor organization within the meaning of Section 2(5) of the Act.
3. Respondent has not engaged in unfair labor practices in violation of Section
8(a)(1), (3 ), and (5 ) of the Act.
[Recommendations omitted from publication.]
The Ideal Electric and Manufacturing Company and Inter-
national Union of Electrical , Radio and Machine Workers,
AFL-CIO, Petitioner. Case No. 8-RC-4109. December 14, 1961
SUPPLEMENTAL DECISION AND CERTIFICATION
OF REPRESENTATIVES
Pursuant to a Decision and Direction of Election issued by the Board
on April 10, 1961,1 an election by secret ballot was conducted on
April 26, 1961, under the direction and supervision of the Regional
Director for the Eighth Region among the employees in the unit found
appropriate by the Board. Following the election, the parties were
furnished a tally of ballots which showed that of approximately 302
eligible voters, 257 valid ballots were cast, of which 60 were for the
1 Not published in NLRB volumes.
134 NLRB No. 133.