Henry K. Phelps, Jr.

National Labor Relations Board - Board Decisions

Dec 9, 1942

45 N.L.R.B. 1163 (N.L.R.B. 1942)

In the Matter of HENRY K . PHELPS, JR., TRUSTEE IN BANKRUPTCY OF
ATLAS PIPELINE CORPORATION,1 AND ATLAS OIL AND REFINING CORPO-
RATION,2 RESPONDENTS, and OIL WORKERS INTERNATIONAL UNION,
LOCAL 245, AFFILIATED WITH CONGRESS OF INDUSTRIAL ORGANIZATIONS
- Case No. C-2190.-Decided Dedember 9, 1942
Jurisdiction : oil refining and pipeline industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: discriminatory statements, questioning
about union membership, and threats by supervisory employees; refusal to
hire person who would join union ; discriminatory promotions.
Discrimination: two discharges by Trustee because of union membership and
activity, and corporation's refusal to reinstate these persons upon application;
refusal of corporation-which received assets from Trustee on transfer without
break in operations-to hire certain "undesirable" individuals who had not
been included on list prepared by managing officials of Trustee who continued
as managing officials of corporation, held discriminatory, when each of these
individuals was an active union member, had had satisfactory service with the
Trustee, and corporation, with knowledge of this situation, refused to discuss
with union the basis for selection of these men, and officials who compiled the
list had ignored subpoenas of Board and failed to testify as to such factors which
entered into the consideration for excluding "undesirable" employees.
Remedial Orders : Trustee ordered to pay back pay to the employees whom it
had discriminatorily discharged, between date of discharge and date assets were
transferred to corporation ; corporation ordered to cease and desist unfair
labor practices, to offer reinstatement to employees whom it had discriminatorily
refused to hire and to employees discriminatorily discharged by Trustee which
it refused to reinstate, and to award these employees back pay from date
of its discrimination to date of offer of reinstatement.
Practice and Procedure : objection to use of stipulation-that Trustee had
transferred assets to corporation-as basis for reopening record by Trial Ex-
aminer and institution of supplementary proceedings to make corporation a
party held unnecessary to pass upon when Board's jurisdiction over corpora-
tion was grounded on amended charges and an amended complaint issued
against the corporation pursuant to usual Board procedure, and use of stipula-
tion as basis of institution of supplementary proceedings was not improper ;
statement of Trial Examiner criticizing managing employees of corporation
who did not appear in response to Board subpoena held not to establish any
prejudice, under the circumstances.
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by Oil Workers
International Union, Local 245, affiliated with Congress of Industrial
Organizations, herein called the Union, against Henry K. Phelps, Jr.,
Trustee in Bankruptcy of Atlas Pipeline Corporation, herein called
1 See footnote 1 of Intermediate Report, infra.
2 See footnote 2 of Intermediate Report, infra.
45 N. L. R. B., No. 164.
N
1163
i
1 ] 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
the Trustee, a hearing was held before a Trial Examiner in Shreveport,
Louisiana, from January 12 to 20, 1942, in which the Board, the
Union, and the Trustee above named participated by their representa-
tives. Thereafter a further hearing was held upon an amended com-
plaint following the filing of further charges against Atlas Oil and
Refining Corporation, herein called Atlas, as well as against the
Trustee. The same parties were represented and participated in the
hearing. Atlas was represented by counsel and appeared specially at
the further hearing. The Board has reviewed the rulings of the Trial
Examiner made on motions and on objections to the admission of
evidence and finds that no prejudicial error was committed. The
rulings are hereby affirmed.
On May 13,1942, the Trial Examiner issued his Intermediate Report
finding that both the Trustee and Atlas had engaged in violations of
the Act. Exceptions to the Intermediate Report and briefs were there-
after filed by the Trustee and Atlas and considered by the Board. Oral
argument was held before the Board on July 21, 1942. Upon our con-
sideration of the entire record we affirm and adopt the findings of the
Trial Examiner, save as inconsistent with our findings and conclusions
as hereinafter set forth.
From September 20, 1939, to January 23, 1942, the Trustee under
Court Order, operated the refinery of Atlas Pipeline Corporation. A
substantial portion of the crude oil refined was obtained from points
outside the State of Louisiana and a large portion of the products of
the refinery was shipped outside the State. The annual value of the
finished products exceeded $1,000,000. On January 23, 1942, 3 days
after the close of the first hearing in this case, Atlas received from the
Trustee, pursuant to a plan of reorganization, the assets of the Trustee
and thereafter, without interruption by reason of the transfer, con-
tinued the operations of the refinery as more fully described below.
We are satisfied that the Board's jurisdiction attaches to the opera-
tions both of the Trustee and Atlas, herein collectively called the re-
spondents.
In their Exceptions to the Intermediate Report, the respondents
attack the Trial Examiner's procedure in reopening the hearing after
January 23, 1942, for the purpose of making Atlas a party respondent
to these proceedings.' As described above, however, our jurisdiction
over Atlas is grounded on amended charges and an amended complaint
issued against Atlas pursuant to usual Board procedure. It is there-
fore unnecessary to pass upon the respondents' exceptions in this
respect. The respondents also charge the Trial Examiner with bias
and prejudice in view of what is termed his "unconscionable" use of
'The Trial Examiner used, as a basis for his proceeding , a stipulation received from
the Trustee after the close of the first hearing, sho«ing the transfer of`assets to Atlas.
The stipulation was obtained by the Trial Examiner in order to expedite his intermediate
Report and to "complete the record."
HENRY K. - PHELPS, JR., TRUSTEE 1165
the stipulation described in footnote 1, supra, and his "unrestrained"
remarks following the failure and refusal of two officers of Atlas to
appear in response to subpenas served on them by the Board. How-
ever, we find nothing improper in the institution of supplementary
proceedings upon the basis of the information submitted in the stipula-
tion. Further, we have considered the Trial Examiner's remarks, to
which our attention is directed, in light of the entire record, and have
reached the conclusion that the incident does not establish any bias
or prejudice on the part of the Trial Examiner and did, not affect the
fairness of the hearing accorded to the respondents.2
The record is clear and we are convinced that the respondents en-
gaged in the unfair labor practices as found by the Trial Examiner.
In April 1941 the employees at the Shreveport refinery, operated by
the Trustee, revived interest in the Oil Workers International Union,
a local of which had been supported by the employees from 1936
through 1937. With the revival of the Union, the Trustee, through his
superintendent, Chance, and other supervisory employees, made
known to the workers his opposition to the Union. We conclude that
the Trustee by his course of conduct in seeking to discourage union
activity, interfered with, restrained, and coerced his employees in the
exercise of the rights guaranteed in Section 7 of the Act. In his Ex-
ceptions to the Intermediate Report, the Trustee took issue with the
Trial Examiner for crediting the testimony of Frank Walsh, a former
employee of the Trustee who appeared as a witness for the Board.
We find that Walsh's testimony is entitled to but little credence. Our
conclusion that the Trustee interfered with his employees in the ex-
ercise of their rights guaranteed in Section 7 of the Act is not based
• upon Walsh's testimony. In all other respects, however, we agree
with the Trial Examiner in his resolution of conflicting testimony in
connection with this aspect of the case and confirm his findings thereon.
Our review of the record satisfies us that both Pugh Elliott and
Jake Ervin were discharged by the Trustee because of their union
membership and activity, as found by the Trial Examiner, and we
find no merit in'the Trustee's exceptions to the conclusions of the
Trial Examiner regarding these employees. Elliott, a treater with
some 15 years of experience at the refinery, had been vice president
of the Union in 1936, and was instrumental in reviving the Union in
April 1941. He was discharged on May 2, 1941, by Superintendent
Chance upon complaint of a watchman, J. H. Smith, that Elliott had
been asleep in the treater shack during the night of April 30-May
2 See Bethlehem Steel Co: v N. L It B., (App, D C ), 120 F. (2d) 641, 651-2; N L.
R B v. Acme-Evans Co (C. C. A. 7), 130 F (2d) 477; N. L. B, B v. Quality Art Novelty
,Co, (C C. A 2). 127 F. (24)'903; see also N L B B v. Baldwin Locomotive Works,
(C C A 3), 128 F. (2d) 39 and cases therein cited, compare Whitaker v McLean, (App
D. C.), 128 F. (2d) 590, Minnesota and Ontario Paper Co v. Molyneaux, (C C A, 8), 70
F (2_d) 545
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Smith was admittedly hostile to the Union and his testimony re-
garding the incidents leading to the discharge is clearly untrust-
worthy! We are convinced that Elliott in fact was, as he testified,
awake, and that he had not been sleeping on the night in question.`
Moreover, we agree with the Trial Examiner that had Chance not been
motivated by anti-union bias, and had he made a bona fide investiga-
tion pursuant to usual procedure in similar cases, he would not have
effected Elliott's discharge.
Jake Ervin, recognized as a leader in his social life by the negro
employees, and in his work by the Trustee, took prominent part in
a fish fry held by the Union on December 6, 1941, at which many of the
negro employees joined the Union. Ervin was discharged by his
superior, Clanton, on December 10, 1941, allegedly because he spent
15 minutes wrapping rags on his feet while putting on boots provided •
by the Trustee for work on wet, mushy ground.' Clanton had ex-
pressed his indignation with the Union, and, as the Trial Examiner
observed, "would apply his indignation and his demonstrated dislike
for the Union to all persons whom he knew or suspected of being
affiliated with it or active in its behalf, especially such of those as
might be negroes and directly under him." Few, employees had been
employed at the refinery as long as Ervin and his work had always
been satisfactory. We are satisfied that Ervin was discharged, not
because of the minor dereliction described above, but because of his
union membership and activity.
The Trial Examiner found that Albert Sanders was discharged for
cause and the Union did not except to this finding. We have reviewed
the evidence, agree with the conclusion of the Trial Examiner, and
shall dismiss the complaint with respect to Sanders.
On January 23, 1942, possession and control of the refinery passed
from the Trustee to Atlas without interruption of operations.6
While financial control passed into the hands of persons who, were
not, with respect to operations, associated with the refinery prior to
approval of the reorganization plan, the supervisory staff and al-
most the entire pay roll remained intact. Prior to, the transfer to
S In addition to the Trial Examiner 's findings on credibility , which we affirm, other
evidence in the record supports our opinion of Smith's testimony . For example, Smith
claimed that he attempted to awaken Elliott by shining a flashlight in his face. Since
the small shack occupied by Elliott was illuminated by a 500-watt bulb, Smith 's testimony
in this respect is incredible on its face.
• The Trial Examiner found that Elliott bad been "nodding ," a term used by the wit-
nesses to indicate dozing which was not considered a dereliction of duty by the respondent.
We are of the opinion, however , inf view of all the testimony , and particularly Elliott's,
that he was awake when Smith made his rounds that night.
5 Bob Harlan , former white foreman of the same gang , testified that 10 minutes was
average time ( the boots were too large for the feet of the Negroes ) and 15 minutes was
not, unreasonable , and that ordinary practice was to hurry or to "push" a' Negro who
dallied.
6 From January 12 to 23, the refinery was partially shut down for repairs and the
installation of new equipment.
HENRY K. PHELPS, JR., TRUSTEE 1167
Atlas, Superintendent Chance and General Manager Connolly, both
of whom later. occupied substantially the same respective positions
with Atlas, compiled a list of the Trustee's employees who, would be
continued on their jobs by Atlas excluding therefrom "undesirable"
employees to whom further employment would be denied. In ac-
cordance with this list 11 employees 7 were refused employment.
Each was an active union member 8 and each had a record of satis-
factory service with the Trustee. Atlas, with knowledge of the situ-
ation through its high supervisory officers, refused to discuss with
the Union the basis for'the selection of these men to whom employ-
ment was refused, and both Chance and Connolly ignored the sub-
penas of the Board and failed to testify to such factors as were
peculiarly within their knowledge and which may have entered into
their consider ttion in excluding from the' list "undesirable" em-
ployees. The immediate superiors of these 11 employees, with one
exception 9 had no complaint with their services. We agree with
the Trial Examiner's analysis of the cases of these employees and
conclude that they were denied employment because of their union
membership and activities.
On January 24, 1942, the Union requested the employment of
Elliott and Ervin. Connolly, on behalf of Atlas, refused the re-
quest, claiming that Atlas had no intention of hiring these men and
reinstating them in their former positions at the refinery. We agree
with the Trial Examiner who found that the discriminatory motives
underlying the discharges of these men were equally applicable in
the refusal of Atlas to reemploy them.
THE REMEDY
Having found that the Trustee and Atlas have engaged in certain
unfair labor practices, we shall order them to cease and desist there-
from and to take certain affirmative action designed to effectuate the
policies of the Act.
We have found that the Trustee discriminated with regard to the
hire and tenure of employment of Pugh Elliott and Jake ,Ervin
because of their membership in 'and activities on behalf of the
Union. In order to effectuate the purposes and policies of the Act,
we shall order that the Trustee make each of them whole for any
loss of pay he has suffered by reason of the Trustee's discrimination
'The list included the names of six white employees : L A McMurray, H. B. Brown,
R I. Rush, H. M. Hatch, A. E. Powell, and R W. Harlan; and the names of five colored
employees : Carl Bryant, Eugene Nicholson, Joe Robinson, 'Montgomery Gardner, and Fean
Gland. Pay checks and income tax statements were issued to the six white employees
to whom Atlas denied employment and reinstatement on January 23, 1942 The five col-
ored employees were denied employment and reinstatement on January 24, 1942.
8 All six white employees w ere union leaders.
° "Red" Chandler, supervisor of the loading rack, gave testimony which reflected on the
ability of McMurray but we agree with the Trial Examiner that Chandler's testimony
was not credible.
1168 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD
by payment to each of a sum of money equal to the amount he nor-
mally would have earned as wages from the date of the discrimination
to January 23, 1942, when the Trustee transferred the assets of the
bankrupt to Atlas, less the respective net earnings 10 of each during
that period.
We have found that Atlas and the Trustee and Atlas, discriminated
as to the hire and tenure of employment of L. A. McMurray,
H. B. Brown, R. I. Rush, H. M. Hatch, A. E. Powell, R. W. Harlan,
Carl Bryant, Eugene Nicholson, Joe Robinson, Montgomery Gard-
ner, Fean Gland, Pugh Elliott, and Jake Ervin because of their
membership in and activities on behalf of the Union. In order to
effectuate the purposes and policies of the,Act, we shall order that
Atlas offer said persons immediate employment and reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority and, other rights and privileges; 1-1 and that
Atlas make each of them whole for any loss of pay he has suffered
by reason of the discrimination by payment to each of a sum of
money equal to the amount he normally would have earned as wages
from the date of the discrimination to the date of the offer of rein-
statement, less his net earnings 12 during that period.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
'CONCLUSIONS OF LAW
1. Oil Workers International Union, Local No. 245, affiliated with
the Congress of Industrial Organizations, is a labor organization,
within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Pugh Elliott and Jake Ervin, and thereby discouraging
membership in Oil Workers International Union, Local ' No.' 245,
affiliated with the Congress of Industrial Organizations, the Trustee
has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
10 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the Trustee , which would not have been incurred but for his unlawful
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 N. L. R. B.,
311 U S 7.
ii Atlas issued booklets entitled " Industrial Relations Policies" to all white and some
colored employees The booklet recited rights and privileges conferred upon employees,
including a monetary right to employees entering the military service of the United States
to receive an additional pay check equal to a month s wages (excluding overtime) and a
non-monetary right to such employees, operative on application within 40 days after
honorable dischaige from military , ser%ice, to ieceive reinstatement at the refinery
u See footnote 10, supra
HENRY K. PHELPS, JR., TRUSTEE 1169
3. By discriminating in regard to the hire and tenure of employ-
ment of L. A. McMurray , H. B. Brown, R. I. Rush, H. M. Hatch,
A. E. Powell , R. W. Harlan, Carl Bryant , Eugene Nicholson, Joe
Robinson, Montgomery Gardner , Fean Gland , Pugh Elliott, and
Jake Ervin, and thereby discouraging membership in Oil Workers
International Union, Local No. 245 , affiliated with the Congress of
Industrial Organizations , Atlas, and the Trustee and Atlas, have
engaged in and are 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
Trustee has engaged in unfair labor practices , within the meaning
of Section 8 (1) of the Act.
5. By interfering with, restraining , and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, Atlas
has engaged in and is engaging in unfair labor practices , 'within the
meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 (6) and (7) of
the Act. '
7. Neither the Trustee nor Atlas has engaged in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act , with respect to
Albert Sanders.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders :
A. That Henry K. Phelps, Jr., Trustee in Bankruptcy of Atlas
Pipeline Corporation, his successors , and assigns , shall :
Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole Pugh Elliott and Jake Ervin for any loss of pay
they may have suffered by reason of the discrimination in regard to
their hire and tenure of employment to January 23, 1942, by paying
to each of them a sum of money equal to that which he normally would
have earned as wages from the date of the discrimination until Janu-
ary 23,1942;
(b) Notify the Regional Director for the Fifteenth Region, in writ-
ing, within ten (10) days from the date of this Order, what steps said
Trustee has taken to comply herewith.
B. That Atlas Oil and Refining Corporation , its directors , officers,
agents, successors , and assigns , shall :
1. Cease and desist from :
493508-43-vol 45-74
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Discouraging membership in Oil Workers International Union,
Local No. 245, affiliated with the Congress of Industrial Organizations,
or in,any,,other4labor organization of its employees, or in any other
manner discriminating in regard to their hire and tenure of employ-
ment, or any term or condition of their employment;
(b) 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 rep-
resentatives of their own choosing, and to engage in concerted activi-
ties 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) Offer to L. A. McMurray, H. B. Brown, R. I. Rush, H. M.
Hatch, A. E. Powell, R. W. Harlan, Carl Bryant, Eugene Nicholson,
Joe Robinson, Montgomery Gardner, Fean Gland, Pugh Elliott and
Jake Ervin immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority and
other rights and privileges, including the rights and privileges set
forth in its booklet distributed to employees and entitled "Industrial
Relations Policy";
(b) Make whole said employees, named in paragraph 2 (a) of this
Order for any loss of pay they may have suffered by reason of its
discrimination in regard to their hire and tenure of employment by
payment to each of them a sum of money equal to that which he nor.-
mally would have earned as wages from the date of its discrimination '
to the date of its offer of reinstatement, including therein without
further discrimination the monetary and other benefits granted to its
employees in its booklet distributed to employees and entitled "Indus-
trial Relations Policy," less his net earnings during such period;
(c) Post immediately in conspicuous places throughout its refinery
in or near Shreveport, Louisiana, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to em-
ployees stating (1) that it will not engage in the conduct from which
it is ordered to cease and desist in paragraphs B, 1 (a) and (b) of
this Order; (2) that it will take the affirmative action set forth in
paragraphs B, 2 (a) and (b) of this Order; and (3) that its employees
are free to become or remain members of Oil Workers International
Union, Local No. 245, affiliated with the Congress of Industrial Or-
ganizations, and that it will not discriminate against any employee
because of membership or activity in that organization;
(d) Notify the Regional Director for the Fifteenth Region in writ-
ing within ten (10) days from the date of this Order, what steps said
Atlas Oil and Refining Corporation has taken to comply herewith; and
IT IS FURTHER ORDERED that the complaint be, and it hereby,is, dis-
HENRY K. PHELPS, JR., TRUSTEES 1171
missed insofar as it alleges that the Trustee and the Trustee and Atlas
engaged in, unfair labor practices, within the meaning of Section,
8 (3) of the Act, with respect to Albert Sanders. ^
INTERMEDIATE REPORT
C. Paul Barker, Esq., of New Orleans, La, for the Board
William H. Bronson , Esq., of Shreveport , La., for the respondent.
C. Massengale and E. P. Brister, both of Shreveport, La., for the Union.
William H Bronson, Esq., of Shreveport, La, appeared specially for the co-
respondent
STATEMENT OF THE CASE
Upon a second amended charge duly filed on December 26, 1941, by Oil
Workers International Union, Local 245 , affiliated with Congress of Industrial
Organizations , herein called the Union , the National Labor Relations Board,
herein called the Board , by the Regional Director for the Fifteenth Region
(New Orleans , Louisiana ), issued its complaint dated December 26, 1941, against
Henry K Phelps, Jr., trustee in bankruptcy of Atlas Pipeline Corporation , herein
called the respondent , alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 ( 1) and ( 3) and Section 2 (6) and ( 7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint , accompanied
by notices of hearing thereon, were duly served upon the respondent and the
Union.
In respect to the unfair labor practices , the complaint alleges, in substance,
that on May 2, 1941, and on December 10, 1941 , the respondent terminated the
employment of three named employees and has since failed and refused to re-
instate said employees because of their membership in or activity on behalf of
the Union ; and that at various times between late 1940 and the date of the
issuance of the complaint , the respondent , through his agents and supervisory
employees , has interfered with, restrained , and coerced his employees in the
exercise of the rights guaranteed to them in Section 7 of the Act ,, by requesting
employees to listen to and advise the respondent concerning , union talk among
the men, by questioning the employees concerning their affiliation with the
Union, and their attendance at union meetings , by offering employment to pros-
pective,employees on condition that they not join the Union, by threatening to
discharge union leaders at the first opportunity on some pretext other than
union activity , by spying upon the attendance of employees at union gatherings,
by abusing and assaulting employees because of their attendance at union gath-
erings, by circulating a petition among the employees which stated that the
signers were satisfied with their conditions and did not approve of strikes, by
inquiring among the employees as to the identity of the union leader, by warn-
ing employees against joining the Union , and by disparaging the Union by refer-
ring to its advocates as troublemakers and negro lovers On January 6, 1942,
the respondent filed his answer admitting certain of the allegations pertaining
to the business of the respondent and its participation in interstate commerce,
' This is the correct name of the respondent . In the complaint the respondent was
described as "Henry K Phelps , Jr trustee in bankruptcy of The Atlas Pipe Line
Corporation."
2 Atlas Oil and Refining Corporation was made co -respondent pursuant to an order to
show cause issued by the Trial Examiner February 27, 1942 , and an order gianting
Board's motion to amend the complaint , entered after hearing thereon , on Dlarch 13, 1942.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but denying all the material allegations with reference to the alleged unfair
labor practices.
Pursuant to notice, a hearing was held from January 12 to 20, 1942, in Shreve-
port, Louisiana, before R. N. Denham, the Trial Examiner duly designated by
the Chief Trial Examiner. The Board and the respondent were represented
by counsel, and the Union by its duly designated official representatives. All
parties participated in the hearing, where full opportunity was given them
to be heard, to examine the cross-examine witnesses, and to introduce evidence
bearing on the issues At the commencement of the hearing, the Board moved
to amend the complaint in certain minor particulars with reference to the
description of the alleged unfair practices, which motion was granted and the
amendments inserted by interlineation on the face of the original complaint,
and respondent's answer was amended to conform. Upon inquiry from the Trial
Examiner, the respondent stated for the record that he waived all questions
as to the jurisdiction of the Board which might be raised because of his official
status as a trustee in bankruptcy acting by appointment from the United
States District, Court, Western District of Louisiana, Shreveport Division, under
Chapter X of the Act of Congress relating to bankruptcy and commonly referred
to as the Chandler Adt. Upon motion of counsel for the respondent, all wit-
nesses except those appearing as parties or representatives of parties, were
excluded from the hearing until such time as they should complete their testi-
mony At the close of the hearing all parties participated in oral argument
before the Trial Examiner and were afforded opportunity to file briefs Only
the brief of the respondent was received
On February-24, 1942, and after the respondent's brief had been filed, there
was filed with the Trial Examiner, at the latter's suggestion, a written stipu-
lation signed 'by counsel for or representatives of all parties who .appeared at
,the hearing, setting forth, among other things, that, on January 23, 1942, the
respondent, pursuant to an order of the above-named United States District
Court, had transferred the assets of his trusteeship to Atlas Oil and Refining
Corporation and that since that date said corporation has continuously operated
the property without appreciable change in the respondent's administrative,
supervisory, or operating personnel On February 26, 1942, the Chief Trial
Examiner, pursuant to Article II, Section 30 of the Rules and Regulations,
Series 2, as amended, of the Board, issued his order reopening the hearing to
consider the matter of amending the complaint and making Atlas Oil and Re-
fining Corporation a party to these proceedings and to receive farther evidence
herein, and continuing the undersigned as the designated Trial Examiner in
such reopened proceedings. On February 27, 1942, the-Trial'-Examiner entered
and caused to be served on all the parties, including Atlas Oil and Refining Corpo-
ration, an order to show cause why the complaint should not be amended in a
manner set out in said order, to recite the facts pertaining to said transfer;
and why Atlas Oil and Refining Corporation should not be made a party to
this proceeding. In addition, and concurrently therewith, there were served on
Atlas Oil and Refining Corporation,, copies of the Second Amended Charge, the
complaint and respondent's answer. On March 12, 1942, a hearing on the Order
to Show Cause was held before the Trial Examiner at Shreveport, Louisiana.
The Board, the Union and the respondent appeared generally. Atlas Oil and
Refining Corporation' appeared specially by W. H. Bronson, also acting as
counsel for respondent herein, for the sole purpose of contesting the jurisdic-
tion of the Board over it in such proceedings. The exceptions of Atlas Oil
and Refining Corporation to these proceedings and its motion to quash the
Order to Show Cause were overruled, whereupon Atlas Oil and Refining Corpo-
HENRY K. PHELPS) JR., TRUSTEE 1173
ration withdrew from the proceedings' and refused to either appear generally
therein or otherwise participate. The respondent also filed exceptions to the
Order to Show Cause and moved for permission to withdraw the stipulation
above referred to, which exceptions were overruled and the motion denied.
Adequate cause not having been shown, the Trial Examiner on March 12, 1942,
directed, on the record, that the complaint be amended to designate Atlas
Oil and Refining Corporation as co-respondent, by which term it is hereinafter
called, and to recite that the respondent, on January 23, 1942, pursuant - to an
approved plan of reorganization and an order of the above United States Dis-
trict Court entered January 9, 1942, had transferred the assets of his trustee-
ship to the co-respondent; that the co-respondent has continued the operation
of the property without appreciable change in administrative, supervisory or
operating personnel and has failed to reinstate or offer reinstatement to those
employees who, according to the allegations of the complaint, had been dis-
charged by the respondent because of union activities.
Immediately following the foregoing direction by the Trial Examiner, Counsel
for the Board, pursuant to a Notice of Motion to Amend Complaint, dated March
9, 1942, and on that date, duly served on all parties hereto, including Atlas Oil
and Refining Corporation, to which notice was attached a copy of the proposed
amendments, filed a motion to amend the complaint, reciting that on March 9,
1942, there had been filed with the Regional Director for the Fifteenth Region, an
amendment to the Second Amended Charge, wherein Atlas Oil and Refining Corpo-
ration, in conjunction with the respondent, was charged with certain unfair labor
practices affecting commerce within the meaning of Section 8 (1), (3) and (4)
and Section 2 (6) and (7) of the Act; and, on the basis of such amendment to the
Second Amended Charge, seeking to amend the complaint (1) in all respects as
recited in the Order to Show Cause dated February 27, 1942; (2) by alleging, in
substance, that at various dates between January 13, 1942, and up to 7 a. in. of
January 23, 1942, the respondent had laid off or terminated the employment of 11
named employees and has failed or refused to reinstate them and that on January
23, 1942, the co-respondent had discharged or refused to hire or employ said 11
named employees and has continued so to do and that said action by the respondent
and co-respondent was because of the membership or activities of said employees
on behalf of the Union or because they appeared and gave testimony in a hearing
before a Trial Examiner of the Board; and (3) that the co-respondent has inter-
fered with, restrained and coerced its employees from becoming members of the
Union or engaging in concerted activities with other'employees by warning the
negro employees against concerted activities in conjunction with the white em-
ployees and by gratuitously granting the employees many benefits not theretofore
enjoyed by them, affecting wages, rates of pay, hours of employment, seniority,
grievances, vacations with pay and, other matters normally the subjects of collec-
tive bargaining, for the purpose of destroying the incentive of the employees to
become members of the Union and to discourage membership in the Union. After
argument by the parties, the motion to amend the complaint was granted in its
entirety on March 13, 1942, and the hearing was recessed to be reconvened at
Shreveport, Louisiana, on March 26, 1942, at 10 o'clock a. m. to-hear whatever evi-
dence might be adduced in support of the issues raised by the complaint as so
amended On the same day, and in conformity with the ruling of the Trial
Examiner in granting the motion to amend, a written order was entered by the
Trial Examiner directing that (1) the complaint be amended as set out in the
Board's motion; (2) Atlas Oil and Refining Corporation be made a party to this
proceeding as co-respondent herein; (3) a copy of the order with a copy of the
complaint as amended and the amendment to Second Amended Charge, filed March
1 174 DECISIONS OF NATIONAL LABOR RELATION'S BOARD
9, 1942, be served in the manner provided by the Act, on all the parties, including
Atlas Oil and Refining Company; (4) a copy of the transcript of record in the
previous hearing sessions held January 12 to 20, 1942, and all exhibits admitted
into evidence at such hearings, be tendered to Atlas Oil and Refining Corporation
and that such record and such exhibits be deposited with W. H. Bronson, Counsel
for respondent and attorney, appearing specially for Atlas Oil and Refining Corpo-
ration, for delivery to Atlas Oil and Refining Corporation on demand, but to be
returned to the Trial Examiner on the resumption of hearings herein; (5) that
all parties be permitted to file written answers to the complaint as amended in the
manner prescribed by the current Rules and Regulations of the Board; (6) that
the hearing be reconvened at a designated place in Shreveport, Louisiana, at 10
o'clock a in. on March 26, 1942; and (7) that at such reconvened hearing the
co-respondent be permitted to recall for appropriate examination or cross-exam-
ination, any witness or witnesses who may have previously testified in these pro-
ceedings. Copies of the above order, which also constituted a notice of hearing,
with copies of the amended complaint and the amendment to the Second Amended
Charge were duly served on all the parties, including Atlas Oil and Refining Cor-
poration and, as provided in the order, the transcript of record and exhibits were
duly deposited with W. H. Bronson on March 13, 1942, for the purposes set out in
said order . On March 26, 1942, the respondent duly filed his answer to the
amended complaint. -
On March 26, 1942, the hearing was reconvened in Shreveport, Louisiana.
All parties except Atlas Oil and Refining Corporation appeared generally by
the same counsel or duly designated representatives previously appearing for
them Atlas Oil and Refining Corporation, by W. H Bronson, appeared specially
and for the sole purpose of urging a motion to dismiss the complaint as to it for
the reasons that (1) the Board has no jurisdiction over the co-respondent and
(2) the complaint, as amended, contains a misjoinder of parties. The motion
was denied, whereupon the co-respondent, Atlas Oil and Refining Corporation,
refused to enter a general appearance, withdrew and did not thereafter partici-
pate notwithstanding that attention was directed to the provision of the Rules
and Regulations of the Board concerning the non-waiver of their rights under
the special appearance by thereafter participating in the proceedings. A sub-
poen-a duces tecum of the Board , duly served through the office of the Fifteenth
Region, on Atlas Oil and Refining Corporation and five subpoenas ad IestifZ-
candum of the Board, similarly served through the office of the Fifteenth Region,
on E. A. Connelly, executive vice president, V. B. Chance, superintendent, Roose-
velt Roy, yard foreman, Eddie Clanton, foreman of the negro labor gang, and
C. C. Branch, timekeeper, of the Atlas Oil and Refining Corporation, all of whom
had been employed in similar capacities by the respondent. except that Connelly
had been known as General Manager for the respondent, were ignored 'by those
on whom they were served. Notwithstanding, the hearing proceeded and was held
March 26, 27 and 28, 1942, and April 9, 10 and 11, 1942, at Shreveport, Louisiana,
where all parties were afforded full opportunity to examine and cross-examine
witnesses and to introduce evidence bearing on the issues. On April 10, 1942,
the respondent and his counsel withdrew from the hearing and refused to fur-
ther participate therein although they remained in the hearing room throughout
the remainder of the hearing and, on request, made available certain data in
their possession. At the close of the hearing, the motion of Board's counsel
that the pleadings be conformed to the proof in matters pertaining to names,
dates and other matters not going to the material issues, was granted. Oral
argument was presented by counsel for the Board. Since the co-respondent did
not participate and the respondent withdrew and refused to participate further
HENRY K . - PHELPS, JR., TRUSTEE 1175
before the hearing was closed , and since the Union , while represented , took no
part in the proceedings , there were no requests to file further briefs.
On the whole record thus made and after hearing and observing the witnesses
and considering the exhibits admltted . in evidence , the undersigned makes, in
addition to the foregoing , the following: _
FINDINGS OF FACT
I-A. THE BUSINESS OF THE RESPONDENT
Prior to the beginning of the receivership and trustee proceedings herein-
after referred to, Atlas Pipeline Corporation and its various predecessors were
engaged in the business of transporting and refining petroleum and marketing
the products thereof.
Its principal properties were a refinery in or near Shreveport, Louisiana, an
office building in the City of Shreveport, Louisiana, and pipe lines leading/from
the oil fields of East Texas and Arkansas to the refinery.
On May 26, 1939, upon the petition of the trustees for the holders of the
first mortgage bonds of Atlas Pipeline Corporation, H. K. Phelps, Jr., was
appointed temporary receiver of that company. Subsequently, the company
was adjudicated a bankrupt.
In the bankruptcy proceedings, the company filed its petition for reorganiza-
tion under Chapter X of the Acts of Congress relating to bankruptcies, which
petition was approved by the Court on September 20, 1939, whereupon H. K.
Phelps, Jr., the respondent herein, was duly appointed by the Court as trustee
to hold all the assets and to continue the operation of the business of the Atlas
Pipeline Corporation. Since that date and up to January 23, 1942, the said
H. K. Phelps, Jr., the respondent herein, did, by reason of said appointment,
hold the title to all the assets of the Atlas Pipeline Corporation, and operate
the business of said corporation as a going concern pending efforts of interested
'parties to bring about a reorganization of the Atlas Pipeline Corporation under
the provisions of Chapter X of the Acts of Congress relating to bankruptcy.
In his conduct of the business of the Atlas Pipeline Corporation, the re-
spondent, as Trustee for the United States District Court, Western District
of Louisiana, Shreveport Division, in the proceeding in that court entitled, "No
6203, In Bankruptcy ; In the Matter of Atlas Pipeline Corporation, Debtor,"
continued to carry on the business previously transacted by the Atlas Pipe-
line Corporation and, in connection therewith, engaged in the transportation
of crude petroleum from the States of Arkansas and Texas to the refinery at
or near Shreveport, Louisiana, and has sold and distributed the products of
such crude petroleum to customers located both within and without the State
of Louisiana.
A substantial portion of the crude oil refined by the respondent as such
trustee was obtained from states other than the State of Louisiana and trans-
ported in commerce from such states to the refinery of the respondent. A
large portion of the products produced at the refinery of the respondent was
sold and delivered either directly to or through states of the United States
other than Louisiana or to customers in Louisiana for ultimate shipment to
States of the United States other than Louisiana. The total value of the
crude petroleum refined by the respondent as such trustee annually has ex-
ceeded $1,000,000, and the value of the finished products produced, sold, and
delivered by the respondent as such trustee annually has exceeded $1,000,000.
At all times pertinent hereto, the respondent has engaged in commerce
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
within the meaning of the term as defined in Section 2 ( 6) of the National
Labor Relations Act, and the business conducted by the respondent has af-
fected commerce within the meaning of Section 2 (7) of the National Labor
Relations Act. ,
On March 24 , 1941, respondent caused to be filed in the United States
District Court in the case.above referred to, a plan of reorganization providing
for (1 ) refunding the first mortgage bonds of the Atlas Pipeline Corporation
into other first mortgage bonds at a lower interest rate, secured by a lien on
all the fixed •assets of the Atlas Pipeline Corporation and executed by a new
corporation provided for in the plan; (2 ) converting the second mortgage
bonds of the Atlas Pipeline Corporation into a reduced amount , par value,
of preferred stock of the new company ; and (3 ) paying the general unsecured
creditors of the Atlas Pipeline Corporation 10 cents on the dollar in full satis-
faction of their claims. No provision was made for any of the stockholders
of the Atlas Pipeline Corporation who, according to the finding and order of
the Court , had no interest to be preserved The plan further provided that
the assets of the Atlas Pipeline Corporation would be transferred to a new
corporation organized from among certain suppliers of crude oil to be used
in the respondent 's refinery , which new corporation as so finally organized is
the co-respondent herein.
The consideration provided for in the plan to be paid by the-new, corporation
for the transfer to it of all the assets consisted , among other things, of the
execution of the new first mortgage bonds and the indenture securing such bonds,
the issuance of the preferred stock to the holders of the second mortgage bonds
of Atlas Pipeline Corporation , and the payment to the Trustee of a sufficient sum
of money to insure the payment of 10 cents on the dollar to the general unsecured
creditors , together with the payment of certain other obligations to the extent
that the available funds in the hands of the trustee might be insufficient for that
purpose, which amount - was limited, however, to the commitments to the new
corporation as to working capital. These are the commitments in the plan
whereby the crude oil producers agreed to provide working capital for the new
coi poration in the amount of $150,000 cash and $200 ,000 working credit.
The organizers of the co-respondent are in no respect associated with either
Atlas Pipeline Corporation or H. K . Phelps, Jr., Trustee , the respondent herein,
and H . K. Phelps, Jr., is not and at no time has been connected with or in a
position to control either the business or policies of Atlas Pipeline Corporation or
of the co-respondent except as may be reflected in the relations shortly preceding
the actual transfer - of assets to the,co -respondent , hereinafter described:
The plan of reorganization was thereafter presented to the Court , and was duly
approved as a plan which was both fair and feasible and one that should be
submitted to the creditors for their consideration . In due time , it was submitted
to the creditors and accepted by such proportion of creditors of each class affected
thereby as is required under the provisions of Chapter X of the Acts of Congress
affecting bankruptcy.
On January 9, 1942, the respondent filed a petition in the United States District
Court above described , representing that the plan had been accepted by the
appropriate number of creditors and requesting the Court to direct that it be
'consummated.
On the same (lay, Ben C. Dawkins , Judge of the United States District Court,
Western District of Louisiana , having jurisdiction over the bankruptcy proceed-
ing above referred to, entered an order directing the consummation of the plan
and the transfer and conveyance'to the co-respondent of all the assets of the
HENRY K. PHELPS, JR., TRUSTEE 1177
Trustee, with the exception of certain assets withheld for specific purposes set
out in the order.
The foregoing recitals were, in substance, stipulated on the record by all parties
and are now found to constitute the facts concerning the respondent. Up to the
time of this stipulation, such assets had not been conveyed by the Trustee, and
at the close of the first hearing on January 20, 1942, the business was being carried
on by him as heretofore. It was contemplated, however, that such transfer would
be accomplished as soon as practicable after the conclusion of such bearing, and,
on January 23, 1942, at 7 o'clock a. in. such transfer was in fact made as
hereinafter set out.
The Board has at no time entered any form of appearance in the bankruptcy
proceedings nor filed therein any notice of the pendency of this case or of the
issues herein involved and the Court's order of January 9, 1942, made no reference
to this proceeding.
Among the assets withheld by the Trustee from transfer is a fund of $20,000 to
meet the payment of unknown or contingent liabilities of the trustee.
I-B. THE BUSINESS OF THE CO-RESPONDENT
The co-respondent is a- corporation organized under the laws of Delaware
with its principal place of business at Shreveport, Louisiana. None of its
directors, officers or stockholders are known to have been former directors, officers
or stockholders of Atlas Pipeline Corporation. On January 23, 1942, at 7
o'clock a. m., the respondent transferred to the co-respondent, title and pos-
session of all the properties of the trusteeship, including the refinery and pipe-
lines hereinbefore described. The transfer occasioned -no interruption in the
operation of the refinery and other properties. Since then the co-respondent
has continuously operated the properties in the same manner as the respondent
had done. Crude oil is transported in the pipeline from the State of Arkansas
to the refinery at Shreveport, in approximately the same volume as was used
by the respondent. The refining processes continue to be carried on without
change. The same sale and distribution facilities are used and sales and ship-
ments in approximately the same volume are made to the same customers and
destinations, a substantial portion of which move in commerce to points out-
side the State of Louisiana. The managerial, administrative, supervisory, and
operating personnel at the refinery, under the ownership of the co-respondent,
is, with minor exceptions hereinafter noted, and since 7 a. m. of January 23,
1942, has been the identical managerial, administrative, supervisory and oper-
ating personnel that for a long time had been and was, up to 7 a. in. of Janu-
ary 23, 1942, operating the refinery under the ownership of the respondent,
at which time the respondent transferred possession and control of the refinery
to the co-respondent as above noted. -
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, Local No. 245, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to membership,
among others, the production and maintenance employees of the respondent.
Those of its members who are employees of the respondent or the co-respondent
are referred to, as the Atlas Group.
0
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE) UNFAIR LABOR PRACTICES
A. Interference, restraint and coercion prior to January 23, 1942
In 1936 the Union effected an organization of the employees of the Atlas Pipe-
line Corporation at a time when the employer was operating on 8-hour shifts, 7
days a week. This organization, embraced about 65 percent of the employees..
Some collective bargaining with the Company was engaged in but no contracts
or agreements resulted. In 1937, the employer put the operations on a 6-hour
basis, 6 days a week, and employed non-union men to fill out the shifts. This
destroyed the Union's majority. From that point the Union's representation
dwindled and finally completely disappeared before the end of 1937.
In August 1940 Vernon B. Chance was promoted by the respondent to be
superintendent of the refinery and served in that capacity until 7 a. in. of
January 23, 1942, when the refinery was transferred to the' co-respondent.
Since that date and hour, he has served in the same capacity on behalf of
the co-respondent. Chance has been in the employ of the co-respondent and its
predecessors at the plant for many years, having risen through the supervisory
grades of Gyro plant foreman and assistant superintendent to his present
position.
In, the latter months of 1940, Pugh Elliott; a treater; who had been vice
president of the Union in 1936, began to discuss a revival of the Union in the
plant. He enlisted the collaboration of Atlee Alston, one of the older employees
who had been opposed to the Union in 1936, and, by the latter part of March
1941, had interested several others in bringing the Union back. On April 5,
1941, Elliott, with four other employees, met with C. Massengale, local repre-
sentative of the Union, to discuss a program of organizational activity. This,
resulted in a more formal meeting with Massengale on April 7, 1941, at one of
'the local hotels in Shreveport. Nine employees, including Elliott and Alston,
attended and, after signing applications, all were inducted into the Union at
that time. It was not until after the April 5 meeting, that Elliott was openly
active in distributing union literature and application cards and in soliciting
memberships among the employees, both. in the plant and at their homes, or
that any other general activity of similar nature was carried on' in the plant,
or among the employees.
Chance admitted a knowledge that union organizational efforts were being
carried on in the plant at that time, but denied that he was interested in them
or that he .associated.. Elliott,^,With ^them.•" Chance was (vell acquaiiAdd' with
Elliott through many years of association with him. Although he had been.
foreman of the Gyro operations in 1936 when Elliott was active in the Union's
work, he had knowledge of the union activities at the time. His denial that.
he knew Elliott was active in the Union at this time is not credited. His in-
herent opposition to such activities in general, and the fact that such opposi-
tion continued, even when activities were not being carried on in the open, is
demonstrated in a statement on the subject of Elliott's organizational procliv-
ities, made in 1940 when discussing Elliott's desirability as an employee.
Chance's denial that he knew of Elliott's activities which followed the April
meetings is not credited
In a more positive manner, H. L. Jackson, who is commonly referred to by.
the employees as assistant superintendent, and whose title is shift foreman,
denied having heard of a union movement in the plant until May, 1941. Jack-
son also had worked with Elliott in 1936. At that time, the Union met with
HENRY K . PHELPS, JR., TRUSTEE- 1179
some opposition from the American Federation of Labor, in which faction
Jackson played a part.3 In 1941, he came in close contact with the employees
and frequently engaged them in conversations not immediately concerned with
the operation-4 the refinery. Other credible evidence contradicts Jackson's
denial which is here dismissed with the comment that neither this nor very
much, if any, of the other uncorroborated testimony of that witness, bearing
on his knowledge of or his actions concerning the 1940-41 -42 union activities
is credited There -is too much credible testimony to the contrary to warrant
any other treatment.
Among those who had worked with Chance at the plant for a long period
of years, was Frank Walsh , a treater . Walsh's relations with Chance were
friendly, and when Chance became superintendent in August 1940, one of his
early moves was to promote Walsh to be foreman over the treaters . During
or about the Christmas holiday season of 1940, Walsh engaged in conduct at
the plant which resulted in his discharge Walsh admitted that his discharge
was for good cause, and stated that he holds no animosity because of it, al-
though he has made several unsuccessful efforts to have Chance reinstate him,
and feels that he is being unduly penalized in being withheld from employment.
He is not a member of the Union , and his various letters admitted in evidence
reflect his lack of animosity . Walsh's testimony is credited as an accurate
reflection of the pertinent facts to which he testified . He stated that in October
1940,` while h'e' was acting as foreman of the treaters, he and Chance engaged
in a conversation concerning the respective merits of the treaters employed by
the respondent Each treater was discussed and when Elliott 's name was
brought up, Walsh described him as the best man on his list Both men had
worked with Elliott for a number of years and knew him well, but Chance's
comment was , in effect, "He 's a damned organizer and I am going to get rid
of him " Walsh called Chance 's attention to the fact that a former superin-
tendent had put a notice on the time clock forbidding employees to become
members of the C: I. 0, and cautioned Chance to be careful how he got rid of
Elliott, to which Chance replied, in effect, "Whenever I fire a fellow, I won't
make that mistake ; I will damn sure not make that mistake. " Chance
denied this conversation but Walsh's testimony is accepted as true This inci-
dent took place at about the time Elliott began his talks with Alston and be-
fore Chance had an opportunity to learn of the move to revive the Union.
Chance's attitude toward the entrance of the Union into the plant is further
reflected in the testimony of I. S. Gordy, who, during the past, has worked a
total of 17, years at the Atlas plant, his last employment there having been
terminated in January 1939,'when the, entire plant'was,shut down. Thereafter,
Gordy applied several times for employment but without success. In April
1941, shortly after the union activities began to he openly carried on, he again
applied direct to Chance, with whom he had worked during his previous employ-
ments. In the course of this conversation, Chance asked him whether, if he
should be given a job, he would join the C I 0 or "stay it company man."
When Gordy remonstrated against such a commitment, Chance told him to think
it over and come back in a few days Gordy did not return but later succeeded
in finding employment elsewhere Chance denied this conversation but in view
of all the circumstances herein set out, it is found that it took place substan-
tially as recited by Gordy.
The general antipathy of management toward the Union is further disclosed
in the conduct of Jackson, Roosevelt Roy, the yard foreman within whose juris-
Since January 24, 1942 , A F of L . activities in the refinery have been revived
1180 DECISIONS OF NATIOATAL LABOR RELATIONS BOARD
diction negro employees fall, and Ed Clanton; foreman of the negro labor gang,
as well as in other incidents that are later referred to herein. In March 1941,
while Elliott was in the treater shack, a small building close to the equipment
used in they treating process, Roosevelt Roy, who had been a member of the
Union in 1936, entered the shack and engaged hint in conversation. This appears
to have been a frequent occurrence, but on this occasion Elliott referred to
Roy's previous membership in the Union and told him that the men at the plant
were about to organize again. Roy's reply was, in effect, "You better leave the
union alone, that will get you in trouble, they can't fire you about your union
activities but they can fire you about your age or any little thing that comes up."
Roy closed this conversation by remarking that he did not think the plant needed
any union organization as long as Chance was superintendent. -
Another statement attributed to Roosevelt Roy was testified to by J P Ezell,
a fireman in the boiler room, who is 65 years of age and has been employed
at the Atlas plant for over 21 years. In the latter part of April 19-41, Roy
approached Ezell while he was at work and asked him, "Do you belong to that
God damned CIO?" Ezell replied that it was none of Roy's business, whereupon
Roy retorted, "We can't keep you from joining that Union, but we can fire you
on account of your age." These statements attributed to Roy were undenied
and Roy, who has continuously been in the employ of the respondent and co-
respondent, did not testify at the first hearing His` `siibsegnent`testunony did
not bear on these matters It is found that the statements were made substan-
tially as quoted.
On April 11, shortly after the first union organizational meeting, Jackson
entered into a discussion with Joe Mangham, one of the Gyro operators, concern-
ing the Union Jackson inquired as to the union membership but Mangham
refused to give him any information by denying knowledge of the extent of the
membership. Jackson's reply was, in effect, "You fellows are expecting big things
that you won't get out of the Union " At about the same time, in a conversation
between Jackson and D. M. McQuiddy, a Gyro fireman, McQuiddy asked Jackson
what he thought about the Union, to which Jackson replied. "There is quite a
bit of uproar going on out here, but I think we will be able to quiet it clown."
Elliott was discharged on May 2, 1941, and for some little time thereafter,
his discharge provided a topic of considerable conversation throughout the plant.
During this period, Lee Prescott, the operator on a polymerization unit and one
of those who'had opposed the Union in 1936, had a talk with Jackson during
working hours about Elliott's discharge. In, the course of this conversation,
Jackson remarked, "Well, if they would fire seven or eight like that it would
possibly stop that thing." Prescott replied, "Well, you might have been right
once but I don't believe that-will work now." Since then. Jackson has not men-
tioned the Union to Prescott, although previously it had been a frequent' topic
of conversation with them. On the first or second day following Elliott's dis-
charge, Jackson also had a conversation with H M Crawford who works as a
shift breaker operating the compressor pumps. According to Crawford, Jackson
asked him how the men were feeling, to which Crawford replied that he thought
they felt all right, but mentioned that he understood Elliott had been discharged
Jackson replied that this was correct and remarked, in effect that Elliott had
started the C. I. O. at the plant in 1936 and that later when they put him back
to work "he got the wrinkles out of his belly" and now had started it again
and had "got what was coming to him " Jackson categorically denied every
statement attributed to him by any of the witnesses. His denials of these inci-
dents, when linked with equally positive denials of other facts which be could
HENRY K. PHELPS, JR., TRUSTEE • 1181
hardly avoid knowing, are wholly non-persuasive. His demeanor as a witness
was not such as to impress the-hearer that he was being frank in his testimony.
Except as the same finds corroboration liy credible witnesses, Jackson's testimony,
as heretofore noted, has not been given weight and it is found that the statements
attributed to himwwere made substantially as quoted.
The record contains much other testimony concerning similar comments by
employees occupying semi-supervisory positions, all dealing with union activities
and all following the same general pattern. To attempt to develop the actions
of these semi-supervisory employees would seem only to needlessly open a highly
controversial and pointless question as to their supervisory positions. The testi-
mony concerning them would be no more than cumulative in any event. It
could not add to or change the conclusions reached herein and has consequently
been omitted from comment.
Some evidence was introduced pertaining to the circulation on or about De-
cember 10, 1941, of a petition containing a declaration of unwillingness to strike
or interrupt the operations of the plant in any manner that might interfere
with the war efforts of the Nation. This petition was composed in its entirety
by one of the employees not occupying'a supervisory position and was circulated
by him, or at his request, by others. There is no evidence that the petition was
sponsored or encouraged by the respondent or any of the supervisory employees,
although its existence was known to Jackson. The fact that Jackson made no
effort to suppress the petition is not material. It is found that the respondent
was not responsible for this petition.
Testimony was introduced, that on December 6, 1941, when a number of the
negro employees were on their way to a fish fry which was being given for them
under union sponsorship , they were trailed by Chance a portion of the way.
The evidence shows, and it is found, that while Chance was actually in his car
and for a part of the way, may have been behind the automobile containing the
negroes, he was, in fact, on his way to keep an-appointment with the respondent's
general manager, and was not following the men for purposes of spying on them.'
From the foregoing it is found that by the threat of Chance to discharge Elliott,
and by the threats and disparaging remarks concerning the Union and union
membership by Jackson and Roosevelt Roy, all of whom admittedly were super-
visory representatives of the respondent herein, the respondent has interfered
with, restrained and coerced his employees in the exercise of the rights guaran-
teed to them in Section 7 of the Act.
B. The discharges by the respondent
1. Pugh Elliott
Pugh Elliott was discharged May 2, 1941. With the exception of the year 1935
and 2 months in 1939, both times when the plant was shut down, Elliott had
been practically continuously employed at the refinery, under the management of
the respondent and his predecessors, since September 1926. Since 1939 he has
worked as a treater, whose work is the last operation on gasoline before it is
sent to the storage tank from which it is shipped to its market.
The operations of the respondent are carried on on a 24-hour basis, operating
in four shifts of 6 hours each. The men work 6 days per week and change shifts
'The witness who testified to this incident was A. E. Powell . His testimony was given
on January 16, 1942, as a witness for the Board . As hereinafter found, on January 23,
1942, Powell was denied further employment at the refinery by the co -respondent, on
orders of Chance and Connelly . He was one of the six union men similarly treated on
that day. No reason was given by the co-respondent then or later for such treatment.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
each week. The work of the treater varies with the•kind of produce being manu-
factured and when two or three different types of product are going through, the
job requires a higher degree of close and continuous attention'than when only
one operation is being carried on.- This work is performed entirely in the open
and although at times there may be intervals of as much as 30 minutes when
the treater has nothing to directly occupy his attention, in general the process is
one which he must carefully follow at all times. Alongside the tanks, or "agita-
tors" as they are called, in which the treating process is carried on, there is a
small building about 8 by 14 feet, hereinbefore, referred to as the treater shack,
in which are kept the record books where necessary entries are made by the
treater from time to time as the treating process progresses. This shack is
ordinarily used as a shelter by the treaters in inclement weather, during the
lags in the treating process Both side walls are almost entirely taken up by
large glass windows. A steam coil to supply heat is installed at one end and
the door is at the other. The shack is lighted by a single 500 watt bulb and
when it is lighted at night, a person sitting or standing inside can readily be
seen by anyone passing as far as 50 to 100 feet away.
At night, one treater and one pumper are the only men on duty in "the lower
end of the plant" where the treater equipment is located. They work without
supervision. Early in April 1941, Abe Wizig, the chief chemist, who at that
time was also acting as treater foreman, complained to Chance that they were
having trouble keeping up the quality of the gasoline and remarked that he
had heard rumors that men at "the lower end of the plant" had been sleeping
on the job Chance immediately called in the night watchmen separately and
(interrogated them as to whether they had found men sleeping in the lower end
of the plant. J. H. Smith, one of the watchmen, who had been employed within
the past year, reported he had not found any and was instructed by Chance that
it was his duty to report such matters. No warning or admonition was given
to any employee then or at any previous time on the subject of sleeping nor
that the penalty for sleeping on the job would be summary discharge, although
• it was recognized by all as a serious offense At the time these instructions
were given to Smith, Elliott was working on the night shift. During the night
following the receipt of the instructions, Smith approached Elliott and asked
him who it was that had been sleeping "down there." This was sometime be-
tween April 8 and 21, when Elliott's boy was critically ill in a local sanitarium
and Elliott was spending all his time off duty with his son. He explained this
to Smith and told him that he might have "nodded" a time or two during that
period So far as the subject of sleeping is concerned, Smith's testimony as to
this incident in April, differs from that of Elliott only in detail Smith said that
Elliott admitted to having been "asleep." Elliott testified that lie admitted he
may have "nodded." Smith testified that he did not refer to the matter as hav-
ing come from Chance or any other official. Elliott testified that Smith ex-
plained it as gossip he had picked up in the watchman's shack Elliott's version
of this conversation is accepted as the correct one. Smith did not report this
incident to Chance.
On the night of April 30 when Elliott was on duty on what is known as the
grave yard shift, serving from 1 a in to 7 a in. of May 1, intermittent rains
had fallen and his clothing had become water soaked At that time he was
running straight gasoline and kerosene This operation does not require such
constant attention as when cracked gasoline is being run, and leaves the operator
with intervals when he has nothing to do Daring such an interval, at about
4: 30 on the morning of May 1, Elliott went into the treater shack to dry his
clothes and sat leaning back in a low swivel chair near the steam coil, with his
HENRY K. PHELPS, JR., TRUSTEE 1183
back to the door. He denies that he went to sleep in this position, but it is
found as a fact that he became drowsy and dozed off for a few moments. He
had not been in the shack more than ten minutes when he was roused by the
night watchman. The employees at the refinery refer to such dozing as-
"nodding" in contrast to "sleeping." While not condoned by them, it is well
known to officials and employees alike, that men on the late night shift fre-
quently "nod" during their idle moments and it appears to be generally recog-
nized that such "nodding" is not something that calls for disciplinary action
until it develops into a complete loss of consciousness which is sleep and results
in a neglect of duty. Shortly after Elliott reached the shack and had seated
'himself in the chair, Smith, the night watchman, passed the shack at a distance
of about 30 feet and observed him sitting down. Smith proceeded on his tour
of stations, punched his clock on two stations and returned to the treater shack
within a period of five or six minutes Standing outside the door, he observed
Elliott sitting in the chair, and spoke to him. The conflict as to exactly what
language was used is not material since it is conceded that Elliott was not
aware of Smith's presence until he spoke, and that when Smith did speak, he
charged Elliott-with being asleep. In any event, as soon as Smith spoke to
him, Elliott left the shack denying that he had been asleep and went to look at
the progress of his work. -
Smith went off duty at 7 a.m: on the morning of May 1. He returned to the
office about 10 o'clock and reported to Chance that he had found Elliott sleeping
in the treater shack the night before. Chance did not inquire further, other than
to ask,Smith whether he was sure Elliott was asleep.. Chance immediately in-
structed the business office of the respondent, which was located in Shreveport, to
send over checks for all the pay due Elliott and also to write him a formal letter
of discharge. This was done and the check and the letter,were delivered to Chance
either on the afternoon of May 1 or the morning of May 2. Elliott worked the
night of May 1 and went off shift at 7 o'clock in the morning of May 2. During
the early afternoon of May 2, Chance's secretary telephoned him to come to the
office and see Chance. When Elliott was admitted, Chance told him he had re-
ceived a report that he had been asleep on the night of April 30. Elliott denied
the charge but admitted that earlier in the month when his son was ill and he had
lost considerable sleep, he had nodded in the treating shack. There apparently
was some further conversation during which Chance named Smith as the watch-
man who reported the incident. Elliott replied that his word was as good as
Smith's. Chance then told him it was the policy of the respondent to discharge
anyone caught sleeping, whereupon lie banded him his letter of discharge and pay
checks in a sealed envelope and ended the interview. Since that time the re-
spondent has refused to reinstate Elliott at any position as has the co-respond-
ent at all times since January 24, 1942. Chance testified that Elliott admitted
he had been asleep but that he stated lie was not lying down. In view of the clear
colloquial values attached to the words "nod" and "sleep," Elliott's version of
this conversation with Chance is accepted as correct. At the time of the dis-
charge Elliott was being paid on an hourly rate which averaged about $160 per
month Since his discharge there have been some pay increases at the plant
which would have affected his income had he continued on the payroll.
Notwithstanding Chance's denial of having made the remarks concerning
Elliott, attributed to him by Walsh as heretofore set out, it has been found that
such statements, in substance, were made. It has been further found that not-
withstanding Chance's denials of knowledge concerning Elliott's activities in the
Union, he was in fact advised, at the time of the discharge, that Elliott was
active in the plant in connection with the Union's organization efforts. Smith's
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony concerning the incident of his awakening Elliott is not convincing as
to its detail. He testified Elliott was definitely asleep and that he had difficulty
awakening him, but his description of the details of Elliott's attire, his position in
the shack, the methods used to waken him and his own remarks to Elliott at the
time, are so out of harmony with the circumstances surrounding Elliott's presence
in the shack as to cast a cloud over all his testimony. While it may not be'essen-
tial for a determination of the issues herein, it is nevertheless found that, in the
general acceptance of the terms as they are used at the refinery, Elliott was no
more than "`nodding" when Smith spoke to him on the morning of May 1, 1942,
and that he was not ""asleep."
It should also be noted that Smith had never before found Elliott either nodding
or sleeping. His zeal in reporting Elliott becomes increasingly questionable when
viewed in the light of his further testimony that, since then, he has found at least
one other man, Joe Green, sleeping but did not report it because it was the first
time he had caught Green and, he said, he always believed in giving the men a
second chance. Smith may, in fact, have reported to Chance that he had caught
Elliott asleep, but in view of all the circumstances, such would not be controlling
in the determination of the motive lying behind Elliott's discharge. Smith was
known to have a strong personal antipathy to the C. I. O. which he frequently
and openly expressed. That may have accounted for his action. But in any
event it is later' found herein that Smith's report was not the sole basis for
Elliott's discharge and consequently his personal motives are not material.
Chance's statement that it was the policy of the respondent to discharge any
man found sleeping is not borne out by the record. It had never been announced
or applied until it was adopted for the Elliott discharge, except in the case of
negro laborers when the sleeping was clearly deliberate. At least two instances
of men sleeping for an hour or more or abandoning their Jobs for a long period,
the latter apparently due to the after effects of drinking, were shown to have,
come to Chance's attention, but there 'is no evidence of any employee having
been discharged for such misconduct until the Elliott incident. Nor was Chance's
treatment of Elliott consistent with-his treatment on other occasions, of the
men' who had absented themselves from their work for considerable periods
and thereby endangered the processes of the plant. In these cases, he made
exhaustive inquiry as to the) causes and seriousness of the misconduct by inter-
viewing foremen and fellow workers who might know about the surrounding
circumstances. In the Elliott case however, he made no inquiry. He did not
even question the watchman, who had been in the employ of'the respondent less
than 9 months, as to any details, but on the sole basis of this recently employed
watchman's unverified report that Elliott had been asleep, peremptorily dis-
charged an employee who had apparently been a satisfactory worker for about
15 years. Such treatment of the situation does not square with normal treatment
of an old and competent employee, even in the absence of a history of different
treatment accorded others in much more aggravated cases.
An effort was made to distinguish the two cases above referred to by stating
that, in one instance when a man had slept for more than an hour while his
foreman searched for him, the employee was laid off for ten days and not dis-
charged because he claimed to have been ill and also because his foreman inter-
ceded and asked to have him retained. In the other, where the employee had
abandoned his job at night, he also claimed to have been ill and was not penalized,
despite his use of abusive language to his foreman when he was sent home and
the information given Chance in the course of his investigation that the man
was japparently suffering from the effects of a "hang-over" following heavy
drinking. The respondent produced a doctor's certificate that, for several days
HENRY ` K. PHELPS, JR., TRUSTEE - 1185
following 'the above incident , the man in question was under medical treatment for.
a gall bladder infection , but the doctor was not produced as a witness and the
certificate was admitted for limited purposes that 'did not extend to proof of.
the nature of the illness . The point of this is that in those cases, Chance made:
investigations before acting , notwithstanding that on the face of them, both acts
were serious breaches of duty. In the Elliott case, he made no investigation and,,
although the discharge did not take place until more than 24 hours after Smith'
reported , no damage had resulted , and no one had been inconvenienced , did not
even notify Elliott's foreman until after the discharge had taken place. Such.
a distinctive handling of the case compels the conclusion that there was some
factor highly personal to Elliott that induced Chance to summarily discharge)
ram, and that the unverified report of the watchman provided the occasion but-
not.the fundamental reason for the discharge.
NI
Chance testified that Elliott's past record was a factor in his decision to-
discharge him, but on direct examination was able to point to only two things
in Elliott 's record which might be charged as departures from appropriate or
satisfactory performance of his duties. The first was the fact that on one oc-
casion, Elliott pumped a tank of sludge acid to overflowing , losing several barrels
of kerosene on the ground and to some extent damaging the kerosene remaining
in the tank . This, however , is not an unusual occurrence among the operators.
For this, Elliott was given a disciplinary lay-off. The other had to do with hav-
ing the windows of the treater shack washed . This was not a part of Elliott's
responsibility nor was it the responsibility of any of the other three or four
treaters . However, Chance instructed Elliott to have the yard foreman detail
a negro workman to wash the windows. The yard foreman refused , to do this
and when Elliott reported it to Chance a little later , telling Chance that Roosevelt
Roy, the yard foreman, had said that he and Chance could "Go to hell," the
Incident was closed . The major incident which might have been enlarged upon
had it been regarded as important at the time or as bearing on Elliott's dis-
charge, was ignored by Chance in his outline of Elliott 's "record." It dealt with
a charge that , on or about March 20, 1941 , when the chief chemist requested
Elliott to send to the laboratory a bottle of the chemical used for testing treated
gasoline so that both the laboratory and the treater would be using the same
reagent, Elliott sent a bottle of tap water instead. Since the chemical and tap
water look alike and the tap water, regardless of the condition of the gasoline,
always gives the same apparent reaction as the chemical does when the gasoline
is satisfactory , the possibilities of such a substitution are obvious . When the
substitution was called to Elliott 's attention by the chief chemist, he denied
knowing anything about it, admitted that if what Wizig said was true, he had
made a mistake , and on the witness stand , went into an explanation of how it
might have happened . However, when the chief chemist reported the incident
to Chance some three days later and demanded Elliott's discharge , Chance
brushed the entire affair aside and dismissed it without even speaking to Elliott
about it. This was before the union activities had come to the surface and before
Elliott had openly become the leader of the new Union movement . Chance's
treatment reflects the difference in attitude before and after the Union showed
itself in the open. If the charges of the chief chemist were true, and the sub-
stitution had been intentional , Elliott's conduct would have been indefensible, but
apparently because the report was delayed '3 days and no damage was done, and,
because, as Chance testified , he was too busy to do anything about it, it did not
then appear necessary even to question Elliott. This incident was only acci-
dentally brought to the surface and developed by the Trial Examiner while at-
tempting to clarify parts of Chance's testimony concerning Elliott's "record "
493508-43-vol. 45-75
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since Chance did not mention it to Elliott or at any other time as a factor in con-
,nection with Elliott's discharge until it was called to his attention in the Trial
Examiner 's inquiry , it has all the appearance of being no more than an after-
thought. On the other hand, the other incidents mentioned can hardly be said to
1nake . up a.record of unsatisfactory conduct sufficient to control the discharge
especially since none of them were ever mentioned in connection with the dis-
charge until Chance referred to them in his testimony
Since it has been found that the report of the "sleeping " incident of April
30 was the occasion of but not the reason for the discharge of May 2, and
since there is no showing of any other normal or unproscribed reason for such,
discharge ,_the only factor remaining is Elliott 's close connection with the Union
and Chance 's antipathy to the Union and to Elliott because of his association
with it. It is therefore found that the primary reason which induced the dis-
charge of Pugh Elliott on May 2, 1941 , was to rid the plant of its most active and
aggressive union proponent and that Elliott was discharged at that time by
Chance because of his membership in and activity on behalf of the Union and
that - the respondent has discouraged membership in the Union by discriminating
in regard to the hire and tenure of employment of Pugh Elliott and has interfered
with;restrained , and coerced his employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. The discharges of Jake Ervin and Albert Sanders, Negroes
During his operation of the refinery , the respondent , as did his predecessors,
used negro labor for the performance of the common and some semi -skilled
work around the plant. These negroes, under white supervision , kept the grass
and weeds cut and burnt . They cleaned up generally in the yard , did some'
pipe cutting , and threading as helpers to the pipefitters , some insulating work on
the installed pipes and equipment , and various rough jobs of maintenance:
The co-respondent continued this practice with one change that was made in
early February 1942, and is later dwelt upon Most of the negro labor gang have
worked for many years more or less continuously at the refinery , through,
numerous changes of ownership , and almost all of them have acquired a skill
and knowledge of the work at this refinery which especially qualifies them for
employment in it. Of these , Jake Emvmf, 53 years of age, is one of-the oldest
employees and for a long time has been an outstanding work leader among the
negroes. His familiarity with the requirements of the work has led to his
being more or less habitually placed in charge of small gangs of negroes for the
performance of "clean-out" tasks and general small jobs that do not warrant
the, personal attention of a white overseer , The negroes at the plant not only
recognize him as a work leader , but as one of the most influential negroes among
the employees in matters pertaining to activities outside of the refinery. His
standing in this regard was well known to all the refinery personnel . Albert
sanders, on the other hand, has never been a regular employee but during the
past four ( 4) years has had intem mittent employment as an extra man.
Although the organizational activities of the Union began in April 1941, no
effort was made to enlist the colored personnel until November . In that month,
the Union determined to admit the negroes to membership and arranged to
hold a fish fry to which they would be invited According to R. W. Harlan, for
eight years foreman of the negro labor gang at the refinery and a man who has
worked negroes in the South for many years and is well acquainted with their
idiocyncrasies and characteristics , this is the" most attractive type of enter-
tainment that can be offered a southern negro.
HENRY K. PHELPS, JR., TRUSTEE, 1187
While there is. no direct proof that the correspondent resorted to espionage
of the union meetings by utilizing certain union members as informers, nu-
merous incidents point to this as a fact, outstanding among which is that on
the second day following the Union's decision to admit negroes to membership, to
which Harlan, as a member, subscribed, Harlan without warning or notice, was
removed from his job as foreman of .the negro labor gang during the middle
of the morning and given a job as pipefitter, which lie had never requested, with
a pay increase of 4¢ per hour. After this occurred, Harlan undertook to and did
arrange a fish fry for the negro workers. It was set for the afternoon of Sat-
iirday, December 6, 1941, and was to take place at the home of Pugh Elliott.
Appropriate notices were posted at the time clock, advising that the Union
would hold the fish fry as above described and that all the negro employees
were invited.. On the basis of this notice and invitation, all but one of the negro
employees attended. Jake Ervin took charge of frying the fish, and apparently,
from the standpoint of the colored guests as well as the Union, the affair was a
signal success. 'While the fish fry was in progress, the negroes were invited to
become members of the Union and all but one of those present, Jake Ervin's
son Tom, did so, signing appropriate applications and paving their initiation
fees. On the following Monday and Tuesday, most of the negroes were subjected
to numerous questions by Roosevelt Roy;, the yard foreman, and Eddie Clanton,
who, as one of the subordinate labor gang foremen, had taken Harlan's place,
concerning the fish fry and what had happened there. -
The key to the evaluation of the testimony reflecting the relation of the negro
laborers to their white overseers and to the white bosses in general was largely
supplied by Harlan, who has known and worked negro laborers in the South
,for many years, and by the testimony of the negroes themseli es The reluc-
tance of the southern negro to discuss his personal affairs with his white bosses,
particularly where such matters might tend to prejudice him and his tendency
to concoct almost any fabrication as an answer in such circumstances, is well
recognized among the white men of the South. Close and intimate contact with
the negro has taught the white overseers to recognize when a negro is lying, not
withstanding that the formula upon which such recognition is based appears to
be indescribable. In dealing with the fish fry it great many of the negro laborers
were questioned as to what took place With a single exception, all readily
admitted having been there but, with one other exception, still flatly denied they
had joined the union or done anything beyond enjoy the fish. Fean Gland denied
lie had attended when Roosevelt Roy and his brother, C. J. Roy, questioned him
about it. Direct quotation of his testimony describing his conversations with
these men is probably more enlightening than comments on the testimony could
possibly be:
Q. Did anybody talk to you about the fish fry or ask you any questions,
about it or joke about it?
A. No one but Air. C. J. Roy and Mr. Roosevelt Roy.
Q. What did they say?
A. Mr. C. J. Roy asked me on Monday after the fish fry-he was coming
on at 1, and he came around the bathhouse-
Q. That was C. J. Roy?
A. Yes, sir, Mr. C J. Roy, the shift foreman, and I got off around 12:30,
and he was on the colored side over there, and he called me, and so I
went over there and he says, "Were you at the fish fry", an l I says, "No,
sir, I wasn't there, Mr C. J,"- and he said, "Why weren't you there?",. and
I says, "You see, I just bought me a place in Hollywood, and I was over
1188 DECISIONS OF NATIONAL^TABOR RELATIONS BOARD
there trying to get it straightened up." And he says, "Nigger, you lie",
"you were there". And so, I just laughed and I says, "Oh, no, sir, 1,
wasn't there, Mr. 0. J."
Q. And what did you say you did, did you say you laughed?
A. Yes, sir, I laughed, and he said, "I know you were there. What
was doing out there?" He says that. And he says, "I have been a friend
to you and helped you", and he says, "What was you doing over there?"
And I says, "Now, Mr. Roy, I told you I wasn't there." And he says,,
"Yes, you were there." And then he says, "Didn't you boys, join that
CIO?", and I says, "What CIO?, Mr. C. J.", and he says, "What CIO?"
And so I says "'That is the white man's and not the colored man's, no.
colored man can join it,, that is the white man's". And he says to me,
"Nigger, what is the matter with you? You talk like you are crazy."
And then he says to me, "Now, I want to tell you one thing-let me tell
you one thing, if you did join it, you are fixing to get yourself into
trouble." And I says, "Tell me what kind of trouble", and he says, "If you
didn't join it, that is 211 right, but the fellows that joined it is going to,
get yourselves into trouble." And when he left I told Joe Robinson what
he said, and me and him laughed it off.
Q. Didn't you tell C. J. Roy that you have been out there?
A. No, sir, I didn't.
Q You just kept on saying that you had not been there?
A. That is right.
Q. When did you talk to Roosevelt Roy about it? -
A. I think he called me about it on Tuesday. I was going down the
yard with some work orders and he met me right at-this side of the
compressor plant and he says, "Gland, why didn't you bring me some
fish?", and I says, "What fish?", and he says, "Here you go, trying to act
like a dummy". And I says, "What are you talking about, Mr. C. J.?"
And he says, "You know, that fish that they had out at the lake". And
I says, "No, sir, I wasn't there." And he says, "You are it liar, you were
up there", and I- says, "Oh, no, I wasn't up there." And he says , "There
'is no use for you to come here with that kind of a story. I know who
was there, and I know that you were all there, and there is no use for
you to say that you weren't." And so I walked on off from him.
Q. And you didn't tell him any more than that?
A. No, sir. After I told him once that I wasn't there, I just stuck toi
that ; I stuck to my story then.
Similarly, the testimony of Erma Brown goes far to reveal this relation. He
testified to the following incident which occurred while he was at work on De-
cember 8:
Q. Did you have a,talk with Mr. Roy shortly after you had gone to this
fish-fry or picnic?
A. Yes, sir, the following Monday I was going down in the field to burn
grass.
Q. Burning grass, is that right?
A. Yes, sir.
Q Speak a little louder if you can, Button?
A. And he asked me did I go to the fish-fry, and I told him "Yes, sir,"
and he said, "Well, next time you go to a fish-fry, you see me." I says,
"Well, boss, I didn't think I had 'to see you to go to a fish fry", and he
,HENRY X. , PHELPS, JR., TRUSTEE- 1189
slapped my jaws and shoved me around and kicked me, and so I, ran off
from him then -
Later,' in Brown's cross-examination, after testifying that subsequent to the
fish-fry he and another negro had ridden in the same automobile with Roy and
Clanton to the edge of town where the other negro cashed his pay check and
repaid a loan he had obtained from Clanton, Brown was asked whether, under
the circumstances, he was not afraid to ride in the same automobile with Roy:
Q. (By Mr Bronson.) You are not afraid to get in cars with white men
that kick you and slap your face and push you around?
T. No, sir, I wasn't afraid.
Q You are not afraid to do that, is that right?
A. No, I wasn't afraid at all.
Q. You weren't afraid of Mr. Roosevelt Roy at all?
A. Oh, I would say that I was afraid of him all right, on my job out
there, if lie tells me to do anything.
Q. On your job when'he tells you to do anything?
A. When he tells me to do anything, I confine myself to that, I was
afraid of-him all right, because he was my boss.
The record contains many other queries directed by Clanton or Roy to various
of the negro workers immediately following the fish fry where the negroes ad-
mitted having attended the fish fry but denied that they had joined the, Union
or signed any papers or had'done anything other than eat fish that was provided
them. They consistently evaded disclosing any information as to who was pres-
ent, except as to Jake Ervin, who appears to have been recognized as the logical
man normally expected to officiate in the frying of the fish. This information
was given to Clanton by Joe Robinson when Clanton asked him about the fish
fry. Robinson departed'from the usual reaction of the other negroes and told
Clanton that all the negro employees except Herbert Johnson had attended, and
that pretty nearly all had joined the Union and signed cards, and in the course
of the conversation described how Jake Ervin had fried the fish with the assist-
ance of another negro, a former employee of the,respondent. Despite the denials
of practically all the negroes who were questioned, according to the normal re-
action of white supervisors as explained by Harlan, neither Clanton nor Roy was
fooled, particularly when eventual verification was found in Robinson's descrip-
tion of the affair as he gave it to Clanton.
The active participation of Jake Ervin, as the most influential leader among
the negro employees, marked him as the active union leader in the minds of
Clanton and Roy.
. That both Clanton and Roy were desirous of discouraging the negroes from
joining the Union if they had not already done so and from continuing in the
Union if they had already become members, is reflected by numerous incidents
which have run through the picture from the date of the fish fry up to the
present time. A few samples will suffice. On December 9, Clanton was asking
Tom Howard, another of the negroes,, about the fish fry. Howard denied he had
joined the Union, whereupon Clanton advised him, "Don't you join the union.
I can do more for you than the union can." Other conversations took place
with various of the others through December. About two weeks after the fish
fry Clanton was talking with Brown about the Union and took occasion to men-
tion some incident where the Army had taken over a plant and "put the fellows
to work in the place and run all them God-damned CIO fellows away from there."
Brown's reply to this was, "Well, boss, I'm glad you're pulling my coat. I am
only looking for an honest living and not looking for any trouble." Clanton's
e
1 190 DECISIONS OF NATIONAL LABOR • RELATIONS BOARD
comment was, "IFtried to tell you negroes that but you-all wouldn't listen to me."
Following the first hearing in this case which closed on January 20, Clanton was
again talking to Brown while the latter was digging a ditch under his supervision,
and remarked to Brown, in substance, "How come you ain't my nigger any
more? . . . I aui not mad with you all because you went up there and testified
against me or anything like that I know you all got up there and them white
folks doped you all up and got you all to say those things " This latter appears
to be a sample of the manner in which Clanton in particular has approached
the negroes who are now working. It is the southern overseer's way of con-
trolling their negroes and of warning them against a given line of conduct. As
such, this reflects in general the attitude of Clanton and Roy toward the negroes
as a whole and their participation in the union organization.
On December 6, 1941, the Union had started a strike vote among the member
employees of the respondent. The vote was completed on December 8 and dis-
closed that of the Si eligible members, 75 favored the strike. The result was
published in the Shreveport newspapers on December 9, 1941. It was this and
the fact that Pearl Harbor had been attacked just two days before, that prompted
one of the employees to draft the petition heretofore referred to
By the morning of December 10 the strike vote action of the Union had become
a topic of general discussion throughout the plant. The petition, which read
as follows
To: MANAGEMENT OP ATLAS PIPELINE CORPORATION :
We the undersigned employees state that we are satisfied with present
conditions in our Plant and do not approve of a strike, when our Country
is in one of. the greatest struggles to maintain the great principles of free-
dom for all, paid for by the blood of our forefathers on the battlefront. We
will not participate in a strike that will slow up our defense program, but
will lend our cNery effort to carry out the defense program of our President
and our Country:
was signed by 38 of the employees, including Clanton, whose name is very close
to the top of the list while it has been found that this petition was not spon-
sored by the official representatives of the respondent, it was signed by several
who were in supervisory or semi-supervisory positions and reflects the height
to which resentment against the Union's strike threat had arisen on- that day.
Clanton's antipathy for the Union has already-been shown. Except as to Jake
Ervin, whose activity at the fish fry was no secret, his effort to discover the
identity of the Union leader among the negroes had been unsuccessful; but he
knew that Ervin was one of the oldest negro employees in point of service and
their most influential leader, and that he. Clanton, had recognized Ervin's leader-
ship by putting hiin in charge of small crews of negroes to do certain types of
work. With these factors in mind, and against the hack-ground of indignation
in which Clanton had joined over the strike threat that was almost concurrent
with the United States' entry into the war, it is a wholly natural reaction that
Clanon, who does not impress the observer as wholly temperate and self-controlled,-
would apply his indignation and his demonstrated dislike for the Union to all
persons whom he knew or suspected of being affiliated with it or active in its
behalf, especially such of those as might be negroes and directly under him
Such is the background that existed on the morning of December 10 when Jake
Ervin and Albert Sanders were discharged.
`. On the morning of December 10 Clanton took a- large part of his gang into a
field that extends behind the office and across the road from the plant proper,
to cut and'burn the weeds and grass Ervin testified that Clanton didn't act
HENRY -K..PHELPS, JR., TRUSTEE 1191
-"natural" that morning, but nevertheless. gave him several negroes and told
him to take charge of cutting and burning one end of the field while he (Clan-
ton) and the rest of the gang went to the other end about 100 to 150 yards away.
Ervin stationed his men along the railroad bank while he worked on the bottom
land Here he eventually came to some wet marshy ground where he got his
feet wet. He went back to the warehouse about the length of a city block away,
and checked out a pair of too-large rubber boots which he brought back to the
place where he had been working. There he changed from his wet shoes to the
rubber boots. Shortly after he had made, the change and resumed his work,
Clanton sent one of the negroes to tell Ervin that he, Clanton, wanted to see him.
'Ervin immediately went to where Clanton was standing with the rest of the
gang and was told by Clanton to turn in his tools and "hit the clock" because he
was fired. When Ervin asked why he was fired, the only answer he got from
Clanton was, "I don't like your work " Clanton testified that he discharged
Ervin because he was loafing on the job The circumstances which gave rise to
the discharge were, according to Clanton, whose testimony on the subject is
accepted as substantially correct, that when Ervin came back to the swamp
land with the boots, he sat down on a nearby timber and, while Clanton timed
him, consumed 15 minutes taking off his shoes, drying his feet, wrapping them
with rags in place'of socks so that they would better fit the large boots and
finally getting the hoots on his feet, and that when he saw how much time
Ervin had consumed, he discharged him
Ervin's work history does not reveal deficiencies that set him apart from the
others as an unsatisfactory worker. His long history of employment indicates
the exact contrary. Clanton stated he had warned Ervin about "dragging
around" and that in his opinion, Ervin was getting lazy, but these statements
were not enlarged upon It was Clanton's job to "push" the negro crew and a
good "pusher" of such a crew must of necessity keep after it aggressively and
practically all the time. It is probably a fact that Clanton has at some time
told Ervin to stop "dragging around" but that does not, of itself, indicate any
greater dereliction than would in all probability apply from time to time to
almost any of the other negroes in the gang. Clanton had had long experience
working negroes and was well acquainted with their habits and ways of working
in that part of the country. He knew Ervin's status and capabilities, and had
recognized them by giving him a certain degree of responsibility in carrying out
the work. Under such circumstances it is not to be expected that such a
southern negro worker would be arbitrarily discharged because of a few
moments of"dawdling under the circumstances that,have been described. Harlan
testified that Ervin's performance in making the change is about what any
southern negro would do Clanton easily could have called to Ervin and told
him to get back on the job, but instead, he deliberately timed him to lay a
foundation for the discharge. In the absence of any other considerations,
Ervin's discharge under the circumstances described by Clanton does not appear
to be a normal treatment of this minor and not altogether unnatural. dereliction.
Clanton's indignation over the strike vote has heretofore been commented upon
and it has also been noted that Ervin was known to have been an active
participant in the fish-fry which led to` the enrollment of the negro workers as
union members. In view of all the foregoing it is therefore found that Ervin
was discharged on December 10, not because he dawdled over changing into the
boots, but primarily because, in the mind of Clanton, he was actively identified
with the union movement which had resulted in the enrollment of most of the
negroes By discriminating in regard to Ervin's hire and tenure of employment,
respondent has discouraged membership in the Union.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albert Sanders was an extra worker and so far as the record discloses, was
not identified with the union movement beyond the fact that he had attended
the fish-fry , and had joined the Union at that time . Neither Clanton nor Roy
had spoken to him about either. His discharge immediately followed that of
Ervin. He and a number of the other negroes, were working in the immediate
vicinity when Ervin was discharged , and heard Clanton tell him to turn in
his things and "hit the clock." Either immediately following Ervin's discharge
or immediately following a remark by Clanton to the effect that if the gang
did not give him better work he would fire them all and hire new ones, Sanders
laughed. When Clanton heard him , he regarded this as a type of in§ubordina-
tion and told Sanders to likewise turn in his things and get his time. As
Sanders described it, "I figured since he was in a' firing humor that he might
get me, too , and he did get me before I laughed , . . . when a man starts firing,
and you start to laughing , you will be next, ... Yes, sir , it is pretty well that
way all of the time." There is nothing in the record which indicates a premedi-
tated discharge of Sanders or that his discharge was in any manner motivated
by any union affiliation. Clanton's description of Sanders ' discharge is ac-
cepted as correct. It was entirely a disciplinary measure and for cause. It is
therefore found that in discharging Sanders, respondent has not discriminated
against him in regard to his hire and tenure of employment.
C. The unfair labor practices of the co-respondent , separately and in conjunction
with the respondent
1. Continuity of the employing industry
At exactly 7:00 a. m. on January 23 , 1942, possession and control of the re-
finery automatically passed from the respondent to the co-respondent by pre-
arrangement . Plans had been laid well in advance of that hour for the change
,in control , but they embodied no contemplated changes in operation , production
or personnel except the elimination of six white operations employees who had
been outstandingly active in the Union and five negro employees , all of whom
were members of the Union and to some degree prominent among the colored,
employees . These eleven were refused employment when they attempted to
return to their jobs, the white men on the 23rd and the negroes on the 24th.
The question has been raised that since the co-respondent is a new corpora-
tion and these acts were done after the respondent had relinquished possession
and control of the property , it is improper to join the co-respondent in this
case and to consider the facts relative to the actions of the respondent and the
'co-respondent together . Under some circumstances such a contention would
have merit but here the joinder is not only proper but essential.
The operations of the respondent continued without interruption up to 7:00
a. m. of the 23rd except ,that, on January 12, 1942, the plant had been shut down
for repair and to install some new heater equipment Practically all the negro
labor and some of the white employees were laid off on that day, to be recalled
when the work was completed . - On the 22nd , the plant again started on the first
phases of production and on the 23rd was ready to resume full production. All
this was under the respondent 's operations . There is no contention that the
layoffs of January 12 , 1942, or any other layoffs that arose from that shut-down
were , discriminatory . In this respect , the activities at the refinery were follow-
ing what appeared to be a normal course of business . Connolly was the respond-
ent's general manager, directing the business in general . Chance was respond-
ent's superintendent in charge of the refinery operations ; H L. Jackson was
HENRY K. PHELPS, JR.,' TRUSTEE 1193
the "shift foreman," generally regarded as second in command to Chance;
Roosevelt Roy was yard ' foreman with Eddie Clanton as "pusher " of the negro
labor gang . Chandler was foreman of the loading racks ; P D. Lewis was in
-charge of the treating operations, and other minor supervisors had their respec-
tive crews for whose work they were responsible. C. C Branch was the time-
keeper and the negro labor gang was a well known and established group, stand-
ing by and waiting for the usual recall that would put them back at their accus-
tomed jobs. Many of these men, in fact most of the employees, had seen the
refinery - change ownerships several tunes, but to them it was an employing
institution where they had long been accustomed to perform their respective jobs
and in which employment changes came only in the form of normal labor turnover'
and promotions.
Sb far as'its effect on the refinery as an operating and employing industry was
concerned, the change of ownership on January 23, 1942, was little more than a
change of name. Whatever departures from the ordinary events of a working
day took place, must be appraised according to their places in the picture as a
whole, bearing in mind that the stage appears to have been studiously set to
avoid the application of the Kiddie Rover case 5 doctrine which had been brought
to the attention of counsel for the respondent (who also appeared specially here--
in on behalf of the co-respondent) during the hearings on this case immediately
preceding the transfer. When the men reported for duty on the 23rd, they were
required to check in through Branch who had been supplied with a list of those
to be retained and with pay checks or closing employment records for those who
were to be excluded As the men saw Branch, if they were on the approved list,
he went through a fixed formula of first telling them that a new company was
taking over and asking them if they wanted to go to work. In every instance
that is reported the men announced in effect that they had their jobs to do and,
could see no difference in working for the respondent and for the new company.
Then Branch would hand them a time card on which the name of the respondent
had been obliterated and the name of the co -respondent superimposed by a,
rubber stamp, which card invariably carried the old clock number of the em-
ployee, told them that they were getting a raise in pay of from 2 cents to 6 cents
per hour and handed them a booklet bearing the name "Atlas Oil and Refining
Corporation" and entitled "Industrial Relations Policies."' This formality com-
pleted, the men went to their jobs and carried on as they had been doing for-
months before. Connolly was still the general manager with the title of execu-
tive vice president and was the only operating officer of the co-respondent having
anything to do with the refinery; Chance was still the superintendent; Jackson
was still the second in cormnand ; Branch was still the timekeeper and confi-
dential secretary to Chance and the miscellaneous foremen, pushers, and leaders
N. L. R B v. Arthur J. Colter et al 105 F ( 2d) 170 (C. C. A. 6). -
This booklet defined in general terms , the labor policy of the co -respondent and set out ;
(1) a grievance procedure whereby any employee could seek adjustment of grievances;
(2) freedom of employees to choose bargaining representatives ; ( 3) freedom from dis-
crimination ; ( 4) "prevailing wages " as standard ; ( 5) a 36 -hour standard work week ;
(6) time and one-half for more than 8 hours a day or 36 hours a week; (7 ) medical
examination as a condition of employment;' (8) two weeks vacation with pay; (9) provi-
sions for reinstatement on completion of military service and various other factors usually
the subjects of collective bargaining . In this case, however , there is no question concern-
ing a refusal to bargain and the Union does not claim to represent a majority of the
employees . while the publication of this statement " of Industrial Relations Policies,
accompanied as it was, by a pay increase to each retained employee , might possibly be
regarded as an act of coercion to impress the employees -with the lack of necessity for a
Union to protect their interests, its import in this or any other regard has intentionally
been omitted from consideration as not essential to the ultimate findings herein.
1194 DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
were still in their respective old jobs. Except for promotions arising from the
eliminations referred to, the work of the refinery went on with no perceptible
changes in personnel-or employment The employing institution remained the
same and, except for the formalities at the gate as above described, so far as
personnel and operations were concerned, had it not been for those, the employees
could have had no means of knowing that a new owner was in control. '
The mere continuity of administration, managerial, superintending, supervising,
and operating personnel from the respondent's operations of the refinery over to
the co-respondent's operation is not the only factor that inseparably ties the
respondent and co-respondent together. It was more than it continuity. There
was a distinct overlapping that extended hack into March 1941, prior to the
commission of any of the unfair labor practices herein dealt with This over-
lapping, according to the testimony of the respondent Phelps, began early in
1941 when Connolly, on behalf of the respondent, negotiated a tentative deal
with the organizers of the co-respondent corponatnon, around which the plan of
reorganization filed March 24, 1941, was designed.
The plan was highly beneficial to the new group in that it piovided an assured
outlet for their crude oil It was also highly satisfactory to the respondent
inasmuch as it provided for continuance of the operation of the refinery and the
payroll it represented. Under the plan, the organizers of the co-respondent were
committed to an outlay of considerable cash and credit and, from the time the
terms of the plan were agreed upon, those who were responsible for the organiza-
tion of the co-respondent, and later the co-respondent itself, collaborated closely
with the respondent in all matters affecting the conduct of the refinery and pipe
line. Connolly as in constant touch with the prospective new owners of the
property. After the co-respondent was organized, lie was made an officer at one
of the early aneetings, if not at the first meeting, and was designated the executive
vice president of the co-respondent to take fn11 charge of its actual operations
when the transfer from the respondent should be accomplished. The contract
and instruments of conveyance between the respondent and co-respondent were
actually executed on December 31, 1941, and on January 9, 1942, all such trans-
actions were formally approved- by the United States District Court having
appropriate jurisdiction.
The failure of Connolly and Chance to respond to subpoenas has deprived the
record of their testimony concerning the facts leading up to and through the
transfer of January 23, 1942. Such testimony undoubtedly would have brought
out in greater detail the degree of collaboration between the co-respondent and
the respondent in matters pertaining to the operation of the refinery during the
last several months of the respondent's ownership and control but it is not
indispensable. The surrounding circumstances reflected in the record, together
with the testimony of Phelps, the respondent, directed to that particular subject,
presents a clear picture of the relationship that existed Phelps testified that
while he is not a refinery operator but a banker, and makes no pretense at
knowing the refining business , he was in constant and intimate contact with the
general phases of the business of the trusteeship. The details of technical oper-
ation and maintenance he left entirely in the hands of Connolly and Chance and
encouraged them to collaborate with the prospective new owners, once the latter
were committed to the provisions of the plan. From Phelps' testimony, it is
found that all fundamental matters pertaining to the operation of the refinery,
all major repairs, betternlentsp and refinements, and such other matters as af-
fected its successful operation were, during the eight or ten months preceding
January 23, 1942, carried out only after receiving the approval of the co-
respondent and were designed to point up the operations and equipment to
'HENRY K. PHELPS, JR,, TRUSTEE 1195
conform to the requirements and desires of the co-respondent, to the end that,
at the time of actual transfer, the new owners could be "off to a running start`"
Long prior to the transfer, it was known to the respondent that Connolly would
continue as the managing head of the operations iuider the new ownership and;
judging from Connolly's remarks made to the union representative on the day
following the transfer, it was also prearranged that Chance would continue as
superintendent.
During this time, Connolly and Chance were in the position of serving two.
masters, each with the consent and approval of the other. The respondent was
their master in praesenti and the co-respondent their master in prospectu. In
these anomalous but not wholly inconsistent positions, they directed the oper-
ations and maintenance toward,the ultimate transfer of ownership, along lines
that would serve the co-respondent to the best advantage when it took over.
They established and effectuated the labor policies, not only that controlled the,
respondent's operations, but that would be and were carried over into the
co-respondent's operation when they passed the time line marking the change
of ownership. In other words, although Connolly and Chance were in techni-
cally subordinate capacities, respectively general manager and superintendent
for the respondent up to 7: 00 a in, January 23, and then automatically assumed
the same respective capacities for the co-respondent, they have been, in fact, at
all times both before and after the moment of transfer, the actual "manage-
ment" of the refinery in complete and continuous control of its operations and
personnel and of all the relations between the employees and the management
It was during this period of overlapping allegiance that the basis was laid
for the occurrences of January 23 and 24 which have been complained of. The
collaboration by Connolly and Chance, looking to the eventual transfer not only
included betterments of equipment and technical changes installed at the ex-
pense of the estate of the Atlas Pipeline Corporation just prior to the transfer,
but went to the extent of compiling it list of the respondent's employees who
would be continued on their jobs under the co-respondent's ownership and the
selection of the "undesirable" employees to whom further employment would be
denied. The compilation of these lists was clearly done by them while they
were still the employees of the respondent and to the extent that such may have
been in violation of the Act, at least a technical responsibility attaches to the
respondent for their acts. Connolly made no attempt to evade the fact in dis-
cussing the list and the exclusions from it with E. D Brister, secretary of the
Union on January 24. He stated with some positiveness that he and Chance
had compiled the list; that they had their own reasons for omitting the union
men who, were denied employment and that he would not discuss the matter
beyond that.
It is uncontroverted that the list of employees to be retained and checks for
those to be rejected had been prepared in final form prior to the evening of the
22nd, when Chance sent for H. L. Jackson and gave him the list and checks for
use the next morning at the gate when the chahge of ownership vas to become
effective. The entire proceedings were a part of a long and studied continuity ii
which no break was to be permitted. To shut off consideration of this situation
as a whole and to treat it in two parts with 7: 00 a in of January 23, 19-12, as the
dividing line, would defeat and not promote the ends of justice and the effectuation
of the policies of the Act. It is found that the situation here involved was a
continuing one and that for a proper consideration of the charges involved must
be so treated.
There, have previously been set out herein numerous facts reflecting the an-
tipathy of Chance, Jackson, Roosevelt Roy, and Clanton to the Union. There is
1 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no reason to believe that at the stroke of 7 in the morning of January 23, 1942, any
of them experienced a change of attitude or feeling on the subject and it may be
inferred and is found that these antipathies continued as a motivating factor in
the relations of these men in general and of Chance in particular, with the Union
and it members.
As has been stated, Connolly and Chance ignored the subpoenas of the Board
and thereby refused to testify at the hearings held subsequent to the transfer.
They alone knew the true basis on which the lists of eligible and "undesirable"
employees were compiled. Their failure to testify, together with their refusal to
discuss the matter with the men involved or the union officials, leads to a justi-
fiable inference that the lists were not compiled on a meritorious basis and that
there was an ulterior motive for the exclusions.? Before the hearing was closed,
Roosevelt Roy, Clanton, and Branch, having previously ignored subpoenas, ap-
peared and testified, as did each of the other employees in a supervisory position.
In-eaeh instance their testimony taxes one's credulity, but at the'same time em-
phasizes the arbitrary and dictatorial attitude assumed by Connolly and Chance
in all things pertaining to the installation of the co-respondent as new owner and
operator of the refinery. With the exception of H. L. Jackson, each foreman and
Branch testified (1) that he did not know until the morning of January 23
whether he would'be retained on his job and (2) that he was not in any respect
consulted by Chance, Connolly, or any other person as to the quality of work of
the men under them or as to the desirability or undesirability of any of the men
to whom employment was denied. Jackson went even further. He testified
that prior to the 23rd he had no idea what men, if any, were to be refused employ-
ment and that it was. not until Chance called him to his home on the evening of
the 22d and handed him an unsealed envelope which Chance said contained a list
of the men to be given employment the next morning, and checks for those who
were not to be kept, that he learned he was to be retained. Bearing in mind that
Jackson was the senior supervisory employee after Chance and that he had direct
charge of the very important Gyro process with 36 men directly under him, this is
at least unusual but, under the Connolly-Chance regime, probably not impossible:
Jackson further testified that, notwithstanding he had no idea which men were in
the respective groups and whether any of his men were affected, he put the enve-
lope in his pocket without looking at the lists or checks, took it home, and did not
examine its contents until after lie had reached the refinery at about 6: 15 in the
morning of the 23d. There is no necessity for'resolving the credibility of this
statement but it is unfortunate that the testimony of every other supervisory wit-
ness, except O. E. Taylor, master mechanic in charge of compressors and pumpers;
has a similar false ring which only accentuates the conviction that the selection of
employees to be excluded was made on a basis that does not square with em-
ployer's obligations under the Act. -
The lists provided for the retention of all refinery employees except the eleven
members of the Union herein involved. -
In the evening of January 22, 1942, Chance gave Jackson the typewritten
lists carrying the names of those employees ,who were to be retained when the
co-respondent took over the next morning at 7 o'clock. With the lists were
paychecks for L. A. McMurry, H. B. Brown and It. I. Rush, who had worked
through the 22nd but who were to be denied employment on the 23rd. The
7 Practically all the men discliarged on January 23, 1942, had substantial seniority
over numerous men retained in similar jobs. However , there is no evidence that seniority,
as such, has been an important factor in the operation of the refinery , when lay-offs,
promotions or transfers were effected
HENRY B . PHELPS, JR.,, TRUSTEE, 1197
only . others whose names were omitted from the list were Harry M . Hatch,
Albert E. Powell and Robert W. Harlan who had been laid off on January 12
or 13 and had , already received all the pay due them, and the five negroes
hereinafter considered . For each of these six white men , the main office had
prepared for delivery to them, Income Tax memoranda showing the amount
each had earned in 1941 and up to the date of the transfer in 1942
L. -A. McMurry, the chief loader on the loading racks, has worked continu-
ously at the Atlas plant through several reorganizations or changes of owner-
ship , since January 1934 . As chief loader, which position he has filled for
eight years , McMurry has been second only to the foreman , J. E. Chandler.
According to Chandler , who has been loading rack foreman for 18 years, Mc-
Murry had full responsibility for the blending and loading of all gasoline
shipped out of the refinery during this time. Within the past year McMurry
has received several individual increases in pay that have brought his rate
from 75¢ to 96 70 per hour . On occasions , some errors have been made in
blending gasoline by reason of varying pump pressures on the gasolines of
different types that go to make up the blends. Several such errors were
reported to Chance by Chandler and memoranda made of them in a record of
employee incidents which was started by Chance shortly after the Union made
its appearance in 1941. As to some of these, McMurry - had no recollection.
In any event they were never called to his attention . As to others , McMurry
testified that they, were specifically chargeable to Chandler who took charge
of the car loading when McMurry was occupied at the other end of the rack
loading out gasoline for use by the Sparco Gasoline Company, a wholly-owned
subsidiary of the Atlas Pipeline Corporation , whose stock was one of the
assets of the respondent . McMurry's testimony on this subject is credited.
Chandler testified that he never loaded gasoline and that in 18 years as
foreman of the loading rack, he has never made a serious mistake. Testi-
mony to the contrary concerning Chandler's loading of cars and as to his
having run cars over and made other more serious mistakes, is too convincing
to allow his statements to be credited.
McMurry was a well known and very active member of this Union. He
solicited and obtained the memberships of the , other men on the rack who
were employed as loaders , and as known throughout the plant as one of the
aggressive proponents of the organization . At the hearing held prior to the
transfer , be was also referred to by various witnesses as one of the active
Union men . His union affiliations , sympathies , and activities were well known.
to all his superiors when the transfer of the 23d took place. McMurry
had worked at his regular job on the 22d. His starting time was 8 : 00 a. m.
and at about that hour on the 23d , he entered the gate as usual and started
toward the time clock . He was stopped by Branch, who handed him his check
and stated that he didn 't work there any more; that the new company had
made up a list of the men to be kept and that his name was not on it.
Chandler, who was standing close by and who had previously examined the
list, verified Branch's statement that McMurry was not included . McMurry
tried to see Chance, but he was not in. On Monday, he again called at
Chance's office , but was told that Chance was busy and later was told by
Branch that Chance had said he would not see McMurry at all.
Chandler , who was clearly a prejudiced and hostile witness, stated that he
had never been consulted by Chance or any other person as to McMurry 's work,
that he had no knowledge as to how the list was made out but that he didn't
like McMurry 's disposition and would have disqualified him on that account had
he been consulted . This hardly agrees with McMurry's record of eight years'
continuous service. It should also be noted that when the layoff of January
1198 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
12, 1942, took place, McMurry was one of the two men; other than Chandler,
who worked on the'loading rack straight through to the transfer
H. B Brown, 63 years of age, has been continuously in the employ of the
refinery for 16 years, with the exception of one interval of about 18 months
preceding the appointment of Chance as superintendent Shortly after Chance
became superintendent, he sent for Brown and employed him as Sunday watch-
man at the gate, in connection with which lie also acted as attendant at'the
small retail gasoline station maintained at the refinery. About a month later
he was put on regular full time duty'at the same work. On January 18, 1942,
Brown was compelled by illness to i emain at home He did not return until
the morning of the 23d. On that morning at about 6. 45 he went through the
gate and into the gatehouse, where he hung his coat as usual and prepared to
assume his regular duties. Branch came into the shack and announced to
Brown that the new company was taking over the refinery, that he had been
given a list of men to be kept at work; and that Brown's name was not on it.
Branch then gave Brown his pay data and pay check which ended his employ-
ment, with no further explanation.
Brown had been a highly active union man. He joined in September 1941
and shortly afterward was elected chairman of the Atlas group of Local 245.
In January 1942 he was succeeded by Harry M Hatch.'
In the performance of his work, Brown has never been subjected to criticism
nor has his age been held to be a factor against the adequate performance of his
duties. His place has been filled by another employee from the yard workers
who had been laid off January 12.
Brown's foreman was Roosevelt Roy In making up the list of exclusions,
Roy was not consulted and has made no recommendations with reference to him
R I. Rush is a compressor operator who has been engaged in oil well and
refining operations since 1917. Since January 1936 lie has been a compressor
operator at this refinery and is described by his foreman, O. E. Taylor, tinder
whom Rush had worked for six years, as an average operator of whom no
serious complaint could be made . On the 22d, Rush worked the "graveyard"
shift 'which extended from 1 it. m to 7 a in of the 23d, this being the official
end of the work day of the 22d As he was punching his time card, Branch
took-it from him and handed him his pay check made out to cover his time in
full, explaining that a new company had taken over and that Rush was not on
the list to be retained The next day Rush called at Chance's office and asked
' to be given separation papers but was unsuccessful. Chance merely told him
that "the old company" no longer existed ; that all employees, including Chance
had been fired and some of them immediately rehired, but he refused to give
Rush any reason for his exclusion.'
The record reflects that Rush is a skilled compressor, operator and general re-
finery man of long experience. Nothing appears to his discredit other than such
casual operations incidents, as, according'tn Taylor, are ordinarily experienced
from any refinery employee in a similar position. None was serious. When
the list of operators to be retained or excluded was compiled, Taylor was never
consulted He testified that he knew of no good reason for not continuing Rush
in the employment of the refinery.
In union matters Rush has been prominent He testified as a Board witness
in January and has served on several committees of the Union which met with
representatives of management prior to the transfer. One such committee, com-
plaining of discriminatory treatment of union men in the matter of promotions,
called on Judge Dawkins, under whose direction the trusteeship of the respondent
was conducted. As a result of this call, Judge Dawkins wrote the respondent
=HENRY- K. -PHELPS, JR. ;.TRUSTEE - : _:.. - 1199
directing that all discriminations cease. In his letter he naiiied, the' members
of the committee, which consisted of Rush, Hatch, Brister, and Alston. The
letter was passed on to Connolly and Chance and the promotions complained of
by the Union were revoked Rush's place has been filled through'a series of
promotions with new men taking the lower rated jobs left open by the, changes.
Harry M. Hatch was not an old employee, having been engaged as a ,utility
yard man in 1941, where he worked generally under the direction of John Mc-
Grew,'a pipe fitter leader Roosevelt Roy was his general foreman. In union
matters Hatch was an outstanding and militant leader. He was a member of
the protest committee which called on Judge Dawkins in December ; a member
of the committee which attempted to adjust grievances with Phelps in late De-
cember but was again forced. to go to Judge Dawkins on Phelps' refusal to meet
them ; the chairman of the Atlas group from the first meeting in.Ja niiary.1942 ; and
one of the Board's witnesses at the January 1942 hearing. He had been laid off
during the January shutdown and only learned of the resumption of operations
from McMurry on the morning of the 23d. During the morning lie called at the
refinery office where he was told by Branch that his name was,not on the list
and that he (Hatch) was not working there any longer. Hatch then succeeded
in seeing Chance from whom he got the same and no-more infoimation, beyond
the fact that while there was no complaint about Hatch's work, he simply was
'root listed for employment. Hatch then went to the downtown office and called
on Connolly to find out why he was not' being employed Connolly's reply was
it curt statement that the new company simply did not want his services, that he
would not tell him a "damned'thing" and to get out of the office. Hatch, who
appears to be a man of considerable background and general 'experience, seems
to have had more opportunities to sound out the temper of Chance toward the
Union than any other employee On one occasion, Chance called him to the office
to inquire about some Conti oversy that had arisen in the yard and which involved
the Union. Hatch had taken no part in it and refused to discuss Union matters
with Chance, saying that they had a committee which would be glad to go into
it with him -Chance then said lie didn't want to talk about it, and let the matter
drop. On another occasion, Hatch asked Chance to meet with a committee to
discuss what the Union regarded as discrimination in the promotion of a man
who had been a Union member but had withdrawn. Chance refused the confer-
ence, saying he would not permit anyone to tell him how to run the refinery and
that he would promote men as lie saw fit Hatch's place has been filled by newly-
hired men.
A. B. Poivefl was first employed at the refinery in May 1937 After serving a
while as a pipefitter's helper, lie was transferred as a helper on the loading rack.
and in the summer of 1941, was promoted to the position of shift breaker on the
transfer pumps, working 4 days on the pumps and 2 days in the yard. On Janu-
ary 13, 1942, Powell was laid off although all the regular pumpers were working,
but during the layoff, they spread the work of the shiftbreaker among them and
worked overtime to make it up. The work of a transfer-pumper is specialized
and requires from 10 days to two weeks to break in a new man on it. In addition
no pumper may operate the equipment when gasoline is being treated with ethyl
lead, until he has passed an examination prescribed by the concern which con-
trols.ethyl lead production This operation is termed "ethylizing" Powell was
an experienced pump man and a qualified ethylizer
On January 23, having been told by someone that the refinery was again going
into production, Powell went to the plant and reported to Roosevelt Roy by whom
be was told, with no explanation, that his name was not on the 1 ist.
Powell was one of that small group which formed the nucleus of the Union
at the meeting of April 7, 1941. He does not appear to have been an out-
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
standing leader, but his activity in soliciting memberships was known through-
out the plant. He also attracted the special attention of Chance when he
appeared as a Board witness at the January hearing and testified to the cir-
'cumstance of Chance being seen on the road on December 6, 1941, apparently
following an automobile load of negroes bound for the fish fry 8
When the transfer became effective, not only was Powell not employed, but
his place was filled by a totally inexperienced non-union man whose breaking
in took about 10 days, during which the pumpers were again compelled to work
overtime in order to absorb his training period. This man had not, at the close
-of the hearing, qualified as an ethylizer. In the meantime, W. L Walker, a
known member of the Union and a qualified pumper and ethylizer was held at
his job as helper on the loading racks and denied the promotion to fill the job
vacated by Powell.
,Robert W. Harlan has been steadily employed at the refinery since 1930. He
is forty-five years of age and a general utility man who can fill almost any
maintenance job in the plant. Until 1933, he was engaged at carpenter work
and other general maintenance jobs.. In 1933, he was made gang foreman
over the negro labor gang, and for the next eight years, held that job with a
crew of about fifteen men. In 1934, Eddie Clanton began work at the refinery
under Harlan, and ran a small gang of four or five negroes as their sub-fore-
man. In • October 1941, 'Harlan joined the Union and became chairman of
the Strategy Committee. He soon became known as an active Union member
and definitely was known to have more influence over the negro employees
than any other white man at the refinery. In November, the Union took under
consideration the matter of admitting the negroes to membership. At the
meeting when this was discussed, Harlan stated that he thought he could bring
them in. Two days later, without warning, Roosevelt Roy relieved Harlan of
his duties as labor gang foreman, directed him to turn all the negroes over to
Clanton, and placed him at pipefitting, with a pay increase of 40 per hour. At
the time, there was no rush of pipefitting work to be done, and for a while,
Harlan found difficulty in keeping busy. In addition, Harlan customarily took
charge of the night labor during "Clean-outs" which occur about once in forty-
five days. For this a large force of extra men is employed and is worked with
a small portion of the regular labor gang who act somewhat as experienced
leaders. This duty was not changed. °
Harlan arranged for the fish fry of December 6th, which resulted in all but
two of the negro employees becoming members of the Union. His participation
in this was well known among the supervisory staff and was commented on by
some of them in talking with the negroes on the days immediately following the-
fish fry. His name was mentioned several times in this connection in the
testimony taken at the hearing in January and in addition, he was a member
of a Union committee that conferred with Phelps and Bronson on December
12th, rith and 17th.
On the occasion of the January shutdown, Harlan was laid off "for three or
four days" with the rest of the pipefitters. On January 23rd, he did not go to
the refinery, but telephoned Branch by whom he was told that his name was
not on the list. On the 24th, he called on Chance, but was given no informa-
tion as to why he was excluded except that his name was'not on the list.
Roosevelt Roy testified that he knew the abilities of Hatch, Powell and Har-
lan better than anyone else in the plant but that he was never consulted about
8 It will be noted that a finding has heretofore been made that on this occasion Chance
was not in fact saying on the negroes.
HENRY K. PHELPS, JR., TRUSTEE 1201
their retention and knew nothing about the reasons for their exclusion. He-
had no criticism to make of the work of any of these three.
At the time of the transfer, the respondent had a payroll of white, non-
supervisory employees totalling ninety-three. Of these, forty-six were members-
of the Union and, in the main, were known to be such as a result of the open-
ness with which the drive for membership had been conducted. When the
transfer took place, the list of white eligibles prepared in advance by Connolly
and Chance included all those on the respondent's payroll except the six Union
leaders above described. The co-respondent refused to appear in this proceed-
ing-and produce any evidence, although it was specially advised that by doing
so, it would waive none of its rights under its special appearance.. Connolly
and Chance, although duly served with subpoenas and being fully advised by
notices of the Board's intention to move to amend the complaint, that they woulda
be 'called upon to testify concerning the bases on which the exclusions from
employment were determined, failed and refused to appear and testify. They
also not only refused to give the men so excluded and their Union representa-
tive any explanation, but refused to discuss the subject with them.
The antipathy toward the Union which ran through the entire supervisory
structure both before and after the transfer of January 23rd, has been clearly
shown and not persuasively denied. The outstanding activities of the six ex-
cluded men were well known to Chance, and, presumably, communicated by
him to Connolly. The exclusions were not caused by reduction of staff and the
testimony of their immediate superiors shows that they were all satisfactory
workmen. Only leaders in the Union were excluded. No excuse or explanation
Is offered, but on the,contrary, was consistently refused by those who, did the
selecting of the employees marked for retention or dismissal. From the fore-
going, it is therefore found that on or before January 22, 1042, the respondent,
through his general manager, Connolly, and his superintendent, Chance, desig-
nated and recommended L. A. McMurry, H. B. Brown, R. I. Rush, H. M. Hatch,
A. E. Powell and R. W: Harlan for exclusion from employment by the co-re-
spondent when it should take control of the refinery, for the reason that they
and each of them had joined, formed or assisted the Union, and thereby to,
discourage membership in the Union And it is further found that on January
23, 1942, the co-respondent, acting through its executive vice-president, Connolly,
and its superintendent, Chance,, pursuant to the designations and recommen-
dations of the respondent made as aforesaid, did, in fact, refuse to continue L.
A. McMurry, H. B. Brown, R. I. Rush, H M Hatch, A E Powell and R W.
Harlan in employment at the refinery for 'the reason that they had formed,
joined or assisted the Union and to discourage membership in the Union.
It is accordingly found that the respondent and co-respondent have jointly
and severally discriminated in regard to the hire and tenure of employment
of L. A. McMurry, H. B. Brown, R. I. Rush, H. M. Hatch, A. E. Powell and
R. W. Harlan, thereby discouraging membership in the Union. -
3. The discharge of the 5 negro union members on January, 24, 1942
Until January 24, 1942, Carl Bryant,' Eugene Nicholson, Joe Robinson, Mont-
gomery Gardner and Fean Gland were negro laborers employed regularly at
the refinery. All are members of the Union, having joined on December 6, 1941,
at the fish fry. Bryant was first employed at the refinery in 1929 but worked
only occasionally up to April 1937. From that time, whenever the refinery
Incorrectly described in the complaint as Carl Brandt.
493508-43-vol. 45-76
1202 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
-was operating, he enjoyed reasonably steady 'although somewhat broken 'em-
ployment. In September 1941, he was given steady employment which con-
tinued until the January 12, 1942 shutdown. Bryant was among the better
and more responsible of the negro employees. Under Harlan, in the cleanouts,
he was habitually made the "lead man" of the crews that cleaned the towers.
Nicholson was an ordinary laborer in Clanton's gang, who had been employed
at the refinery in that capacity since July 1935. Joe Robinson has been inter-
mittently employed at the refinery since it was built about 22 years ago. His
last employment started in April 1941 and ended with the shutdown of January
12, 1942
Montgomery Gardner began his work at the refinery in 1934 and was con-
tinuously employed, except during shutdowns, until the shutdown in January
1942. He served as a kind of handy man in the Gyro operations, cleaning up,
helping with repairs, handling clean out jobs that others could not do and
generally making himself useful among the Gyro'operators. Chance had dubbed
him "little nigger operator."
Fean Gland has worked more or less steadily at the refinery since 1929. In
1939 he was assigned to the office as porter and messenger, and continued at
that until January 15, 1942. During the preceding two or three days, all the
other negroes had been laid off and about 10:30 on that morning, Branch
ordered him to "hit out" and come back on the 20th for his pay check.
Roosevelt Roy, Harlan and every other white witness in a position to know,
testified that all the regularly employed negroes are skilled in general handy
work such as is required at the refinery and know the refinery property and
-its requirements. None of those under whose supervision any of these negroes
were employed had any criticism of their work, and both Roosevelt Roy and
Clanton declared that they had never been consulted about who of the negro
,employees should be retained. -
There is testimony that the' negro employees to be retained were listed in the
same manner as the whites, but neither Roy nor Clanton had any knowledge as
to how the list was made up or why these five men were excluded. The testi-
mony of the negroes is identical and corroborated by Clanton, that on the 23rd,
word was circulated, primarily by Reuben Watts, who, with Ervin gone, was
the remaining leader to whom management looked in matters pertaining to
the negroes, thht the negro labor would go back to work the following morning
At about 6:45 a. in on the 24th, 16 of the regular negro employees were assem-
bled at the gate. Clanton came out ' looked them over carefully and deliber-
ately and as he chid so, selected 11 of the 16 and told them to get their work
cards- from Branch. To the remaining 5, who are the ones above referred to,
be said, in effect : "That's all we've got on the list," and 'sent them away.
Although both Roy and Clanton testified they had been furnished with a list
which did not include the five named negroes, Clanton did not have any. list
with him when he made the selections. It is found, however, that a list.was
prepared in advance as in the case of the white employees and that the names
of Bryant, Nicholson, Robinson, Gardner and Gland were intentionally omitted
from it for the purpose of excluding them from employment at the refinery
under the ownership of the co-respondent.
Those negroes who did not report on the morning of the 24th but whose
names were on the list, were sent for by Clanton and were re-established in
their jobs. Gardner's job was taken over by one of the other negroes Gland's
job was taken over by the negro who, as one of his duties, acted as janitor in
the laboratory. The others, being general laborers, had no specific jobs to fill.
While it is a fact that the co-respondent has not employed any negroes other
than those originally listed and now has five fewer negroes on its payroll than
HENRY K. PHELPS; JR., 'TRUSTEE -1203
were carried by the respondent, it has burdened' those whom it noiv has with
harder working conditions, assigning two men to do jobs formerly clone by four
and is driving them harder Also, it has taken away some of the work formerly
clone by negroes, especially as helpers to pipefitters, and has hired white men
for this.
When they were given their new time cards by Branch, the retained negroes
were warned- not to complain about the way they were going to be worked by
the new company and also to stop' their, Union activities The language in which
this warning was given and the penalty for disobedience as described, was
not unequivocal but was clearly understood by the negroes There is no
necessity for quoting its obscenity.
No special basis is disclosed for the selection of these five negroes for exclusion,
although they were well scattered in their fields of work: Probably any five of
the older negroes who were members of the Union would have served the
purpose just as well, to act as an example to the others that Union men could
be excluded. In this connection, Percy Kelly related a conversation lie had
with Branch about the middle of February, while cleaning out the office. Branch
asked him whether lie had a CIO card. In reply to Kelly's affirmative answer,
Branch said in effect as quoted by Kelly, "The CIO can't do nothing for you;
they didn't help those other four boys at all and they ain't going to help them
any, you just as well come over on the other side and join the A F of L."
'This, together with the doubling of their work in many instances and depriving
them of a semi-skilled task which they had habitually performed was the co-
respondent's way of discouraging those who remained from going on with their
Union memberships. The two negroes who did not join, Tom Ervin and Herbert
Johnson, and Reuben Watts, who had renounced his Union membership, were
retained-in fact, Watts later became the negro advocate for membership in an
F. of L. union which has recently made its appearance under circumstances
that indicate the co-respondent would be pleased to see it displace the Union
here involved. However, Watts has had no success and has gained no converts.
Another incident which reflects the co-respondent's opposition to the Union
in the plant and its desire to shrivel its membership, especially among the negroes,
grows out of an attempt by the Union to negotiate a consent election agreement
at a meeting of the Union committee with Connolly and Bronson on February
3, 1942 Connolly professed to,be willing to cooperate in a consent election if
an appropriate unit could be agreed upon. The Union proposed a unit to consist
of the entire refinery personnel except armed 'guards, office personnel and
supervisors. Connolly would consent to nothing less than a company-wide unit
to include all personnel at the refinery, all pipeline personnel and all office
employees at both the refinery and downtown offices, with the exception of the
negrol employees. Connolly's proposal was wholly unacceptable but the Union
did discuss the matter of inclusion of negro employees. Connolly contended that
they were nothing but grass cutters and could not he regarded as either pro-
duction or maintenance employees The Union pointed out that this was not
true by using as an illustration, the fact that many of the negroes were, and for
a long time had been, in the habit of helping the pipefitters, cutting and threading
pipe and in placing insulation where required, and that their work was clearly
a part of maintenance No agreement resulted from this conference but the next
morning orders were issued that under no circumstances were negroes there-
after to be allowed to touch pipe, other than to move it from one place to
another in their capacity of common laborers, nor .were they to do any further
insulation work All work of this character formerly performed by the negroes
4
0
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is now being done by non-union white men, of whom 12 have been newly employed!
by the correspondent since the January 23rd transfer. It is obvious that this
change in the customary work of the negroes, following as it did, the discussion
of an appropriate unit, was not so much an exercise of the employer's discretion
concerning the allocation of work as a deliberate attempt to disqualify the
negroes from voting in an election by placing them outside of what the co-re-
spondent contended would be an appropriate unit of production and maintenance
employees.
The cause of the complaints which led the Union to complain direct to Judge
Dawkins in December, was the promotion of W. R. Booth, a new man who was
first employed in June 1941, became a member of the Union and then left the
Union in October or November 1941 under circumstances that made-his abandon-
ment of the Union common knowledge at the plant, and of C. J. May, a non-union
man, around and over older and well-qualified members of the Union. Although
Booth had no previous experience and required an extensive training to do the
work , he was taken off the yard and promoted to the pumps over the heads
of several Union men with years of seniority and training at pump work, while
May was taken off the yard and promoted to ahighly desirable job in the ware-
house. The Union protested directly to Judge Dawkins, who promptly in-
structed the respondent to end all discrimination at the refinery. As a result
both Booth and May were returned to their original jobs. However, almost as
soon as the co-respondent assumed control, Booth was promoted to the loading
rack, over several qualified Union men with much seniority, while May was
moved into an even more desirable job as Gyro fireman from which one of the
Union men was demoted to make the place for him.
This report could be expanded to greater proportions by the recital of numerous
other incidents, each serving as an irritation tending to discourage the Union
membership, but further elaboration does not seem either necessary, or desirable.
Considered as a whole picture, all,the foregoing incidents reflect clearly the
studied opposition of the management of the co-respondent to the existence of
the Union, the almost ruthless opposition to the negroes' maintaining their
memberships in the Union and the consistent discrimination against the Union
members whenever the opportunity arose.
From the foregoing, it is found (1) that the co-respondent has interfered with,
restrained and coerced its employees in the exercise of the rights guaranteed to
them in Section 7 of the Act ; (2) that respondent, on or before January 22, 1942,
acting through his general manager, Connolly, and his superintendent , Chance,
designated and recommended Carl Bryant, Eugene Nicholson, Joe Robinson,
Montgomery Gardner and Fean Gland for exclusion from employment by the
co-respondent when it should take control of the refinery, for the reason that they
and each of them had formed, joined, or assisted the Union, and thereby to dis-
courage membership in the Union ; (3) that on January 24, 1942, the co-respondent,
acting through its executive vice president, Connolly, and its superintendent,
Chance, pursuant to the designation and recommendations of the respondent made
as aforesaid, did in fact refuse to continue Carl Bryant, Eugene Nicholson, Joe
Robinson, Montgomery Gardner and Fean Gland in employment at the refinery
for the reason that they had formed, joined or assisted the Union; and (4) that
the respondent and co-respondent have jointly and severally discriminated in the
hire and tenure of employment of Carl Bryant, Eugene Nicholson, Joe Robinson,
Montgomery Gardner and Fean Gland, thereby discouraging membership in the
Union. ,
HENRY K. PHELPS, JR., TRUSTEE 1205
4. The Co-respondent's discrimination against Pugh Elliott and Jake Ervin
Brister was advised during the morning of January 24th of the respondent's
refusal of employment to the 6 white and 5 negro members of the Union and
immediately telephoned to Connolly requesting an appointment to discuss the
matter. Connolly's reply was that there was now a new company in control,
that he and Chance had made up the lists, that they had their own reasons for
making such selections as had been made and did not care to discuss the matter
because, so far as he was concerned, it was a closed issue. Brister then re-
,quested Connolly to put Pugh Elliott, Jake Ervin and Albert Sanders back to
work and to this request Connolly replied that their discharges had taken
place under the old management, that the new company had no intention of re-
hiring them and that that, too, was a closed issue which lie did not care to,
discuss.
Following the above conversation, Brister again called Connolly in an effort
to arrange for a bargaining conference, which was held on February 3, 1942;
and has been heretofore referred to. At this meeting, Brister again attempted
to discuss the reasons for the discharge of the eleven men and the reinstatement
of Elliott, Ervin, and- Sanders, but again Connolly refused to discuss them.
From the- foregoing, it is found that on January 24, 1942, Elliott, Ervin and
Sanders made application to the co-respondent for reinstatement to their former
employment in the refinery and that the co-respondent refused such reinstate-
ment to Elliott and Ervin because they had formed, joined or assisted the Union
and to discourage membership in the Union, but that such refusal as to Sanders
was for the same cause which led to his original discharge.
It is therefore found that, on January 24, 1942, the co-respondent discriminated'
against the said Pugh Elliott and Jake Ervin in regard to hire or tenure of their
employment at the refinery, thereby discouraging membership in the Union
IV. THE EFFECT OF THE UNFAIR L.BOR PRACTICES UPON COMMERCE
0
It is found that the, activities of the respondent and the co-respondent, set
forth in Section III above, occurring in connection with the operations of the
respondent and the co-respondent described in Section I above, have a close,
intimate and substantial relation to trade, traffic and commerce among the
several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
It has been found that the respondent, in his official capacity as Trustee of
Atlas Pipeline Corporation only, and not individually, has interfered with the
rights guaranteed his employees in Section 7 of the Act by threatening to dis-
charge employees because of their union membership, by disparaging remarks
concerning the Union and union membership made by supervisory employees of
the 'respondent, and by discriminating in their hire and tenure of employment,
but since it has also been found that the respondent, pursuant to a proper order
of the United States District Court under whose direction the, respondent con-
ducted the operations described in Section I hereof, has heretofore divested,
himself of all assets held by him in his official capacity and is no longer any
employer but has, for all practical purposes, closed the estate of Atlas Pipeline
Corporation, bankrupt, and continues to retain his official capacity as trustee,
only for the purpose of maintaining' his appearance in this proceeding, no good
purpose would be served to order him to cease and desist from the conduct
1206 DECISIONS, OF -NATIONAL LABOR RELATIONS BOARD
complained of However, it has also been found that the respondent discrimina-
torily discharged Pugh Elliott and Jake Ervin, thereby discouraging membership
in the Union and-in this regard it will be recommended that certain affirmative
action be taken by the respondent which, in connection with certain other.
remedial action hereinafter referred to, will effectuate the policies of the Act:
It has been found that: (1), the respondent, iu all matters herein concerned, has
acted as a trustee of Atlas Pipeline Corporation, under the direct ion and control of
the United States District Court; (2) pursuant to the order of that court, he dis-
continued his operation of the refinery at 7 o'clock A At of January 23, 1942. and
simultaneously conveyed the physical possession and control of the refinery,
together with other assets, to the co-respondent, an independently organized cor-
poration, created pursuant to the plan of reorganization to take over the posses-
sion and control of the refinery and other assets and to operate the same for its
own account; (3) when the possession,and control of the refinery was transferred
from the respondent to the co-respondent, such transfer occasioned no interruption
in or change of the operations of the refinery; (4) all executive, administrative
and supervisory personnel, as well as substantially all working personnel that had
theretofore managed, administered, supervised and carried on the business and
operation of the refinery while the same was in the possession and control of the
respondent up to 7 o'clock A. AT of January 23, 1942, continued without interrup
tion, in their identical respective capacities, to manage, administer, supervise and
carry on the business and operation of the refinery, 'after 7 -o'clock A. M. of
January 23, 1942, as the representatives, agents and employees of the co-respond-
ent, now in possession and control' of the refinery; (5) there is no identity or
association of financial interest by the co-respondent or any of its officers or
stockholders, with the Atlas Pipeline Corporation or its officers or stockholders,
or with the respondent In this latter respect, the good faith of the transfer
itself from the respondent to the co-respondent, made pursuant to the order,
of the United'States District Court, cannot be questioned Under a broad
application of the dictum of the United States Supreme Court in Southport Petro-
leum Company v. National Labor Relations Board 62 S. Ct. 452, these facts would
seem to indicate that here is a condition which would "terminate the duty of rein-
statement created by a (the) Board's order," growing out of unfair labor practices
which were engaged in solely by the respondent.
In the absence of circumstances which would make this dictum not applicable,
any order directing the reinstatement of Elliott and Ervin to their former em-
ployment would be a useless gesture since the respondent has no employment to
offer them If this dictum applies here, nothing could be required of the co-
respondent in regard to these two men and all that could be required of the
respondent would be that he make them whole for any loss of pay they normally
would have earned, with the usual credit for net earnings,10 between the dates of
their respective discharges and January 23, 1942, when the respondent properly
divested himself of the possession and control of the refinery where these men had
previously been employed
i° By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge 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. N. L. R. B.
311 P. S 7.
HENRY K. PHELPS, JR., - TRUSTEE 1 207
However, circumstances • do exist which seem to take this case beyond the-
scope of-the dictum referred to. The thought expressed in the dictum was a
general application of a well recognized principle of law, It goes to the private
fights and responsibilities of 'a purchaser who takes in good faith and without
notice. Much of our fundamental law is thus built around the protection of an
innocent purchaser for value. In the Southport Petroleum Coinpam/ case, the Su-
preme Court appears to have had no occasion to consider the application of the
Act in its broader and more important aspect as a declaration of public policy
and a medium for implementing that policy even to the exclusion of private rights,
if necessary. Had the question been squarely before it, as it is now squarely
before the Board, the previous decisions of that Court indicate that the quoted
dictum would not have been applied as the rule '
A fi iding of good faith or lack of notice on the part of the co-respondent could
be bottomed only on the sheerest legal technicality. The lack of good faith
or the existence of actual notice do not lie in any ulterior motives of the group
of crude oil suppliers who backed the organization of the co-respondent with
their cash and commitments, nor in any formal notice which, by mere operation
of law would, 'ipso facto, charge them with an assumption of liability. It lies
in the overlapping and collaboration in all things pertaining to the management,
operation and equipment of the refinery for a long period of time preceding the
technical transfer when the acts here complained of were planned and executed.
It lies in the fact that during this period, Connolly and Chance, while employees
and managerial representatives of the respondent, were actually acting in the
interests of the corespondent from whom they were to obtain permanent em-
ployment in positions identical with those in which they were acting for the
respondent, once the plan of reorganization was made effective and the prop-
erties transferred to the co-respondent ; and it further- lies in the continuity of
management, administration and supervision of the affairs of the refinery on
behalf of the co-respondent by the identical persons, in the identical official-
positions, who, on' behalf of the respondent, had actually committed the unfair
labor practices charged to the respondent; and in the uninterrupted operation
of the refinery by the co-respondent, in the same manner, with the same oper-
ating personnel and as the same employing industry that had existed under the
respondent and his several predecessors The presumption of good faith and
absence of notice, under such circumstances, are no more than legal fictions
In administering the Act, the Board is charged with preventing unfair labor-
practices. It is concerned with ultimate facts and effective remedies and within
limitations that have been fairly well defined by the Supreme Court, may not
be confined by such legal fictions and artificial technicalities -
- 'Here, dependence on the Southport Petroleum Company case dictum as author-
ity for releasing the co-respondent from all duties of reinstatement of Elliott
and Ervin, is addressed solely to the private right, if any,, of the co-respondent
to be exempted under the technicalities and legal fictions of the common law;
but the, Act is not. concerned with private rights, as such, nor does the Board.
exist for the purpose of adjudicating such rights. It "acts in a public capacity
to give effect to the declared public policy of the Act to eliminate and prevent
obstructions to interstate commerce by encouraging collective bargaining,"'
and effectuation of this national policy, through the administration of the Board
"in collaboration with limited judicial review, must not be confined within (the)
narrow canons for equitable relief deemed suitable by chancellors in' ordinary-
jirivate controversies.""
11 National Licorice Co v. N. L It. B 309 U S 350, 362 -
11 Phelps Dodge Corporation v N L. R. B., 13 U S 177
_ 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Applying these general principles to the instant case, and ignoring for the
-moment, whatever may have transpired on January 24th when Connolly refused
Brister's request for the reinstatement of Elliott and Ervin , we are confronted
-with the question of whether the co-respondent , as the one in possession and
-control of the refinery , appropriately can be required to provide reinstatement
to the men who have been discriminatorily discharged by the respondent when
he was in possession and control , and whether such a requirement would effe c-
-tuate the policies of the Act
At common law, the co -respondent , in the exercise of a purely private right_
,probably would be entitled to claim exemption from an obligation to answer
any order of the Board based on acts of discrimination committed by the re-
spondent , to which it was not a party. And while the discharges of Elliott and
Ervin took place during the period when Connolly and Chance were conducting
the operations of the refinery in contemplation of the time when they would be
operating it on behalf of the co -respondent , this is not sufficient ' to justify a
declaration that the co -respondent was a party to these discharges . However,
those private rights under the common law, have here come into direct conflict
with the purposes and policies of the Act ; i` e. the encouragement of collective
bargaining in the employing industry or institution from which Elliott and Ervin
have been discharged because of their advocacy of the collective bargaining
process in such employing industry , and to which employing industry they are
-entitled to be restored for purposes of gainful employment . In such a situation,
the private right must yield to the paramount requirement of public policy.
Thus, in the Kiddie Kover case, the Court observed that the purpose of the Act
itself and of the orders of the Board is "to implement a public social or economic
policy not primarily concerned with private rights, and - through remedies not
only unknown to the common law but often in derogation of it."
It has been found that Elliott and Ervin were employed at and discharged
-from the refinery under the ownership and control of the respondent while
-Connolly was general manager, Chance was superintendent and Jackson, Roy;
Clanton and others were subordinates . It has been found that, while there
-was a fixed moment when possession and control by the respondent technically
-ended and possession and control by the co-respondent began, there was a-
long period preceding that when the respondent and co-respondent- were
-mutually shaping the operation and personnel of the refinery toward such
-moment of transfer so that possession and control could be assumed by the
, co-respondent without interruption of, interference with or change in the
-operations In other words , the industry , as an employing institution, went
through the transfer of ownership without change from what it had been in
the possession and control of the respondent . In such a situation it clearly
is the industry and not the owners, to which the purposes of the Act are and
should be directed . The owner , at the moment , is important only because he
is the symbol of the industry and because , by reason of his ownership and
,control , the Board must look to him as the medium for causing the employing
industry to effectuate the remedy prescribed in the Board 's order. The
-ownership may change , but so long as the employing industry continues in its -
-established form and with its established personnel , both supervisory and
operating , its responsibility to provide employment to those who have been
- wrongfully deprived of employment therein, does not abate.
In the only instance 'here this question has been squarely presented 'to
-and considered by the courts , Judge Simon , in the Kiddie Kover case above
13 N. L. R. B v..Arthur J. Colten et at., 105 F. ( 2d) 170. Agieiliiies , Inc. v. N. L. R. B.,
87 F. (2d) 146. .
HENRY K. PHELPS, JR., TRUSTEE, .12091
referred to, brushed aside the technical artificialities and, although such , actions
does not appear to have ' been necessary for a decision of the issues in that
case, based the order of the court enforcing the order of the Board, on the
principles above set out. He said:
It. is the employing industry that is sought to be regulated and brought
within the corrective and remedial provisions of the Act . . . It
needs no demonstration that the strife which is sought to be averted is no
less an object of legislative solicitude when contract , death or operation of
law brings about a change of ownership . [ Italics supplied.]
In the Baldwin Locomotive Works case,' recently decided by the Third Cir-
cuit Court of Appeals, the court notes the principles of the Kiddie Kover case
with approval.
Since this case appeals closely distinguishable from anything contemplated in:
the dictum of the Southport Petroleum Company decision , and in the absence
of authority to the contrary , and because it represents what appears to be the,
soundest rule for effectuating the purposes and policies of the Act, the
principles above enunciated will be here - applied with reference to the rein-
statement of Elliott and Ervin in the employment of the refinery.
The responsibility of the employing industry , as such, when it has passed.
Into the hands of new owners who stand in a position such as that occupied
by the'co-respondent, should not extend beyond the obligation to reinstate the
discriminatorily discharged employees on application . To require the new
owner to contribute to making either of these employees whole for losses of
pay incurred between the date of the discriminatory discharge and the date-
of application to the co-respondent for reinstatement , would be tantamount to
the imposition of a penalty on the co-respondent and would not effectuate the
policies of the Act. It has been found, however, that both Elliott and Ervin
did, on January 24, 1942, through their union representative , make application
.to Connolly for reinstatement to their respective employments and that such
application was refused . Such refusal terminated the exemption of the co--
respondent from responsibility for making them whole for further losses of
.pay. -Therefore, in order to effectuate the policies -of the Act with reference
to the discriminatory discharges of Elliott and Ervin , it will be recommended:
(1) that the respondent make the said Pugh Elliott and Jake Ervin whole,_
respectively , for any loss of pay either has suffered by reason of the respond-
ent's discrimination , by payment to each of them, respectively , of a sum of
money equal to the amount he normally would have earned as wages from the-
date of discrimination-against him to the date of the transfer of the property-
to the co-respondent , 1.e, to the close of business of January 22, 1942 , less his
net earnings during such period, but giving effect to all general pay increases-
that became effective .during such period; (2) that the co-respondent offer to
Pugh Elliott and Jake Ervin , immediate and full reinstatement to their former
or substantially , equivalent positions , without prejudice to their seniority and,
their rights and privileges ; and (3 ) that the co-respondent make the said Pugh
Elliott and Jake Ervin whole for any loss of pay either of, them has suffered'
by reason of the co-respondent's refusal of their 'application for reinstatement
on January 24, 1942, by payment to them of a sum of money equal to the
amount he would have earned as wages computed at the going rate of wages,
.paid by the co-respondent for like employment , from the date of such refusal
14N. L. R. B. v. Baldwin Locomotive Works, 128 Fed (2d) 39, decided March 23, 1942,
(C. C. A. 3). See also, Supplemental opinion filed May 6, 1942.'
4210 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
of reinstatement to the date of such offer of reinstatement, less his net earnings
during such period. It having been found that Albert Sanders was discharged for
cause, the co-respondent was under no.obligation as to him , and it will-be recom-
mended that the complaint be dismissed in so.far as it pertains to him.
It has been found that the co-respondent has interfered with the rights
-guaranteed to its employees in Section 7 of the Act by refusing to permit a
continuance of employment of 11 members of the Union, by refusing to give
there any reason for or otherwise discussing such termination of employment,
by disparaging the Union in conversation with such employees and by attempt-
ing to so arrange the work of certain employees as to disqualify them from
inclusion within an appropriate unit for purposes of collective bargaining.
It has also been found that the persons who formulate and administer the
labor relations policies of the co-respondent are the same persons who for-
mulated and administered the labor relations policies of the respondent, under
whose possession and control of the refinery, the unfair labor practices herein
'before set out as applicable to the respondent, were followed. Under such cir-
cumstances, there is grave danger that, unless appropriately restrained from
-so doing, the co-respondent will engage in other and further unfair labor prac-
tices. It will therefore be recommended, not only that the co-respondent cease
and desist from those unfair labor practices in which it has been found to have
engaged, but from in any other manner interfering with, restraining, or 'co-
ercing its employees in the exercise of the rights guaranteed them in Section 7
-of the Act, and, in addition to the affirmative action to be recommended With
respect to Pugh Elliott and Jake Ervin, to take certain other affirmative action.
With reference to the 11 members of the Union with respect to whom the'co-
respondent has discriminated as to hire and tenure of employment,' it will be
recommended that the co-respondent offer to L A. McMiarry. A. B. Brown, H. M.
Hatch, A E Powell, R. I Rush, and R W -Harlan, immediate and full reinstate-
ment to the former or substantially equivalent positions last occupied by them,
respectively, at the refinery prior to January 23, 1942, without prejudice to their
seniority and other rights and privileges; and in the event any of said employees
shall enter the armed forces of the United States before such reinstatement shall
be offered to and accented by him, then, upon demand of such employee at the
termination of his service in the armed forces, offer him such reinstatement with-
rout prejudice to his seniority and other rights and privileges provided he shall
not have been physically handicapped for the performance of the job. In that
event, the co-respondent shall offer him such employment as he shall be physically
capable of performing; and in any of the foregoing events, shall discharge, if
necessary to provide such employment, any person employed for or promoted or
-transferred to the position formerly held by them, since the date of discrimina-
tion While it has been found that the co-respondent has not hired any additional
negro employees other than those selected for retention at or just prior to the
date of the transfer of the refinery to it, it has been found that the respondent,
for purposes that conti aveue the policies of the Act, has hired white labor to
perform duties habitually performed by the negroes In matters pertaining to
discretionary administration of its business, the Board does not interfere with
-an employer. However, in this instance, the co-respondent has exercised its
discretionary administrative powers for the purpose of depriving not only the
five negroes who are mined herein, but all its negro employees, of the benefits
of the Act. It will be recommended that the status quo of the period immediately
preceding the January shutdown and the transfer of possession on January 23,
1942. be maintained and that the co-respondent offer to Carl Bryant, -Eugene
HENRY K.= PHELPS,, JR., TRUSTEE 1211
Nicholson, Joe Robinson, Montgomery Gardner and Jean Gland, immediate and
full reinstatement to the former or substantially equivalent positions last oc-
cupied by them, respectively, at the refinery prior to January 23, 1942, without
prejudice to their seniority and their rights and privileges, discharging, if nec-
essary, any persons employed for or transferred or promoted to the positions
formerly held by them, since the (late of acquisition of the refinery by the
respondent.
It will also be recommended that the co-respondent make the said L A. Me-
Murry, A B Brown, H 1I Hatch, A R Poivell, R I Rush, R W. Harlan, Carl
Bryant, Everett Nicholson, Joe It Robinson, Montgomery Gardner, and Jean
'Gland,-and each of them, whole for any loss of pay they may have respectively
suffered by reason of the co-respondent's discrimination in their hire or tenure
of employment, 'by payment to each of them of a suns of money equal to the
amount he would have earned as wages, computed at the going rate of wages paid
by the co-respondent for like employment, from the date of such discrimination
to' the date of such otter of reinstatement, less his net earnings during such
period. In the event any of said employees shall enter the Armed Forces of the
,United States before such payment is made, it shall be computed to,and paid to
such employee on, the date of such entry into the Ai med Forces and in addition
thereto, in accordance with the co-respondent's announced policy, there shall be
paid to him, at the same time, an additional amount "equal to one month's normal
wages (excluding overtime) "1' and, upon the separation of such employee from
the Armed Forces, a further sum, computed as above set out, shall be paid to said
employee equal to the amount lie would have earned as wages, from the date of
his application for reinstatement following his separation trom the service in the
Armed Forces to the date of such offer of reinstatement, provided such employee
shall make due demand for reinstatement within 40 clays after his separation or,
if discharged on foreign soil, after his return to the United States. In addition,
it will be recommended that the co-respondent post certain notices'at the refinery.
• -Upon tile,basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following. ,
CONCLUSIONS of LAW
1. Oil Workers International' Union. Local 245, affiliated with the Congress of
Industrial Oigsuuzations is a labor organization within the meaning of Section
2 (5) of the Act
2. By discriminating in regard to the hire and tenure of employment of Pugh
Elliott and Jake Ervin and by discriminatorily recommending and designating
L. A. McMurry. A B Brown, H M Hatch. A. E Powell. R I Rush, R W. Harlan,
Carl Bryant, Everett Nicholson, .Joe ttobinson, Montgomery Gardner, and Feah
Gland for exclusion from employment by the co-respondent, and thereby dis-
couraging membership in Oil Workers Industrial Union, No, 245, affiliated with
Congress of Industrial Organizations, the respondent has engaged in unfair labor
practices, within the meaning of Section 8 (3) of the Act
3 By discriminating in regard to the hire and tenure of employment of Pugh
Elliott and Jake Ervin on the occasion of the refusal of their 'applications on
January 24, 1942, for reinstatement, and thereby discouraging membership ii
's in the "Industrial Relations I'olicv" (see footnote 6) announced by the co-respondent
on January 23, 1942, the following appeals :
"Any employee entering military seriice under this policy will receive upon p r esentation
of his military orders an additional pay check equal to one month's normal wages (exclud-
ing overtime ) to assist him in making readjustments incident to entering military service"
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oil Workers International Union, Local 245, affiliated with the Congress of In-,
dustrial Organizations, the co-respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (3) of the Act.
4. By discriminating in regard to the hire and tenure of employment of L. A.
-McMurry, A. B Brown, H M. Hatch, A. E. Powell, R. I. Rush, R. W. Harlan,
Carl Bryant, Eugene Nicholson, Joe Robinson, Montgomery Gardner, and Fean
Gland, and thereby discouraging membership in Oi1.Workers International Union,
Local 245, affiliated with the Congress of Industrial Organizations, the co-
respondent has engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (3) of the Act.
5. By interfering with, restraining,, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
unfair labor practices, within the meaning of Section 8 (1) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
,of the rights guaranteed in Section 7 of the Act, the co-respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8
(1) of the Act.
7. By discharging Albert Sanders for cause, the respondent has engaged in no.
unfair labor practices.
8. By refusing to reinstate Albert Sanders, the co-respondent has engaged in
no unfair labor practices.
9. The aforesaid unfair labor practices are unfair labor practices affecting
ccommerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
On, the basis of the foregoing findings of fact and conclusions of law no
cease and desist action is recommended with reference to the respondent because
his official, existence as an employer has terminated and cannot be revived.
It is recommended , however, that the respondent: ,
(a) Make whole the said Pugh Elliott and Jake Ervin , respectively for any
loss of pay they may have suffered by reason of the respondent 's discrimination
in regdrd to their hire and tenure of employment, by. paying to them, respectively,
a sum of money equal to that which each normally would have earned as wages
at the refinery during the period from the dates of their respective discharges
to the date when the refinery was transferred and delivered by the respondent
to the co-respondent, to wit, until the close of business for the day of January
22, 1942, less his net earnings during such period.
(b) Notify the Regional Director for the Fifteenth Region, in writing, within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith.
It is further recommended that the co-respondent, its officers, directors, agents,
superintendents, foremen, and other supervisory representatives and its suc-
cessors and assigns, shall:
1. Cease and desist from :
(a) Discouraging'membership in Oil Workers International Union, Local 245,
affiliated with the Congress of Industrial Organizations or in any other labor
organization of its employees by refusing reinstatement to employees of the
respondent who have been discriminatorily discharged by him because of their
membership in, affiliation with, or activities in behalf of the Oil Workers Inter-
national Union, Local 245, or any other labor organization, or by refusing employ-
ment to any employee of the respondent who was such or who was in a "laid-
off" status , on January 22, 1942, or by discharging any employee of the refinery
`• HENRY A. PHELPS, JR., TRUSTEE 1213
who was such or who ' was in a "laid -off" status , on January 22, 1942 , or' by dis
charging any of its employees , because of the membership in, affiliation with, or,
activities of said employees of respondent or co-respondent in :behalf of said Oil
Workers International Union, Local 245, or any other labor organization, or in!
any other manner discriminating in regard to their hire, or tenure of employ,
ment or any term or condition of employment ;
(b) In any other manner interfering with, restraining , or-coercing its employees
in the exercise of the rights to self-organization , to form, join , or assist labor
organizations, ,to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection as guaranteed in Section 7 of the National-
LaborRelations Act.
2.'Take the following affirmative action which will effectuate the policies of
the Act :
(a) Offer to Pugh Elliott and Jake Ervin'immediate and full reinstatement to
their former or substantially equivalent positions , without prejudices to their
seniority and other rights and privileges ;
(b) Make whole the said Pugh Elliott and Jake Ervin , respectively , for any
loss of pay either of them has buffered by reason of the co-respondent's dis-
crimination in regard to their hire and tenure of employment by refusing their
application for reinstatement in January 24, 1942, by the payment of a sum of
money to them , respectively , equal to the amount each would have earned as
wages at the refinery, computed at the going rate of wages paid by the co-
respondent for like employment , from the date of such refusal of reinstatement
to the date of such offer of reinstatement, less their respective net earnings
during such period ;
( c) Offer to L. A. McMurry , A. B. Brown, H. M. Hatch, A. E. Powell, R. I.
Rush, R. W. Harlan, Car l Bryant, Eugene 'Nicholson, Joe Robinson , Montgomery
Gardner and Fean Gland , immediate and full reinstatement to their former or
substantially equivalent positions last respectively held by them at the refinery
prior to January 23, 1942, . without prejudice to their seniority or other rights
and privileges . In the event any of said employees shall enter the Armed Forces
of the United States before such reinstatement shall be offered to and accepted
by him, then , upon demand of such employee within 40 days after the termina-
tion of his services in the Armed Forces of the United States, or 40 days after
his return to the United States if discharged on foreign soil, immediately offer
to him such reinstatement without prejudice to his seniority or other rights and
privileges , provided he shall not have been physically handicapped for the
performance of his job . In that event , co-respondent shall offer him such
employment as he shall be physically capable of handling In every of the
foregoing events, the co-respondent shall, if necessary to provide the employment
so to be offered , discharge or demote any person who has been employed for,
promoted , or transferred to the positions formerly held by the said employees
above named or any of them , or to which they shall be entitled to be reinstated
hereunder , since the date of discrimination ;
(d) Make whole the said L . A. McMurry , A. B. Brown, H. M. Hatch, A. E
Powell, R. I. Rush, R. W. Harlan , Carl Bryant , Eugene Nicholson , Joe Robinson,
Montgomery Gardner , and Fean Gland , and each of them, for any loss of pay
they respectively may have suffered by reason of co-respondent 's discrimination
in regard to their hire or tenure of employment by the payment to each of
them of a sum of money equal to the amount each would have earned as wages
at the refinery, computed at the going rate of wages paid by the co-respondent
for like employment , from the date of such discrimination to the date of such
1214 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
offer of reinstatement, less his net earnings during such period. In the event
any of said employees shall enter the Armed Forces of the United States before,
such payment is made, it shall be computed and paid to and on the date of
such entry into the Ariued Forces, together with an amount equal to one month's
normal wages (excluding overtime) ; and, upon the separation of such employee
from the Armed Forces, a-further sum, computed as above set out, shall. be paid
to said employees, equal to the amount he would have earned as wages at the
refinery, from the date of his application for reinstatement following his separa-
tion from service in the Armed Forces to the (late of such offer of reinstatement,,
provided such employee shall make due demand for reinstatement within 40 days
after his separation and if discharged on foreign soil, 40 days after his return
to the United States, less his net earnings during such period;
(e) Post immediately in conspicuous places throughout the refinery at Shreve-
port, Louisiana, and maintain for a period of not less than sixty (60) consecu-
tive days, notice to its employees that: (1) the co-respondent will not engage
in the conduct from which it is recommended that it cease and desist in
paragraph 1 (a) and (b) of these recommendations; (2) the co-respondent will
take the affirmative action set out in paragraph 2 (a), (b), (c), and (d) of
these recommendations; and (3) co-respondent's employees are free to become
or remain members of Oil Workers International Union, Local 245, affiliated
with the Congress of Industrial Organizations, and that co-respondent will not
discriminate against any employee because of membership or activity in that
or in any other labor organization; -
(f) Notify the Regional Director for the Fifteenth Region in writing within
twenty (20) days from the receipt of this Intermediate Report what steps the
respondent has taken to comply therewith. .
It is further recommended that the complaint be dismissed in so far as it
alleges that the respondent circulated a petition among the employees which
stated that the signers were satisfied with their conditions and did not wish to
strike; that the respondent spied upon the attendance of employees at union
gatherings and that either the respondent or co-respondent discriminated against
Albert Sanders in regard to his tenure of employment, or otherwise. ,
It is further recommended that, unless on or before twenty (20) days from
the date of the receipt of this Intermediate Report, the respondent and the
co-respondent separately' notify said Regional Director in writing that they will
individually comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring them to take the action aforesaid
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-any party may within
thirty (30) days from the date of the entry of the order transferring the case
to the Board, pursuant to Section 32 of Article II of said Rules and Regulations,
file with the Board, Shoreham Building, Washington, D C, an original and four
copies of a statement in writing setting forth such exceptions to the Intermediate
Report or to any other part of the record or proceeding (including rulings upon
all motions or objections) as he relies upon, together with the original and four
copies of a brief in support thereof. As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request
therefor must be made in writing to the Board within twenty (20) days after
the date of the order transferring the case to the Board.
Dated May 13, 1942. R. N. DENHAM,
Trial Examiner.