E. H. Moore, Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1942

40 N.L.R.B. 1058 (N.L.R.B. 1942)

In the Matter of E . H. MOORE , INC. and OIL WORKERS ' INTERNATIONAL
UNION, LOCAL 378
Case No. C-1938.-Decided April 30, 1942
Jurisdiction : oil producing industry.
Unfair Labor Practices
In general: anti-union activity of night watchmen characterized as "special
officer" held attributable to employer.
Interference, Restraint, and Coercion: anti-union statements; disparaging
union; surveillance over union meetings ; interrogating employees concerning
union membership ; and threatening discharge of union members.
Company-Dominated Union: formation of, following failure of attempts to dis-
courage formation of "outside" union-participation of representatives of
management in formation and administration of; formation suggested by high
supervisory employee; supervisory employees solicited members, attended
meetings, and became members and officers of-support : permitting meetings
on company property duruig working hours without loss of pay ; financial con-
tribution by employer's legal representative-indicia: hostility to "outside"
union in contrast to favoritism toward "inside" union.
Discrimination.: discharge, lay-offs, demotions, and refusal to reinstate laid-off
employee because of union membership and activity ; charge of, dismissed as to
several persons.
Remedial Orders: reinstatement and back pay awarded-reinstatement to be
effected by discharging if necessary newly hired employees ; and if sufficient
positions still unavailable, by reducing force in non-discriminatory manner,
placing such employees on a preferential list, and offering them employment
in other of its fields presently operated before other persons are hired for such
work-dominated organization disestablished.
Mr. V. Lee McMahon, for the Board.
Mr. A. L. Pitchford, of Harden City, Okla., for the Association.
Mr. R. C. Walker, of Hickory, Okla., for the Union.
Mr. Philip R. Wimbish and Mr. Villard Martin, of Tulsa, Okla.,
for the respondent.
Mary Lemon Schleifer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Oil Workers'
International Union, Local 378, herein called the Union, the National
40 N. L R. B., No 182.
1058
E. H. MOORE, INC. 1059
11
Labor Relations Board, herein called the Board, by the Regional
Director for the Sixteenth Region (Fort Worth, Texas), issued its
complaint dated March 12, 1941, against E. H. Moore, Inc., herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
(2), and (3) and Section 2 (6) and (7)the meaning of Section 8 (1),
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. Copies of the complaint, accompanied by notice of hearing,
were duly served upon the respondent, the Union, and E. H. Moore,
Inc. Employees' Association, herein called the Association.
In respect to the unfair labor practices, the complaint as amended 1
alleged, in substance, that the respondent: (1) on or about October
20, 1938, formed the Association and thereafter interfered .with its
administration and contributed support to it; (2) between January
I and July 15, 1939, transferred W. L. Andrews, A. D. Echols, H. C.
Parrott, and G. A. Anderson to less desirable positions because they
joined and assisted the Union; (3) on various dates between October
13, 1938, and December 15, 1940, discharged and refused to reinstate/
15 named employees 2 because they joined and assisted the Union;
and (4) by various other enumerated acts, designed to discourage
membership in the Union and to encourage membership in the Asso-
ciation, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The respondent filed an answer in which it averred that it was
engaged in intrastate commerce and that its activities were outside
the jurisdiction of the Board; denied that it had engaged in any un-
fair labor practices; and affirmatively alleged (1) that it transferred
and laid off the persons named in the complaint as amended, on or
about the dates specified, because of a decline in the production of
oil and the number of wells it was operating, and (2) that in laying
off employees consideration was given solely to their capability and
their record for attention to duty.
Pursuant to notice, a hearing was held at Ada, Oklahoma, from
March 27 to April 9, 1941, before Webster Powell, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the re-
spondent, the Union, and the Association were represented and par-
ticipated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
'During the course of the hearing , a sixth amended charge and an amended complaint
were filed The respondent waived all right to object to the amendments on the grounds of
timeliness or service
2 R C Walker, E C Malcom, W 11I Sims, R' R Rogers, W L Andrews, A. D Echols,
F N Spoons, J A Wilkie If C Parrott, A R Duncan, G A. Anderson, T. W Nash,
Hugh Hall,-Marshall Chambers, and J C Barnett
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the issues was afforded all parties. At the close of the Board's case
and at the close of the hearing, motions by counsel for the Board to,
conform the pleadings to the proof with regard to formal matters
were granted without objection. At the close of the hearing, counsel
for the respondent renewed the objection to the jurisdiction of the
Board. The Trial Examiner reserved ruling but denied the motion
in his Intermediate Report. Various rulings were made by the Trial
Examiner on other motions and on objections to the admission of evi-
dence during the course of the hearing. The Board has reviewed the
rulings and finds that no prejudicial errors were committed. The
rulings of the Trial Examiner are hereby affirmed.
On July 17, ,1941, the Trial Examiner filed his Intermediate Re-
port, copies of which were duly served upon the parties, in which
he found that the respondent had engaged in unfair labor practices
within the meaning of Section 8 (1), (2), and (3) and Section 2 (6)
and (7) of the Act 3-and recommended that the respondent cease and
desist therefrom, disestablish the Association, and take other affirma-
tive action deemed necessary to effectuate the policies of the Act.
Thereafter the respondent filed exceptions to the Intermediate Report.
No briefs were filed and no request for oral argument was received.
The Board has considered the respondent's exceptions to the Inter-
mediate Report and insofar as they 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
The respondent, E. H. Moore, Inc., is a Delaware corporation
having its principal office and place of business in Tulsa, Oklahoma.
In the years 1937 and 1940 the respondent operated oil fields in the
States of Arkansas, California, Kansas, Oklahoma, and Texas. The
only fields involved in the present proceeding ,are the so-called Fitts
Field, near Harden City, Oklahoma, and the so-called Kansas Field,
near Zenith, Kansas. In these fields the respondent is engaged in
the production of crude oil.
During 1938, 1939, and 1940, respectively, the respondent produced
approximately 5,000,000, 3,000,000 and 2,250,000 barrels of crude oil
at the Fitts Field; and 22,000, 260,000, and 300,000 barrels of crude
oil at the Kansas Field.4 Of the crude oil produced during 1938,
3 The Trial Examiner found the allegations of the complaint insofar as, they alleged
that Chambers, Wilkie, Nash, and Barnett had been discharged and that Anderson had
been transferred and discharged because of union activity, unsupported by the evidence
* Operations at the Kansas Field did not begin until October 1938.
E. H. MOORE, INC. 1061
1939, and 1940 in the Fitts Field, the respondent owned approximately
2,250,000, 1,250,000, and 1,000,000 barrels, which were sold for -ap-
proximately $2,721,000, $1,324,000, and $1,049,000, respectively. Dur-
ing 1938, 1939, and 1940, in the Kansas Field, the respondent owned
approximately 22,000, 195,000, and 207,000 barrels of the total pro-
duction, which were sold during these years for approximately $25,500,
$215,000, and $228,340, respectively.
The crude oil produced from the wells operated by the respondent
is delivered from the respondent's tanks to the Stanolind Pipe Line
Company. The oil is transported through the pipe lines of said com-
pany to four refineries owned and operated by the Standard Oil
Company of Indiana, located in Kansas, Missouri, Illinois, and Indi-
ana and thereafter transported into various States of the United
States.
During 1938, 1939, and 1940, respectively, the respondent purchased
equipment and supplies valued at approximately $458,000, $130,895,
and $96,000, of which 15 percent, 10 percent, and 2 percent, respect-
ively, were shipped from 'States other than the State of Oklahoma
and delivered to the respondent in the Fitts Field. During 1938,
1939, and 1940, respectively, the respondent purchased equipment
and supplies valued at approximately $138,000, $191,700, and $31,000
of which 85 percent, 60 percent, and 20 -percent,. respectively, were
shipped from States outside the State of Kansas and delivered to
the respondent in the Kansas Field.
During 1938, 1939, and 1940, the respondent transported $137,982.22
worth of oil-well equipment from its Fitts Field in the State of
Oklahoma to its Kansas Field in the State of Kansas, and from the
Oklahoma field to the State of Texas. During the same period, the
respondent sold oil-well 'equipment valued at $60,174.68 to purchasers
located in States other than the State of Oklahoma.
II. THE ORGANIZATIONS INVOLVED
Oil workers' International Union, Local 378, is a labor organiza-
tion affiliated with the Congress of Industrial Organizations, ad-
mitting to membership employees of the respondent and of other
oil producers operating in the Harden City area.
E. H. Moore, Inc. Employees' Association is an unaffiliated labor
organization admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Early in September 1938, the respondent's employees began to dis-
cuss organization and decided to hold a meeting for this purpose at
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conclusion of a safety meeting called by the respondent for
September 14. Despite opposition by the respondent, discussed below,
at the conclusion of the safety meeting A. R. Duncan, an employee,
announced that there would be another speaker and requested the
employees to remain. C. H. Chaffin, field representative of the Oil
Workers' International Union, after asking that all supervisory
employees leave the hall, addressed the employees. It was decided
by majority vote of those present, that the employees would join the
Oil Workers' International Union and approximately 50 employees
signed cards applying for membership that night.
According to the testimony ,of Levi Ackley, superintendent," he
learned of the proposed meeting of September 14 from Production
Foreman Gattis and from some of the farm bosses and learned further
that Safety Director Howard contemplated canceling the safety
meeting in order to prevent the employees from meeting. Ackley
testified that he insisted that the safety meeting be held "whether
they organize or not," and that he further instructed the farm bosses
and foremen on the afternoon of September 14 not to discuss union
activity with their employees. It is clear, as found by the Trial
Examiner, that "if such instructions were given they were disregarded
not only by the farm bosses but by Ackley himself."
Several of the employees testified- that at the conclusion of the
safety meeting and after the Oil Workers' representative had re-
quested all supervisory employees to leave the hall, Ackley, Farm
Bosses Beller and Armour, and I. J. Rees, superintendent of the
electric plant, remained in the vicinity of the hall where they could
observe the meeting. Only Ackley denied that he had done so. The
Trial Examiner, who observed the witnesses, found that Ackley,
Beller, Armour, and Rees had remained as charged. Ackley did not
deny, as charged by A. D. Echols, that sometime after the meeting,
Ackley told Echols, "we were getting along all right, Al; until the
union got started." Nor did he deny the testimony of J. C. Barnett,
7 During the entire period in question , Ackley served as superintendent of the operations
at the respondent 's Fitts and Kansas Fields. However, Ackley was not in direct and
immediate charge of production between July 1, 1938 , and January 1, 1940. During
this period his headquarters were in Tulsa , Oklahoma, where the principal office of the
respondent is located . L C. Irwin served as assistant superintendent from July 1, 1938,
to January 1, 1940, and was in direct charge of operations From January 1, 1937;
to April 30, 1939, C P. Gattis served as chief production foreman in the Fitts Field
The production foremen, under Gattis and Irwin , were. Glenn Armour ( until be became
district superintendent of the Kansas Field on October 9, 1938), E L. Beller, T. P
Medley, and L. B. Northcutt. The production foremen, commonly referred to as "farm
bosses, " were responsible for the continuous flow of oil and exercised immediate super-
vision over the pumpers and well servicing crews. After January 1, 1940, Ackley re-
turned to the actual day by day direction of the work . In addition to these supervisory
employees , there were a number of employees exercising supervisory functions including
the chief engineer , the assistant engineer , the foremen in charge of various departments,
and the superintendents of the electric plant and the salt water disposal station.
E. H. MOORS, INC. -1,063
that Ackley questioned Barnett about his union membership, char-
acterizing the C. I. O. as a "communistic racketeering bunch." Hugh
Hall testified that on the afternoon of September 14, Bryant Coff-
man, welding foreman, informed Hall that Ackley had stated, "every
God damned son-of-a-bitch that joined the CIO tonight was going to
get run off." Neither Ackley nor Coffman denied that such a state-
ment had been made. R. C. Walker testified that Farm Boss Beller
told him that Ackley had instructed the foremen to find out which of
their men were going to join the Union. Neither Ackley nor Beller
denied this testimony. Production Foreman Gattis admitted that
Ackley had stated to him, "`what surprised me is it started among
your men." Ackley did not deny having made this statement. Hall
testified that Rees, electric superintendent, asked Hall whether Ben
Ackley, a brother of the superintendent, had joined the Union and
was greatly amused upon receiving an affirmative reply, because
"Pete [Ackley] gave me hell when Keith [Rees' brother] joined the
C: I. 0." Rees was not called as a witness. Ackley admitted that he
was "disappointed" when his brother joined the Union. Ackley
failed -to deny, as testified to by Barnett,. that in the fall of 1937,
Ackley instructed "Special-Officer" 6 Broaddus to attend a meeting of
the Oil. Workers' in a neighboring town "to see what he could find
out," and, upon receiving a report that none of the respondent's em-
ployees had been present, remarked, "I hope that. damn CIO bunch
don't come in here. It would ruin us." Upon the basis Cf the entire
record and in conformity with findings made by the Trial Examiner,
we find that Ackley, Beller, Armour, and Rees maintained surveil-
lance over the meeting of September 14 and that Ackley sought to
discourage organization by the acts and statements recited above.
According to the uncontradicted testimony of W. R. Rogers, a
few days after the meeting of September 14, Assistant Superintendent
Irwin told Rogers that "any of you men that has joined that damned
union are through here. You can't work for this company any more."
Although denied by Irwin, the Trial Examiner found in,accordance
with testimony offered on behalf of Zebular Vance,' not a member of
the Union, that Irwin asked Vance whether employees Parrott and
Fears had joined the Union, stating that if they had, he intended to
"get rid of" them and further requested Vance to report anything
.he could learn about the Union to the respondent. According to the
uncontradicted testimony of Duncan, Irwin told Duncan, in June
1939, that, "We have a good bunch of men, if they will just let_thal
So listed in his work sheet The only evidence as to the duties of a "Special
Officer" was testimony by Duncan, that Broaddus was a night watchmen who "looked
after"' the leases
7 The parties stipulated that Vance, who was ill , if called to testify, would testify
to the facts recited . Vance is a brother-in-law of Production Foreman-Gattis. ,
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
damn union alone. We don't need a union." As is hereinafter
shown, the Association was formed in response to a suggestion by
-Irwin. Upon the entire record, and in agreement with findings made
by the Trial Examiner, we find that Assistant Superintendent Irwin
sought to discourage union activity in accordance with the testimony
of Rogers, Vance, and Duncan.
C. P. Gattis, chief production foreman, testified that he learned
of the proposed meeting from Assistant Superintendent Irwin.
Gattis further testified that "it hurt me pretty bad" to learn that the
employees "would rather take some stranger from the outside to
adjust their affairs than to consult me on them, when I think we had
gotten along fine up until that time," and that he knew E. H. Moore
"well enough" to know that Moore "would never consent for someone
else to run his business for him." s Motivated by these convictions,
Gattis admitted that he "discouraged it as much as possible," by
talking to numerous employees, telling them they would not benefit
by organization and that they would never secure a contract with
Moore. Gattis did not deny the testimony of various employees,
which we find credible, that prior to the meeting Gattis tried to pre-
vent the meeting, and when unsuccessful, advised employees not to
join. Gattis admittedly advised Duncan that "he had reason to be-
lieve" that Duncan's act in joining the Union might result in Gattis'
discharge and requested Duncan to resign. Gattis "would not deny"
the testimony of various employees that he had requested them to
resign from the Union. We find, as did the Trial Examiner, that
Gattis sought to discourage union activity by the activities he ad-
mitted and those attributed to him by the witnesses as set forth above.
As previously stated, Farm Boss Armour was one of the super-
visory employees who witnessed the union meeting of September 14.
J. A. Wilkie testified that a day or two after the meeting Armour
asked Wilkie why the men were joining the Union, stating, "I thought
you did me wrong there" ; "what will Mr. Moore think about me,
that all my men joined the C. I. 0. but one or two"; and "I don't see
why you should have to pay three dollars to join a union and two
more possibly dues, you don't have to do that to work for Mr. Moore."
Employee Echols testified that prior to the meeting of September 14
Armour stated, "Haven't I treated you all right? Why do you want
to join-go ahead, if you may (sic) but it will never do you any
good." While Armour denied in part the statements attributed to
s During the period in question E. H. Moore owned all the outstanding stock and was
the president and, operating head of the respondent. Walker testified , and it was not
denied by Beller, that Farm Boss Beller told Walker that Moore had made a speech
before the American Petroleum Institute in which he stated that, "he hoped the C I. O.
would never come down his way ; that he didn 't want to have anything to do with it."
Moore did not testify.
E. H. MOORE, INC. 1065
him by Wilkie and Echols, the Trial Examiner who observed the
witnesses did not credit Armour's denials. We find, upon the entire
record, that Armour sought to discourage union activity by the re-
marks, set forth above, made to employees Wilkie and Echols.
Two or three days before the meeting of September 14, Farm Boss
Beller, according to the uncontradicted testimony of W. L. Andrews,
told employees Andrews, Prince, and Asbury that he had seen or
would see all of his men and that he hoped they would not join the
C. I. O. Walker, one of the employees serving under Beller, testified
that a few days after the meeting Beller told Walker, that Walker
had "put him [Beller] on the spot" by joining the C. I. O. This
was not denied by Beller. The Trial Examiner credited the testi-
mony of Andrews and Walker. Beller likewise did not deny testi-
mony by employees Spoons and Walker, that at a subsequent time,
Beller and Special Officer Broaddus, drove up ltnd down before a hall,
3 or 4 miles out of town, in which a union meeting was being held.
Broaddus was not called as a witness. As we have previously found,
Beller was one of the supervisory employees who remained in the,
vicinity of the meeting of September 14. We find, upon the entire
record, that - Beller and Broaddus spied upon the meeting of the
Union held out of town and that Beller further sought to discourage
union activity in the manner testified to by Andrews and Walker.
Farm Boss Northcutt was not called as a witness and accordingly
did not deny the testimony of E. C. Malcom that late in the night
on September 14, Northcutt came to Malcom's house and questioned
him concerning the union meeting. As did the Trial Examiner, we
credit the testimony of Malcom.
We have previously found that Special Officer Broaddus 'spied
upon union meetings on two occasions, on the first occasion at the
express request of Ackley and the second, in conjunction with Farm
Boss Beller. Duncan testified that soon after the formation of the
Union, Broaddus told Duncan that if he wanted to continue to work
for the respondent he had better resign from the Union. Walker
testified that in January 1939, a day or two after a meeting between
Moore_ and the Union, Broaddus stated that he had been instructed
by Moore to inform the employees that "he [Moore] was going to
run this outfit from here on; that it didn't make a damn about the
CIO, or the National Labor Board either" and that if the witness
wanted to work for the respondent he "had better go ahead and keep
[his] mouth shut." As previously stated, Broaddus was not called
as a witness. The respondent denied, in its exceptions, that it is
liable.f or the activities of Broaddus. While the functions of Broad-
dus are not established by the record, it is apparent that Broad-
dus expressed the attitude of the respondent and that the employees
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had just cause,to believe that he was acting for the respondent. We
find cthat Broadilus !engaged in the anti-union activity detailed and,
that such activity is attributable to the respondent.9
The Trial Examiner found in,accordance with the undenied testi-
mony of Marshall Chambers and Barnett, that Stoner McLelland,
superintendent, of the salt water disposal plant, told Chambers that
Chambers had not "shown" him "any respect" by joining the Union;
told Barnett that Chambers had joined the Union and had not even
shown McClelland the "courtesy" of mentioning • it to him before
joining; and advised Barnett not to join the Union. The Trial Ex-
amirier also credited testimony establishing that two other super-
visory employees stationed in the salt water disposal plant also
discouraged union activity. Chambers testified that Ralph Howard,
chief engineer who replaced McCelland in October 1938 as super-
intendent of the salt water disposal plant, stated that he did not
see why the employees were joining the Union since Moore had been
so good to them. Barnett testified that Howard had questioned him
concerning his own and Chambers' membership in the Union.
Howard did not testify. According to Chambers, Moody Wilbanks,
foreman of the salt water disposal plant, advised him to join the
Association and get out of the C. I. O. which he described as a
"bunch of radicals." Wilbanks did not specifically deny this conver-'
sation. We find that McLelland, Howard, and Wilbanks engaged in
the activties detailed.
A short time after the organization of the Union, according to the
testimony of Walker, P. R. Wimbish, an attorney who represented
the respondent at the hearing, called on Walker, vice president of
the Union, and asked Walker what he "had against Moore" that he
had joined the Union. Wimbish did not testify and the Trial Ex-
aminer credited the testimony of Walker. We find that Wimbish,
acting in the respondent's behalf, sought to discourage union activity.
Hall testified that on the morning of September 15, the day after
the first union meeting, L. H. Longwell, foreman of the water de-
partment, asked Hall whether he had joined the Union, stating that
he did not see "any damn bit of use of a fellow going on that, they
have all been treated nice." Hall also testified that a few days after
the meeting Coffman, welding foreman, stated, that anyone who
joined the Union was "just throwing $2.00 away." Neither Longwell
nor Coffman testified. As did the Trial Examiner, we credit the
testimony of Hall.
g International Association of Machinists V National Labor Relations Board, 311 U. S.
72, enf'g Matter of The Serrick Corporation and International Union, United Automobile
Workers' of America, Local No. 459, 8 N. L. R. B 621.
E. H. MOORE', INC. 1067
That the statements and activities above described constituted a
course of conduct designed to discourage self-organization cannot be
doubted, especially in light of the respondent's discrimination against
union members and its establishment of the company-dominated Asso-
ciation as are shown below. We find that the respondent through the
statements and activities of Superintendent Ackley, Assistant Super-
intendent Irwin, Production Foreman Gattis, Farm Bosses Armour,
Beller, Northcutt, and Medley, Superintendents McLelland, Rees,-
and Howard, Foremen Wilbanks, Coffman, and Longwell, Special
Officer Broaddus, and Attorney Wimbish, as above detailed, inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
B. Domination of and interference with the formation and
administration of the Association
Subsequent meetings of the Union were held on September 20 and
23, 1938; additional employees joined and a negotiating committee,
consisting of employees Duncan, Echols, Walker, R. C. Trout, and
C. T. Overton, was elected. On September 24, Chaffin, representative
of the Oil Workers' International Union, wrote to Moore requesting
a meeting for collective bargaining- purposes and stating that the
request was made on behalf of a substantial majority of the em-
ployees. It was not until October 17, however, that a meeting was
held. Although requested to do so by the Union, Moore did not
attend the meeting, subsequently explaining that he "did not think
it proper-for me to appear personally-because I thought it might
be somewhat of a deterring effect upon the free expression of the
men affected." The respondent was represented by Superintendent
Ackley and Villard Martin, vice president of and counsel for the
respondent; the Union by Chaffin and the negotiation committee.
A proposed contract was submitted by the Union. Martin and
Ackley stated that they had no authority to negotiate a contract but
that, upon instructions from Moore, they wished to determine "what
was wrong." Martin and Ackley agreed to submit the proposed
contract to Moore, and on October 21,- Moore wrote to the Union,
stating, inter alia, that he "was not aware of any improvement,
either by way of wages or other matters" contained in the proposed
contract; that "the relationship between my employees and myself
has always been, I think, a pleasant and satisfactory and equitable
one" ; that "if belonging to the union appears to the employees to be
an advantage to them, I have no objection whatever"; and that "T
shall be pleased, any time it is convenient for both of us, to meet
you and discuss insofar as you like any matters affecting the interests
of my employees."
1068 DECPSTONIS OF NATIONAL LABOR RELATIONS BOARD
Meantime, however, according to the testimony of H. B. Arm-
strong, one of the organizers of the Association, on October 17 or 18,
Assistant Superintendent Irwin stated to Armstrong and William M.
Smartt, a clerical employee likewise not a member of the Union,
that "it looked like you boys are going to have to organize a com-
pany union." Irwin denied having made the remark; Smartt was
not called as a witness . The Trial Examiner, who observed the
witnesses , credited the testimony of Armstrong, referring Ito the
numerous anti-union activities of Irwin. Armstrong further testified
that no move towards the organization of an independent union had
been made prior to Irwin's suggestion. We find that Irwin sug-
gested to Smartt and Armstrong that they organize a company union.
Following this conversation, Smartt and Armstrong proceeded to
organize the Association. An initial meeting was held on October
20 at the Akers toolhouse, a small building located on the Akers lease
and used by the respondent as an office and shelter for the pumpers.
The meeting was attended by approximately 15 employees; several
of them left their work to attend the meeting, which lasted over an
hour. It was the consensus of opinion 'of those present that they
would form an association because they did not wish to be repre-
sented by the C. I. O. Irwin heard about this meeting the following
day. He made no attempt to determine who had attended and did
not reprimand any of the men for leaving their work. Irwin testified
that he assumed that the men were off duty. All the employees were
paid for the time spent at the meeting. The following day a second
meeting was held at the electric plant during the working hours of
several who attended.
At the first meeting, the employees decided to investigate other
"independent" unions in the vicinity. J. L. Delaplain, an employee
of the Carter Oil Company, whose wells are adjacent to the respond-
ent's, testified that two of the respondent's employees came to the
Carter Oil Company and questioned him concerning their organiza-
tion. One of the two employees was Farm Boss Northcutt. Dela-
plain testified that he told the employees that if the respondent's
officials "were in favor of that kind of an organization and would
give it their backing and they could get a good contract-it would
be, a good thing for their employees." Delaplain further testified
that Northcutt and E. B. Brasel, who accompanied him, expressed
their conviction that Moore would enter into a contract with the
Association. Neither Northcutt nor Brasel testified. As did the Trial
Examiner, we credit the testimony of Delaplain.
On the evening of October 21, 1938, a formal meeting was held at
the McLish schoolhouse to organize the Association. It was attended
by approximately 60 or 70 employees, some of whom left their work
E. H. MOORE, INC. 1069
to attend . A number of supervisory employees were present also.10
Officers were elected 11 and a committee was appointed to draw up
articles of organization . A motion was adopted to send a telegram
to Moore, stating that the Association represented a majority of the
employees and requesting a meeting for the purpose of collective
bargaining . Pursuant to this resolution , a telegram was sent request-
ing recognition of the Association as sole bargaining agent for the
employees and stating : "This telegram to be followed by a letter
more fully expressing our intent and purpose , as [is] sent to preclude
your recognition of any other organization as the sole bargaining
agent for the company 's employees."
Immediately following the receipt of this telegram , Moore replied
to Smartt and Pitchford by letter dated October 22 , 1938, as follows :
I have your telegram of this instant, and it is perfectly agree-
.able to me for you to name any agency that a majority of you
agree upon as your representative for bargaining . At this time
I have not committed myself to any agency.
On yesterday I directed a letter to Mr. C. H . Chaffin as Field
Representative of the Oil Workers International Union; to-
gether with a memorandum . Attached hereto is a copy of
both this letter and memorandum , which I enclose for your
information.
A copy of this letter was also sent to Chaffin.
On October 25, Moore telegraphed Chaffin that he, would be out
of town and , therefore , unable to meet with the Union on October 26.
Moore also stated that he had been advised by Smartt that a majority
of the employees wished to be represented in bargaining by "an
employees union" and that it would be necessary to establish which
of the organizations represented a majority.
On October 26 the Association sent Moore a proposed agreement
and a copy of its membership list containing the signatures of 49
employees. At the top of the list it is stated that the employees whose
signatures appear below have "become members of the ,E. H. ' Moore,
Inc. Employees ' Association . . . and we hereby renounce any
and all obligation or connection with any and all other organizations
or associations organized for the purpose of collective bargaining."
Among those who signed this membership list were the following
supervisory employees : Longwell, foreman of the water station ;
Browning, roustabout foreman ; James R. Marty, assistant chief
L. C Coop, electric plant foreman, Melvin Wood, garage foreman ; Ralph Howard,
chief engineer ; J J. Browning, roustabout foreman ; L H Longwell, foreman of the
water station ; A. L Pitchford, assistant warehouse foreman
11 William M. Smartt, president ; A L Pitchford, secretary-treasurer ; and J. J. Brown-
ing, sergeant-at-arms At the next meeting on October 25, additional officers were, elected
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engineer ; E. T. Boydstun, gang pusher,; and Coop, electric plant
foreman. On October 31, Moore wrote the Association, stating:
while it is apparent from the list submitted that you
represent a majority of"such employees, I am confronted with
a claim made by the Oil Workers'. International Union, Local
No. 305, [sic] that it has been chosen by a majority of my em-
ployees to negotiate on their behalf.
I have been advised that this Union has filed charges before
the Regional Director of the National Labor Relations Board
attacking your Association; and I feel that it would be inap-
propriate for me to negotiate with you pending investigation
of these charges.
Although Moore met with representatives of the Association and
of the Union in January 1939, nothing was concluded, since, as Moore
'stated in a notice to the employees, the matter had been referred
to the Board.
On October 29, 1938, George S. Ramsey, senior partner of the law
firm of Ramsey, Martin, and Logan, on annual retainer by the re-
spondent and one of whose members, Martin, was vice president of
the respondent, gave Smartt, his son-in-law, $200 to be used for
organizing the Association. Neither Smartt nor Ramsey appeared
as witnesses but an affidavit signed by Ramsey was introduced into
evidence. According to the affidavit, Ramsey had never heard of the
Association until Smartt came to see Ramsey in Tulsa and requested
funds to aid in forming the Association; Ramsey handed Smartt a
check for $200 with the understanding that Moore was not to know
of the contribution; and Ramsey gave the $200 to Smartt as "his
[Ramsey's] contribution to a campaign against the C. I. 0." At-
tached to the affidavit is a carbon copy of a letter addressed to Smartt,
which Ramsey states in the affidavit, "as I remember-was never
sent." The letter reads :
I am sending you a check for $200.00 to be used as President
of your labor union, and if you need any more funds, let me
know. This is my money, and not Mr. Moore's money.
Under all the circumstances, we do not accept the explanation
given in the affidavit. The Trial Examiner concluded that the letter
and the check had been "sent" by Ramsey to Smartt, thus in eff ect
rejecting Ramsey's explanation that the money was given in response
to Smartt's personal solicitation. That this is a reasonable interpre-
tation of the evidence is evidenced by the respondent's failure to
except to the conclusion of the Trial Examiner. Ramsey's explana-
tion that he was not then aware of the situation concerning organiza-
tion is not only rendered incredible by the sending of the letter to
r ,
.E. H. MOORE,' INCt :107+1
Smartt, but also, by the fact, , set forth ' above, that at about the. same
.time Wimbish , another attorney in Ramsey 's office, accbinpanied by
,Smartt, , called upon Walker, vice president of the Union , and sought
to dissuade him from further activity on behalf of the C: I.. 0.12 '
The fact that .the officers of the Association thought this contribu-
tion was irregular , and attempted to conceal it, is established by a
letter written by Smartt 13 to Elliott on September 27, 1939, stating
in part :
The two hundred dollar check was deposited when Ben [Spain]
opened the account; and this rather large deposit should not ap-
pear irregular as 'it constituted membership fees and donation
from our members . . . and where I got it, is none of their
[the Board's] business.
Pitchford and Elliott, officers of the Association, both knew of
the contribution. Pitchford testified that he did not recall whether
the membership, of the Association was ever informed of it. Minutes
of the meetings of the Association, introduced as exhibits, contain
no mention of the contribution. It is apparent that the officers of the
Association thought the contribution sufficiently suspicious to require
that it be concealed from the membership and from the Board.
In view of all the circumstances and in conformity with the
finding of the Trial Examiner, we find that Ramsey contributed $200
to the Association on behalf of the respondent.14 But even if the
contribution was not made in the respondent's behalf, we hold further
,that the respondent may not "gain any advantage through recogniz-
ing or bargaining with a labor organization" so aided by one of the
respondent's representatives.15
During October 1938, the respondent began operations at its Kansas
Field. 'The development of the Association in the, Kansas Field
paralleled its development in the Fitts'Field. Glenn Armour, former
farm boss at the Fitts Field, became superintendent at the Kansas
Field. W. R.-Rogers, who had formerly been a truck driver in the
Fitts Field, was employed in the Kansas Field on October 23, 1938.
Rogers testified that J. P. Woodell, former roustabout foreman at the
Fitts Field, was foreman at the Kansas Field when he arrived ' there.
12 See Section III A, supra
11 Smartt left the Fitts Field in January 1939 , going to the Tulsa office at a $20
per month increase in salary Elliott succeeded him as president of the Association.
14 Cf. National Labor Relations Board V. Remington Rand, Inc., 94 F (2d) 862
(C C A. 2) cert. denied 304 U S 576 , 585, enf'g as mod ., Matter of Remington Rand,,
Inc and Remington Rand Joint Protective Boaid of the District Council Office Equipment
Workers, 2 N L R. B 626 ,
15 Cf. H J Heinz Company v National Labor Relations Boaid , 311 U S 514, 110
F (2d)' 843 (C. C. A 6) enf'g Matter of H. J Heinz Company and Canning and Pickle
Workers, Local Union No. 325 , affiliated with Amalgamated Meat Cutters and'Butcher
Workmen of North America, American Federation of Labor, 10 N. L. R B. 963
i
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woodell denied this, but the record supports Rogers' testimony.1°
Rogers testified that on October 24, Sam Sullivan, Harry McComber,
E. T. McDonnal, Don Brady, Woodell, and himself were at the Ira
Johnson No. 2 separator; that Woodell said to McDonnal and Brady,
"Come on up here and sign this paper, you fellows; if you want to
work here you have got to join the company union. Everybody that
joins the company union can work, and you C. I. O. are going to
go down the road." McDonnal and Brady signed. Sullivan,
McComber, and Rogers refused. Rogers also testified that Woodell
said that the company union was going to restore seniority; that
he (Woodell) would be older in seniority than Irwin or Northcutt
and two or three other supervisors, and that he would get their jobs.
According to Rogers, in December 1938, Woodell told him that the
Association was drawing up a contract which Moore had agreed to
sign and that "Everybody that works for the company will stay in,
and I hope they will be big-hearted enough to keep you C. I. O. men
too." Woodell also stated that he was participating in the prepara-
tion of the contract. In the latter part of January or the first of
February 1939, Woodell had all the union men digging ditches and
the Association men making connections. Rogers spoke to him about
this. According to Rogers, Woodell said that "the C. I. O. could
dig ditches and the company union members could handle the snaps."
In this conversation Woodell also said, according to Rogers, that the
C. I. O. laid the foundation for the "company union." Rogers' testi-
mony was substantially corroborated by the testimony of Brady.
Woodell testified that prior to the time he was made a gangpusher,
he talked about the Association with a number of men and obtained
the signatures of McDonnal, Brady, G. D. Browning, and E. J. Cook.
He denied having told the men on this occasion or any other occasion
that they had to join the company union -if they wanted to work
there. Woodell further testified that after he received the rating of
gangpusher, Armour instructed him to have nothing further to do
with the Association. He stated that prior to this time he had
paid for 6 months' W a year's dues and the membership fee in the
Association, amounting in all to $1.50. Woodell also testified that
he might have done some "kidding" 'about the C. I. O. in Kansas,
but could not remember the exact conversations.
We find, as did the Trial Examiner, that Woodell, while acting
as foreman, made the statements attributed to him by Rogers and
solicited members for the Association among the employees over
whom he had supervision.
16 The respondent stipulated at the hearing that wooden , who went to work in the
Kansas Field about October 20 , acted as a gangpusher on October 24, 25 , 26, 29; and 31,
and continuously thereafter Woodell testified that a gangpusher is a foreman, and
he is designated a foreman in the respondent's work records Woodell received foreman's
wages from the beginning of his employment in the Kansas Field
E. H. MOORE, INC. 1073
According to the membership records of the Association , a number
of supervisory employees paid membership fees and dues in the
Association for the last quarter of 1938.17 The attendance records of
the Association show that Browning, Coop, Longwell, and Woodell
attended Association meetings during the fall of 1938 and the follow-
' ing.-winter.
From the foregoing it is clear that after learning that the Union
was organizing , the respondent first tried to discourage its employees
from joining through activities calculated to intimidate and coerce
them and that when this attempt failed, Assistant Superintendent
Irwin suggested a "company union" to accomplish the same purpose.
It was under the impetus of his suggestion that the Association was
organized. During the first 2 days of activity, the employees instru-
mental in the formation of the Association used company property
on which to hold informal meetings during working hours, and were
paid for the time thus spent. When the respondent learned of these
activities, it took no steps to discipline those participating, despite
the-fact that omsevera1xoccasions thereafter , as hereinafter„set,forth,
it reprimanded union members for "visiting " while on duty. Super-
visory employees , including Farm ) Boss Northcutt , aided in the for-
mation of the Association ; many of them attended meetings of the
Association and several , including Farm Boss Beller, became mem-
bers; and the respondent 's legal representative gave substantial
financial support to the Association. Meanwhile, the respondent
withheld action on the Union's request for recognition until the
Association was organized and showed a substantial membership.
The definite hostility shown to the Union by supervisory employees
stands in marked contrast to their favoritism toward the Association.
These activities of the respondent's representatives were clearly in-
tended to discourage membership in the Union and encourage mem-
bership in the Association.
We find, as did the Trial Examiner, that the respondent dominated
and interfered with the formation and administration of the Associa-
tion and contributed financial and other support to it, and by such
activity interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
C. The responulentt's discri'nination in regard to hire and tenure of
employment
Answering the allegations of the complaint, which alleged the
discriminatory transfer and/or discharge of 15 named employees,
the respondent asserted that these employees had been so affected
17 Longwell , Browning , Marty, Coop , wooden , Bener , and Moody wilbanks, who became
foreman of the salt water disposal plant on December 1, 1938
455771-42-vol. 40-68
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in their employment' by virtue of a necessary curtailment in opera-
tions and that decisions with regard to such changes had been based
'solely upon ability and record for attention to duty. At the hearing,
the respondent asserted, in, addition, that employees Wilkie and
Barnett had left their employment and that Duncan had been dis-
charged for cause.
The respondent 'adduced proof establishing that there has been a
gradual decline in oil production at the Fitts Field since 1937 with
a corresponding reduction in the working, force.'5 However, the
necessity for reduction does not preclude the possibility of discrimina-
tion against employees because of their union membership and activity
and that the respondent utilized the curtailment as a means of dis-
criminating against members of the Union.
From the first meeting on September 14, 1938, the employees made
no attempt to conceal their interest and membership in the Union.
In addition, many of the employees wore union buttons and carried
union stickers on their cars. None of the supervisory employees
who testified denied that he was aware of the identity of union mem-
bers and the evidence recited above affirmatively establishes such
knowledge. The record also shows that the respondent was opposed
to the Union and took vigorous steps to prevent organization. Super-
intendent Ackley and Assistant Superintendent Irwin, as well as other
subordinate supervisory employees, had also threatened to discharge
employees who joined the Union.
An analysis of the transfers and lay-offs among the pumpers and
of the lay-offs of roustabouts shows that an overwhelming and dis-
proportionate number of employees adversely affected in these two
classifications were union members.19 Employment records introduced
by the respondent show that of 34 pumpers employed in the Fitts Field
in October 1938,20 13, or 38 percent, were members of the Union
and 21, or 62 percent, were members of the Association or of neither
organization.21 In February 1939, the respondent laid off two pump-
ers, Malcom and Walker, both union members. In May 1939, pumpers
The Kansas Field was not opened until October 1938 . Only 1 of the 15 employees
alleged to have been discriminated against was employed at the Kansas Field
11 Ten of the 15 employees named in the complaint came within these 2 classifications
Prior to the a lleged discrimination the following complainants were classed as pumpems
E. C Malcom, R C. Walker, \v L Andrews, A D. Echols, F. W. Spoons , J. A Wilkie,
H C Pairott, and T W. Nash Prior to the time they were laid off , Andrews, Echols,
Parrott, and Nash had been demoted to the roustabout classification Two other com-
plainants , W. M Sims and G A Anderson, were classified as roustabouts
20 Although the respondent employed '36 pumpers in October 1938, B . H Ackley and
J W Hunt are not included in the analysis since they were members of both the Union
and the Association Ackley, a brother of the superintendent , was laid off in February
1939; Hunt was still employed at the time of the hearing.
21 Eighteen were members of the Association ; of the remaining three, two had first joined
and then resigned from the Union, while the third, so far as the record shows , did not
join either organization.
- E: H. MOORE, INC. 1075
Andrews, Ech6ls,; Spoons, and- Ragsdale were laid off. The, first
three named were members' of the Union; Ragsdale .had- joined but
subsequently resigned from the Union.22 Three pumpers, all.mem-
bers of the Union, were laid off in July 1939: Wilkie,, Parrott., and
Asbury. No pumper belonging to the company-dominated , Asso-
ciation was laid off until August 1939 when Association member
LaPearl was laid off with union member Thompson. In Sep-
tember 1939, two pumpers were laid off: Fears, a member of the
Union, and Clark, a member of the Association. One Association
member, Vance, was laid off in January 1940, while two more union
memmbers. Nash and Langley, were laid off in March and May 1940,
respectively. Thus by June 1, 1940, the respondent- had' laid off
all but 1 of the 13 union members employed as pumpers in October
1938, whereas only 4 of the 21 pumpers who were, not members of
the Union had been laid off. The ratio of union to non-union mem-
bers among the pumpers had been changed from 38 to 62 percent
in October 1938 to 6 to 94 percent in June 1940. Stated differently,
while only 38 percent. of the pumpers had been union members, 75 per-
cent of those laid off were members of the Union; while 62 percent of
the pumpers were not members of the Union, only 25 percent of the
pumpers laid off came from this group. Such a disproportionate
selection in view of the respondent's anti-union attitude is highly
persuasive evidence of discrimination.'?
Similar indication of discrimination is shown by the transfer of
pumpers to lower work classifications. Between February 15, 1939,
when the first 2 union pumpers were laid off, and June 1, 1940, 7 of
the 11 remaining union pumpers were demoted to lower work classifi-
cations, all 7 being laid off after their demotion. Among the non-
union group, comprising 62 percent of the employees, only five pumpers
were demoted prior to June 1, 1940, and two of the five were subse-
quently elevated to their original classification.
Of the 17 full-time roustabouts employed in' the Fitts Field on
"The date of Ragsdale 's resignation from the Union is not established by the record
Ragsdale was reinstated on December 15, 1939, and worked until March 1940 For the
purpose of this analysis , we treat Ragsdale in the manner most favorable to the
respondent . i e , that he was not a member of the Union when laid off in May 1939
23 Montgomery Ward & Co v. National Labor Relations Board , 107 F (2d) 555
(C C A 7) enf'g as mod , Matter of, Montgomery Ward & Company and Reuben Litzen-
berger, et al., 9 N L. R B 538: F W. Woolworth, Co. v National Labor Relations Board,
121 F. (2d) 658 (C C. A 2) enf'g as mod, Matter of F TV Woolworth Company, at al
and United Wholesale & Warehouse Employees of New York, Local 65, etc., 25 N. L R. B
1362; Hamilton-Brown Shoe Co. v National Labor Relations Board, 104 F. (2d) 49
(C C A 8) enf'g as mod , Matter of Hamilton-Brown Shoe Company, a corporation and
Local No. 125, United Shoe Workers of America, affiliated unth the Committee for Industrial
O, ganicataon, 9 N L R B. 1073
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.October 1, 1938,24 7, or 41 percent , were members of the Union ; of
the remaining 10, 6 had resigned from the Union,25 1 was a member
of the Association, and the remaining 3, so far as the record shows,
were not members of either organization. By June 1, 1940, six, or
all but 1, of the union members had been laid off, whereas out of the
nonunion group, comprising 59 percent of these employees, only 4
had been laid off and subsequently two of these were reinstated.26
Thus the ratio of union to non-union members among the full-time
roustabouts had been changed from 41 to 59 percent in October 1938
to 11 to 89 percent in June 1940.27 And although on October 1, 1938,
only 41 percent of the full-time roustabouts were union members,
nevertheless 86 percent of the roustabouts laid off were union mem-
bers. - It is also significant that during the period of these lay-offs,
the respondent hired four new employees and reinstated five old
employees, all of whom worked at least a,portion of the time as
roustabouts.
In addition to this affirmative proof of discrimination, the evi-
dence introduced by the respondent to explain the selection of par-
ticular employees for transfer and lay-off is conflicting and of little
probative value. Ackley and Irwin testified that recommendations
were made by the farm bosses and passed upon by Ackley or Irwin.
Ackley testified that selections were made on the basis of ability,
flexibility, character, and reputation. Irwin testified that selection
had been based solely upon ability. Armour, Medley, and Beller, the
only farm bosses who testified, alleged that in determining ability
they considered general experience in oil-field work. All of, the
supervisory employees who testified denied that seniority based upon
employment by the respondent had ever been considered as a factor
in the selection of employees to be demoted or laid off, yet in October
1938, under a statement of "my present policy with respect to
24 The respondent introduced into evidence a compilation (Resp. Exh. 10 ), allegedly
based upon the individual work records ( Resp. Exh 9 ), containing the names of the per-
sons employed as roustabouts . The individual work records indicate that many employees
not included in the compilation were employed as roustabouts in the Fitts Field and that
over 50 persons served in this capacity between October 1, 1938, and -June 1 , 1940. How-
ever , most of these employees served in more than one capacity and the individual work
records do not indicate the amount of time spent in roustabout work Other employees
spent only short periods of time as roustabouts and then were transferred to other classi-
fications Under these circun$stances a complete analysis of all roustabouts employed
during this period is impossible . As of October 1, 1938 , only 17 of the employees in-
cluded in the compilation are shown by their individual work sheets to have been em-
ployed as full -time roustabouts in the Fitts Field , and as of June 1, 1940 , only 9 of the
persons included in the compilation are shown by their individual work records to have
been carried solely in'the roustabout classification.
21 Since the dates on which they resigned are not shown by the record , we assume that
they had ceased to be members of the Union prior to their lay-off. See footnote 22
2e D C Carroll , one of the two reinstated , was laid off a second time prior to June 1,
1940
7 Although 10 roustabouts had been laid off in this period , 2 nonunion roustabouts had
been reinstated , thus reducing the force by only 8.
E. H. MOORS, INC. , 1077
employer-employee relationship" Moore had stated, "Length of serv-
ice in employment will be duly considered by me in connection with
all promotions, demotions, and lay-offs." Most of the employees
named in the complaint outranked numerous employees not laid off,
in length of service. No efficiency ratings, production sheets, or
other objective proof' of comparative ability were produced or, so
far as the record shows, used by the respondent. While specific
faults were attributed to some employees, as our discussion hereafter
shows, the same faults existed as to other employees not selected for
lay-off. In view of the respondent's hostility to the Union and the
disproportionate selection of union members for lay-off, as shown
above:
This inference of discriminatory "discharge leaves it up to the
employer to' give an adequate "explanation for the discharge,"
even though the burden of proof remains on the Board, since it
is obvious that reasons of the discharge "lay exclusively within
[the employer's] knowledge." 28
Pumpers
R. C. Walker, vice president of the Union and a member of the
union negotiating committee, was laid off on February 15, 1939.
Walker had been employed by the respondent since May 1937 and had
served as a pumper from August 1, 1937, to the date he was laid off.
Walker had had 15 years of experience in oil-field work prior to his
employment by the respondent.
Beller was farm boss on the Wirick 80 lease on which Walker,
0. J. Heatley, and B. V. Patrick, the latter two members of the
Association, were employed. Beller had previously stated that in
joining the Union, Walker had "put him on the spot" with Ackley.29
Beller refused to give Walker any reason for the selection stating
that Walker would have to see Irwin. Duncan, a pulling unit oper-
ator, testified that after Walker was laid off, Irwin stated that, "I
had to let Raymond Walker go this morning, . .. . he was doing
too much popping off. I think he is trying to get a job with the
union." Irwin testified that he did 'not recall having made this
statement. In conformity with the finding of the Trial Examiner
who observed the witnesses, we credit Duncan's testimony.
Echols testified, and it was not denied, that a short time after
pumpers Walker and Malcom were laid off, •Beller stated : "Al
28 Montgomery Ward & Co. v . National Labor Relations Board , 107 F . ( 2d) 555
(C C A 7) enf'g as mod , Matter of Montgomery Ward & Company and Reuben Lztzen-
berger et at, 9 N. L. R. B. 538.
2D See Section III A, supra.
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[Echols], I don't want you to be'neryous or worked up or excited
over [Walker] and' Malcom getting laid` off. You are going to get
along all right if you will keep quiet and don't be talking. and running
around, contacting men on the property, and quit talking about the
union and organizing the union." • As did the Trial Examiner, we
credit Echols' testimony.
At the hearing, Beller testified that Walker was laid off because
it was necessary to reduce the number of pumpers on the Woodroof
lease, and that he considered Asbury, who 'was transferred from the
Woodroof lease to Walker's • position on the Wirick lease, a more
capable pumper than Walker. Beller and Irwin, who participated
in the selection, testified that they were- influenced in their decision
by the fact that Walker had lost some oil through carelessness, that
he had visited with other employees on the lease, and that he had
been late in reporting for work.
The record shows that on December 24 or 25, 1938, some oil ran
from a well into the burning pit on the Wirick lease during Walker's
period of duty. Beller testified that approximately 200 barrels were
lost and he attributed the loss to Walker's carelessness. Beller sub-
sequently admitted that some of the oil had been recovered from the
burning pit but denied knowing how much was recovered. Not only
had this incident occurred almost 2 months before the lay-off and had
not previously resulted in any disciplinary action but the record
shows that on numerous occasions other pumpers had lost oil.30
The only evidence that any pumper who lost oil had been disciplined,
was testimony by Armour that he had once laid off a pumper for a
week for losing oil after he had posted a notice threatening to take
such action. The record does not show that Walker lost more oil
than other pumpers who were not laid off or the pumper who was
laid off for 1 week only.
Beller and Irwin both testified that Walker was off his lease
during working hours, Irwin further testifying that Walker had
failed to observe Irwin's instruction not to permit visitors on his
lease during working hours. As we have previously pointed out,
many of the employees who formed the Association left their leases
during working hours and visited on other leases without objection
by the -respondent. Beller admitted that it was not unusual for
pumpers to leave their leases for short periods during working hours
and Irwin named other employees, who were not laid off, as violating
the rules in these respects. -
- "Irwin and Beller sought to distinguish these other instances by asserting that greater
carelessness was involved when a plug was left out of the line, as in walker' s case, than
when a tank was permitted to overflow. Obviously there is no merit to 'such a distinction.
E. H. MOORE, INC. 1079
Beller, who testified that Walker was late for work, admitted that
he had learned more concerning Walker's lateness after he was laid
off than he knew before and further admitted that other employees
were. sometimes late. Beller made no attempt to show that Walker
reported later or was late more often than other employees.
Upon the entire record we find, as did the Trial Examiner, that
Walker was laid off because. of his union membership and activity.
E. C. Malcom was laid off on February 15, 1939, at the same time
as Walker. Malcom began working for the respondent in November
1936, having had approximately 20 years of prior experience in the
oil fields both as a workman and as a supervisor. At the time of
his lay-off Malcom was acting as a relief pumper, relieving other
employees on their time off. Malcom was a union steward and col-
lected dues among the employees. Both Farm Bosses Northcutt and
Medley, under whom Malcom served, knew of his union activity.
Shortly after the union was formed, according to the testimony of
Malcom, Northcutt chided Malcom for-joining, stating that, "I had
better things in store for you." Northcutt did not testify and we, as
did the Trial Examiner, credit Malcom's testimony.
Irwin testified that his decision to lay off Malcom was based upon
Farm Boss Medley's report that Malcom was not as good a pumper
as those retained and upon a report by G. D. Smith that Malcom
talked too much when he was working in the gang.31 Medley testified
that on one occasion Malcom had failed to start up a well after it was
cleaned and that on another occasion Malcom had shown poor judg-
ment concerning some oil. A stipulation entered into by the re-
spondent at the hearing conclusively establishes that Medley's
testimony, as to Malcom's failure to start up the well, is contrary to
the fact. The second incident related to a report allegedly made by
Malcom to Medley in January 1939, that the oil in one of the wells
on the Mitchell lease was bad. According to Medley, after the report
he subjected the oil to a centrifuge test and discovered that it was not
bad. Malcom denied Medley's testimony in this respect, further
testifying that another pumper had made the report, that Malcom
accompanied by Medley went to the well and made a simple test
which established to Medley's satisfaction that the oil was not bad.
We concur with the Trial Examiner who credited Malcom's testimony
concerning this incident.
The respondent furnished evidence which established that Malcom
had worked under G. D. Smith on only one occasion for 6 hours.
Malcom testified that Smith had not complained of his talking and
denied that he had talked unnecessarily on the job. G. D. Smith
was not called as a witness. As did the Trial Examiner, we do not
As a relief pumper , Malcom worked on occasional days with the roustabout gang.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accept Medley's testimony as establishing that Malcom talked too
much while working with the gang.
It is also significant that while the respondent contended that it
was required to lay off pumpers Walker and Malcom on February 15,
1939, because of a curtailment in operations, the respondent, on
March 1, hired H. E. Heatley as a pumper. Heatley, who had pre-
viously worked for the respondent only as a roustabout;' had been
off the pay roll since November 1937.
We find, as did the Trial Examiner, that the respondent laid off
Malcom because of his union membership and activity.
W. L. Andrews was hired by the respondent in January 1936.
He had worked in the oil fields since 1926. Two or three days before
the meeting of September 14, 1938, Beller, under whom Andrews
worked, told Andrews that he hoped none of "his boys" joined the
Union and Beller admitted at the hearing that he had learned of
Andrews' membership.
On April 16, 1939, Andrews, who was working with Prince on the
Woodroof lease, was, demoted to a tool dresser. According to the
uncontradicted testimony of Andrews, which we credit, on the ,day, of
the demotion, Beller stated that he considered Andrews one of his
best men, that he did not understand why Andrews had been de-
moted, and that the change was made on orders from Ackley. At
the hearing, Ackley denied that he had played any part in this demo-
tion. Beller testified that he discussed the demotion with Irwin and
that he and Irwin considered Asbury and Prince, the other two
pumpers retained on the lease, more capable than Andrews.32 Beller
admitted that it was customary, when transferring or laying off a
pumper to consider his ability as compared with all other pumpers.
The respondent did not allege that Andrews, was not as capable as
pumpers on other ,leases , many of whom had less seniority than
Andrews.
Andrews worked as a tool dresser for approximately 15 days and
was then demoted to a roustabout gang. Ackley testified that
Andrews was not a satisfactory tool dresser 33 and that, after talking
over the matter with Irwin, Ackley and Irwin decided "to give
him another opportunity" on the roustabout gang. On May 15, 1939,
he was laid off from the roustabout gang. The respondent gave no
explanation, other than the necessity to reduce the force, for the
lay-off of Andrews.
Under all the circumstances, we concur with the Trial Examiner
and find that Andrews was -transferred to tool dressing and to the
32 In fact, Asbury was not working , on the lease at this time having been transferred
on February 15 to walker' s position on the Wirick lease
"Belier admitted knowing that Prince, who was left on the lease, was an experienced
tool dresser - . ,
E. H. MI00RE, INC. 1081
roustabout gang and subsequently laid off because of his union mem-
bership and activity.
A. D. Echols was hired by the respondent in November 1934. He
had had about 5 years' previous experience in the oil fields. As a
member of the union negotiating committee Echols had met with
Ackley and Moore. As we' have found above, Armour, Echols'
farm boss, advised Echols that joining the Union would "never do
[Echols] any good."
According to the uncontradicted testimony of Echols, sometime in
March 1939, Superintendent Ackley asked Echols to move, and
stated that the respondent wished to tear down or sell the house in
which Echols was living. Echols offered to buy the house, but
Ackley refused. Echols protested and said that he thought he was
being discriminated against. Ackley replied, "We [were] getting
along all right, Al, until this Union got started. . . . Well, you
know that we are going to have to go to lifting this oil, and we are
going to have to keep the best men." We credit this testimony, as
did the Trial Examiner. After Echols moved out of the house in
response to Ackley's request, Warren Hunt, an employee in the elec-
trical department and a member of the Association, occupied it. The
house was still standing on the respondent's property at, the time
Echols was laid off.
On April 16, 1939, Echols was demoted from his position as pumper
to the roustabout gang. Armour, Echols' farm boss, testified that
Echols was not an experienced pumper. Yet Armour admitted that
Echols acted as farm boss in Armour's absence. Accordingly, we do
not credit Armour's testimony that Echols was an inexperienced
pumper.
Echols was laid off by J. J. Browning, head roustabout, on May 15,
1939. Browning did not testify. A day or two later, according to
Echols' uncontradicted testimony, Echols asked Irwin why he had
been laid off and Irwin replied, "Al, you know there are some things
we just can't discuss now. You know-the members of the C. I. O.
Union are trying to put the cat on Pete's [Ackley] back." We
credit the testimony of Echols, as did the Trial Examiner.
It appears that the only matter considered by Irwin in selecting
Echols for lay-off was a letter dated September 25, 1938, from Dr.
Isham L. Cummings, who took care of the respondent's injury cases
at the Fitts Field, in which Cummings wrote in part as follows :
I want to call your attention to Mr. A. D. Echols, who states
he is an assistant pumper (sic) on your leases. This man came
in with a red left eye, and I sent him to an eye specialist, and
he was exceedingly hard to handle. He was angry and sar-
castic in all his remarks to the employees of my Clinic. If this
.1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
man ever got hurt seriously , then he would give us a lot of trouble
and I recommend we not work men of this attitude . I am mak-
ing these suggestions for your consideration and to ,let you know
the facts as I see them.
It was stipulated at the hearing that if Echols were recalled to the
stand, he would testify that on September 22, 1938, he received an
eye injury while at work , as a result of which he was examined by
Dr. Cummings , who sent him to an eye specialist ; that after being
treated by the specialist the latter gave him a prescription; that
,Echols then went back to Cummings and asked for information con-
cerning where and how the prescription should be filled ; that in his
conversations with employees of the Clinic they insisted that Echols
have the prescription filled at the Clinic, but that Echols objected
because there was no registered pharmacist in attendance; that Echols
then took the prescription elsewhere ; that later , and before Cummings
would give Echols a release to return to work, Cummings insisted
upon giving him a complete physical examination , although he had
merely been treated for his eye condition ; and that it was Echols'
conversation and conduct with respect to these incidents to which
Cummings referred in his letter.
Irrespective of the merit of Dr. Cummings ' complaint , the respond-
ent failed to act upon his recommendation for 8 ' months. From
its conduct in thus' ignoring the recommendation ; it is clear that
the respondent did not consider the matter serious. In light of the
respondents ''planned'discrimination , as shown above , we do not be-
lieve that this complaint was a decisive factor in the selection of
Echols for lay-off.
We agree with the conclusion of the Trial Examiner and find upon
all the evidence that Echols was selected for demotion and lay-off
because of his union membership and activity.
F. W. Spoons was hired by the respondent in September 1934. He
had worked in oil fields since 1927. Spoons joined the Union on
September 14, 1938, and was a member of the organizing committee
of the Union . Medley, Spoons ' farm boss , admitted that he had seen
Spoons wearing a C. I. 0 . button.
At the time of his lay -off, on May 15, 1939 , Spoons was one of the
three pumpers employed on the Schauer lease, the other two being
Elvie Jones and George Woods, both members of the Association.
Ackley testified that he recommended to Irwin or Medley that.
Spoons be laid off because he had learned that Spoons' work was not
satisfactory. Ackley did , not state in what, respect it was un-
satisfactory or from whom he received such a report. Irwin testi-
fied that it was Medley who decided to- lay off. Spoons and that Irwin
agreed because Spoons did not keep his yard and house on company
E. H. MOORS, INC. 1083
property in an orderly and clean condition. Medley complained
about the condition of Spoons' house and premises, and also testified
that he,was influenced by a report from James Marty, production
engineer, that Spoons had failed to report a well off production a
short time before he was laid off.
According to Medley's testimony, Marty reported the well off
production ; on the following morning Medley went to the well and
found it off; and Medley talked to Spoons who was unaware that
the well was off production. Spoons testified, on the other hand, that
on May 1 or 2, 1939 he reported to Medley that this well was low in
production; that Medley stated that he would not clean the well until
after it had been tested, and that thereafter Marty tested the well.
Marty was not called as a witness. A stipulation entered into at the
hearing shows that Marty made a report that this well was tested on
May 3 and needed cleaning and that the well was cleaned out on
May 5. Under all the circumstances, we credit the testimony of
Spoons, as did the Trial Examiner.
Medley testified that on a prior occasion, Burns, then assistant
superintendent, instructed Medley to order Spoons to clean up his
lawn and premises. Irwin testified that he had received complaints
from Medley about the condition of Spoons' house and that about
3 months before Spoons was laid off, Ackley had sent some workmen
to clean up the premises. Spoons' testimony concerning this com-
plaint was as follows: he denied that any complaints had been made
to him about the way he kept his yard until after his lay-off; follow-
ing his lay-off, he was absent from the house for approximately 3
weeks, he returned for 1 night and then left again for 4 or 5 days;
during the second period Spoons was away from the house some
rubbish was taken out of his yard. Spoons also testified that on
two occasions the house, yard, and fence were washed with paraffin
to eliminate the effects of a well-cleaning operation which had sprayed
vil on the fence and house. He denied that any rubbish was scat-
tered about his premises during his employment with the respondent.
Hall, who collected trash from the houses on the various leases, and
Malcom, both testified that Spoons' yard was always as neat as
that of the other employees. We agree with the Trial Examiner,
who concluded that the testimony failed to establish that Spoons,
neglected to keep his house and premises in proper condition.
We find, as did the Trial Examiner, upon the entire record, that
the respondent selected Spoons for lay-off because of Spoons' union
membership and activity.
H. C. Parrott was first employed by the respondent in May 1935.
He had worked in the oil fields since 1927. , Parrott joined the Union
on September 14, 1938, wore a union button, and carried a union
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sticker on his car. Medley, Parrott's farm boss, admitted that he had
seen Parrott wearing a C. I. O. button. As we have found in Section
III A, above, in July 1939, Assistant Superintendent Irwin asked
Vance, not a member of the Union, whether pumpers Parrott and
Fears were members of the Union, stating that if they were, he in-
tended 'to "get rid of" them. Vance had told Irwin that he believed
them to be union members.34
In May 1939, Parrott was made a relief pumper. Prior to that
time he was one of the two pumpers on the Akers lease, the other
pumper being J. J. Quinlan, a member of the 'Association. Subse-
quently, Parrott worked in the roustabout gang and was laid off
on July 31, 1939.35 Irwin testified that Parrott was selected to act
as relief pumper because Irwin and Medley considered Quinlan a
better pumper. Medley gave no explanation for the demotion. Med-
ley testified that Parrott was laid off because it was necessary to
reduce the pumpers on the Smith lease and that Vance, an Associa-
tion member working on the Smith lease, was transferred to Parrott's
position as relief pumper. Beyond the general statement that in
selecting pumpers for lay-off, he kept those capable of acting with
a minimum of supervision, Medley gave no explanation for the selec-
tion of Parrott for lay-off.
Upon the entire, record, and in accordance with the conclusion of
the Trial Examiner, we find that Parrott was demoted and laid off
because of his union membership and activity.
Roustabouts
W. M. Sims was hired by'Production Foreman Gattis in the Fitts
Field in August 1937. Sims had had approximately 15 years of prior
experience in oil field work and had previously served under Gattis
in other fields operated by E. H. Moore. Except for a period of 3
or 4 weeks, during which time he acted as a pumper, Sims was em-
ployed constantly as a roustabout. Sims joined the Union on Sep-
tember 14, 1938. We have previously found that Gattis admittedly
discouraged union membership and urged employees to resign. Sims
was one of the employees so, advised. Prior to the meeting of
September 14, Gattis advised Sims not to join, and upon learning
that-Sims had done so, stated ,that, "I.am telling' you you had better
leave it alone."
Sims was laid off on October 13, 1938. Between October 7 and 13,
the respondent laid off five roustabouts : D. C. Carroll, W. L. Brown,
a' Although not named in the complaint , Fears was laid off in September 1939
sc The record does not show whether Parrott worked part of the time in the gang
while still acting as relief pumper or whether he ceased to act as a relief pumper and
worked only with the roustabout gang prior to being laid off
E. H. MOORE, INC. 1085
C. B. Rogers,, T. A. Brown, and Sims. All were union members.
The respondent assigned no reason for the selection of Sims for lay-off.
Medley,testified that he did not consider Sims a satisfactory pumper
but this testimony is not relevant to his selection since he was em.
ployed as a roustabout. The Trial Examiner credited Sims' uncon-
tradicted testimony that 2 or 3 weeks after his lay-off Sims attributed
his selection to his union activity and Gattis replied, "Well, it made
me pretty mad all right to think you would listen to some damn
radical instead of listening to me." We likewise find the testimony
credible.
Upon the entire record we concur with the Trial Examiner and
find that Sims was laid off because of his union membership and
activity.
Wilkie, Nash, and Anderson. The Trial Examiner concluded that
the evidence did not establish that pumpers J. A. Wilkie and T. W.
Nash had been laid off and that roustabout G. A. Anderson had
been demoted and laid off because of their union membership and
activity. No exceptions have been filed to these findings. We have
reviewed the evidence and concur in the conclusions of the Trial
Examiner.
Miscellaneous employees
A. R. Duncan was employed by the respondent in 1936. \ He had
had about 17 years' experience in the oil fields. After March 1937,
Duncan acted as a pulling unit operator in charge of the #1 crew.
Duncan's crew was given first preference in all well servicing work,
and Ackley, as well as Irwin, in effect admitted that Duncan was the
best pulling unit operator employed by the respondent. The respond-
ent asserts that Duncan was\discharged on November 28, 1939, because
he turned in a claim for 8 hours when he had worked only 5 hours.
According to the testimony of Duncan, which Irwin admitted,
on November 27, Irwin told him that there were two well servicing
jobs for Duncan's crew that day. Duncan further testified that rely-
ing upon the second job, he and his crew finished the first assignment
in 5 hours although under normal rate of speed the crew would have
spent more time, but that just as they were completing the work
Irwin sent word that there was no,further work for that day. Dun-
can testified that because his men were disgrauntled and in conformity
with a practice frequently sanctioned by the respondent, he turned
in a slip for himself and his crew for 8 hours' work.
The following morning Irwin asked Duncan whether he had made
a mistake in his time slip of the previous day. According to Duncan's
uncontradicted testimony, Duncan admitted that he had' spent only
5 hours, explained why he had turned in the 8-hour claim, and was
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not reprimanded by Irwin. Duncan returned to work but at noon
was summoned to the office when Irwin advised Duncan to quit and
find work he liked better. When Duncan refused to quit, Irwin
stated that he was being laid off and gave Duncan his check, already
made out, including payment for 8 hours on the previous day. Dun-
can testified that Irwin did not mention the 8-hour charge at the time
of his discharge. Irwin did not contradict Duncan's testimony con-
cerning the events on November 28, and we find, in accordance with
the findings of the Trial Examiner, that Duncan's testimony as to
these events is credible.
Although the respondent denied that the work performed by,Dun-
can's crew on November 27 would have required 8 hours, there is no
evidence in the record establishing the length of time it would have
taken at a normal rate. Ackley admitted that the respondent per-
mitted some "padding" but asserted that the difference allowed was
no more than one-half hour on a job. Significantly, however, after
knowing the facts, the respondent charged the Gled Oil Company,
for which the well was serviced, for 8 hours' time and paid each of
the men in the crew ' for 6 hours' work. Irwin explained the '6-hour
payment as "customary." No other member of the, crew was
disciplined.
Duncan was one of the most active union members. At the con-
clusion of the safety meeting of September 14, 1938, Duncan had
addressed the employees and urged them to remain for the union
meeting. Thereafter Duncan became a member of the union nego-
tiating committee and met with respondent's representatives. Gattis,
Duncan's superior, admittedly had urged Duncan to cease his union
activity and had told Duncan that he was afraid that by joining
the Union, Duncan might jeopardize Gattis' employment.- Gattis
"wouldn't deny" that he advised Duncan that Duncan's membership
"will follow you the rest of your days." As previously found, Special
Officer Broaddus advised Duncan to resign from the Union if he
wanted to continue working for the respondent. Earl Alden, a
barber; testified that prior to Duncan's discharge, Assistant Superin-
tendent Irwin, while in his barber shop, told Alden in substance that
the "C. I. O.'s" and "radical damn men" like Duncan were going,to
be disposed of. Irwin denied having made the statement. The
Trial Examiner who observed the witnesses, credited Alden's testi-
mony. Upon the entire record, we find that Irwin made the state-
ment as testified to by Alden. ,
We agree with the Trial Examiner who concluded that the respond-
ent did not discharge Duncan because he had turned in an 8-hour
as See Section III A, supra
E. H. MOORE, INC. 1087
claim for 5 hours' work. Even if Duncan acted improperly in this
respect nevertheless it is reasonable to conclude from the entire
record, and we find, that the respondent would not have inflicted the
extreme penalty of discharge absent a desire to rid itself of union
members. The respondent's anti-union attitude, its proven discrim-
ination against'other union members, the statements of the various
supervisory employees, set forth above, coupled with Duncan's out-
standing position in the Union lead inescapably to the conclusion,
and we find, that the respondent seized upon this act as a pretext
to discharge Duncan because of his union membership and activity.
Marshall Chambers and J. C. Barnett: Chambers was employed
by the respondent in April 1937. He had had approximately 13
years' prior experience in oil field work. On August 1, 1938, Cham-
bers was moved from roustabout work in the field to the salt water
disposal plant, a system operated by the respondent for a group of
oil operators in the area, where Chambers was employed in mainte-
nance work. Barnett was employed by the respondent in 1934, hav-
ing had approximately 10 years' experience in oil field work. In
1937, while acting in a supervisory capacity in the Fitts Field,
Barnett was transferred to the respondent's California field where
he ultimately acted_ as production foreman. However, Barnett did
not like California and when he threatened to leave, the respondent
transferred him back to the Fitts Field but in a non-supervisory
capacity. In May 1938 Barnett was transferred from the field to
the salt water disposal plant where he served as a pumper. Neither
Chambers nor Barnett attended the meeting of September 14, 1938;
both joined the Union a few days later. We have found in Section
III A, above, that McLelland, Howard, and Wilbanks, supervisors
in the salt water disposal plant, knew that Chambers and Barnett
had joined the Union and further, that each of these supervisory
employees had expressed opposition to the Union.
Except for periods in which additional lines were added to the
system, only four persons were regularly employed in the salt water
disposal plant. Prior to October 1, 1938, these employees were :
Stoner McLelland, superintendent; J. C. Barnett, pumper; and Mar-
shall Chambers and Moody Wilbanks, maintenance men. On Oc-
tober 1, 1938,McLelland resigned and was replaced by W. R. Howard,
as superintendent. On December 1, 1938, Wilbanks, who both before
and after his promotion was active in the Association, was made
foreman of the plant. On May 15, 1939, Chambers and Wilbanks
were both laid off,-Wilbanks' place as foreman being taken by C. O.
Brown, an assistant, engineer who had been transferred from the
Kansas Field. Brown resigned during the latter part of July 1939,
whereupon Wilbanks was rehired and reinstated to his former po-
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sition as foreman. Barnett continued to work until December 15,
1940, when Ackley informed Barnett that Wilbanks was to replace
Barnett as pumper at the plant.
The Trial Examiner concluded that the evidence did not establish
that Chambers or Barnett had been discriminated against and recom-
mended that the complaint be dismissed as to both. While we concur
as to Barnett we do not agree as to Chambers. The record estab-
lishes, though not stated by the Trial Examiner, that after Chambers
was laid off various employees from the roustabout gang were as-
signed to do maintenance work at the salt water disposal plant and
that on August 2, 1939, the same day that Wilbanks was rehired, the
respondent hired Kenneth Burnett, who had not worked for the-
respondent since 1937, and who worked constantly for 5 months at
the salt water disposal plant.' Kenneth Burnett is the son of G. S.
Burnett, employed as a truck driver, a member of the Association.
While it appears that Chambers' dismissal at the same time as Wil-
banks' may not have been the result of discrimination, the respondent
failed to explain why it did not accord equal treatment to Chambers
by reinstating him, as it had Wilbanks, when work was available.
Under all the circumstances we find that the respondent refused
to reinstate Chambers on August 2, 1939, because of his union mem-
bership and activity.
Hugh, Hall was employed by the respondent in September 1934,
as a teamster, and worked in that capacity until he was laid off on
December 26, 1938. Hall was the first teamster employed in the Fitts
Field. He owned his own teams, often supplying three, and was
paid for his services as a teamster as well as for the use of his teams.
Hall joined the Union on or shortly after September 18, 1938. He
was a member of the organizing committee, collected dues, and wore
a union button. As we have previously found, on the afternoon of
September 14, Coffman, welding foreman, warned Hall that Ackley
had threatened to discharge all who joined the Union. Hall testified,
and we find, that on another occasion Coffman stated that "anybody
that would join that C. I. 0. union was just throwing two dollars a
month away" and that the money went to "that God damn John L.
Lewis." Hall also testified, and Beller did not deny, that during the
latter part of September, Beller told Hall and another employee,
"you boys have to watch, Lawrence Irwin is watching you boys the
last few days." We credit this testimony, as did the Trial Examiner.
Irwin testified that Hall was laid off because there was very little
work to do and because the respondent wanted to use its own trucks.
"According to the monthly pay roll attached to the respondent' s answer , employment
at the salt water disposal plant rose from one person on May 15 to two on May 31,
to four on August 31, and to six on October 15, 1939.
E. H. MOORE, INC. 1089
Irwin also testified that he , retained Rose, an Association member,
in preference to Hall because there had been complaints from other
named supervisors about Hall's work. None of the supervisors named
testified concerning Hall's alleged deficiencies . Hall likewise testified
that Rose was retained , but Rose's individual work record indicates
that he was laid off on December -15, 11 days before Hall. Rose's
record also shows that, while-he had less seniority than Hall, he was
reinstated on February 1, 1939. The respondent gave no explanation
for its selection of Rose for reinstatement and we accept his work
record as 'establishing that he was selected for lay-off prior to Hall.
While the record does not sustain a finding that the respondent laid
off Hall because of its desire to rid itself of union members, under
all the circumstances, we concur with the Trial Examiner and find,
upon the entire record, that the respondent failed to reinstate Hall
on February 1, 1939, because of his union membership and activity.
W. R. Rogers , a truck driver , was employed by the respondent in
October 1934 . He worked in the Fitts Field until laid off in Sep-
tember 1938 but in October 1938 was rehired by the respondent in
its Kansas Field. The complaint alleges' that the respondent laid
off Rogers from the Kansas Field on February 26,,1939, because of
his union membership and activity. Rogers, who had joined the Oil
Workers Union in 1933, aided in arranging the union meeting of
September 14, 1938.
As we have found above , Irwin warned Rogers that employees
who joined the Union were "through ," and Woodell , foreman in
the Kansas Field, had warned Rogers and other employees that they
would lose their jobs unless they joined the Association . Rogers had
not joined the Association but the other two regular truck drivers in'
the Kansas Field, R. L. Hicks and C. L. Anderson , had done so.
Armour, whose anti -tulion activities have been set forth in Section
III A, above, was in charge of the Kansas Field when Rogers was
laid off on February 26, 1939. It was about this time that the re-
spondent began its discriminatory treatment of the pumpers in the
Fitts Field. Armour first testified that Rogers ' employment was
terminated because a snowstorm blocked the roads. He subsequently
testified that he had laid off Rogers in preference to Hicks and
Anderson because he considered them better drivers and more loyal
to the respondent than Rogers . The only faults assigned by Armour
to Rogers were that fie spent more time than necessary in servicing
his truck and that he left his work promptly at 5 o'clock . Rogers
testified ,, and it was not denied ,, that truck drivers were required
to service their trucks-on their own time and that he always serviced
his truck after 5 o'clock or before time to begin work. Armour had
never reprimanded Rogers for these alleged deficiencies and we concur
455771-42-vo1 40-69
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Trial' Examiner who found, that if true, they constituted
trivial objections. Beyond these objections, Armour did not state
why he considered Hicks and Anderson better drivers. In addition,
J. L. Brady, an employee in the Kansas Field, testified that Woodell
told him that Rogers was going to be laid off because he joined the
C. I. 0.. and refused to resign and join the Association. Woodell
who testified and admitted that he had solicited employees to join
the Association, did not deny having made this admission to Brady.
We find Brady's testimony credible.'
Upon the entire record we find, as did the Trial Examiner, that
Rogers was laid off because of his union membership and activity.
We find that the respondent demoted W. L. Andrews, A. D. Echols,
and, H. C. Parrott; laid' off R. C. Walker, E. C. Malcom, W. L.
Andrews, A. D. Echols, F. W. Spoons, H. C. Parrott, W. M., Sims;
and W. R. Rogers; discharged A. R, Duncan; and refused to reinstate
Marshall Chambers and Hugh Hall; because of their membership and
activity in,the Union, thereby discouraging membership in the Union
and interfering with, restraining; and coercing its employees in the
exercise of the -rights guaranteed in' Section'7, of the Act.
IV, THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE:,'
,-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 certain unfair
labor practices we shall order it to cease and desist from such practices
and to take certain affirmative action which we deem necessary to
effectuate the policies of the Act.
Since we have found that the respondent has interfered with
the formation and 'administration of the Association and contributed
support to it, we shall order,the respondent to refrain from recog-
nizing'the Association as'the representative of any of its employees
for the purpose of dealing with it concerning, grievances, labor dis
putes, wages,, rates of pay; hours of employment, and other conditions
of employment, and completely to' disestablish the Association as
such representative.
We have also found that the respondent has discriminated in
regard to the hire and ' tenure,. oft employment of certain employees.
Begiiining!iii 1937 there has Been a constant decline in the amount of
E. H. MOORE- INC. 1091
oil produced in the Fitts Field resulting in a decrease in- the work-
ing force. A decrease in the number of persons, employed at the
Kansas Field began in 1939 and continued at the time of the hear-
ing.38 It is probable that the employees who were discriminated
against might have been affected in their employment at some period
even if the respondent had not engaged in discrimination against
union members. However, the record furnishes no basis for deter-
mining the order in which employees might have been laid off absent
discrimination. On the other hand, the respondent was increasing
its personnel in the Kansas Field in 1939 and in the past the respond-
ent has moved to new operations as old fields have been depleted.
The record contains numerous instances of the transfer or rehiring
of old employees by the respondent as it has moved from field to
field. It is reasonable to assume, therefore, that many of these em-
ployees would have been transferred or rehired in other fields except
for the respondent's' determination to rid itself of union members.
Moreover, the burden was upon the respondent to show what the
situation would have been had it not discriminated against union
members.39 Under these circumstances we shall order the, respondent
to reinstate the employees discriminated against as herein provided.40
Reinstatement shall be effected in the following manner : each of
the employees discriminated against shall be reinstated to the,posi-
tion he occupied or would have occupied but for the discrimination,
or to a substantially equivalent position, without prejudice to his
seniority or other rights and privileges, the respondent to dismiss, if
necessary, all persons now employed in similar positions in the Fitts
and Kansas Fields who were hired or rehired on or after September
15, 1938; if, after dismissal of all such employees, there are insufficient
positions in the Fitts and Kansas Fields for all the employees remain-
ing, including those ordered reinstated, the available positions shall
be distributed among all employees, without discrimination against
'any employee because of his union membership or activity, following
18 While production of oil increased in the Kansas Field during 1940, the peak periods
of employment in the' Kansas Field occurred in the months of, January, February, and
October 1'939
s9 Cf National Labor Relations Board v Remington Rand, Inc, 94.F., (2d) 862 (C. C. A.
2) enf'g as mod , Matter of Remington Rand, Inc and Remington Rand Joint Protective
Board of the District Council Office Equipment Workers, 2 N L. R B 626.
'0 The respondent contends that it should not be required to reinstate R C Walker,
vice- president of the Union, because subsequent to the termination of his services by the
respondent Walker made an arrangement with the Mid-Continent Petroleum Corporation
and Cosden Pipe Line Company whereby in return for a monetary consideiation Walker
agreed to spy -upon and seek out information concerning the Oil Workers' International
Union and supply such information to the Mid-Continent Petroleum Corporation but that
instead Walker furnished information to the Oil Workers' International Union and to,
the Board concerning the activities of the Mid-Continent Petroleum Corporation and the
'Cosden Pipe Line',Company , We, concur,i with the Trial Examiner and find that these
facts should not bar Walker's reinstatementras a means of remedying the respondent's
unfair labor piactices.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a system of seniority or other non-discriminatory practice to
such extent as has heretofore been applied in the conduct of the
respondent's business; those employees, if any, remaining after such
distribution, for whom no employment is immediately available, shall
be placed on a `preferential list and be offered employment in the
same or substantially equivalent positions in any other fields pres-
ently operated by the respondent before other persons are hired for
such work.41
We shall also order the respondent to make whole each of the
employees discriminated against, except Marshall Chambers, by
payment to each of a'suln equivalent to what he would normally
have earned as wages from the date of the respondent's discriminal
'tion against him to the date of the respondent's offer of reinstatement
or placement upon a preferential list, less his net earnings during
the same period.42 Since the Trial Examiner found that the re-
spondent had not discriminated against Chambers, we shall in the
exercise of our discretion order the respondent to make Chambers
-whole by payment of the sum he would normally have, earned as
wages from August 2, 1939, the date of the respondent's discrimination
against him, to July 17, 1941, the date of the Intermediate Report,
and from the date of our order to the date of offer of reinstatement
or placement upon a preferential list, less his net earnings during
said periods.43
Upon the foregoing findings of fact and upon the entire record
in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Oil Workers' International Union, Local 378, and E. H. Moore,
Inc. Employees' Association are labor` organizations, within the
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and ad-
ministration of E. H. Moore, Inc. Employees' Association and con-
41 Cf. Republic Steel Corp. v National Labor Relations Board, 107 F 1(2d) 472 (C C A.
3) enf'g as mod , Matter of Republic Steel Corporation and Steel Workers Organizing
Committee, 9 N L R B 219; Matter of Ford Motor Company and International Union
United Automobile Workers of America, Local Union No 249, 31 N L R B 994
42 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
elsewhere than for the respondents, which would not have been ' incurred but for the
discrimination and the consequent necessity of his seeking employment elsewhere See
Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners
of America , Lumber and Sawmill Workers Union , Local 2590, 8 N L R. B 440 Monies
received for work performed upon Federal , State , county , municipal , or other work-
relief projects shall be considered as,earnings See Republic Steel Corporation v National
Labor, Relations Board, 311 U. S 7.
43 Cf. Matter of E. R. Haffelfinger Company, Inc ., and United Wall Paper Crafts of
North America, Local No 0; 1 N L R' B 760 1
E. H. MOORS, INC. 1093
tributing financial and other support to it, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of R. C. Walker, E. C. Malcom, W. L. Andrews, E. C.
Echols, F. N. Spoons, H. C. Parrott, W. M. Sims, A. R. Duncan,
Marshall Chambers, Hugh Hall, and W. R. Rogers, thereby dis-
couraging 'membership in a labor organization, the respondent has
engaged in and is. engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6). and (7)
of the Act.
6. The respondent has not discriminated in regard to, the hire
and tenure of employment of J. A. Wilkie, T. W. Nash, G. A. Ander-
son, and J. C. Barnett, within the meaning of Section 8, (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, E. H. Moore, Inc., and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from:
(a) Dominating or interfering with the administration of E. H.
Moore, Inc. Employees' Association or with the formation and ad-
ministration of any other labor organization of its employees and
from contributing financial or other support to said Association or,
to any other labor, organization of its employees;
(b) Discouraging membership in Oil Workers' International Union,
Local 378, or any other labor organization of its employees, by
transferring, laying off, discharging, or refusing to reinstate any
of its employees, or by discriminating in any other manner in regard
to their hire and tenure of employment or any term or condition
of their employment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively'
through representatives of their own choosing, and to engage in
1094 DEiCISIONS OF NATIONAL LABOR RELATIONS BOARD
concerted activities for the purpose of collective bargaining 'or
other mutual aid or protection as guaranteed in- Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
• (a) Withhold all recognition from E. H. Moore, Inc. Employees'
Association as the representative of any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes, rates of pay, hours of employment, or other conditions of
employment and completely disestablish E. H. Moore, Inc. Em-
ployees' Association as such representative;
(b) Offer to R. C. Walker, E. C. Malcom, W. L. Andrews, E. C.
Echols, F. N. Spoons, H. C. Parrott,, W. M. Sims, A. R. Duncan,
Marshall Chambers, Hugh Hall, and W. R. Rogers immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority and other rights and privi-
leges in the manner set forth under the Section entitled "The remedy,"
placing those employees for whom no employment is presently avail-
able upon a preferential list and offering them employment as it
becomes available, in the manner therein set forth;
(c) Make whole R. C. 'Walker, E. C. Malcom, W. L. Andrews,
E. C. Echols, F. N. Spoons, H. C. Parrott, W. M. Sims, A. R. Duncan,
Hugh Hall, and W. R. Rogers for any loss of pay they have suffered
by reason of the respondent's discrimination against them, by pay-
ment to each of a sum equivalent to that which he would-have earned
as wages from the date of the. discriminatory transfer, lay-off, dis-
charge, or refusal of reinstatement, to the date of the respondent's
offer of reinstatement or placement upon a preferential list, less his
net earnings during the said period, as set forth in the Section entitled
"The remedy";
(d) Make whole Marshall Chambers for any loss of pay he may
have suffered by reason of the respondent's discrimination against
him, by payment to him of a sum equivalent to the amount he would
have earned as wages from the date of the respondent's discrimina-
tion against. him to the date of the Intermediate Report, and from
the date of this Order to the date of the respondent's offer of rein-
statement or placement upon a preferential list, less his net earnings
during said periods ;
(e) Post immediately in conspicuous places in its Fitts and Kansas
Fields and maintain, for a period of at least sixty (60) consecutive
days from the date of posting, notices to its employees stating (1)
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), and (c).of this
Order; (2) that the respondent will take the action set forth in
paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the
E. H. MOORE, INC. 1095
respondent's employees are free to become or remain members of Oil
Workers' International Union, Local 378, and that the respondent
will not discriminate against any employee because of his membership
or activity in that organization ;
(f) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED, that the allegations of the complaint;
as amended, which charge that the respondent engaged in unfair labor
practices within the meaning of Section 8 (3) of the Act by laying
off J. A. Wilkie, T. W. Nash, and J. C. Barnett and by transferring
and laying off G. A. Anderson, be, and they hereby are, dismissed.
I
k