Mission Oil Co.

National Labor Relations Board - Board Decisions

Feb 24, 1950

88 N.L.R.B. 743 (N.L.R.B. 1950)

In the Matter of MISSION OIL COMPANY and OIL WORKERS INTER-
NATIONAL UNION, CIO
In the Matter of HARRY C . LONG, AN INDIVIDUAL and OIL WORKERS
INTERNATIONAL UNION, CIO
In the Matter of REAL OIL COMPANY and OIL WORKERS INTER-
NATIONAL UNION, CIO
In the Matter Of PADRE OIL COMPANY and Ou. WORKERS INTER-
NATIONAL UNION, CIO
Cases Nos. 20-CA-- 14, 20-CA-258, 20-CA-259, and 00-CA-260.-
Decided February 24, 1950
DECISION
AND
ORDER
On November 22, 1949, Trial Examiner William E . Spencer issued
his Intermediate Report in the above-entitled proceeding , finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices, and recommending that they cease and desist there-
from , and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto.'
On November 22, 1949 , the Respondents filed a "Motion to Set Aside
Hearing, Findings of Fact , Conclusions of Law and Intermediate
Report." 2 This motion is based upon the alleged "inadvertence or
excusable neglect" of Respondents ' counsel .3 The Respondents assert,
in their motion, that they employed the services of one Forline, an
industrial relations counsel , to represent them in this matter ; supplied
him with all pertinent facts; and assumed that he would take the
I Pursuant to Section 203.33 ( b) of National Labor Relations Board Rules and Regulations
these cases were consolidated by order of the Regional Director for the Twentieth Region
( San Francisco , California) on July 26, 1949.
2 Although directed to the Trial Examiner , this motion was considered and is passed
upon by the Board because it was not filed until the cases were transferred to the Board.
See Section 203.47 of National Labor Relations Board Rules and Regulations.
3 Although served with the complaint , order of consolidation, and notice of hearing on
July 26, 1949, more than 75 days prior to the hearing date, no answer was filed by any of
the Respondents, and no appearance was made at the hearing by or on behalf of any of the
Respondents.
88 NLRB No. 147.
743
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary steps to protect their rights. The Respondents aver that
they were unaware, prior to the hearing, that Forline had failed to
file an answer to the complaint. They also allege that at the time
of the hearing, Harry Long, one of the Respondents and the president
and general manager of the other three, was ill and confined to a.
hospital ; that Forline was advised of this fact prior to the hearing
and directed to take the necessary steps to secure a continuance; and
that, for some reason unknown to the Respondents, Forline did not
appear at the hearing or personally request from the Trial Examiner
a continuance of the hearing.'
It is axiomatic that parties be given every reasonable opportunity
to present their case to the Board. The test of reasonableness, how-
ever, must also take into consideration the convenience and rights of
other parties and it imposes a degree of responsibility on a principal
for the conduct of his authorized representative .5 To ignore these
latter considerations would itself be unreasonable. The Respondents
before us were served with a copy of the complaint 6 and notice of
hearing well in advance of the hearing date. The hearing was held
and the Respondents were afforded full opportunity to appear, in
person or by representative, and properly to submit all relevant mo-
tions and testimony for the consideration of the Trial Examiner. The
Respondents did not do this, however, and they now contend that their
failure to do so was occasioned by Forline's neglect.
Mere neglect or inadvertence, in and of itself, does not constitute
sufficient basis for setting aside a judgment or finding; the neglect or
inadvertence must be excusable ,7 and real and practical grounds for
' The record discloses that on the afternoon of October 10, 1949 , the day preceding the
hearing date , Forline spoke with the counsel for the General Counsel and the Regional
Director for the Twentieth Region and sought to obtain an agreement for a continuance on
the ground that Long was ill in a hospital . Counsel for the General Counsel not only
refused to agree to a continuance but stated that he would oppose any continuance in the
proceeding . Forline thereupon stated that he would not be present at the hearing on the
following day and requested the counsel for the General Counsel to convey his position to
the Trial b xaminer, a request with which counsel for the General Counsel complied. As
heretofore noted, Forline did not appear at the hearing . For the reasons set forth in the
Intermediate Report, the Trial Examiner directed that the hearing proceed.
I In accordance with this principle , it is generally held that the conduct of an attorney
is regarded as that of the client . Ledwith v . Storkan (D. C. Neb .), 2 FRD 539. See 3a
Am. Jur. 159, Sec. 152.
6 Section 203.20 of the Board Rules and Regulations specifically provides that respondents
shall file an answer to the complaint within 10 days after receipt thereof and that "all
allegations in the complaint , if no answer is filed, . . . shall be deemed to be admitted to
be true and may be so found by the Board ." However, the Trial Examiner accepted testi-
mony on the, merits of the allegations in the complaint and made his findings thereon,
despite the lack of an answer.
7 Rule 60 (b) of the Rules of Civil Procedure for the United States District Courts, as
amended , provides in part :
On motion and upon such terms as are just , the court may relieve a party or his
legal representative from a final judgment, order , or proceeding for the following
reasons : ( 1) mistake , inadvertance , surprise , or excusable neglect ; . . . [Emphasis
supplied.]
MISSION OIL COMPANY 745
excuse must be factually shown in support of the motion." Under
the circumstances of this case, we do not consider that the unexplained
failure of the Respondents' representative to appear at the hearing is
a proper basis for granting a new hearing.9 Accordingly, the
Board to finds no merit in the Respondents' motion and it is hereby
denied.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner 11
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 Respondents, Mission Oil Company,
Harry C. Long, Real Oil Company, and Padre Oil Company, Raisin
City Field, Kerman, California, their officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with Oil Workers Inter-
national Union, CIO, as the exclusive representative of all production
and maintenance employees at their Raisin City Field operations,
excluding clerical and office employees and all supervisors as defined
in the Act;
(b) Discouraging membership in Oil Workers International Union,
CIO, or in any other labor organization of their employees, by dis-
charging employees or by discriminating in any other manner in
regard to their hire or tenure of employment or any term or condition
of employment;
(c) Interrogating employees concerning their union affiliations, or
in any other manner interfering with, restraining, or coercing their
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Oil Workers International Union,
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
8 Ledwith v. Storkan, supra.
9 Hiller Rubber Co. v. Hassey, 36 F. 2d 466 (C. A. 7), certiorari denied 281 U. S. 749.
11 Pursuant to Section 3 (b) of the Act, the National Labor Relations Board has delegated
its powers in connection with this proceeding to a three-member panel [Members Houston,
Reynolds, and Murdock].
11 No exceptions were filed to the Trial Examiner's dismissal of certain allegations of
independent violations of Section 8 (a) (1).
746 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
or protection as guaranteed in Section 7 of the Act, or to refrain from
any or all of such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action, which the Board finds is
required to effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Oil
Workers Union, CIO, as the exclusive representative of their em-
ployees in the appropriate unit described above, and, if an under-
standing is reached, embody such understanding in a signed contract;
(b) Offer to Claude McDaniel, Robert Ackerman, E. H. Haynie,
and Alvin H. Eisner full and immediate reinstatement to their former
or substantially equivalent positions, without prejudice to their sen-
iority and other rights and privileges;
(c) Make whole the employees named above for any loss of pay
they may have suffered by reason of Respondents' discrimination
against them, by payment to each of them of a sum of money equal to
the amount which he normally would have earned as wages from the
date of his discharge to the date of Respondents' offer of reinstate
ment, less his net earnings during that period;
(d) Post copies of the notice attached hereto and marked as Ap-
pendix A.12 Copies of said notice, to be furnished by the Regional
Director for the Twentieth Region, shall, after being signed by Re-
spondents' representative, be posted by Respondents immediately
upon receipt thereof and maintained by them for sixty (60) days
thereafter, in conspicuous places, including all places at their Raisin
City Field operations where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to insure
that said notices are not altered, defaced, or covered by any other
material; and
(e) Notify the Regional Director for the Twentieth Region in writ-
ing within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
n In the event this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words, "A DECISION AND ORDER ," the words, "A.
DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING."
MISSION OIL COMPANY 747
117E WILL NOT interrogate our employees concerning their union
affiliations, or in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations, to join or assist the OIL WORKERS
INTERNATIONAL UNION, CIO, or any other labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8 (a) (3) 'of the Act.
WE WILL OFFER to those employees listed below reinstatement
to their former or substantially equivalent positions without prej-
udice to seniority or other rights and privileges previously en-
joyed, and we will make these employees whole for any loss of
pay suffered as a result of the discrimination.
Claude McDaniel Robert Ackerman
E. H. Haynie Alvin H. Kisner
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment, or other conditions of employment, and if
an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All production and maintenance employees at our Raisin City
Field operations, excluding office and clerical employees, and all
supervisors.
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not
discriminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any labor organization.
MISSION OIL COMPANY,
PADRE, OIL COMPANY,
REAL OIL COMPANY,
HARRY C. LONG,
Ernployers.
Dated------------------ By ---------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Nathan R. Berke, Esq., San Francisco, Calif., for the General Counsel.
Mr. Homer Coffman, Coalinga, Calif., for the Union.
STATEMENT OF THE CASE
Upon charges duly filed by Oil Workers International Union, C10, herein
called the Union, the General Counsel of the National Labor Relations Board,'
by the Regional Director of the Twentieth Region (San Francisco, California),
issued his complaint dated July 26, 1949, against Mission Oil Company, herein
called Mission, Real Oil Company, herein called Real, Padre Oil Company, herein
called Padre, and Harry C. Long, an individual, herein called Long, alleging that
Mission, Real, Padre, and Long, jointly called herein the Respondents, and
each of them, had engaged in and were engaging in unfair labor practices af-
fecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and
Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, as
amended by the Labor Management Relations Act, 1947, 61 Stat. 136, herein
called the Act 2 Copies of the charges and the complaint, together with notice
of hearing, were duly served upon the parties.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondents, and each of them, violated Section 8 (a) (1) and (3) of the
Act by discharging on various dates in March 1949, four named individuals,
because of their union and concerted activities; 8 (a) (1) and (5), by refusing
to bargain collectively with the Union, the duly designated representative of its
employees in an appropriate unit; and 8 (1), by specifically enumerated state-
ments and conduct constituting interference, restraint, and coercion.
The Respondents filed no answer.
Pursuant to notice a hearing was held at Fresno, California, on October 11,
1949, before the undersigned Trial Examiner duly designated by the Chief Trial
Examiner. The General Counsel and the Union were represented at the hear-
ing where full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
The Respondents did not appear at the hearing but at its opening the under-
signed was informed by the General Counsel, acting at the request of Respond-
ents' representative, John M. Forline, that the Respondents desired a continu-
ance of 10 days on the ground that Long, one of the Respondents and president
of all the Respondent Companies, had entered a hospital on the Saturday pre-
ceding the opening of the hearing. The Respondents' request for a continuance
was first made to the General Counsel's representative on the. day preceding
the hearing and appears to have been addressed in the first instance to the
Regional Director. Forline was advised that the General Counsel, having al-
ready subpoenaed witnesses for the opening day of the hearing, vigorously opposed
any continuance, and it was suggested that after the General Counsel had pre-
sented his case-in-chief that Forline might appropriately at that time move for
a continuance before the Trial Examiner. Forline, who was in Fresno, the place
of the hearing, at the time of his conversation with the General Counsel, stated
that he would not appear at all at the hearing. The General Counsel, while
' The General Counsel and his representative at the hearing are called herein the General
Counsel ; the National Labor Relations Board is called the Board.
2 The complaint was hued upon a consolidation of cases numbered 20-CA-214, 20-CA-
258, 20-CA-259, and 20-CA-260, respectively, pursuant to the Regional Director 's order
dated July 26, 1049.
MISSION OIL COMPANY 749
agreeing to communicate the respondents' request for a continuance to the Trial
Examiner, advised Respondents' representative that he would oppose the granting
of the request. Respondents, therefore, were fully apprised, in advance of the
hearing, and beyond the requirements of due process, that the hearing would be
opened on schedule and that the General Counsel would oppose the granting
of a continuance. Nevertheless, the Respondents chose not to appear at the
hearing. The ground upon which the Respondents presumably would have
sought a continuance had they appeared at the hearing, therefore lacked such
authentication as would have enabled the Trial Examiner properly to pass upon
its merits, and was in fact questioned by the General Counsel. In any event, the
proper functioning of the judicial process, of which this hearing is an integral
part, requires at the least that a request for a continuance, such as was ap-
parently contemplated here, be presented to the Trial Examiner by a representa-
tive of the party who seeks the continuance, together with such authentication
of the ground upon which the continuance is sought as may be required by the
-circumstances. There having been no proper presentation of a motion for a
continuance before the Trial Examiner, the General Counsel was directed to
proceed. The General Counsel thereupon moved for judgment on the pleadings
because of Respondents' default in failing to file an answer? The undersigned
granted this motion but in effect modified the ruling by admitting evidence
proffered by the General Counsel in support of the allegations of the complaint.
Upon the undenied allegations of the complaint, from my observation of the
witnesses, and upon the entire record, I, the undersigned Trial Examiner, make
the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS'
I.
Mission Oil Company is and at all times herein involved has been a California
corporation with its principal office in Los Angeles, California, and is engaged
in the production, manufacture, transportation, sale, and distribution of crude
oil. It owns and operates wells producing crude oil in the Raisin City Field at
Kerman, California.
During the year 1948, the value of crude oil produced by Respondent Mission
in the State of California was in excess of $100,000, all of which production was
sold within the State of California to the Shell Oil Company, a corporation en-
gaged in interstate commerce within the meaning of the Act. During the same
period, Respondent Mission purchased tools, gasoline, supplies, and equipment
valued at approximately $5,000. The tools, gasoline, supplies, and equipment so
purchased by Respondent Mission were secured from sources located within the
State of California but approximately 50 percent of such tools, gasoline, sup-
plies, and equipment was manufactured, processed, fabricated, and assembled at
places located outside the State of California.
3 Section 203.20 of the Board 's Rules and Regulations provides :
"All allegations in the complaint , if no answer is filed, or any allegations in the complaint
not specifically denied or explained in an answer filed, unless the respondent shall state in
the answer that he is without knowledge , shall be deemed to be admitted to be true and
may be so found by the Board."
4 The findings under this heading are based on the undenied allegations of the complaint
supplemented by the testimony of William Jeremiah Walbridge and Robert Warren
Loveless, Sr.
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H.
Harry C. Long, an individual, is, and at all times herein involved has been, a
resident of the State of California and is engaged in the production, manufacture,
transportation, sale, and distribution of crude oil. Respondent Long owns and
operates a well known as the Jones well, which produces crude oil in the Raisin
City Field at Kerman, California. During the year 1948, the value of crude oil
produced by Respondent Long from the Jones well was in excess of $10,000, all
of which production he sold to the Union Oil Company, a corporation engaged
in interstate commerce within the meaning of the Act. During the same period,.
Respondent Long purchased tools, supplies, and equipment valued in excess of
$5,000. The tools, gasoline, supplies, and equipment so purchased by Respondent
Long were secured from sources located within the State of California but ap-
proximately 50 percent of such tools, gasoline, supplies, and equipment was
manufactured, processed, fabricated, and assembled at places located outside the
State of California.
Real Oil Company is, and at all times herein involved has been, a California
corporation with its principal office in Los Angeles, California, and is engaged in
the production, manufacture, transportation, sale, and distribution of crude oil.
It owns and operates wells producing crude oil in the Raisin City Field at
Kerman, California.
During the year 1948, the value of crude oil produced by Respondent Real in
the State of California was in excess of $10,000, all of which production it
sold within the State of California to the Shell Oil Company, a corporation en-
gaged in interstate commerce within the meaning of the Act. During the same
period, Respondent Real purchased tools, gasoline, supplies and equipment valued
in excess of $5,000. The tools, gasoline, supplies, and equipment so purchased
were secured from sources located within the State of California but approxi-
mately 50 percent of such tools, gasoline, supplies, and equipment was manu-
factured, processed, fabricated, and assembled at places located outside the State
of California.
IV.
Padre Oil Company is, and at all times herein involved has been, a California
corporation with its principal office in Los Angeles, California, and is engaged
in the production, manufacture, transportation, sale, and distribution of crude
oil. It owns and operates wells producing crude oil in the Raisin City Field at
Kerman, California.
During the year 1948, the value of crude oil produced by Respondent Padre in
the State of California was in excess of $50,000, all of which production it sold
within the State of California to the Shell Oil Company, a corporation engaged
in interstate commerce within the meaning of the Act. During the same period,
Respondent Padre purchased tools, gasoline, supplies, and equipment in the
approximate amount of $40,000, of which amount $30,000 represented the purchase
of tools, gasoline, supplies, and equipment manufactured, processed, fabricated,
and assembled at places located outside the State of California.
V.
The Respondents Mission, Padre, and Real and each of them are continuing to
sell all of their production of crude oil to the Shell Oil Company and Respondent
MISSION OIL COMPANY 751
Long is continuing to sell all of his production of crude oil to the Union Oil
Company.
I find that Mission, Real, Padre, and Long, and each of them, are engaged in
commerce within the meaning of the Act.
II. THE LABOR ORGA\ IZATION INVOLVED
Oil Workers International Union is a labor organization affiliated with the
Congress of Industrial Organizations and admits to membership employees of
the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The joint and several liability of the Respondents °
Involved herein are Respondents' operations in the Raisin City Field of oil
production at Kerman, California. That they are jointly and severally answer-
able for the commission of the unfair labor practices found herein, is established
by the fact that although their employees, or some of them, were paid by Mission
checks, they were hired by Respondent Long or his agent, were subject to his
orders and directions, and worked at the operations of each pursuant to his di-
rections. It further appears that Long is president of each of the Respondents
and generally controls and directs the operations of each in the Raisin City Field.
In any event, it is clear that Respondent Long acted in a managerial capacity on
behalf of each of the Respondents in matters affecting personnel, including the
hiring and discharging of employees. His actions and conduct in his said man-
agerial capacity are therefore binding on each of the Respondents.
B. The refusal to bargain, 9
1. The appropriate unit and the Union's representation of a majority therein
It is found, substantially as alleged in the complaint, that all production and
maintenance employees, excluding clerical, office, and supervisory employees as
defined in the Act, employed by the Respondents and each of them in their Raisin
City Field of operations, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of the Act.
Evidence adduced at the hearing established that there were eight employees
in the above-described appropriate unit on March 15, 1949, and that at least
six of these employees affiliated with the Union on that date and specifically
authorized it to represent them in collective bargaining with the Respondents.
Accordingly, it is found, substantially as alleged in the complaint, that on March
15, 1949, a majority of the employees of the Respondents in an appropriate unit
designated the Union as their representative for the purposes of collective bar-
gaining with the Respondents, and that on and after that date and at all times
material herein, the Union has been the representative for the purposes of collec-
tive bargaining of a majority of the employees in said unit, and by virtue of
Section 9 (a) of the Act, was on March 15, 1949, has been since and now is the
exclusive representative of all the employees in said unit for the purposes of
"Findings under this title are based on the undenied allegations of the complaint charging
the Respondents and each of them with the commission of the alleged unfair labor practices,
and the credible testimony of witnesses for the General Counsel.
9 Findings under this title are based on the undenied allegations of the complaint supple-
mented and supported by the credible testimony of witnesses for the General Counsel.
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining in regard to rates of pay, wages, hours of employment, and
other conditions of employment. °
2. The refusal
Early in March 1946, Respondents' employees became interested in union
affiliation and invited Homer Coffman, an international representative of the
Union, to assist them in organizing. On the evening of March 15, there was a
meeting of these employees attended by Coffman who had given them their
union cards that day. At this meeting the employees specifically authorized
Coffman to represent them in collective bargaining with their employers.
By letter dated March 16, addressed to Harry Long as president of the Mission
Oil Company, Coffman advised Long that the Union represented a majority
of production and maintenance employees "at your Raisin City Field properties
and operations," requested recognition of the Union as exclusive bargaining
agent of employees in the described unit, and requested that Long set a date for
a bargaining meeting. Long never replied to this letter.
On or about March 19, Long attempted to persuade E. H. Haynie, designated
steward by employees attending the March 15 meeting, to agree on behalf of the
employees to drop the Union and to bargain directly with the Respondents, and
proposed a wage increase as an inducement for such action. Haynie refused,
but stated that he would call a meeting of the employees where they could decide
for themselves whether to drop the Union or to continue with it as their repre-
sentative, and agreed to advise Long of the results of the meeting on the following
morning.
The meeting was held on the evening of March 19, and at this meeting Coffman
drew up a petition at the employees' request. The text of this petition reads:
We, the undersigned employees at Raisin City Field, wish to advise you
that we, unanimously, want the Oil Workers International Union-C. I. O. to
represent us as our bargaining agent.
We respectfully request you to meet with us, and a representative of the
International Union at the yield office, at your earliest convenience, for the
purpose of negotiating a working agreement.
The petition bore the signatures of the following employees : Alvin Harris
Kisner, Robert Warren Loveless, Jr., Robert L. Nason, Robert A. Ackerman, E. H.
Haynie, and Robert W. Loveless, Sr.
Haynie presented this petition to Long on the following morning, March 20;
present with Haynie at the time were Ackerman, Kisner, Nason, Loveless, Jr.,
and Loveless, Sr., Long stated that lie could not understand the employees' atti-
tude in wanting to be represented by a union, and after referring to his father's
experiences during a strike, said : "I will never recognize any union myself."
On or about March 28, Kisner, Ackerman, and Haynie were discharged. On
March 29, Coffman, accompanied by Haynie, met with Long at the latter's office.
Coffman stated the Union's bargaining objectives and gave Long a copy of a
proposed bargaining agreement. Long said that he would discuss the proposed
agreement with his attorneys in Los Angeles, or his Board of Directors,
and that he would notify the Union of a date on which they might meet for a
conference and bargaining on the contract. He also advised Coffman that he
would direct his attorney to reply to the Union's letter of March 16. The Re-
spondents did not thereafter at any time communicate with the Union.
From the foregoing it is clear that the Respondents were duly apprised by the
Union's letter of March 16, that the Union had been designated bargaining repre-
MISSION OIL COMPANY 753
sentative by a majority of their employees in an appropriate unit. Instead of
granting the Union's request for recognition as was their duty unless they enter-
tained bona fide doubts of the Union's majority representation, Respondents at-
tempted to bargain with their employees directly, thus by-passing the Union, and
when these efforts failed, refused and failed to keep their commitments to the
Union's representatives to reply to the Union's request for recognition and to
meet with it in bargaining conferences. Long's statement that he would never
recognize any union was clearly the articulation of a fixed intent and was
quickly implemented by the discharge of leading union adherents.
Accordingly, it is found, substantially as alleged in the complaint, that on
and at all times after March 16, 1949, the Respondents refused to bargain col-
lectively with the Union, and on or about March 20, 1949, attempted to bargain
directly and individually with their employees, and that by these acts the Re-
spondents, and each of them, violated Section 8 (a) (5) of the Act.
On or about April 1, 1949, the Respondents granted their employees a wage
increase retroactive to March 15. This action was unilaterally taken and rep-
resents another by-passing of the employees' bargaining representative, in vio-
lation of Respondents' duty to bargain collectively with it, and a bribe to the
employees to refrain from or to revoke their union affiliation. The Respondents
thereby violated Section 8 (a) (1) and (5) of the Act.
B. The discharges; interference, restraint, and coercion 4
Claude McDaniel was brought to the Raisin City Field by Respondent Long in
August 1948, and employed by Long as a pumper on Respondents' operations.
He had 23 years' prior experience in this type of work. After he had worked for
the Respondents a few days he told Long that he wanted to bring his family into
residence in the Raisin City Field and asked Long if his work was satisfactory.
Long replied, "Your work is satisfactory and you have got a job." McDaniel then
moved his family to the place where he was employed.
On March 15, 1949, McDaniel joined the Union, and thereafter until the day
of his discharge wore his union button. On March 18, Long came to him as he
was changing into his work clothes and told him that he was discharged because of
"friction" with Long's superintendent of production, DeVries. McDaniel obtained
work on a drilling operation in the same field but was not thereafter employed
by Respondents. '
McDaniel testified that he was never reprimanded by DeVries but admitted
that on one occasion DeVries said words to the effect that they would "get some
new faces around here." What reference this had to relationships existing
between McDaniel and DeVries, if any, is too obscure for inference. On no
occasion prior to his discharge had Long spoken to McDaniel concerning any
differences the latter may have had with DeVries. Robert W. Loveless, Sr.,
Respondent ' s roustabout foreman, testified that he considered McDaniel a com-
petent workman. That his union affiliation furnished the motivation for his
discharge is established by Long's statement to him on the occasion of his
discharge, "Get rid of that button and you can come on back to work," and by
statements made by Long subsequent to the discharge, related hereinafter.
E. H. Haynie was employed by Long in February 1948 as a roustabout and
worked on the operations of each of the Respondents in the Raisin City Field.
' Findings under this title are based on the undenied allegations of the complaint supple-
mented by the credible testimony of witnesses for the General Counsel.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He had some 35 years' prior experience as a roustabout and pumper. Alvin
Harris Eisner was employed by the Respondents in February 1949 for roustabout
work, and worked on the properties and wells of Padre, Real, Mission, and
Long. Robert A. Ackerman was employed by the Respondents in December 1948.
Haynie, Kisner, and Ackerman each joined the Union on March 15. It will
be recalled that on March 16, Coffman wrote to Long requesting recognition of
the Union as bargaining representative of Respondents' employers. On or about
March 19, a conversation occurred on Mission 's properties in which Don Long,
Harry Long's brother and an officer of Respondents , asked Haynie what was
wrong and why the men wanted the Union to represent them. He told Haynie,
"... if you aim to work for Harry . . . you had better get out of the
union and do it right now . . . I know Harry, he will never recognize
any union, and furthermore . . . if Harry catches that man [Coffman]
out here he will kick him off the lease." Harry Long then entered the conversa-
tion and asked Haynie why they didn't get together and "iron this out," that he
thought they were old enough to sit down themselves "and talk this over without
bringing that bunch of grafters and chiselers in." Then, as previously related,
Respondent Long proposed that Haynie should agree on behalf of the men to drop
the Union and suggested that he was willing to grant a wage increase. Haynie
countered by saying that he would get the men together and let them decide for
themselves whether to drop the Union.
On the following day, as previously related, Haynie presented Long with a
petition signed by 6 employees, including Haynie, Ackerman, and Kisner, advising
Long that they wanted the Union to represent them. Ackerman and Kisner were
among those present at this meeting with Haynie. It was at this meeting that
Long stated that he would "never recognize any union. ..."
Haynie, Ackerman, and Kisner worked the week of March 20, but when they
reported for work on Monday, March 28, they were discharged. The only reason
given them for the discharge was that there was no work for them, and this
information was relayed to them through Loveless, Sr., from Long. Later,
Haynie saw Long, and Long told him, "Well, Haynie . . . I know you are
a capable man to do pumping or anything, and if you can give up your union
card you would still be at work." Haynie refused to abandon the Union and
the interview was thereupon terminated.
Robert W. Loveless, Sr., Respondents' roustabout foreman, testified that there
was work available for Haynie, Ackerman, and Kisner at the time they were
discharged and that subsequent to their discharge men were brought in from
another Raisin City operation to perform the same kind of work they previously
had done. Robert W. Loveless, Jr., testified to substantially the same effect.
Respondents' motivation in discharging McDaniel, Haynie, Ackerman, and
Kisner is further delineated by conversations occurring between Long and the
two Lovelesses. Loveless, Sr., testified that Long had asked him if Haynie had
anything to do with "organizing the boys." He further testified that he asked
Don Webb, a nephew of Harry Long and an officer of Respondents, "How come
Harry to let Mae go?" Webb replied, "Well . . . Harry had a hunch that
Mac had something to do with organizing the boys." On one occasion Long
questioned Loveless, Sr., about his own union affiliation and when Loveless, Sr.,
told him that he was a union member, told him : "Well, you have been a good
man and I hate to let you go, but . . . if you don't call that son of a bitch
up over there and tell him that you are withdrawing from the union, you don't
need to come back." Loveless, Sr., replied in effect that if he had to give up his
MISSION OIL COMPANY 755
union affiliation he did not want to work for Long. Long said that they would
discuss the matter the next day but did not thereafter mention it.8
Loveless, Jr., testified that in April lie spoke to Long about a job vacancy in
the Raisin City Field and asked if Long could use Haynie. Long replied,
"Junior, I am glad you brought that subject up. That shows what happens to
men like Haynie. He will never get another day's work at the Raisin City
Field." Long further said that he wondered what the "boys' decision" would
be if there was another election-obviously, a reference to the- decision of the
employees on March 19 not to abandon the Union as Long had suggested they
should-and warned Loveless, Jr., that he had better watch his step, that jobs
were hard to get. "You didn't join the union of your own mind," Long told
Loveless, Jr., "Maynie and these others . . . just preached it into your mind to
join the union. .. .
On the day that McDaniel was discharged, Long asked Robert L. Nason why
he was not notified "about this union deal before 15 minutes ago ." Later, on
March 27, Long asked Nason if he had joined the Union, and when Nason replied
that he had , Long said , "You better forget that union stuff , because you are too
young to get mixed up in the union . . . If you don 't forget that union, it is
going to mean your job. You understand, don't you?" Nason replied that he
did understand.
On another occasion , at a local bar where McDaniel happened to be present,
Long asked McDaniel if the Union was paying his wages now. Long then said
to Nason, "See what happened to McDaniel ? The same thing might have
happened to you . . . I have gotten rid of Haynie and those other guys . . .
They haven't worked for me in two weeks now . . . They are out of a job now.
What are they going to do?" Long remarked that of the union employees, only
Loveless , Sr., Loveless , Jr., and Nason were left . "I have got to get enough on
my side to balance things up," Long said.
From the foregoing, it is clear that McDaniel , Haynie, Ackerman , and Kisner
were discharged because of their union affiliation and activities . The record of
this proceeding affords no support for any other conclusion. Accordingly, it is
found , as alleged in the complaint , that the Respondents , and each of them,
discharged McDaniel , Haynie, Ackerman , and Kisner because of their union
and concerted activities , thereby discouraging membership in a labor organiza-
tion, in violation of Section S (a) (1) and (3) of the Act.
It is further found on the basis of the foregoing findings of fact, the undenied
allegations of the complaint , and the entire record , that the Respondents, in
independent violation of Section 8 (a) (1) of the Act:
(1) interrogated employees as to their union affiliations ;
(2) warned and demanded that their employees cease their union activities;
(3) offered and granted a unilateral wage increase to their employees for the
purpose ' of discouraging union affiliation ;
(4) threatened certain of their employees with loss of their jobs if they con-
tinued their union affiliation.
It is alleged that Respondents placed the union activities of their employees
under surveillance. Respondent Long did ask Loveless, Jr., to keep him posted
8 The duties of Loveless , Sr., a roustabout foreman, are not sufficiently developed in the
record to determine the exact scope of his supervisory functions . The matter being in
doubt, no findings of independent 8 (1) violations are based on Long's questioning of
Loveless . Sr., concerning his union affiliation , or other statements of an antiunion character
addressed to Loveless, Sr., personally.
882191-51-49
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on what the "boys were doing about the Union," but Loveless, Jr., did not comply
with this request. There is no other evidence supporting the allegation of
surveillance. It not having been shown that surveillance actually occurred,
there is no finding made,of surveillance. Long's request, itself, however, was
violative of the Act, and it is found that by attempting to induce their employee,
Loveless, Jr., to keep the Respondents informed on the union activities of their
employees, the Respondents violated Section 8 (a) (1) of the Act.
While the record is replete with Respondents' threats of individual job loss
if the employees persisted in their union affiliation and activities, there is no
specific showing that Respondents "threatened to shut down their wells and
cease operations if the employees continued their union affiliation," as alleged in
the complaint. Therefore, no finding of unfair labor practices is based on this
allegation.
It is alleged as a violation of Section 8 (a) (1) that the Respondents "vilified,
disparaged and expressed disapproval of the" Union. Certainly, all of this is
established in the credible testimony of the General Counsel's witnesses, but
vilification, disparagement, and expressed disapproval of a labor organization
by an employer does not per se constitute an 8 (a) (1) violation and no finding
of a violation is based on the said allegation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in Section III, above, occurring
in connection with the operations of the Respondents described in Section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 having been found that the Respondents have engaged in certain unfair
labor practices affecting commerce, it will be recommended that they cease and
desist therefrom and take certain affirmative action which the undersigned finds
is required in order to effectuate the policies of the Act.
The Respondents having discharged Claude McDaniel, Robert Ackerman, E. H.
Haynie, and Alvin H. Kisner because of their union and concerted activities, it
will be recommended that the Respondents offer to each of them immediate and
full reinstatement to his former or a substantially equivalent position,9 without
prejudice to his seniority and other rights and privileges, and make each whole
for any loss of pay he may have suffered by reason of the Respondents' dis-
crimination against him, by payment to each of them of a sum of money equal
to the amount he normally would have earned as wages from the date of his
discharge to the date of the Respondents' offer of reinstatement, less,his net
earnings during the said period.10
It having been found that the Respondents refused to bargain collectively
with the Union as the exclusive representative of their employees in an appro-
priate unit, it will be recommended that the Respondents upon request bargain
collectively with the Union as the exclusive representative of such employees
with respect to rates of pay, wages, hours, and other terms and conditions of
employment.
0The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827.
10 Crossett Lumber Co., 8 NLRB 440.
MISSION OIL COMPANY 757
Because of the Respondents' general and variously manifested hostility to
the efforts of their employees to assert and enjoy the rights guaranteed them
by the Act, it will be recommended that the Respondents cease and desist from
in any manner interfering with, restraining, or coercing their employees in
their union affiliation and activities.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees, excluding clerical, office, and
supervisory employees as defined by the Act, employed by the Respondents in
their Raisin City Field operations at or near Kerman, California, constitute a
unit appropriate for collective bargaining within the meaning of Section 9 (b)
of the Act.
3. Oil Workers International Union, CIO, was on March 15, 1949, at all times
material herein has been and now is, the exclusive representative of all the
employees in the above-described unit for the purposes of collective bargaining
within the meaning of Section 9 (a) of the Act.
4. By refusing on March 16, 1949, and at all times thereafter, to bargain with
Oil Workers International Union, CIO, as the exclusive representative of the
employees in the above-described appropriate unit, the Respondents have engaged
in and are engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of their
employees, Claude McDaniel, Robert Ackerman, E. H. Haynie , and Alvin H.
Kisner, thereby discouraging membership in a labor organization, the Respond-
ents have engaged in and are engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act. -
6. By interfering with, restraining, and coercing their employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the Respondents have en-
gaged in and are engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondents,
Mission Oil Company, Real Oil Company, Padre Oil Company, Harry C. Long, and
each of them, their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Oil Workers International Union,
CIO, as the exclusive representative of their employees in the appropriate unit
described above;
(b) Discouraging membership in Oil Workers International Union, CIO, or
any other labor organization, by discharging or refusing to reinstate any of their
employees or by discriminating in any other manner in regard to their hire and
tenure of employment, or any term or condition of employment ;
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining , or coercing their em-
ployees in the exercise of the right to self -organization , to form labor organiza-
tions, to join or assist the Oil Workers International Union, CIO, or any other
labor organization, to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the Act,
or to refrain from the exercise of such rights.
2. Take the following affirmative action which the undersigned finds is required
to effectuate the policies of the Act :
(a) Upon request bargain with Oil Workers International Union, CIO, as the
exclusive representative of their employees in the appropriate unit described
above;
(b) Offer to Claude McDaniel, Robert Ackerman, E. H. Haynie, and Alvin H.
Kisner full and immediate reinstatement to their former or substantially equiva-
lent positions, without prejudice to their seniority or other rights and privileges;
(c) Make whole the employees named above for any loss of pay they may
have suffered by reason of Respondents' discrimination against them by payment
to each of them of a sum of money equal to the amount which he normally would
have earned as wages from the date of his discharge to the date of Respondents'
offer of reinstatement , less his net earnings during that period ;
(d) Post at their Raisin City Field operations at all such places as notices
to their employees customarily are posted, copies of the notice attached hereto
and marked Appendix A. Copies of said notice, to be furnished by the Regional
Director of the Twentieth Region, shall, after being signed by Respondents' rep-
resentative, be posted by Respondents immediately upon receipt thereof and
maintained by them for sixty (60) days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said notices are not altered,
defaced, or covered by any other material ; and
(e) Notify the Regional Director for the Twentieth Region, in writing, within
twenty (20) days from the receipt of this Intermediate Report and Recommended
Order what steps Respondents have taken to comply herewith.
It is also recommended that unless the Respondents, and each of them, shall
within twenty (20) days from the receipt of this Intermediate Report and
Recommended Order, notify said Regional Director in writing that they will
comply with the foregoing fecommendations, the Board issue an order requiring
said Respondents to take the action aforesaid.
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board, any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report and Recommended Order 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 six copies of a brief in support thereof ;
and any party may, within the same period, file an original and six copies of a
brief in support of the Intermediate Report and Recommended Order. Immedi-
ately upon the filing of such statement of exceptions and/or briefs, the party filing
the same shall serve a copy thereof upon each of the other parties. Statements
of exceptions and briefs shall designate by precise citation the portions of the
record relied upon and shall be legibly printed or mimeographed, and if mimeo-
MISSION OIL COMPANY 759
graphed shall be double spaced. Proof of service on the other parties of all
papers filed with the Board shall be promptly made as required by Section 203.85.
As further provided in said Section 203.46, 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 service of the order transferring
the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules•
and Regulations, be adopted by the Board, and become its findings, conclusions,
and order, and all the objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 22d day of November 1949.
WILLIAM E . SPENCER,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the OIL WORKERS INTERNATIONAL UNION, CIO,
or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or in
refraining from the exercise of such.right.
WE WILL OFFER to those employees listed below reinstatement to their
former or substantially equivalent positions without prejudice to seniority
or other rights and privileges previously enjoyed, and will make all employees
listed below whole for any loss of pay suffered as a result of the discrimina-
tion.
Claude McDaniel Robert Ackerman
H. H. Haynie Alvin H. Kisner
WE WILL BARGAIN collectively upon request with the above- named union
as the exclusive representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of employment, or other
conditions of employment, and if an understanding is reached, embody such
understanding in a signed agreement. The bargaining unit is :
All production and maintenance employees excluding office, clerical, and
supervisory employees, employed by us at our Raisin City Field operations.
All our employees are free to become or remain members of the above-
named union or any other labor organization. We will not discriminate
in regard to hire or tenure of employment or any term or condition of
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment against any employee because of membership in or activity
on behalf of any labor organization.
Dated ------------------
MISSION OIL COMPANY,
PADRE Orr. COMPANY,
REAL OIL COMPANY,
HARRY C. LONG,
Employer.
By ----------------------------
(Representative (Title)
This notice must remain posted for 60 days from the date hereof , and must
not be altered , defaced , or covered by any other material.