Mills Bennett

National Labor Relations Board - Board Decisions

Nov 30, 1945

64 N.L.R.B. 1118 (N.L.R.B. 1945)

In the Matter Of MILLS BENNETT and OIL WORKERS INTERNATIONAL
UNION, CIO
Case No. 16-C-1077.-Decided November 30, 1945,
DECISION
AND
ORDER
On May 18, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the repondent
had not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed. Thereafter, the
Union filed exceptions to, and the , espondent filed a brief in support
of, the Intermediate Report. No request for oral argument before
the Board at Washington, D. C., was made by any of the parties, and
none was held. The Board has reviewed the Trial Examiner's rulings
made at the hearing and finds that no prejudicial errors were con7-
mitted. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the exceptions
of the Union, the brief of the respondent, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the complaint herein against Mills Bennett,
Houston, Texas, be, and it hereby is, dismissed.
MR. JOHN M. ROUSTON took no part in the consideration of the
above Decision and Order.
INTERMEDIATE REPORT
Mr. John H. .Garver, for the Board.
Mr. H. F. Montgomery, of Houston, Tex., for the respondent.
Mr. Garland Butler, of Houston, Tex., for the Union.
STATEMENT OF THE CA SE
Upon a first amended charge duly filed on November 7, 1944, by Oil Workers
International Union, affiliated with the Congress of Industrial Organizations,
64 N. L. R. B., No. 188.
1118
MILLS BENNETT 1119
herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued its complaint, dated January 31, 1945, against Mills Bennett of Houston,
Texas, 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
and notice of hearing thereon were duly served upon the respondent and the
Union.
With respect to unfair labor practices, the complaint alleged in substance that
the respondent (1) on or about May 8, 1944, discharged and thereafter refused
to reinstate Sam Shutt because he joined or assisted the Union or engaged in
other concerted activities with his fellow employees for the purposes of collec-
tive bargaining or other mutual aid or protection; and (2) through his agents
since on or about March 15, 1944, (a) vilified, disparaged, and expressed dis-
approval of the Union, (b) interrogated his employees concerning their union
affiliations, and (c) urged, persuaded, threatened, an warned his employees to
refrain from assisting, becoming, or rlemaining members of the Union. At the
opening of the hearing, the respondent filed an answer denying the commission
of the alleged unfair labor practices.
Pursuant to notice, a hearing was held on February 15, 1945, at Houston, Texas,
and on February 16, 1945, at Mont Belvieu, Texas, before Howard Myers, the
undersigned Trial Examiner, duly designated by the Ohief Trial Examiner.
The Board and the respondent were represented by counsel and the Union by a
representative, and all participated in the heating. Full 'opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing upon the issues was afforded all parties. At the close of the case, the motion
of Board's counsel to conform the pl^adings to the proof was granted without
objection. The respondent's counsel then moved to dismiss the complaint for
proof. Decision thereon wasl reserved. The motion is hereby denied.lack of
Oral argument, in which Board's counsel and the respondent's counsel partici-
pated, was had at the conclusion of the taking of the evidence and is part of the
iecord. Although afforded opportunity to do so, none of the parties have sub-
mitted briefs.
Upon the entire record in the case, the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESSI OF THE RESPONDENT
The respondent is an individual having his principal office and place of business
in Houston, Texas, and owns and operates properties and facilities in Barbers
Hill, Texas, where he, at all times material herein, was engaged, and is engaged,
in the production, sale, and distribution of crude oil. For the 12-month period
ending February 15, 1945, the average daily production of crude oil from the
respondent's Barbers Hill wells was approximately 500 barrels, about 50 percent
of which is sold and shipped to the ,Atlantic Refining Company, which in turn
ships the said crude oil to points outside the State of Texas.
The respondent concedes that it is engaged in commerce within the meaning
of the Act.
II, THE ORGANIZATION, INVOLVED
Oil Workers International Union, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of the
respondent.
1120 DECISIONS OP NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
The alleged interference, restraint, and coercion; alleged discriminatory dis-
charge of Sam Shutt
Early in February 1944, Garland Butler, a field representative of the Union,
arrived in the town of Mont Belvieu, Texas, and immediately set out to organize
the employees of the various oil proucing companies located in the vicinity of
that town. In the latter part of that month, Sam Shutt, a pumper employed by
the respondent, sought out Butler and told him that he wanted to enlist his aid
in organizing the respondent's employees.' Butler, starting early in March, held
weekly meetings of the respondent's employees. Sometimes those meetings we] e
attended by employees of other companies whose properties were located in or
near Mont Belvieu. Shutt attended a great many of these meetings He also
asked each of the 11 employees of the respondent to join the Union, and he
solicited memberships among employees of nearby companies. Shutt's activities
on behalf of the Union were known to the respondent's supervisory officials prior
to his discharge on May 8, 1944.
Shutt testified, and the undersigned finds, that sometime about the middle of
March, he overheard a part of a discussion regarding the Union between Butler,
employee Russell Childress, and an employee of another company, during which
discussion Childress cursed the Union and then said that he would not join the
Union because it admitted Negroes. Butler testified, and the undersigned finds,
that at an open meeting held on March 22, but not attended by any other employees
of the respondent,',Clnldress again cursed the Union for admitting Negroes and
that the meeting broke up because Childress caused much confusion by denouncing
the Union and adding that he would personally frustrate all the Union's plans
to organize the respondent's employees
Board's counsel contended at the hearing that at the time these anti-union
statements were made Childress was a supervisor, and that his anti-union remarks
and activities were therefore attributable to the respondent The respondent
contended that Childress was not a supervisor at that time
The creditable evidence shows that sometime prior to the end of 1943, Childress
was in charge of the pumpers and had supervisory powers. About that time,
however, his duties, due in part to a reduction in the number of pumpers, were
changed and he was made a relief pumper, with no supervisory power. Shutt
testified that for about 8 years prior to his discharge on May 8, 1944, Childress
oo as his boss and that Childress directed his work. Shutt further testified, how-
ever, that "since 1943 I believe [Childress] has been a relief pumper." Further-
more, under cross-examination, Shutt testified that for the last few months imme-
diately prior to his discharge, Childress was a pumper doing the same work as
the other pumpers. Moreover, Board's witness Tallie C. Arrington, formerly
employed by the respondent as a pumper, testified that prior to May 1, 1944,
Childress "was a kind of a boss He was the day man, that is, he wasn't exactly
the boss, see. Mr. Moore' was the boss, supposed to have been." On the other
hand, Buster Flowers, a gang pusher with the authority to hire and discharge,
and a member of the Union, testified that Childress always had supervisory status
with authority to hire and discharge. The undersigned is of the opinion that
' The respondent's Barbers Hill properties are in or near Mont Belvieu. The respond-
ent owns and operates other oil fields, but only the employees of the respondent's Barbers
Hill properties are involved in this proceeding
2 Some of respondent's employees attended the meeting after Childress had left.
' As will be shown below, Moore left the respondent's employ on April 30, 1944,, and
was replaced by Wilbur Woods
MILLS BENNETT 1121
Flowers was mistaken in this respect and finds that from at least January 1, 1944,
Childress was a non-supervisory employee. Therefore, the undersigned attaches
no probative value to the testimony of Shutt and Butler with respect to the
anti-union remarks and activities of Childress and finds that these remarks and
statements cannot be attributed to the respondent nor can he be held accountable
for them I
On or about April 29, 1944, the respondent posted the following notice in his
warehouse at a place where notices to his employees are customarily posted:
It. M. Moore has resigned from my employ and his resignation has been
accepted effective May 1, 1944.
J. J. Sapp has been made General Superintendent, in charge of my field
operations in the Gulf Coast area.
W. G. Woods has been designated by J J Sapp as Superintendent in charge
of my Barbers Hill and Blue Ridge producing properties
Recent negotiations for the sale of these properties have terminated. ' No
other negotiations are contemplated
Mills Bennett
On or about May 5, according to the credited testimony of Flowers,' he and
Moore had a conversation during whichi the following transpired :
He came in there and I was changing clothes and we just had a general con-
vei sation and he asked me-Bobbyj asked me something about the Union-
had we all joined, or something like that and I told him yes, I had, and he
said, "Well, what do you think about it?" and I told him I thought it was
all right and then I asked him, "what do you think about it?" and he said,
"I think it's a pretty good deal--^" something like that, to the best I can
remember, and then he went on and told me that he thought to the best of
his judgment that Mr Bennett would not be satisfied with a bunch of us boys
belonging to a Union, that had been working out here for a' number of years,
and that be would be dissatisfied, and that he'd hate to know he had a bunch
of men working for him dissatisfied after so many years of working for him
and would then have to join a Union, something like that, to protect their-
selves some way, he went on like that, you know, and as far as I can remem-
ber that was the general run of the cbnversation, so far as I could explain it.
Flowers also testified that Moore advised him to discuss the matter with Shutt
and ascertain whether, under the circumstances, it would not be advisable to
get along without the Union; that, although he knew Moore was no longer in the
employ of the respondent, he told one of the men working under him and Shutt
what Moore had said and then asked Shutt and this other employee "what they
thought about the Union and did they' think we ought-a go ahead and try to
organize [the Union], or did they think we had better let it go, or what we'd
better do about it" ; and that, after a lengthy discussion, the three of them agreed
to remain in the Union. The record is blear that at the time of the conversation
between Moore and Flowers, the former was no longer in respondent's employ and
that all the employees were aware of that fact.` Under the circumstances, the
4 It will be recalled that Flowers at that tinie was a supervisor and also a member of
the Union
6 Board's counsel contended that Moore, although he had resigned on April 30, was
still in the respondent's employ throughout the month of May because at the time of his
resignation the respondent gave Moore his IIay salary. The undenied credible testimony
shows that it always has been the respondent's practice to give supervisory employees
leaving his employ an additional month's salary.
670417-46--vol 64-72
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undersigned finds that the respondent cannot be held accountable for the afore-
said anti-union statements of Moore.
On May 7, Shutt was on the 1: 30 p. in to 9: 30 p in tour. He testified that he
was constantly having motor trouble with the truck he was using on that day ;
that in order to make the rounds of the wells he was to inspect that day he had
frequently to stop and fix the motor ; that at about 8: 30 that evening he drove
the truck to a filling station in Mont Belvieu because it had steamed up and
filled the radiator with water ; that he then went into a domino hall near the
filling station and played two games of "knock poker" ; 6 and that after remaining
in the domino hall for "a short while," he came out and drove the truck to one
of the wells. Superintendent Woods testified that he observed the truck at the
filling station shortly after 8: 20 that evening; that he went to several places in
Mont Belvieu, including the domino hall where he saw Shutt play two games of
"knock poker"; that the truck was still at the filling station at approximately
9: 10, at which time he went home; that the following morning he informed his
superior that Shutt was playing games in the domino hall when he should have
been on duty ; that his superior instructed him to discharge Shutt ; and that when
Shutt reported for work that day he discharged him. The undersigned credits
Woods' version of what transpired on the evening of May 7.
The record, it is true, shows that Shutt was the most active employee on behalf
of the Union In view, however, of Shutt's admitted dereliction in duty, the
undersigned does not feel that the evidence is sufficient to show that he was
discharged because of his union activity. The undersigned finds that the re-
spondent did not discriminate against Shutt in regard to hire or tenure of em-
ployment. The undersigned further finds that the evidence does not sustain the
allegations of the complaint that the respondent violated the Act. The under-
signed will accordingly recommend that the complaint be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record,
the undersigned makes the following :
CONCLUSIONS OF LAW
1, The operations of the respondent, Mills Bennett, Houston, Texas, occur in
commerce, within the meaning of Section 2 (6) of the Act.
2 Oil Workers International Union, affiliated with the Congress of Industrial
Organizations, is a labor organization, within the meaning of Section 2 (5) of
the Act.
3. The respondent has not engaged in unfair labor practices as alleged in the
complaint, within the meaning of Section 8 (1) and (3) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the complaint be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective July 12, 1944, as amended,
any party or counsel for the Board may within fifteen (15) 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, Rochambeau
Building, Washington, 25, 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 objec-
tions) as he relies upon, together with the original and four copies of a brief in
U "Knock poker " is played with dominoes.
MILLS I BENNETT 1123
support thereof Immediately upon the filing of such statement of exceptions
and/or bi ief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the parties and shall file a copy with the Regional Director.
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 ten (10) days from the date of the order transferring the case to
the Board.
Howes: D MyEas,
Trial Examiner.
Dated May 18, 1045