Continental Oil Company

National Labor Relations Board - Board Decisions

May 9, 1939

12 N.L.R.B. 789 (N.L.R.B. 1939)

In the Matter of CONTINENTAL OIL COMPANY and OIL WORKERS
INTERNATIONAL UNION
Cases Nos. C-6,27 and R-653.-Decided May 9,1939
Oil Production and Refining Industry-Interference , Restraint , and Coer-
cion-Company-Dominated Union: formation , upon suggestion of employer ;
recognition by employer without proof of majority ; employer assistance in
preparation for formation of labor organization ; disestablished , as agency for
collective bargaining-Discrimination : transfer of two leading union employees
on eve of extension of hours of work which had been subject of union
negotiation-Unit Appropriate for Collective Bargaining : employees , exclusive
of production foreman and clerical employees , but including head roustabouts,
no controversy as to ; production and maintenance , exclusive of supervisory and
clerical employees , no controversy as to-Representatives : proof of choice: peti-
tion designating representatives as-Collective Bargaining : willingness to meet
with union , but refusal to enter negotiations for a definite agreement ; refusal
to grant exclusive recognition ; employer ordered to bargain despite subsequent
loss of majority due to unfair labor practices ; charges of refusal to bargain
dismissed in one case upon finding that union represented less than majority-
Reinstatement : ordered-Back Pay: awarded together with restoration of in-
surance rights-Investigation of Representatives : controversy concerning repre-
sentation of employees : employer 's refusal to recognize union-Unit Appropriate
for Collective Bargaining : extent of organization ; unit limited to employees in
field excluding employees in operation of gas plant Election Ordered
Mr. David C. Shaw, for the Board.
Mr. John R. Moran, and Mr. John P. Akolt, of Denver, Colo.;
Mr. James J. Cosgrove, of Ponca City, Okla.; and Vogelsang, Brown,
Cram, Feely & Finney, by Mr. William G. Feely, of Washington,
D. C., for the respondent.
Mr. David Rein, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On September 28, 1937, Oil Workers International Union, herein
called the Union, filed with the Regional Director for the Seventeenth
Region (Kansas City, Missouri) a petition alleging that a question
12 N. L. R. B., No. 87.
789
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affecting commerce had arisen concerning the representation of em-
ployees at the Salt Creek Field, Columbine, Wyoming, of Continental
Oil Company, Ponca City, Oklahoma, herein called the respondent,
and requesting an investigation and certification of representatives
pursuant to Section 9 (c) of the National Labor Relations Act, 49
Stat. 449, herein called the Act. Thereafter the Union filed charges
alleging that the respondent had engaged in and was engaging in
unfair labor practices within the meaning of the Act.
On October 9, 1937, the National Labor Relations Board, herein
called the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation of the
question concerning representation and authorized the Regional Di-
rector to conduct it and to provide for an appropriate hearing upon
due notice, and acting pursuant to Article III, Section 10 (c) (2),
and Article II, Section 37 (b), of said Rules and Regulations,
further ordered the consolidation of the proceeding upon the peti-
tion with the proceeding upon the charges filed by the Union. On
November 16, 1937, the Board, acting in accordance with Article II,
Section 37 (c), and Article III, Section 10• (c) (3), of National
Labor Relations Board Rules and Regulations-Series 1, as amended,
ordered the transfer of the consolidated proceedings from the Seven-
teenth to the Twenty-second Region.
On February 11, 1938, upon the charges and amended charges filed
by the Union, the Board, by the Regional Director for the Twenty-
second Region, issued its complaint against the respondent. Copies
of the complaint and notices of hearing upon the complaint and upon
the petition were duly served upon the respondent, the Union, Con-
tinental Employees Bargaining Association, herein called the Salt
Creek Association, and Independent Association of Conoco Glenrock
Refinery Employees, herein called the Glenrock Association. The
consolidated hearing was thereafter postponed upon notice. Upon
further amended charges which were duly filed, the Board by the
same Regional Director, on February 25, 1938, issued its amended
complaint against the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting com-
merce, within the meaning of Section 8 (1), (2), (3), and (5) and
Section 2 (6) and (7) of the Act. Copies of the amended com-
plaint accompanied by an amended notice of hearing were duly
served upon the same parties. No amended notice of hearing was
issued for the proceeding upon the petition, but the parties appear-
ing at the hearing stipulated that proper notice of hearing had been
given.
With respect to the unfair labor practices, the amended complaint
alleged in substance that the respondent (1) had on January 18,
CONTINENTAL OIL COMPANY 791
1937, and at all times thereafter, refused to bargain collectively with
the Union which had been designated as the exclusive representative
by a majority of its employees in an appropriate unit at Salt Creek
Field; (2) had on August 12, 1935, and at all times thereafter,
refused to bargain collectively with the Union which had been desig-
nated as the exclusive representative by a majority of its employees
in an appropriate unit at Big Muddy Field; (3) had on August 12,
1935, and at all times thereafter, refused to bargain collectively with
the Union which had been designated as the exclusive representative
by a majority of its employees in an appropriate unit at the Glen-
rock Refinery; (4) had discharged and refused to reinstate Ernest
Jones and F. D. Moore, thereby discouraging membership in the
Union; (5) had dominated and interfered with the formation and
administration of the Salt Creek Association; (6) had dominated and
interfered with the formation and administration of the Glenrock
Association; and (7) by reason of said acts and by other acts, had
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act. On March 2, 1938,
the respondent filed an answer to the complaint denying the unfair
labor practices. At the hearing the complaint was further amended
to allege that prior to June 12, 1937, the Union had acted under the
name and designation of International Association of Oil Field,
Gas Well and Refinery Workers of America. The respondent filed
an answer to this amendment to the complaint.
Pursuant to the amended notice of hearing, a hearing was held
at Casper, Wyoming, from March 3 through 17, 1938, before Waldo C.
Holden, the Trial Examiner duly designated by the Board. The
Board and the respondent were represented by counsel and partici-
pated in the hearing. The Union, the Salt Creek Association, and
the Glenrock Association did not enter formal appearances, but
officers of these organizations appeared and testified at the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all
parties. At the close of the hearing, the respondent moved to dis-
miss the proceedings in both cases on the grounds of lack of juris-
diction and lack of evidence to support the allegations in the com-
plaint. The motion was denied by the Trial Examiner. During
the course of the hearing the Trial Examiner made several other
rulings on motions and on objections to the admission of evidence.
The Board has reviewed all the rulings of the Trial Examiner and
finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
On May 11, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon all parties. He found that
the respondent had engaged in the unfair labor practices alleged in
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complaint and recommended that the respondent : (1) cease and
desist from said unfair labor practices; (2) bargain collectively with
the Union as the exclusive representative of the employees in the
appropriate units at Salt Creek Field, Big Muddy Field, and the
Glenrock Refinery, respectively; (3) withdraw recognition from the
Salt Creek Association and the Glenrock Association; and (4) rein-
state with back pay F. D. Moore and Ernest Jones. He further
recommended that the respondent post notice of its intention to cease
and desist from said unfair labor practices and state in such notice
its intention of taking the affirmative steps recommended in the
report.
On May 21, 1938, the respondent filed exceptions to the rulings
of the Trial Examiner and to his Intermediate Report. On January
10, 1939, the respondent filed a brief, and on January 12, 1939,
pursuant to notice duly served upon the parties, a hearing was held
before the Board for the purpose of oral argument on the exceptions
to the Intermediate Report and on the record. The respondent was
represented by counsel and participated in the oral argument. None
of the other parties appeared. The Board has considered the re-
spondent's exceptions and its brief and in so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.'
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Continental Oil Company is a Delaware corporation engaged in
the business of producing, refining, transporting, and marketing
petroleum and petroleum products. It owns or controls oil- and gas-
producing fields and refining plants in the States of Oklahoma,
Kansas , Texas, New Mexico, Colorado, Utah, Montana, Wyoming,
Arkansas, Louisiana, Arizona, California, and Maryland. It owns
or controls outlets for the distribution and marketing of its products
in 31 States and the District of Columbia.
The areas of operation involved in the instant case, two oil-pro
ducing fields and one refinery, are all located in the State of Wyo
3 The respondent , in its brief, contends that the denial by the Trial Examiner of an
application for a subpena duces tecum for the membership rolls of the Association of
Continental Oil Company Employees at Big Muddy Field was arbitrary and capricious and
a denial of due process of law. The respondent makes no showing , however, that the
membership rolls of this organization are in any way relevant to any of the issues in this
proceeding, or that the denial of the application for a subpena in any way hindered the
respondent in the presentation of its case. No such organization is named in the com-
plaint , and the record is not clear that there is or ever was such an organization. The
ruling of the Trial Examiner is accordingly affirmed.
CONTINENTAL OIL COMPANY 793
ming. The oil-producing fields are Big Muddy Field, located at
Parkerton, Wyoming, and Salt Creek Field, at Salt Creek, Wyoming.
The refinery, known as the Glenrock Refinery, is situated at Glen-
rock, Wyoming, a few miles from Parkerton. The respondent pro-
duces approximately 1,000 barrels of crude oil daily at the Salt
Creek Field, of which 650 barrels are produced for its own account.
At the time of the hearing, these 650 barrels were being shipped to
the Stanolind Oil and Gas Company pursuant to a contract of
6 months' duration. Prior to the date of this contract, the crude
oil produced at Salt Creek was normally disposed of by shipments
to the respondent's refinery at Denver, Colorado, to the Glenrock
Refinery, and to the Texas Company at Casper, Wyoming. Approxi-
mately 3,000 gallons of casing-head gasoline are produced daily at
Salt Creek, all of which is shipped to the respondent's refinery at
Lewiston, Montana.
At Big Muddy Field, the daily production approximates 1,200
barrels of crude oil, only 900 barrels of which are produced for
the respondent's account. The entire 1,200 barrels are shipped to the
Glenrock Refinery. The Glenrock Refinery refines daily approxi-
mately 2,500 barrels of crude oil and about 8,000 gallons of casing-
head gasoline. Approximately 60 per cent of the products of the
Glenrock Refinery are shipped to points outside the State of
Wyoming. Fifty per cent of the total fuel oil produced at the
Glenrock Refinery is sold to the Chicago & Northwestern Railroad
and the Chicago, Burlington & Quincy Railroad. The annual value
of the finished products shipped from the Glenrock Refinery approxi-
mates $2,000,000.
II. THE ORGANIZATIONS INVOLVED
Oil Workers International Union is a labor organization affiliated
with the Committee for Industrial Organization. Prior to June
1937 it bore the name of International Association of Oil Field,
Gas Well and Refinery Workers of America. It assumed its present
name at a convention held in Kansas City, Missouri, from June 7
to 12, 1937.2 The instant case involves Locals 242 and 233 of the
Union. Local 242 admits to membership employees of the respond-
ent employed at Big Muddy Field and at the Glenrock Refinery.
Local 233 admits to membership employees of the respondent em-
ployed at Salt Creek Field.
2 The change was only in name, and continuity in organization was preserved. Oil
Workers International Union had the same central offices, the same president and other
officials as International Association of Oil Field , Gas Well and Refinery Workers of
America . Oil Workers International Union continued to use stationery and letterheads
upon which the name, International Association of Oil Field , Gas Well and Refinery
Workers of America appeared , until the supply of such stationery and letterheads had
been exhausted.
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Employees Bargaining Association is an unaffiliated
labor organization admitting to membership employees of the re-
spondent employed at Salt Creek Field.
Independent Association of Conoco Glenrock Refinery Employees
is an unaffiliated labor organization admitting to membership em-
ployees of the respondent employed at the Glenrock Refinery,
excluding those who have the power to "hire or discharge or repri-
mand or punish."
III. THE UNFAIR LABOR PRACTICES
A. Big Muddy Field
1. The refusal to bargain collectively
(a) The appropriate unit
The complaint alleged that the appropriate unit at Big Muddy
Field includes all production and maintenance employees. This
allegation was not contested. From the testimony in the record,
however, we believe it was the intention of the parties to exclude
the production foreman and clerical employees.3 The position of
the Union with respect to head roustabouts (or gang pushers) was
not clearly stated at the hearing. However, the district representa-
tive for the Union testified that head roustabouts were admitted into
the Union at Salt Creek Field and that the rules of the Union made
them eligible for membership. We will accordingly include head
roustabouts in the appropriate unit.
We find that all the employees of the respondent at Big Muddy
Field, excluding the production foreman and clerical employees, but
including head roustabouts, constitute a unit appropriate for the
purposes of collective bargaining, and that such unit insures to
these employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act.
(b) Representation by Local 242 of a majority in the unit
In an election conducted by the Petroleum Labor Policy Board in
July of 1934, Local 242 was certified as the collective bargaining
agency for the employees at Big Muddy Field. Of 31 votes cast
8 The pay roll of the respondent for Big Muddy Field, which was introduced into evidence
at the hearing, carried the name of J C Thomas, district superintendent . However, since
his duties entail supervision not only over Big Muddy Field, but over Salt Creek and Lance
Creek Fields as well, be cannot properly be regarded as an employee at Big Muddy Field.
CONTINENTAL OIL COMPANY 795
in this election, 26 were cast for Local 242. Shortly after the passage
of the Act, Local 242 circulated among the employees at Big Muddy
Field a petition designating the Local as the collective bargaining
agency. Of a total of 35 employees in the appropriate unit at the
time, 28 signed this petition. At the time of the circulation of this
petition, therefore, Local 242 clearly represented a majority of the
employees in the appropriate unit.
The respondent contends, however, that since the designation was
of Local 242 of International Association of Oil Field, Gas Well
and Refinery Workers of America, it cannot support an allegation
of a refusal to bargain with Local 242 of Oil Workers International
Union. Since Oil Workers International Union is the same organiza-
tion as International Association of Oil Field, Gas Well and Refinery
Workers of America, we find no merit in this contention.
The respondent further contends both in its brief and in oral
argument that even if the Union represented a majority of the
employees at the time of the circulation of the petition, it did not
represent a majority of the employees in the appropriate unit at
the time of, the hearing. There is no evidence, however, that prior
to May 1936, the date of the Union's last efforts at collective bargain-
ing, any of the signers of the petition repudiated their signatures,
or in any other way evidenced that they had withdrawn their desig-
nation of the Union as their collective bargaining agency. Any
subsequent loss of majority would not constitute a defense to a
refusal to bargain at that time. Whatever relevance the loss of
majority might have would be in connection with an order of the
Board directing the respondent to bargain with the Union at this
time. We will, accordingly, discuss this contention of the respondent
in the section on the remedy, Section V, below.
We find that on August 12, 1935, the date of its first attempt at
collective bargaining after the passage of the Act and thereafter,
the Union was the duly designated representative of a majority of
the respondent's employees at Big Muddy Field in an appropriate
unit and that pursuant to Section 9 (a) of the Act, was the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
(c) The refusal to bargain
Shortly after the certification of Local 242 by the Petroleum Labor
Policy Board, a workmen's committee of the Local, consisting of
Ernest Jones, H. A. Schafer, and E. L. Simons, together with Albert
D. Shipp, district representative of the Union, presented a proposed
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement to J. C. Thomas, superintendent of production for the
Wyoming District. In response to this proposed agreement, the
respondent, on or about September 18, 1934, issued a statement of
working conditions for Big Muddy Field. Among other provisions,
it contained the following policy: "No understanding between the
company and any association of employees shall be considered bind-
ing upon employees not members of such association."
At the time of the issuance of this statement, R. S. Shannon,
general superintendent of the respondent for the Rocky Mountain
Division, announced that the respondent was ready to meet with
any committee of its employees but would not recognize the Union
as the bargaining representative for its employees. In addition,
on September 15, 1934, the respondent addressed to all its employees
at Big Muddy Field, individual letters concluding as follows :
... we are of the opinion that those who wish to be repre-
sented by Local #240 (sic) of the International Association of
Oil Field, Gas Well and Refinery Workers may do so, and that
those who choose any other representatives, whether council, in-
ternal employe organization or any other are entitled so to deal
with the management. The management is prepared to deal
with any such organization as the employes themselves, with-
out management interference, choose to undertake.
On March 22, 1935, the Union in a letter to Shannon took excep-
tion to the refusal of the respondent to recognize the Union as the
representative of its employees and to enter into a contract with
the Union. As a result of this communication, a further meeting
was held between the union committee and representatives of the
respondent, at which Shannon reiterated the position of the re-
spondent as stated on September 18, 1934.
Although the foregoing acts occurred before the passage of the
Act, and therefore do not constitute unfair labor practices, they
represent the respondent's attitude toward collective bargaining, in
which the respondent persisted even after the passage of the Act.
On August 12, 1935, after the circulation of the petition in which
the employees redesignated the Union as their representative, a
letter was delivered to Bartels, production foreman at Big Muddy
Field, informing the respondent of that fact and requesting a confer-
ence for the purposes of collective bargaining. No answer to this
request was received and on September 5, 1935, another letter re-
questing a conference was delivered to Shannon. Pursuant to this
second letter, a meeting was held on or about September 26, 1935.
Jones, F. D. Moore, Simons, and Shipp were present for the Union,
and Shannon and Thomas for the respondent. At the meeting, the
union representatives told Shannon that they were the committee
CONTINENTAL OIL COMPANY 797
for Local 242 of the Union, and that the Union had been designated
as the bargaining agency for the employees at Big Muddy Field.
They informed him that they had in their possession a petition
signed by a majority of the employees and asked him if he desired
to see it. Shannon replied that he considered the petition imma-
terial and added that he raised no question as to whether the Union
had been designated by a majority of the employees. A request that
the Union be recognized as the exclusive bargaining agency was
answered with the statement that the respondent maintained the
same position as it had set forth on September 18, 1934, that it would
not recognize any group of its employees as the exclusive bargaining
agency, but was willing to meet with any committee of individual
employees. Shannon further stated that the respondent would not
enter into any agreement with the Union, not even to embody the
provisions which the respondent had set forth in its own statement
of working conditions on September 18, 1934. At this point the
meeting adjourned.
After a further exchange of letters had proved fruitless, the Union
with the assistance of Michael E. Sherman, a conciliator for the
U. S. Department of Labor, secured a further conference with the
respondent on February 6, 1936, at which Thomas and Bartels were
present for the respondent. A proposed contract presented by the
Union was discussed and the parties came to an agreement as to
working conditions, which were embodied in notes taken by Sher-
man. Thomas stated that he could not bind the respondent to these
conditions but that he would submit them to Shannon together with
his recommendation for their approval. No further communication
was received from the respondent with regard to this proposed
agreement.
On February 9, 1936, the Union requested the respondent to com-
mence negotiations for a wage increase. On March 9 Shannon re-
plied, stating that the request was not made at a propitious time
since an increase "would constitute a serious threat to the progress
and life of the Company." The letter added, however : "As I have
previously advised you, and in line with my letter of September
18, 1934, Foreman Bartels, District Superintendent Thomas, and I
stand ready to meet with you at any reasonable time for the dis-
cussion of any subjects relative to working conditions in the Big
Muddy field."
In the last week of April, Moore and Jones, two members of the
workmen's committee, were informed that they were to be trans-
ferred to Hobbs, New Mexico. The committee called on Thomas and
inquired as to the reasons for these transfers. The members were
then informed for the first time that the respondent had decided to
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase the hours of work at the field, effective May 1, 1936, and
that this decision necessitated a curtailment in the force. The com-
mittee requested Thomas to postpone the transfers and the effective
date of the increase in hours until a union committee could be heard
on the matter. Thomas replied that he would communicate with
Shannon and attempt to arrange a meeting. No meeting, however,
was thereafter arranged, nor was the effective date of the increase
of hours postponed. Thomas was then asked why Jones and Moore
had been chosen to be transferred, to which he replied that he had
had nothing to do with the transfers.4 When Thomas was asked
at the hearing why he had made this statement when, according to
his own testimony, he and Bartels had together selected Moore and
Jones to be transferred, he testified : " . . . at the time it made me
kind of sore and I didn't think it was any of their business."
The last meeting between a union representative and a repre-
sentative of the respondent took place in May 1936. Apparently
as a result of a letter written by the Regional Director for the Sev-
enteenth Region of the Board to Shannon, the latter approached
Shipp for a meeting to discuss the tentative agreement which had
been negotiated at the February 6 conference. Shipp asked Shannon
whether he was in a position to bind the respondent to which Shan-
non replied that the discussion was to be a purely informal one.
Shipp then asked him if he would enter into joint recommendations
with Shipp which could then be referred to the central office of the
respondent for adoption, and Shannon replied that he could not.
Shipp saw no further purpose in continuing these discussions unless
there was some possibility of arriving at an agreement. He told
Shannon that unless the Union could meet with the management
with a view to entering into a definite agreement, the Union would
ask for no further meetings but would submit the case to the Board s
We have made the foregoing findings on the basis, for the most
part, of the testimony given by Shipp. We believe that Shipp's
testimony is a substantially accurate account of the course of the
negotiations between the respondent and the Union. It is supported
not only by written correspondence which was introduced into evi-
dence but by Shannon's testimony as well. Although Shannon denied
many of the specific statements of Shipp, his own testimony sub-
stantiates the general tenor and purport of Shipp's account.
The transfers of Jones and Moore are discussed in subsection 2 below
The Union had already on March 24 , 1936, filed charges with the Regional Director for
the Seventeenth Region, and indeed, as stated above , it was apparently a letter from the
Regional Director to Shannon that had inspired Shannon's overtures to Shipp The
Regional Director, however, requested the Union to withdraw its charges because the Board
at that time did not wish to test the question of jurisdiction over employers engaged in oil
production Charges were again filed after the constitutionality of the Act had been
sustained.
CONTINENTAL OIL COMPANY 799
Shannon admitted that before April 12, 1937, the date upon which
the Supreme Court sustained the constitutionality of the Act, the
respondent refused to recognize any labor organization as the ex-
clusive bargaining agency for its employees. With regard to Shipp's
testimony that his proposal to enter into a contract upon the basis
of the working conditions set forth in the letter of September 18,
1934, was rejected, Shannon testified as follows: "I recall the con-
versation, in regard to my letter of September 18, 1934, and Mr.
Shipp again proposed we take up the agreement that they had
originally submitted ; and I stated to Mr. Shipp and the committee
that we had given this matter thorough consideration; that there
were no specific problems that seemed to be up for discussion be-
tween ourselves and the committee that were not satisfactorily cov-
ered by that letter of September 18, and that I thought we could
satisfactorily work along on that basis. That was our viewpoint." 6
This is tantamount to a statement that there would be no purpose
in entering into an agreement which embodied the provisions of the
letter of September 18. In subsequent testimony which is set out
below, this point is made even more strongly, thus supporting Shipp's
own account.
With regard to Shipp's version of the meeting in May 1937, Shan-
non admitted that he had used the word "informal," but testified
that he did not know that the word "informal" had any special
meaning. He added : "Well, I think Mr. Shipp is confused as to
the sense of our discussions. I was meeting with him as a repre-
sentative of the company, and met with him at all times in that
capacity; and I told him at that meeting that we would again discuss
any matters that he wished to discuss, and such matters as I thought
necessary I would refer to-any matters that I could not reach a
conclusion here on that I would refer, as I have in the past, to our
company for consideration."' This "informality" was precisely what
Shipp objected to. Despite meeting after meeting, the Union was
no nearer an agreement than it had been since it started negotiations
in September 1934.
Most revealing of the respondent's position with respect to its
obligations under the Act is Shannon's explanation of his failure
to make any disposition of the terms of a proposed agreement that
were negotiated at the conference of February 6, 1936. He testified
that Thomas and Bartels had not made any recommendation, either
for adoption or rejection of the proposed agreement and added:
"I think they felt very much the same as I did about it; that there
wasn't a great deal of difference." There were, in fact, substantial
e Italic supplied.
Italic supplied.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
differences between the proposed agreement and existing working
conditions, but more significant is the indication of the respondent's
view of collective bargaining in this failure to recognize a distinc-
tion between a contract and a statement of working conditions
revocable at the respondent's pleasure.
The conduct of the respondent throughout the course of the nego-
tiations conforms with a familiar pattern to which we have had fre-
quent occasion to advert in prior decisions.8 The respondent con-
tends that its willingness to meet with representatives of the Union
and discuss with them the proposals which they advanced, consti-
tutes compliance with the Act. This willingness, however, was di-
vorced from any intention to enter into an agreement with the Union.
The respondent clearly considers the relationship existing between
itself and the Union not as one of equal contracting parties, but
rather as one of suppliant and benefactor. It views collective bar-
gaining as a process wherein a labor organization may present re-
quests, which the employer may either grant or deny as it sees fit,
with the barest statement of the reasons for its action. If the request
is denied an agreement is impossible because the parties are not in
accord as to substance. If the request is granted, the respondent
sees no need for an agreement, since the parties are already in
accord as to principle. Carried to its extreme, this attitude resulted
in the treatment given to the proposed agreement of February 6,
1936, with respect to which the respondent saw no need to commu-
nicate either its approval or disapproval to the Union, since it had
already cavalierly determined "that there wasn't a great deal of
difference." This attitude of the respondent fully justifies the char-
acterization made by the -Union in its first charge filed with the
Regional Director for the Seventeenth Region, that the respondent
was attempting to make a "farce" of the Union's efforts to bargain
collectively. At no time did the respondent exhibit any disposition
to engage in genuine collective bargaining with the Union toward
a satisfactory solution of the various problems in issue s
We have heretofore concluded that such conduct as the respond-
ent's does not constitute collective bargaining within the meaning
8 See, e g., Matter of St Joseph Stock Yards Company and Amalgamated Meat Cutters
and Butcher Workmen of North America , Local Union No. 159, 2 N. L. R . B 39; Matter
of American Numbering Machine Company and International Association of Machinists,
District #15, 10 N. L. R. B. 536; Cf. Matter of Atlas Mills , Inc. and Textile House
Workers Union , No. 2269, United Textile Workers of America, 3 N. L. R. B. 10; Matter of
Globe Cotton Mills and Textile Workers Organizing Committee, 6 N L. R B. 461, niodifled
in another particular and enforced as modified in March 30, 1939 (C. C. A. 5th).
Compare the Report of the President's Commission on Industrial Relations in Sweden
in which it is pointed out that in Sweden , the "right of collective bargaining is defined to
include the obligation of the opposite party to enter into negotiations, to attend joint meet-
ings, and , where necessary , to make 'proposals supported by reasons for the settlement of
the question concerning which negotiations are instituted."' See p. 7 of the Report.
CONTINENTAL OIL COMPANY 801
of Section 8 (5) of the Act. In Matter of St. Joseph Stock Yards
Company and Amalgamated Meat Cutters and Butcher Workmen
of North America, Local Union No. 159,10 we stated our reasons
for this conclusion as follows :
An assertion that collective bargaining connotes no more than
discussions designed to clarify employer policy and does not
include negotiations looking toward the Jdoption of a binding
agreement between employer and employees is contrary to any
realistic view of labor relations. The development of those
relations had progressed too far when the Act was adopted to
permit the conclusion that Congress intended to safeguard only
the barren right of discussion . . . that attitude . . . is designed
to thwart and slowly stifle the Union by denying to it the
fruits of achievement. It is based upon the knowledge that
in time employees will grow weary of an organization which
cannot point to benefits that are openly credited to its aggres-
siveness and vigilance and not to an employer's benevolence
that on the surface may appear genuine but in truth is forced
upon the employer by the organization. To many his unwill-
ingness to enter into an agreement with a labor organization
may seem no more than a harmless palliative for the employer's
pride and to amount only to a petty refusal to concede an un-
important point purely as a face-saving device. But the fre-
quency with which the old Board was compelled to denounce
such a policy on the part of employers indicates its potency
as a device subtly calculated to lead to disintegration of an
employee organization.
Moreover, the respondent's refusal to grant recognition to the
Union as the exclusive bargaining agency and its repeated insistence
that it would continue to bargain with other groups of employees is,
in itself, an unfair labor practice. We have heretofore stated that
the granting of recognition as sole bargaining agency "is a funda-
mental and initial element of the duty to bargain collectively.""
The respondent offers the contention that despite this repeated in-
sistence, it did in fact deal exclusively with the Union, since no
other group requested meetings. It is clear, however, that the force
and effect of the respondent's refusal to grant exclusive recog-
nition were not vitiated by its inability to achieve its intention of
treating other groups of employees on the same terms.
10 2 N. L. R. B. 39.
"Matter o f Acme Air Appliance Company, Inc. and Local No. 1223 of the United Electri-
cal Radio & Machine Workers of America, 10 N. L . R. B. 1385. See also Matter of The
B088 Manufacturing Company and International G love Workers' Union of America, Local
No. 85, 3 N. L. R. B. 400.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that in August 1935 and thereafter, the respondent re-
fused to bargain collectively with the Union as the representative
of its employees in an appropriate unit at Big Muddy Field with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and that it thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. The discriminatory transfers
In the last week in April 1936, both Ernest Jones and F. D. Moore
were informed by their foreman, Bartels, that they were to be trans-
ferred to Hobbs, New Mexico. Jones was employed as a relief
pumper at Big Muddy Field at the time of such notification and the
transfer would have entailed a demotion from pumper to roustabout.
Jones had been in the employ of the respondent since 1926,12 and
had worked at Big Muddy Field since August 1928. Of 30 men in the
field, he ranked about fifth or sixth in seniority. He was a charter
member of Local 242 of the Union. He was elected to the workmen's
committee of the Local in 1934 and has served as chairman of the com-
mittee from November 1934 to the date of the hearing. He had
been vice president of the Local for 6 months in 1934, and financial
secretary and treasurer from June 1935 to the date of the hearing.
He had also been chosen by Local 242 as a delegate to the Oil Work-
ers Council for the State of Wyoming. Jones was about 35 years
old when he was ordered transferred.
Moore was employed as a roustabout at the time of the notifica-
tion of transfer and had been employed at Big Muddy Field since
1919. He was second in seniority at Big Muddy Field. Moore joined
Local 242 in the fall of 1933, and except for one short interval, had
been on the workmen's committee since the latter part of 1934. At
the time of the notice of transfer, he was second vice president of
the Local and its representative to the Central Labor Council. He
was also a member of the legislative committee of that body. Moore
was about 54 years old at the time he was ordered transferred.
After Jones and Moore had been notified of these transfers, rep-
resentatives of the Union called upon Thomas and Bartels. They
were informed that two other employees in addition to Moore and
Jones were being transferred, but to a nearby field in Wyoming.
.Thomas told them that these transfers had resulted from the decision
of the respondent to operate Big Muddy Field on a. 48-hour week,
12 The respondent corporation did not come into existence until 1929, when an earlier
Continental Oil Company was consolidated with the Marland Oil Company . However,
there was no disruption in the continuity of work or the employment of personnel, and
indeed the respondent , at the time of the hearing, had awarded 10-year service buttons to
some of its employees , taking into account service before the date of the merger.
CONTINENTAL OIL COMPANY 803
effective May 1, which would necessitate a reduction in personnel.
The union representatives then asked why Jones and Moore had
been chosen for transfer to New Mexico. They pointed out that
both Jones and Moore had considerable seniority and that it would
have been more equitable to have chosen younger men both in age
and in length of service. Thomas replied that he, alone, had not
ordered the transfers and that he was not in a position to change
them. He promised, however, that he would attempt to arrange
a meeting with Shannon. At the hearing, Thomas testified that he
and Bartels had together selected Jones and Moore to be transferred.
As described above, he said that he had denied that he had had
anything to do with it, because "at the time it made me kind of
sore and I didn't think it was any of their business." The promised
meeting with Shannon never materialized.
Both Jones and Moore refused the transfer, each of them stating
that he could not accept the transfer and move to Hobbs because
his wife was ill. Jones thereafter reported for work at Big Muddy
Field on two successive days. On each occasion he was told either
by Thomas or Bartels that there was no work. On the last occasion
Bartels asked him "how far [he] thought [he] could get by coming
to work every morning" and that Shannon had already been in-
formed that he "had quit."
However, when investigation showed that Moore's wife was bed-
ridden, Moore was offered a transfer to Ft. Collins, Colorado. Upon
his refusal of this offer, he was told that he could continue to work
at Big Muddy Field. Moore testified that Bartels told him that
this offer was only for the duration of his wife's illness. Bartels,
who denied that he had placed this condition on the offer of reem-
ployment, testified as follows with respect to the incident :
There was something said about his wife's illness, wondering
whether when she got well if we would try to transfer him
again. I said, "Well, why worry about that, Dinty ?" The
nature of his wife's illness, she would be laid up for 5 years or
so, "and you might have a different foreman here at that time
that could get along with you."
Since the reason for offering Moore reemployment at Big Muddy
Field was his wife's illness , Moore's version of the incident is the
more reasonable one. This conclusion is strengthened by Bartel's
equivocal denial which permits the inference that the condition was
implicitly understood between the men, even if not explicitly stated.
Moore refused to accept this offer of reemployment on a temporary
basis and did not thereafter report for work.
The respondent contends that both transfers were not discrimina-
tory, but were made upon the basis of efficiency. The increase in hours
169134-39-vol. 12-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made it necessary to transfer four employees. According to the re-
spondent, since there was room for only two in the other fields in
Wyoming, and since Jones and Moore were the most inefficient, it was
decided to transfer them outside the State.
Although testimony was introduced by the respondent in an attempt
to support its contention that Jones and Moore were inefficient we need
not, however, decide their relative efficiency compared with the other
employees. We are satisfied from the record that efficiency was not in
fact a determinant in the selection of men to be transferred.13 Instruc-
tions to Thomas from Joe Dyer, vice president of the respondent in
charge of production, were to the effect that in the course of the re-
duction in personnel, inefficient men were not to be transferred, but to
be discharged. Admittedly, both Jones and Moore were to remain in
the respondent's employ, and their alleged inefficiency would appar-
ently have been as detrimental to the respondent at Hobbs as at Big
Muddy Field. Moreover, at the time of the notice of transfer, neither
Jones, Moore, the union committee, nor the foreman at Hobbs were told
that inefficiency was the basis of selection.
The respondent contended that none of the other foremen of the
Wyoming fields would accept either Jones or Moore and it was there-
fore necessary to transfer them out of the Wyoming district. How-
ever, when Whitlock, another employee at Big Muddy Field who was
one of the four originally selected to be transferred, was rejected by
Bowen, the foreman at Salt Creek, it was decided to keep him at Big
Muddy Field and transfer Canning instead who was more efficient and
therefore satisfactory to Bowen.
Shannon contended at the hearing that although unsatisfactory at
Big Muddy Field, Jones might prove to be efficient at Hobbs, since it
was a new field and would present new opportunities. Shannon ar-
gued that it was helpful for young men in the oil business to obtain
varied types of experience. Upon such basis, however, it is reasonable
to assume that the respondent would not have chosen Jones, an em-
ployee of 10 years seniority for the purpose of giving him additional
experience, especially since this transfer entailed a demotion. The
contention was made by Shannon, with respect to Moore, that although
he had been inefficient as a roustabout, he was being transferred to
Hobbs as a tool dresser, a job he had formerly held, and at which he
had proven satisfactory. This contention, however, when contrasted
's Cf. Matter of The Kelly-Springfield Tire Company and United Rubber Workers of
America, Local No. 116 and James M. Reed and Minnie Rank , 6 N L. R . B. 325, where we
stated as follows : "While proof of the presence of proper causes at the time of discharge
may have relevancy and circumstantial bearing in explaining what otherwise might appear
as a discriminatory discharge , such proof is not conclusive . The issue is whether such
causes in fact induced the discharge or whether they are but a justification of it in
retrospect."
CONTINENTAL OIL COMPANY 805
with the testimony of Thomas that his judgment as to Moore's ineffi-
ciency was based to a considerable extent upon his work as a tool
dresser at Big Muddy Field, is clearly without merit.
The motivation for the transfer of Moore and Jones at that time may
be seen in the decision of the respondent to increase the hours of work
at Big Muddy Field. The respondent was aware that the Union was
opposed to such an increase and might attempt to take steps to prevent
it. The hours of work had been a subject of negotiation between the
respondent and the workmen's committee of Local 242. Although the
committee was composed of three members, Moore and Jones were the
only two who had been constantly on the committee, since the third
member was changed from time to time. The respondent in its brief
argues that the president of the Local, Charles Erwin, was not trans-
ferred at this time, whereas if the respondent had sought to oust active
union members, this officer would obviously have been singled out. Er-
win, however, was not a member of the workmen's committee, and the
record is clear that Jones and Moore were most active in all negotia-
tions with the respondent. It is significant that at the nearby fields in
Wyoming, Lance Creek, and Salt Creek, where the Union had not
yet organized, the hours of work had been increased some months be-
fore. The inference is plain that the only reason for the delay in an-
nouncing the increase in hours at Big Muddy Field was the presence
of the Union. Concurrently with the announcement of an increase in
hours, the transfer of the two most militant members at the Field was
also announced. We conclude that the transfers were made in order
to remove the backbone of the Union and prevent an effective opposi-
tion to the increase in hours.
This conclusion is strengthened by the respondent's repeated eva-
sions of the Union's efforts to bargain with respect to the hours of
work, and its arbitrary refusal to discuss the question of these trans-
fers with a union committee. In addition, Bartels' expressed hostility
toward Jones and Moore for their union activity further buttresses our
conclusion. Jones testified that in the course of an incident in which he
had been censured and threatened with discharge because his well had
not been running, Bartels told him, "Well, if you quit your union
foolishness and do a little more work, why, you could go ahead with
your job." Moore testified that at the time of the transfers, Bartels
expressed resentment that the men were taking up the matter with the
Union. When Moore asked Bartels if he was being transferred because
of his union affiliations, Bartels replied, "I can't say." He subsequently
asked Moore if he was being advised by Shipp and added, "If I'd
got rid of you Union men long before this, we wouldn't have had this
trouble."
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bartels denied generally that he had ever criticized Jones or Moore
for their union activities, and stated that he had never had more than
a casual conversation with them about the Union. He did not deny,
however, that he had made the specific statements attributed to him.
We believe that the testimony of Moore and Jones is correct.
In summary, the evidence shows that the two most militant union
members, both of whom ranked high in seniority, were ordered trans-
ferred on the eve of an increase in the hours of work after the
respondent had evaded or ignored repeated efforts by the Union to
bargain with respect to hours of work and other conditions of employ-
ment. Although the justification offered by the respondent for the
transfers was that these men were inefficient, the record does not sup-
port a finding that efficiency was the deciding factor in selecting the
men to be transferred. The Union's inquiry to discover the basis used
in the choice of men to be transferred was met by the respondent with
an uncompromising refusal to discuss the matter. That these men
were undesirable to the respondent because of their prominence in the
Union is further shown in the anti-union statements made by the
field foreman. Upon the basis of all these factors we conclude that
Jones and Moore were ordered transferred because of their union
activities.
The respondent further contends with respect to Moore that even if
his transfer was discriminatory, the respondent thereafter offered to
reemploy him at Big Muddy Field. This offer, however, was condi-
tioned upon the duration of the illness of Moore's wife. Moore
testified that he would have gone back to work if he had been offered
a job on a permanent basis. He was not required, however, to accept
the job on a temporary basis.14 We have heretofore held that when-
ever any substantial change in the status of an employee is made upon
a discriminatory basis, the -refusal of the employee to accept the
changed status cannot be considered as a resignation from employ-
ment.15 In the present case, the offer of reemployment upon the
condition that it would last only so long as his wife was ill was dis-
criminatory. Accordingly the refusal of this offer by Moore did not
operate as a voluntary termination of employment.
We find that the respondent, by its transfers of Moore and Jones
and the subsequent imposition of a condition upon the reemployment
14 The respondent contended at the hearing that if Moore bad gone back to work, he
would still be employed , since his wife was still ill. Moore, however , understood that this
employment at Big Muddy Field would continue only so long as his wife remained bed-
ridden. In all events , however, the offer as one of temporary employment , conditioned
upon the recovery of his wife.
15 Matter of Waggoner Refining Company, etc . and International Association of Oil Field,
Gas Well, and Refinery Workers of America, 6 N. L. R . B 731. Cf. Matter of Clover Fork
Coal Company and District 19, United Mine Workers of America , 4 N. L. R. B 202, order
enforced in Clover Fork Coal Company v. National Labor Relations Board 97 F. (2d) 331
(C. C. A. 6th, 1938).
CONTINENTAL OIL COMPANY 807
of Moore, discriminated in regard to their hire and tenure of employ-
ment and the terms and conditions of their employment, thereby dis-
couraging membership in the Union, and thereby interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Jones was earning $117.50 a month at the time his services were ter-
minated. The rate of pay for his job was thereafter increased to $130
and subsequently to $140 a month. Jones has been conducting a gen-
eral store since May 1936 and has been postmaster for Parkerton,
Wyoming, since May 1937. Moore was earning $112.50 a month at
the time his services were terminated, but the rate of pay for his job
was thereafter increased to $125 a month and subsequently to $135 a
month. He has been employed as a guard at the State Penitentiary
since 1936 at a salary of $70 a month in addition to room and board.
B. Glenrock Re furry
1. The refusal to bargain collectively
(a) The appropriate unit
The complaint alleged that the production and maintenance em-
ployees of the respondent employed at the Glenrock Refinery consti-
tute an appropriate unit. This allegation was not contested. We will,
however, in accordance with our usual practice exclude supervisory
and clerical employees.
We find that the production and maintenance employees of the re-
spondent at its Glenrock Refinery, exclusive of supervisory and cleri-
cal employees, constitute a unit appropriate for the purposes of col-
lective bargaining, and that such unit insures to these employees of
the respondent the full benefit of their right to self-organization and
lo collective bargaining and otherwise effectuates the policies of the
Act.
(b) Representation by Local 242 of a majority in the unit
In an election conducted by the Petroleum Labor Policy Board in
July 1934, Local 242 of the Union was certified as the collective bar-
gaining agency for the employees of the Glenrock Refinery. Of 80
votes cast in this election, 54 were cast for Local 242. Shortly after
the passage of the Act, Local 242 circulated among the employees of
the refinery a petition designating the Local as the collective bargain-
ing agency. Of a total of approximately 80 employees in the appro-
priate unit at the time, 46 signed this petition. At the time of the
circulation of this petition, therefore, Local 242 clearly represented
the majority of the employees in the appropriate unit.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent contends that between the time of the election con-
ducted by the Petroleum Labor Policy Board and the circulation of
the petition, a majority of the employees signified their acceptance of
an Employees Council Plan, and that this acceptance vitiated the
designation of Local 242. However, the Employees Council Plan was
admittedly sponsored and supported by the respondent, and upon the
decision by the Supreme Court that the Act was constitutional the
respondent deemed it desirable to sever its relations with this organiza-
tion.18 The acceptance of the Employees Council Plan was not, there-
fore, the expression of a free choice by the employees and may be dis-
regarded.
We have already discussed two further contentions of the respond-
ent: (1) that the designations were in fact of Local 242 of Interna-
tional Association of Oil Field, Gas Well and Refinery Workers of
America, and (2) that, even if it be granted that Local 242 represented
a majority of the employees in the appropriate unit at the time of the
refusal to bargain, it did not represent a majority at the time of the
hearing.
We find that on August 12, 1935, the date of its first attempt to
bargain collectively after the passage of the Act, and thereafter the
Union was the duly designated representative of a majority of the
respondent's employees at its Glenrock Refinery in an appropriate
unit and pursuant to Section 9 (a) of the Act was the exclusive repre-
sentative of all the employees in such unit for the purposes of collective
bargaining in respect to rates of pay, wages, hours of employment, and
other conditions of employment.
(c) The refusal to bargain
The conduct of the respondent in response to the request of the
Union to bargain collectively for the employees of the Glenrock Re-
finery, falls into a pattern similar to that which we have set forth above
with respect to Big Muddy Field. Shortly after the certification of
Local 242 by the Petroleum Labor Policy Board, Shipp called upon
Carl R. Tillman, the superintendent of the Glenrock Refinery, and
expressed the desire of the Union to meet with the respondent and
negotiate a collective agreement. In the course of the discussion Shipp
objected to the action of the respondent in bargaining with the Em-
ployees Council Plan, despite the certification of the Union as the bar-
16 The respondent offers the contention that , since after a hearing before the Petroleum
Labor Policy Board , the Employees Council Plan was declared a legal organization, that
decision is binding upon this Board. However , the decision of the Petroleum Labor Policy
Board was based upon another act and was issued before the passage of the National Labor
Relations Act. Moreover , as stated in the _ text, the respondent itself recognized the
illegality of the organization.
CONTINENTAL OIL COMPANY 809
gaining agency for the employees of the refinery. Tillman replied
that the respondent preferred to meet directly with its employees and
would continue to do so. Thereafter, the Union's proposal for a con-
tract covering working conditions was answered in a letter dated Sep-
tember 22, 1934, similar in context and form to the letter of September
18, 1934, which was issued at Big Muddy Field and containing a para-
graph identical with the one we have quoted from that letter.
At a subsequent meeting in December 1934, at which Walter Miller,
vice president in charge of refining, appeared for the respondent,
Miller stated that the respondent was willing to meet with any com-
mittee of employees or with any individual employee, but would not
recognize any group as the exclusive bargaining agency. Subse-
quently, in April 1935, the respondent announced a wage increase and
stated that it had been secured through the efforts of the Employees
Council Plan.
The passage of the Act marked no change in the attitude of the re-
spondent. A letter to the respondent stating that a petition designat-
ing the Union as bargaining agency had been signed by a majority of
the employees and requesting a conference for the purposes of collec-
tive bargaining was answered by Miller in the following terms :
I have answered right along that as a result of the conferences
and meetings we have held in the past there was a full understand-
ing between us regarding the working conditions which the com-
pany has maintained and methods of handling grievances with
employees 17, and thought that the company's attitude regarding
its relations with employes was thoroughly understood. I am
therefore at a loss to understand exactly what you have in mind
when you state you wish to make a collective bargain, as accord-
ing to my way of thinking we have been collectively bargaining
with our employes for a considerable length of time past, one
group through the Council and the other group through the com-
mittee of employes representing Local Union 242.
After a further exchange of correspondence, a meeting was held at
which Tillman appeared as the representative for the respondent. The
Union presented a proposed agreement covering working conditions
and terms of employment. Tillman announced that he could not bar-
17 The letter of September 22 prescribed qualifications for members of any committee with
which the respondent would discuss grievances as follows : "It is understood that a com-
mittee submitting a grievance for any employe in the group or association which it
represents will be selected from among such group or association of employes of the
Glenrock refinery, and that to be eligible for membership on such a committee an employe
shall be an American citizen and have been actively engaged in the oil industry for one
year next preceding his election . . . It is also understood that in the selection of this
committee each employe in the group which it represents is to have one vote for each
member to be elected."
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gain with the Union on these matters but that he would refer the pro-
posed agreement to Miller . On January 31, 1936 , Miller in a lengthy
letter to the union committee, rejected every one of the union proposals,
stating that most of the matters had been covered in the September
letter . He stated that the working conditions therein set forth were
still being maintained , reaffirmed the existing working conditions,
and the grievance procedure described in the September letter,18 and
concluded as follows :
Generally speaking, with the exception of Item 2, all the re-
quests made above which are not included in our working condi-
tions are points which have been brought up and discussed a num-
ber of times before. The writer has gone over them with Mr.
Daly 19 alone , and with Mr . Daly and the committee. He has
gone over them with Mr . Shipp alone , with Mr. Shipp and the
committee , and with some individual members of the committee.
He is ready to come to Glenrock for a meeting and discussion at
any time within reason if it appeared that some good could be
accomplished , but in view of the number of times the disagreed
points have been discussed , the details of the company 's attitude
are undoubtedly well known to all of you.
A subsequent request for a wage increase was denied on March 14,
1936 , in a letter of much the same tone. This letter marked the end
of negotiations between the respondent and the Union. During the
course of negotiations, no counterproposals were ever made by the
respondent. The respondent contends that its conduct constituted
genuine collective bargaining . However, we have already fully dis-
cussed this contention of the respondent in our section on Big Muddy
Field. Our discussion there is equally applicable to the respondent's
position at the refinery.
We find that in August 1935 , and thereafter the respondent refused
to bargain collectively with the Union as the representative of its
employees in an appropriate unit at its Glenrock Refinery, with respect
to rates of pay, wages , hours of employment , and other conditions
of employment , and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act.
2. The company-dominated union
At the election conducted by the Petroleum Labor Policy Board in
1934, a minority of the employees at the Glenrock Refinery registered
their approval of an employee-representation plan. At the time, how-
"'See footnote 17
19 Daly was Shipp's predecessor
CONTINENTAL OIL COMPANY 811
ever, no plan had been organized or was in existence. Subsequent to
the election, a committee of employees, with the assistance of Miller,
circularized the employees of the refinery, suggesting that the minor-
ity which had endorsed a plan of employee representation should
proceed to organize such a plan and put it into operation. With the
assistance of the respondent, an employee representation plan evolved.
This plan was known as the Employees Council Plan.
The plan which thus had its origin made no provision for member-
ship meetings and left the conduct of its business to the employee
representatives. All expenses of the plan were paid by the respond-
ent. The employee representatives who were selected chose as their
secretary Fred Davis, chief clerk of the refinery. Davis attended meet-
ings and took part in the discussions of the representatives. Whenever
the representatives decided to present a grievance, it was presented to
the respondent through Davis.
After the Supreme Court decisions sustaining the constitutionality
of the Act, Walter Miller in a letter to Tillman, the manager of the
refinery, stated that the plan as operated was no longer lawful, and
that therefore the respondent could no longer deal with it. He sug-
gested, however, that the plan be changed to conform with the law
and advanced the opinion that the plan could be made legal by two
simple changes: (1) the cessation of financial support by the respond-
ent, and (2) the exclusion of any agent of the respondent from meet-
ings of the employee representatives. He further suggested that the
employee representatives could either revise "the present form to
conform with the Act," or, in the alternative, create "a new labor or-
ganization to supplant the present council plan." He concluded the
letter with a direction to Tillman to "Tell the men that if they decide
to work up something to fit the new conditions, and want to consult
with me, I shall be glad to come to Glenrock for the purpose in the
near future."
Tillman testified that, despite these instructions, he never showed
the letter to the employee representatives, or told them about it, except
for the statement that since the Act had been upheld, the respondent
could no longer deal with them. The employee representatives, on
their part, denied ever having seen the letter or being apprised of its
contents.
However, a witness called by the Board testified that at a meeting
held soon after the receipt of this letter by Tillman, Charles Martin,
one of the employee representatives, opened the meeting by stating,
"As we all know, this Wagner law has killed our company union,
and it is the wishes of the company that we form some other kind of
an organization that we can bargain with them." At that point, one
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the members of the audience remarked, "You know what Mr.
Miller wants us to do, why don't you read that letter that Mr. Miller
sent us, that was read to us out at the plant?" Subsequent events in
which the employee representatives in fact followed the course of
action prescribed in Miller's letter lead us to conclude that Tillman
apprised the representatives of the contents of the letter. Thereafter,
the employee representatives, with the assistance of Davis, drew up
a new plan which in effect was merely the old plan revised to meet
certain of the objections raised by the Act. The employee representa-
tives then called a meeting of the employees of the refinery at which
Martin stated the reasons for the termination of the old plan and
presented the new plan for approval. The revised plan, however,
failed of acceptance and was dropped.
About a month later, another meeting at which Martin was again
the most active figure, was called. Those present at the meeting
proceeded to select a committee, among whose members were Martin
and one or two members of Local 242 of the Union, to draw up a con-
stitution and bylaws for an independent union. This committee
drafted a constitution and bylaws, which in large part were patterned
after the Employees Council Plan, although enshrouded in a rhetorical
declaration of the rights of working men. This device, together with
a change in name, proved successful and at a meeting held at the City
Hall and attended by some 14 employees the constitution and bylaws
of the new organization, which had been denominated as Independent
Association of Conoco Glenrock Refinery Employees, were approved 20
Thereafter a petition approving the constitution and bylaws was
circularized throughout the plant and signed by a majority of the
employees of the refinery.
With little change, the Glenrock Association assumed the position
of the Employees Council Plan. The machinery for the presentation
of grievances was identical, except for the omission of Davis' position
as intermediary between the organization and the management. How-
ever, communications from the management to the Glenrock Associa-
tion were all written on stationery headed "For Interdepartment
Correspondence Only." Requests or demands of the Glenrock Asso-
ciation were assigned case numbers by the respondent in a fashion
similar to that in which cases had been treated when presented under
the Employees Council Plan. Indeed, the respondent's answer to at
least one of the requests of the Glenrock Association referred as a
precedent to a decision, which had been arrived at under the Employees
8D Some of the later meetings of the Glenrock Association were held in the high -school
auditorium , the use of which was secured through the intervention of Davis, chief clerk of
the refinery.
CONTINENTAL OIL COMPANY 813
Council Plan.21 The respondent regarded the Glenrock Association as
a continuation of the Employees Council Plan and assumed a con-
tinuity of organization in the Employees Council Plan, the abortive
attempt to revise it, and the Glenrock Association.
Soon after its establishment the Glenrock Association requested
recognition as bargaining representative for members of the organi-
zation. Miller in a letter of reply recognized the Glenrock Association
as the exclusive bargaining agency within the terms of the Act, and in
the same letter which had already granted recognition, requested the
officers of the Glenrock Association to assure him that the organiza-
tion had been designated by a majority of the employees of the Glen-
rock Refinery.22
This alacrity in recognition of the Glenrock Association is in start-
ling contrast with the response to similar requests by Local 242, both
at Big Muddy Field and at Glenrock. The respondent argues that
the reason for the difference in treatment stemmed from the upholding
of the Act by the Supreme Court in the interim. This argument, how-
ever, does not explain the abandonment of ordinary caution in ascer-
taining the existence of a majority, nor was this shift in attitude
reflected in the response to a request for recognition by the Union at
Salt Creek Field, which was also made after the Supreme Court
decisions. The inference is clear that the motivation underlying the
respondent's alacrity in recognizing the Glenrock Association was a
m A sample of the correspondence from the company to the Glenrock Association reads in
part as follows :
CONTINENTAL OIL COMPANY
For Interdepartment Correspondence only
To : Independent Association of Conoco Glenrock Employees.
Subject : CASE No. 4-KELLOGG STILL FIREMEN REQUEST WAGE SCALE ADJUSTMENT TO
BRING BATE TO APPROXIMATELY 5 CENTS ABOVE PUMPER , TREATER, AND LOADER RATES
I have made a particularly close study of this case , and because of the comparisons made
between cracking still rates and those of boilerhouse firemen, pumpers , treaters , et cetera,
referred back to Employee Council Case No. 18, in which some points bore a similarity to
those presented here.
In that case, presented to Management in a letter dated February 21, 1936, the statement
was made, "The petitioners further state that there are several Kellogg operators receiving
less pay than men of shorter service and less experience are receiving for the jobs from
which the Kellogg operators were transferred."
It seems to me that a paragraph from my letter of March 14, 1936, in connection with
Council Case No. 18 can well be read in connection with this case . That paragraph read
as follows:
21 The letter concluded as follows :
It is the sincere hope of the management of the Continental Oil Company that the
friendly relationship which has existed between Management and the workers for so
many years will tontine , [ sic] and that the collective bargaining relationship thru
the Independent Association of Conoco Glenrock Refinery Employees, as established by
the decision of the employees themselves, and this acceptance thereof by the Com-
pany, will operate as a means for continuing such friendly relationships.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
desire to favor this organization rather than a desire to conform with
the law.
This attitude of support and cooperation on the part of the respond-
ent was reciprocated by the Glenrock Association . When a request
for a wage increase was denied by the respondent , the officers of the
Glenrock Independent invited Miller to attend a meeting of the organi-
zation to explain the position of the respondent , because they "figured
that Miller could give this picture better than [they]." The minutes
of this meeting concluded with the observation that "all seemed to be
satisfied with the statements made" since "no questions were asked."
The evidence shows that the respondent dominated and interfered
with the formation and administration of the Glenrock Association.
The inspiration for the organization of the Glenrock Association
came from the respondent and the respondent actively assisted in its
formation . After the formation of the Glenrock Independent, the
respondent treated it as a continuation of the Employees Council Plan,
an admittedly company-dominated labor organization .23 It assisted
the Glenrock Association in procuring a meeting place, and more
significantly , granted the organization recognition as the exclusive
bargaining agency, upon an unverified statement that it had been
designated by a majority of the employees . As described above the
respondent had previously maintained the position with respect to
Local 242 that it would not recognize any labor organization as the
exclusive representative of its employees. The reason for this sudden
change in position and startling eagerness to comply with the Act
when approached by the Glenrock Association is too obvious to require
explanation . In contrast with the very dissimilar treatment given to
Local 242, such recognition must have established in the minds of the
employees the favoritism of the respondent toward the Glenrock
Association.24
We find that the respondent , by the above -described course of con-
duct, dominated and interfered with the formation and administration
of the Glenrock Association and thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
23 Cf. 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 , and Matter of Swift & Company and
United Automobile Workers of America, Local No. 265, 7 N L R. B 287, where after the
dissolution of a company union , a successor organization 'eas formed at the suggestion of
the employer . See also Matter of Inland Steel Company and Steel Workers Organizing
Committee and Amalgamated Association of Iron , Steel, and Tin Workers of North
America, Lodge Nos. 64, 1010, and'1101, 9 N. L R. B. 783
24 Cf. Matter of Fansteel Metallurgical Corporation and Amalgamated Association of
Iron, Steel, and Tin Workers of North America, Local 66, 5 N. L. R B 930, order modified
in another respect and enforced , 59 Sup. Ct 490 ( 1939).
CONTINENTAL OIL COMPANY 815
C. Salt Creek Field
1. The alleged refusal to bargain collectively
(a) The appropriate unit
The Union contends that the appropriate unit for bargaining pur-
poses in Salt Creek Field should include only those employees engaged
in production work in the field and should exclude the employees
engaged in the operation of the gas compression and reduction plant.
The respondent contends that the appropriate unit should also include
this latter group of employees.
The gas plant is operated to create a vacuum which draws natural
gas from the wells in the field, thus permitting the oil in the wells to
be pumped more freely. The natural gas is drawn through pipe lines
into the gas plant where all moisture and gasoline are removed. The
dry gas is then redirected by pipe line to the wells where it is utilized
for the operation of the pumps and for other fuel purposes. The
surplus of such gas is placed back into the wells and conserved for
future use. The gasoline which is abstracted from the gas is known
as casing-head gasoline and is sold as a separate product.
The men employed at the gas plant are divided into two main
categories : operators, who operate the machinery in the gas plant,
and roustabouts, whose duties involve the maintenance of the vacuum
lines leading from the wells to the gas plant and any other general
labor work that might be required of them. The respondent contends
that the nature of the work performed by operators is similar to that
performed by pumpers in the field, and that the duties of roustabouts
in the plant and in the field are virtually identical. Both groups
of roustabouts are engaged in general labor work, and there is evi-
dence that field roustabouts occasionally assist in work on the
vacuum lines and plant roustabouts assist on field pipe lines when-
ever an emergency might require such aid. The record does not
disclose in detail the duties of operators although it appears that
they earn $5 more a month than the pumpers in the field.
At an election conducted by the Petroleum Labor Policy Board
in 1934, both field and plant employees were voted as one unit without
objection by the Union. Employees at the gas plant are eligible for
membership in Local 233 of the Union, and some of them had for-
merly been members, although at the time of the alleged refusal to
bargain, the Union did not have a single member among the gas-
plant employees.
Since the Union is the only labor organization here involved '25
we believe that its contention should be granted. The respondent
25 The Salt Creek Association may, for this purpose, be disregarded since, as we find
below, it was formed in violation of Section 8 (2) of the Act, and in any event , was not as
of the date of the hearing a functioning organization.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
maintains separate pay rolls for field employees and gas plant
employees and designates its employees at Salt Creek Field as either
field employees or gas-plant employees, a distinction which is gener-
ally recognized by the men at Salt Creek. Although the respondent
does not explain the reason for this practice, we must presume that
there is sufficient reason in administrative convenience to justify
this demarcation. We have previously held that employees should
not be denied the benefits of the Act because organization has not yet
pervaded the whole plant or enterprise of an employer, but has been
limited to a single area or field.26 We believe this principle to be
applicable in the present case.
The parties are apparently in agreement that the appropriate unit
should exclude the production foreman and the clerk at Salt Creek
Field, but should include head roustabouts. Accordingly, we shall
exclude the production foreman and clerk but include head rousta-
bouts.
We find that the production employees of the respondent in the
Salt Creek Field, including head roustabouts but excluding the pro-
duction foreman, the clerk, and employees engaged in the operation
of the gas compression and reduction plant constitute a unit appro-
priate for the purposes of collective bargaining, and that such unit
insures to these employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuates the policies of the Act.
(b) Representation by Local 233 of a majority in the unit
The course of negotiations between the Union and the respondent
which led to the charge that the respondent had refused to bargain
took place from January to May 1937. It was agreed at the hearing
that the appropriate unit during this period contained 28 employees,
although the pay rolls of the respondent introduced into evidence
shows the number to have been 26 in January and 30 in March. We
shall adopt the agreement of the parties with respect to the number
of employees in the appropriate unit during this period. In Decem-
ber 1936, the Union had been designated as the bargaining represent-
ative by 15 of the 28 employees in the appropriate unit. However, 1
of these 15, Feaster, after his designation of the Union and while
negotiations were still under way, proceeded to organize an inde-
pendent association for the purposes of collective bargaining with
28 See Matter of R. C. A. Communications Inc. and American Radio Telegraphists Asso-
ctation, 2 N. L. R. B . 1109 ; Cf. Matter of Southern California Gas Company and Uttility
Workers Organizing Committee, Local No. 132, 10 N. L R . B. 1128.
CONTINENTAL OIL COMPANY 817
the respondent. Such activity must be regarded as a repudiation of
his designation of Local 233, thus reducing the number which had
designated the Union to 14.27 The Union, therefore, at most repre-
sented a majority of the employees in the unit for only a short period
during the course of the negotiations. Subsequent designations of
the Union by 20 of the employees in the appropriate unit were made
after the action upon which the charge of a refusal to bargain is
based, and no notice of these new designations was given to re-
spondent. These designations therefore cannot be considered as
evidence of a majority at the time of the alleged refusal to bargain.
The record discloses that the respondent objected to meeting with
union representatives who were not its employees, and that it failed
to answer letters from the district representative of the Union on
the ground that "his connection with [the] employees or the affairs
of this company [were] entirely unknown." Moreover, the presenta-
tion by the Union of a proposed agreement was answered by a speech
by Joe Dyer to the employees in assembly, in which Dyer assured
the employees that they should be satisfied with their present working
conditions. Nevertheless, since the Union did not represent a major-
ity of the employees during the course of these negotiations, we do
not find that the respondent refused to bargain with the representa-
tive designated by a majority of its employees in an appropriate unit
at Salt Creek Field.
2. The company-dominated union
Soon after the decisions of the Supreme Court sustaining the
constitutionality of the Act, Feaster and Hainworth, two of the
respondent's employees at Salt Creek Field, decided that an inde-
pendent labor organization should be formed for the purpose of
collective bargaining with the respondent. They communicated their
intention to Bowen, production foreman for the Salt Creek Field,
and asked for a conference with Shannon. Bowen arranged this
conference and subsequently he and Kennelly, the foreman of the
gas plant, drove Hainworth and Feaster into Casper to confer with
Shannon. Hainworth told Shannon of their intention to form an inde-
pendent union and asked Shannon what the "Wagner Law" provided
in that respect. When asked why he consulted Shannon on a matter
27 Although we have previously held that we will discount any shift in union affiliation
which is caused by a respondent's unfair labor practices , see Matter of Arthur L Cotten,
and A. J. Colman, co-partners, doing business as Kiddie Koper Manufacturing Company
and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355, in the present case, it
appears that the idea of the formation of a rival unaffiliated union originated with Feaster,
without any direction or impetus from the respondent.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this kind, Hainworth answered, "When I want to know anything,
I go to my superiors for advice." Shannon told them that under
the Act they had a complete right to form and organize an inde-
pendent union, and they "discussed the Wagner Act for something
like 15 or 20 minutes." Hainworth then asked Shannon, "would it
be an unfair labor practice if you would scratch out on a little piece
of scratch paper an outline for an appropriate heading for a peti-
tion?" Shannon smiled and said he would "take a chance." He
then proceeded to prepare a heading for the petition .211
This petition was thereafter circulated during working hours
among the employees at Salt Creek Field and in at least one instance
an employee was taken from his work with the approval of his
supervisor in order to sign it. The petition was thus signed by a
majority of the employees at Salt Creek and was then turned over by
Feaster to Bowen. Shannon acknowledged receipt of the petition
in a letter which also expressed his willingness to bargain with the
Salt Creek Association.
The petition, however, was defective. Although providing for the
designation of three employees as a committee to represent such a
labor organization, the names of the three persons so to be designated
were not set forth upon the petition. Later attempts by Feaster and
Hainworth to organize this Salt Creek Association at subsequent
meetings held for this purpose failed, and their plans never came
to fruition.
Despite the abortive nature of the Salt Creek Independent we be-
lieve that the respondent was guilty of unfair labor practices with
respect to it.29 An employer may not under the guise of advice or
counsel, render assistance or aid in the formation of an organization
whose purpose is that of collective bargaining with the employer.
The taint of employer assistance in the process of formation will
prevent the operation of such an organization as a labor organization
free from employer influence. The policy of an employer in these
matters must be strictly one of "hands off." In contrast, Shannon's
policy was one of active assistance, aid, and encouragement.
We find that the respondent by its above-described activities dom-
inated and interfered with the formation of a labor organization
and thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
28 The heading on the petition as circulated read as follows :
We, the undersigned , employees of the Continental Oil Company in the Salt Creek
Field and Gasoline Plant, take this means of notifying the Company that we have
grouped ourselves together for the purpose of bargaining with the Company as pro-
vided by law and have duly appointed the following men to act as a committee to
represent us for this purpose
29 Matter of Canvas Glove Manu facturing Works, Inc and International Glove Makers
Union, Local No. 88, 1 N. L. R. B. 519.
CONTINENTAL OIL COMPANY 819
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to
take such affirmative action as will remedy the effects of such unfair
labor practices.
We have found that a majority of the employees within the
appropriate unit at Big Muddy Field and at the Glenrock Refinery
have designated the Union as their representative for the purposes
of collective bargaining and that the respondent has refused to
bargain with the Union as the exclusive representative of these
employees. The respondent contends, however, that even though the
Union represented a majority of the employees at Big Muddy Field
and the Glenrock Refinery at the time of the refusals to bargain, the
respondent should not now be required to bargain with the Union,
because it no longer represents a majority of the employees in these
appropriate units. The evidence adduced at the hearing showed a
considerable decrease in union membership. This decrease, however,
is directly attributable to the respondent's unfair labor practices in
refusing to recognize and deal with the Union,30 and at the Glenrock
Refinery, to the additional factor of the respondent's support and
encouragement of the Employees Council Plan and its continuation,
the Glenrock Association. Since the abandonment of the organiza-
tion was the result of the actions of the respondent, if we failed to
require the respondent to bargain with the Union, we would, as stated
in Matter of Lady Ester Lingerie Corp. and International Ladies
Garment Workers Union-Agliated with the Committee for Indus-
trial Organization 31 "be rewarding the respondent's illegal acts with
partial success and permitting the effect of the unfair labor practices
to continue. . . . Such [a policy] would defeat not effectuate the
policies of the Act. In order to effectuate the policies of the Act, we
must restore, as nearly as possible the status quo before the unfair
labor practices were committed and secure to the employees their
30 Compare the language quoted from Matter of St. Joseph Stockyards . supra.
8110 N. L. R. B . 518. See also Matter of Missouri, Kansas & Oklahoma Coach Lines
and International Association of Machinists 9 N. L. R B. 597.
169134-39-1,ol 12--;,3
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to bargain through the representatives they have selected with
full freedom of choice." We shall, therefore, base our order upon
the majority obtaining upon the date of the refusal to bargain and
require the respondent to bargain with the Union upon request as
the representatives of its employees in the appropriate unit at Big
Muddy Field and the Glenrock Refinery.32
Although we have found that the respondent has not engaged in
unfair labor practices in refusing to bargain with the Union as the
representative of its employees at Salt Creek, we believe that the xe-
spondent should be ordered to bargain with the Union when and if
it is designated by a majority of the employees in the appropriate
unit. The record discloses that the refusal of the respondent to bar-
gain with the Union was not based upon its belief that the Union
did not represent a majority of its employees but was a reiteration
of the position it had adopted toward the Union at both Big Muddy
Field and the Glenrock Refinery. Since the respondent has in two in-
stances violated Section 8 (5) of the Act, and in another has evi-
denced a similar attitude of non-compliance, we believe that the
policies of the Act will best be effectuated by requiring the respondent
to bargain collectively with the Union upon request as the representa-
tive of the employees of the respondent in the appropriate unit at
Salt Creek Field, in the event that the Union is designated as bargain-
ing representative by a majority of such employees.33 We shall so
order.
We have found that the respondent dominated and interfered with
the formation and administration of the Glenrock Association and
dominated and interfered with the formation of the Salt Creek
Association. Accordingly, we shall order the respondent to with-
draw all recognition from the Glenrock Association, and to dises-
tablish it as the representative of its employees for the purpose of
dealing with the respondent concerning labor disputes, wages, hours
of employment, or other conditions of employment. We will fur-
ther order the respondent to withdraw all recognition from the Salt
Creek Association. Since the Salt Creek Association is dormant and
has ceased to function, it will not be necessary to order its disestab-
lishment.34
We have found that the respondent has discriminated in regard to
the hire and tenure of employment of Ernest Jones and F. D. Moore.
We shall therefore order the respondent to offer to these employees
Matter of Bradford Dyevng Association ( U. S. A) (a Corporation ) and Temtile
Workers' Organizing Committee of the C. 1. 0., 4 N. L. R B. 604.
^Cf. Matter of West Kentucky Coal Company and United Mine Workers of America,
District No 23, 10 N L. R B. 88.
84 Matter of Yates-American Machine Company and Amalgamated Association of Iron,
Steel it Tin Workers of North America, Lodge 1787, 7 N. L. R. B. 627.
CONTINENTAL OIL COMPANY 821
full reinstatement to their former or substantially equivalent posi-
tions and to make each of them whole for any loss of pay he may have
suffered by reason of such discrimination by payment to each of them
of a sum of money equal to the amount which he normally would have
earned as wages from the date of the termination of his employment
to the date of the offer of reinstatement, less his net earnings 35
during said period.
The termination of Moore's employment caused the loss by Moore
of his insurance rights pursuant to a group-insurance policy cover-
ing employees of the respondent. We shall therefore order the
respondent to procure for Moore the restoration of these or substan-
tially equivalent insurance rights.
VI. THE QUESTION CONCERNING REPRESENTATION
In answer to a request by the Union for recognition as the repre-
sentative of the employees in the appropriate unit at Salt Creek
Field, the respondent replied that it would recognize the Union only
for its own members. Subsequent letters directed to the respondent
by the district representative of the Union received the reply that
the respondent was unaware of the district representative's connection
with its employees. In its brief, the respondent explained these
replies as resulting from the failure of the Union to prove that it
had been designated by a majority of the employees in the appropri-
ate unit at Salt Creek Field.
We find that a question has arisen concerning representation of
employees of the respondent at Salt Creek Field.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION
UPON COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
"By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for the unlawful
termination of his employment and the consequent necessity of his seeking employment
elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpen-
ters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8
N. L. R. B. 440. Monies received for ,%ork performed upon Federal , State, county,
municipal , or other work-relief projects are not considered as earnings , but, as provided
below in the Order , shall be deducted from the sum due the employee , and the amount
thereof shall be paid over to the appropriate fiscal agency of the Federal, State, county,
municipal , or other government or governments which supplied the funds for said work-
relief projects.
S22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
VIII. THE DETERMINATION OF REPRESENTATIVES
We have already found the appropriate unit at Salt Creek Field
as including the employees engaged in field operations but excluding
the production foreman and the clerk and those engaged in the opera-
tion of the gas compression and reduction plant. We have also found
that at the time of the alleged refusal to bargain, the Union had not
been designated as their bargaining agency by a majority of the
employees in said appropriate unit. Subsequent thereto, cards desig-
nating the Union as their bargaining representative were signed by a
majority of the employees. During the same period, the petition
circulated by Feaster and Hainworth was also signed by a majority.
Although we have found that the respondent was guilty of unfair
labor practices with regard to the preparation and circulation of this
petition, under the circumstances of this case we do not believe that
we should certify the Union as bargaining representative. We find
that the question which has arisen concerning representation of em-
ployees of the respondent at Salt Creek Field can best be resolved by
holding an election by secret ballot. We have found the Salt Creek
Association to have been formed in violation of the Act. Accordingly
the name of the Salt Creek Association will not appear upon the
ballot.
Although the Union requested that the date for the determination
of eligibility to vote be September 1937, we believe this date to be too
remote, and we will accordingly direct that the date for the determi-
nation of eligibility be that of the pay roll next preceding the date
of the Direction of Election.
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. Oil Workers International Union and Independent Association
of Conoco Glenrock Refinery Employees are labor organizations, and
Continental Employees Bargaining Association was a labor organiza-
tion, within the meaning of Section 2 (5) of the Act.
2. The employees of the respondent at Big Muddy Field, excluding
the production foreman and clerical employees, but including head
roustabouts, constitute a unit appropriate for the purposes of collec-
tive bargaining, within the meaning of Section 9 (b) of the Act.
3. Oil Workers International Union was in August 1935, and at
all times thereafter has been, the exclusive representative of all em-
ployees in such unit for the purposes of collective bargaining, within
the meaning of Section 9 (a) of the Act.
CONTINENTAL OIL COMPANY 823
4. By refusing to bargain collectively with Oil Workers Interna-
tional Union as the exclusive representative of its employees in the
appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
5. The production and maintenance employees of the respondent
at its Glenrock Refinery, exclusive of supervisory and clerical em-
ployees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
6. Oil Workers International Union was, in August 1935, and at
all times thereafter has been, the exclusive representative of all
employees in such unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
7. By refusing to bargain collectively with Oil Workers Interna-
tional Union as the exclusive representative of the employees in the
appropriate unit, the respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (5) of the
Act.
8. By discriminating in regard to the hire and tenure of employ-
ment and the terms and conditions of employment of Ernest Jones
and F. D. Moore, thereby discouraging membership in Oil Workers
International Union, the respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (3) of
the Act.
9. By dominating and interfering with the formation and adminis-
tration of Independent Association of Conoco Glenrock Refinery
Employees, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (2) of the Act.
10. By dominating and interfering with the formation of Conti-
nental Employees Bargaining Association, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (2) of the Act.
11. 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.
12. The unfair labor practices enumerated above are unfair labor
practices affecting commerce within the meaning of Section 2 (6) and
(7) of the Act.
13. A question affecting commerce has arisen concerning the repre-
sentation of the respondent's employees at Salt Creek Field within
the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14. The production employees of the respondent at Salt Creek
Field, including head roustabouts but excluding the production fore-
man, the clerk, and employees engaged in the operation of the gas
compression and reduction plant, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
15. The respondent did not, by refusing to bargain with the Union
as the representative of its employees at Salt Creek Field, engage in
unfair labor practices within the meaning of Section 8 (5) 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, Continental Oil Company, Ponca City, Oklahoma, and its officers,
agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Oil Workers Interna-
tional Union as the exclusive representative of all the employees of
the respondent at Big Muddy Field, excluding the production fore-
man and clerical employees but including head roustabouts, in respect
to rates of pay, wages, hours of employment, and other conditions of
employment;
(b) Refusing to bargain collectively with Oil Workers Interna-
tional Union as the exclusive representative of the production and
maintenance employees of the respondent at its Glenrock Refinery,
exclusive of supervisory and clerical employees, in respect to rates
of pay, wages, hours of employment, and other conditions of
employment;
(c) Dominating or interfering with the administration of Inde-
pendent Association of Conoco Glenrock Refinery Employees, or with
the formation of Continental Employees Bargaining Association, or
with the formation or administration of any other labor organization
of its employees, and from contributing support to said Associations
or to any other organization of its employees;
(d) Discouraging membership in Oil Workers International Union
or any other labor organization of its employees by transferring, dis-
charging, or refusing to reemploy any of its employees, or in any
other manner discriminating in regard to their hire or tenure of
employment, or any term or condition of their employment;
(e) 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
CONTINENTAL OIL COMPANY 825
concerted activities for the purpose of collective bargaining or other
mutual aid and 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) Upon request bargain collectively with Oil Workers Inter-
national Union as the exclusive representative of all the employees
of the respondent at Big Muddy Field, excluding the production
foreman and clerical employees, in respect to rates of pay, wages,
hours of employment, and other conditions of employment;
(b) Upon request bargain collectively with Oil Workers Interna-
tional Union as the exclusive representative of the production and
maintenance employees of the respondent at its Glenrock Refinery,
exclusive of supervisory and clerical employees in respect to rates
of pay, wages, hours of employment, and other conditions of
employment ;
(c) In the event that Oil Workers International Union is selected
in the election hereinafter directed as the representative of the em-
ployees in the appropriate unit at Salt Creek Field and is thereafter
certified by this Board as the exclusive representative of such employ-
ees, then, upon request, bargain collectively with Oil Workers Inter-
national Union as the exclusive representative of the production
employees of the respondent at Salt Creek Field, including head
roustabouts but excluding the production foreman, the clerk, and
employees engaged in the operation of the gas compression and re-
duction plant, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(d) Withdraw all recognition from Independent Association of
Conoco Glenrock Refinery Employees as the representative of any
of its employees for the purpose of dealing with the respondent con-
cerning grievances, labor disputes, wages, hours of employment, and
other conditions of employment, and completely disestablish Inde-
pendent Association of Conoco Glenrock Refinery Employees as such
representative;
(e) Withdraw all recognition from Continental Employees Bar-
gaining Association as the representative of any of its employees
for the purpose of dealing with the respondent concerning griev-
ances, labor disputes, wages, hours of employment, and other condi-
tions of employment;
(f) Offer to Ernest Jones and F. D. Moore immediate and full
reinstatement to the positions formerly held by them at Big Muddy
Field or positions substantially equivalent thereto at said Field,
without prejudice to their seniority, insurance, or other rights and
privileges ;
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) Make whole Ernest Jones and F. D. Moore for any loss of
pay or other pecuniary loss they may have suffered by reason of the
respondent's acts by payment to each of them of a sum of money
equal to that which he would normally have earned as wages during
the period from the date of the termination of his employment to the
date of the respondent's offer of reinstatement, less his net earnings
during that period, deducting, however, from the amount otherwise
due to each employee monies received by said employee during said
period for work performed upon Federal, State, county, municipal,
or other work-relief projects and pay over the amounts so deducted
to the appropriate fiscal agency of the Federal, State, county, mu-
nicipal, or other government or governments which supplied the
funds for said work-relief projects;
(h) Procure for F. D. Moore the restoration of insurance rights,
which he lost upon the termination of his employment;
(i) Post immediately in conspicuous places throughout the plants
involved and keep posted for at least sixty (60) consecutive days,
notices stating (1) that the respondent will cease and desist as afore-
said; (2) that the respondent will upon request bargain collectively
as provided in 2 (a), (b), and (c) above; (3) that the respondent
withdraws all recognition of Independent Association of Conoco
Glenrock Refinery Employees as a representative of any of its em-
ployees and completely disestablishes it as such representative; and (4)
that the respondent withdraws all recognition of Continental Em-
ployees Bargaining Association as a representative of any of its
employees ;
(j) Notify the Regional Director for the Twenty-second Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it hereby
is, dismissed in so far as it alleges that the respondent by its refusal
to bargain with the Union as the exclusive bargaining representative
of its employees in an appropriate unit at Salt Creek Field, has
engaged in unfair labor practices within the meaning of Section 8
(5) of the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 1,
as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
CONTINENTAL OIL COMPANY 827
with Continental Oil Company, Ponca City, Oklahoma, an election
by secret ballot shall be conducted within twenty (20) days from
the date of this Direction, under the direction and supervision of
the Regional Director for the Twenty-second Region, acting in this
matter as agent for the National Labor Relations Board and subject
to Article III, Section 9, of said Rules and Regulations, among the
production employees of Continental Oil Company at Salt Creek
Field, whose names appear upon the pay roll of the respondent next
preceding the date of this Direction including head roustabouts but
excluding the production foreman, the clerk, and employees engaged
in the operation of the gas compression and reduction plant, to de-
termine whether or not they desire to be represented by Oil Workers
International Union for the purposes of collective bargaining.