Phillips Petroleum Co.

National Labor Relations Board - Board Decisions

Dec 15, 1942

45 N.L.R.B. 1318 (N.L.R.B. 1942)

In the Matter of PHILLIPS PETROLEUM COMPANY and OIL WORKERS
INTERNATIONAL UNION, LOCAL No. 348, AFFILIATED WITH THE CON-
GRESS OF INDUSTRIAL ORGANIZATIONS
Case No. C-2317.-Decided December 15, 1942
Jurisdiction : petroleum refining industry.
Unfair Labor Practices
Company-Dominated Unions; Interference, Restraint, and Coercion: first organi-
zation organized and controlled by the respondent prior to the Act continued to
function until it was supplanted by a successor after the Act had been in
effect-second organization: held to,be the successor of first dominated organi-
zation when : formed by officers of its predecessor at the request of the respond-
ent;_was supported and assisted by. use of company time and property; anti-
union statements by supervisors and officials; respondent's approval of the
circulation of an anti-union petition by one of its employees; and expressions
of preference for "inside" union by representatives of respondent-third or-
ganization: held to be the direct successor of the second organization- when:
formation was suggested by representatives of second organization at a meet-
ing on company time aid property ; first meeting was arranged by said rep-
resentatives who also conducted the initial election of officers; second organi-
zation-,did not dissolve until after its successor had been accorded recognition
by the respondent; and respondent had failed to mark separation between the
two organizations; approval, interference, and support: holding employee
meetings and granting wage increase to offset organization activity of "outside"
union; expressions of preference for "inside" union by company official; grant-
ing of a closed-shop contract. - '
Disartimtnation: discharge of three employees because they refused to join "inside"
,labor organization pursuant to the terms of a closed-shop agreement found to
be invalid; charges of, dismissed as to the failure to promote one employee.
Remedial Orders : respondent ordered to refuse recognition to predecessor-domi=
nated organizations in the event of their revival, and to disestablish the existing
successor dominated organization; to- abrogate' outstanding closed-shop con-
tract; respondent ordered to reinstate with back pay three cbscrnninatorily
discharged employees
Definitions : second dominated- organization held to be a labor organization
within' the meaning of Section 2 (5), although it had no constitution, bylaws,
membership requireineuts, of dies, when this organization acted for and on
behalf of employees in dealing with the respondent and certain bargaining
contracts were negotiated by or through said organization.
DECISION
AND
.ORDER
On August 31, 1942, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
45 •N L. R B., No. 184
1318
PHILLIPS PETROLEUM COMPANY 1319---
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and that it take
certain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the respondent and the Inde-
pendent filed exceptions to the Intermediate Report and briefs in
support of the exceptions. The Board has considered the rulings made
by the Trial Examiner at the hearing and finds that no prejudicial
error was, colnm itted. The rulings are hereby affirmed.
On November 6,1942, the Board, on motion of the Regional Attorney
and after due notice to the parties, issued an Order reopening The
record herein, authorizing the Regional Director to accept a supple-
mental charge and to issue a supplemental complaint thereon, and
directing that a further hearing be held. On November 13, 1942, prior
to any further hearing herein, the respondent, the Independent, and
an attorney for the Board entered into a stipulation as to the following
additional facts: that the respondent, on or about September 11, 1942,
"terminated the employment of Everett O. Harvey, still helper, and
John Myers, still helper, employees of Respondent, in its Kansas City,
Kansas, Refinery, for the sole reason that they failed and refused to
become and remain members in good standing of the LIndependent],
as required by the provisions of Section 2 of time Working Agreement
between Respondent and [the Independent], dated March 3,1942, copy
of which appears in the record in the above-entitled case as Board's
Exhibit No. 16; and since the respective discharges of the said Everett
0. Harvey and John Myers, Respondent has failed and refused and-
does-now fall and refuse to reinstate them and each of them for that
and no other reason." The stipulation also provided that the com-
plaint herein be amended to allege that the discharges of Harvey and
Myers were discriminatory, within the meaning of Section 8 (3) of the
Act; that the respondent's answer be amended to admit the discharges
.of Harvey and Myers and the reason therefor, but to deny that the
discharges constituted unfair labor practices, within the meaning of
the Act; that the stipulation be admitted as part of the record herein;-
and that the parties waive "a further hearing, the taking of testimony
or other evidence, the niakng of proposed findings or the issuance of
an Intermediate Report, with regard to the subject matter of this
stipulation." 1 The stipulation is hereby ordered made a part of the
record in the present proceeding.
Pursuant to notice, a hearing was held before the Board at Wash-
ington, D. C.; on November 5, 1942, for the purpose of oral argument.
IIt was also stipulated that the respondent had entered into a number of collective
bargaining agreements with labor organizations other than the Independent containing
provisions "snuilar in 'mtent" to section 2 of the working Agreement of March i, 19.12,
between the respondent and the Independent , making union membership a condition of-
employnient . We deem these facts irrelevant to our decision herein
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Independent was represented by counsel and participated in the
hearing; the respondent and the Union did not appear.
The Board has considered the Intermediate Report, the exceptions
and briefs, the stipulation of November 13, 1942, and the entire record
in the case , and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner, with the exception and addition
noted below.
1. The Trial Examiner has found that the contracts of March 24,
1937, July 1, 1941, and September 1, 1941, were collective agreements
between the respondent and a labor organization of its employees,
viz, the Representatives. We do not deem it necessary to a decision
herein to determine whether these contracts were in legal effect col-
lective contracts between the respondent and the Representatives or
individual contracts between the respondent and its employees. Re-
gardless of their legal effect, the contracts were negotiated by the re-
spondent with or through the Representatives as the bargaining agent
for the employees; and we agree with the Trial Examiner's findings
that the Representatives were dominated and supported by the re-
spondent and that through them the Independent was subsequently-
organized.
2. The'Trial Examiner, has found that the respondent's discharge
cif Kenneth W. Mears on April 10, 1942, pursuant to the provision in,
the contract between the respondent and the Independent making
membership in the latter a condition of employment, was improper
because the Independent is a dominated and assisted labor organiza-
tion. We have adopted this finding. The parties have since stipu-
lated that on or about September 11, 1942, the respondent similarly
terminated the employment of Everett O. Harvey and John Myers,
still' helpers at the Kansas City refinery, because they failed and re-
fused to become and remain members in good standing of the hide-
pendent, as required by the contract of March 3, 1942, between the
respondent and the Independent. For the reasons stated by the Trial
Examiner in his findings as to the Mears discharge, we find and con-
clude that the respondent, by thus discharging Everett O. Harvey and
John Myers on or about September 11, 1942, and by refusing there-
after to reinstate them, discriminated in regard to their hire and
tenure of employment, and thereby discouraged membership in the`
Union and interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act. To
effectuate the purposes of the Act, we shall order the respondent to
offer Harvey and Myers, as well as Kenneth W. Mears, immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and privi-
leges, and to make them whole for any loss of pay they may have
PHILLIPS PETROLEUM COMPANY '1321
suffered because of the respondent's discrimination against them by
paying to each of them a sum of money equal to the amount which
he would normally have earned as wages from the date of his dis-I
charge to the date of the respondent's offer of reinstatement, less his
net earnings during such period.2
- 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 respondent, Phillips Petroleum Company, Kan-
sas City, Kansas, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Phillips
Plan of Employee Representation, The Employee Representatives, and
Phillips Employees Independent Union of the Phillips Refinery of
Kansas City, Kansas, or with the formation or administration of any
other labor organization of its employees, and from contributing sup-
port to said labor organizations or to any other labor organization of
its employees;
(b) Recognizing Phillips Employees'Independent Union of the Phil-
lips Refinery of Kansas City, Kansas, as the representative of any of
its employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours' of employ-
ment, or other, conditions of employment;
(c) Giving effect to its contract of March 3, 1942, with Phillips
Employees Independent Union of the Phillips Refinery of Kansas
City, Kansas, or to any modification, extension, supplement, or renewal
thereof, or to any superseding contract with it;
(d) Discouraging membership in Oil Workers International Union,
Local No. 348, affiliated with the Congress of Industrial Organiza-
tions, or any other labor organization of its employees, by discriminat-
ing in regard to the hire or tenure of employment of any of its em-
ployees or any term or condition of their employment;
(e) In any manner interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, 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) Withdraw all recognition from, and completely disestablish,
Phillips Employees Independent Union of the Phillips Refinery of
2 "Net earnings" are defined in footnote 64 of the Intermediate Report.
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kansas City , Kansas , as the representative of any of its employees for
the purpose of dealing with the respondent concerning grievances,
labor disputes , wages , rates of pay, hours of employment , or other con-
ditions of employment, and refrain from recognizing Phillips Plan of
Employee Representation or The Employee Representatives should
either ever return to active existence;
(b) Offer to Kenneth W.'Mears, Everett O. Harvey , and John
Myers immediate and full reinstatement to their former or substan-
tially equivalent positions , without prejudice to their seniority and
other rights or privileges;
(c) Make whole Kenneth W . Mears, Everett O. Harvey, and John
Myers for any loss of pay they may have suffered by reason of the
respondent 's discrimination against them , *by payment to each of them
of a sum of money equal to the amount which he would normally have
earned as wages during the period from the date of his discriminatory
discharge to the date of the respondent 's offer of reinstatement; less
his net earnings during that period;
(d) Post immediately in conspicuous places throughout its Kansas
City, Kansas , refinery, and maintain for a period of at least sixty (60)
consecutive days from the date of posting, notices to its employees
stating: ( 1) that the respondent will not engage in the conduct from
which it is ordered to cease and desist in paragraphs 1 (a), (b), (c),
(d), and ( e) of this Order; ( 2) that the respondent will take the af-
firmative action set forth in paragraphs 2 (a), (b), and ( c) of this
Order; and ( 3) that the respondent 's employees are free to become and
remain members of Oil Workers International Union, Local No. 348,
affiliated with the Congress of Industrial Organizations , and that the
respondent will not discriminate against any employee because of
membership in , or activity on behalf of , that organization ; -
(e) Notify the Regional Director for the Seventeenth Region; in
writing, within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith. -
INTERMEDIATE REPORT
Mr Eu gene R. Melsom , for the Board.
illr II ZI Booth-, of Kansas City , DIo. and il l ' Morgan 117 Bddleniani. of Bar-
tlesville , Okla, for the respondent.
Mr Thomas M Vane, Cleave, Ji., of Kansas City,•Kans, for the Independent.
STATEMENT OF THE CASE
Upon a second amended charge, duly filed on June 23; 1942, by Oil Workers
International Union, Local No 348, affiliated with the Congress of Industrial
Organizations, herein called the Union, the National Labor Relations Board, herein
PHILLIPS PETROLEUM COMPANY - - 1323
called the Board,'by the Regional Director for the Seventeenth Region (Kansas
City, Missouri), issued its complaint, dated June 23, 1942, against Phillips Petro-
leum Company, herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affects ng•commerce within
the meaning of Section 8 (1), (2) and (3) and Section 2 (6) and (7) of the
National Labor Relations Act, 41) Stnt 449, herein called the Act. Copies of the
complaint, accompanied by notices of hearing thereon, were duly served upon the
respondent, the Union, and the Phillips Employees Independent Union of the
Phillips Refinery of Kansas City, Kansas, herein called the Independent. `
With respect to the unfair labor practices, the complaint alleged in substance
that at its Kansas City, Kansas, refinery the respondent: (1) about September 1,
1933, established a labor organization known as the Phillips Plan of Employee
Representation, herein called the Plan, and thereafter dominated said organiza,-
tion and contributed financial and other support thereto ; (2) about March 1, 1937,
established a labor organization known as The Employee Representatives, herein
called the Representatives, as a successor to the Plan and thereafter dominated
and contributed snppoit to said organiz.tion in several specified ways,; (3) about
November 1, 1911, caused the Independent to lie formed as a successor to the
Representatives, and thereafter dominated said organization and interfered
with its administration and contributed financial and other support thereto;'(4)
about April 13, 1942, terminated the employment of Kenneth 117 Mears because he
refused to .mai ntai n membership in good standing in the Independent in accord-
ance with the provision of the Working Agreement executed by the Independent
and the respondent on or about March 3, 1942, and thereafter refused to reinstate
him'; and (5) on or about July 5, 11351, and thereafter interfered with, restrained
and coerced its employees by (a) uttering statements dispiuagi ng the Union; (b)
causing employees to be spied upon ; (c) threatening discharge because of affilia-
tion with or activities on behalf of the Union; (d) permitting circulation of peti-
tions disparaging the Union;_(e) questioning employees concerning the number
and identity of union inenibers; (f) obstructing organizational attempts by the
Union by. requiring the presence of employees at meetings scheduled to interfere
with attendance at meetings of the Union ; (g) granting blanket pay increases
at times and under conditions calculated to thwart organizational attempts by
the Union ; and (h) refusing to promote employees because of their union affilia-
tions or activities
Pursuant to notice, a heating was held from July 6 to July 22, 1942, inclusive,
at Kansas City, Missouri, before the undersigned, Earl S. Bellman, the Trial
Examiner duly designated by the Chief Trial Examiner At the opening of the
hearing, a motion to intervene which had been filed by the Independent on July,
3, 1942, with the Regional Director was referred to the undersigned for ruling
Intervention was permitted with respect to the allegations of tine complaint
pertaining to the Independent. Before the taking of evidence a motion was
filed by the respondent to make the complaint more definite and certain The
motion was granted in respect to most of the particulars requested Thereafter
the respondent and the Independent filed their respective answers'
In its answer the respondent denied that the Plan or the Representatives were
labor organizations within the meaning of the Act and that the respondent had
dominated and interfered with and contributed support to the Plan, the Repre-
sentatives, or the Independent. The respondent admitted that it had discharged
' The respondent's answer was filed on July 6, 1942, before evidence was taken The
Independent's answer was filed on July 13
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mears in accordance with the provisions of the Working Agreement with the
Independent because Mears had failed to maintain his membership in good stand-
ing, but denied that in so doing it had engaged in an unfair labor practice,
contending that Mears had been discharged in compliance with a provision of a
valid contract • The respondent also denied that it had engaged in any of the
forms of interference, restraint and coercion set forth in the complaint. In its
answer the Independent denied that the Representatives is or was a labor-
organization and that the Independent was'a successor of the Representatives.
The Independent further denied in effect that it had been in any way formed,
'interefered with, dominated or assisted by the respondent or any agent thereof
and alleged that about March 3, 1942, it had entered into a valid working agree-
ment with the respondent as the duly designated representative of a majority
of the employees in an appropriate unit at the respondent's Kansas City Refinery.
At the above-mentioned hearing, the Board, the respondent, and the lude-
pendent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine, and to cross-examine witnesses, and to
introduce evidence, hearing upon the issues was afforded all parties. At the
close of the hearing, a motion, joined in by all parties, was granted conforming
the pleadings to the proof in regard to such matters as dates and the spelling
of names. Ruling was reserved on motions by the respondent and the Inde-
pendent to dismiss allegations of the complaint? Both motions are hereby
denied. The parties were afforded, but waived, opportunity for oral argument
before the undersigned. Briefs have been filed by the respondent and the
Independent.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The respondent, Phillips Petroleum Company, is and has been since 1317 a
corporation organized under the laws of the State of Delaware. Its principal
office is in Wilmington, Delaware, and its principal operating offices are in
Bartlesville, Oklahoma, and New York City. Since its incorporation, the re-
spondent has been engaged continuously in the business of refining, processing,
transporting, distributing, and selling petroleum and petroleum products. The
respondent maintains and operates refineries at Okmulgee, Oklahoma, Borger,
Texas, and Kansas City, Kansas. It also maintains and operates in excess of
600 miles of pipe line in the States of Oklahoma. Kansas, Texas and Missouri.
The respondent has operated its Kansas City, Kansas, refinery, its sole oper-
ation involved in this proceeding, since 1930 when it acquired the property
through merger. At the present time the approximate capacity of the Kansas
City Refinery is 23,000 barrels of crude petroleum per day. The approximate
average number of hourly paid employees at the Kansas City Refinery is 450.°
In the conduct of its business during the calendar year 1941, the respondent
caused approximately 7,000,000 barrels of petroleum to be processed at its Kansas
City Refinery. During that year, approximately 80 percent of the product of that
refinery was sold and distributed in and through States other than the State of
Kansas.
2 The respondent's motion went to all the complaint while the Independent s motion
went only to allegations upon which it isas permitted to intervene.
8 The' above figure excludes approximately 200 supervisory, clerical, and other non-
operating personnel
PHILLIPS -PETROLEUM COMPANY 1 325
II THE ORG kNIZATIONS INVOLVED
The Phillips Plan of Employee Representation (Plan)' and The Employee Rep-
resentatives (Representatives) were labor organizations of the respondent's
ehployees'
The Phillips Employees Independent Union of the Phillips Refinery of Kansas
City, Kansas, is a labor organization admitting to membership the hourly paid
employees of the respondent's Kansas City Refinery who are American citizens.
The Independent is unaffiliated.
Oil Workers International Union, Local No 348, is a labor organization affili-
ated with the Congress of Industrial Organizations It admits to membership
employees in the petroleum industry in Kansas City and vicinity, including em-
ployees of the respondent's Kansas City Refinery."
III TAE UNFAIR LA13oR PRAC11UES
A Chionological statement of the tarts
1. The Plan and events prior to 1935
Under-the date of January 1934, the respondent issued a printed manual
explaining the purposes, structure, and operations of the flan which it was
then establishing throughout its entire system of operations The purpose of
the Plan, as explained in the manual, was to provide for joint councils, "to
discuss and adjust, subject to final review by the Board of Directors, all matters
of common interest, such as hours, wages, working conditions and grievances
of employees." The functioning of the Plan was placed under the direction of
a personnel officer appointed by the Board of Directors All persons em-
ployed by the respondent or any of its subsidiaries for 6 consecutive months
who were not "identified with the management" could vote in the annual elec-
tion of employee representatives. To be eligible for the position of representative,
an employee was required to be an American citizen, over 21 years of age, and
to have been employed by the respondent continuously for 1 year. Meetings of
the respective councils were to be held "at least quarterly on dates set by the
personnel officer." In any meeting only an equal number of employee and man-
agement representatives. were allowed to vote. The Plan could be amended
upon the approval of two-thirds of the emplo} ee representatives and two-third:
of the management representatives in two-thirds of the local councils in any
division and the approval of the respondent's Board of Directors. The Plait
specifically provided :
No amendment shall be adopted that will destroy or limit the equal voting'
power of the employees' representatives and the management's representa-
tives in the local councils.
The organizational chart in the manual called for 37 councils, 3 of which were
diagrammed as in the Refining Department embracing the respondent's 3 refiner-
ies One such council was organized at the Kansas'City Refinery. It was com-
posed of 3 management representatives and 3 employee representatives, in accord-
ance with the provisions that "employees and management shall have anI equal
+ Discussion of these organizations appears in subsequent sections of this report.
5 The Union includes all oil companies and pipe lines in Kansas City and vicinity and
admits to membership clerical and supeivisory employees Supervisory employees are
adinitted to piotect their seniority rights and are green a deinit or withdrawal card.
1326 DECISIONS OFD NATIONAL LABOR RELATIONS BOARD
number of representatives' in all councils. The Kansas City council functioned
under the provisions of the Plan for about 3 years, from early in 1934 to the
spring of 1937. The respondent bore all of the expenses connected with the
operation of Plan, including conducting elections, providing places for meetings,
and paying employees for time and travel while engaged in official activities
tinder the Plan.
In a section in the manual entitled "Questions and Answers," employees were
advised that the flan was adopted, among other reasons, to keep the management
"in more constant-, intimate touch with the needs and concerns of emr',,yees
through their chosen representatives." Each employee was advised that he could
bring up for consideration and adjustment any question or problem `related to
his work, his wages, his working conditions, his welfare or any other matter which
is of mutual interest to himself and the company." Employees were informed
that they did not "need" to exercise the right to vote and could "refuse to serve
as a representative even if elected," but that `as the P.an demonstrates its
effectiveness, it will be apparent to all employees that through it he will find
his best chances for prompt and equitable attention to his problems and sugges-
tions." As to the cost of the Plan, it was stated :
The company believes sincerely enough in the Plan and in the desire for fair
dealing and efficiency, it has shouldered all costs of adnnnistration. There
are no dues or assessments against any employee.
In an introductory, letter in the manual addressed "To NIy Fellow VVorkers",
and signed by Frank Phillips, President, Phillips stated that he was happy to
introduce the Plan "which permits a closer, relationship between employee and
management" ; that the Plan "is for your benefit and mule" ; and that although
"I may not know you personally I assure you I have a definite interest in you
and I have confidence in you as it willing employee." The letter closed with the
following paragraph:
I regard the enactment of our Representative Plan as an important step
in our progress and I hope that you, also, will find it an essential, worth-
while arrangement for the promotion of your contentment and usefulness as
an employee in the common cause t
2. The first attempt to form an independent union
During the fall of 1935,E the employees at the Kansas City Refinery became
dissatisfied with the Plan and proposed changes in it. Employee Paul Bush
testified that after some 2 or 3 months of discussion, 3 meetings were held out-
side of the plant during'Novembei with the idea of completing the organization
of the Plan in such a way as to create, in effect, an independent union. Bush
also testified that the attempt in 1935, which was abandoned, was the first
time there had been any discussion at the refinery relative to an independent
union. Employee Paul Gallagher testified that in the fall of 1935 a bulletin
appeared'on the refinery bulletin board stating that employees would be "given
permission" to meet outside the refinery; that Elmer Richie who was then an
emp oyee representative under the Plan informed him that an official from
Bartlesville named Gammons had approved the meeting, had told them to
elect officers, and had said that he,would come up to help form ulate"the bylaws.
Gallagher also testified that such a meeting was held and that lie was elected
its temporary chairman; that on the following day, Raymond Gould, a clerk
The National Labor Relations Act was approved on July 5, 1035.
PHILLIPS PETROLEUM COMPANY 1327
from the process office, told him that they did not need any union in the plant
because it would just lead to strikes and a lot of trouble; that a second meeting
was held which lie opened as temporary chairman ; that he requested two A F. L.
men who were not employees of the respondent to leave that meeting; and that
:nn employee named Jack Johnson was elected permanent chturm:m Gallagher
further testified that after the above meeting lie had it conversation with J. W.
Mitchell, who was then manager of the Kansas City Rofinerv, in Mitchell's office
about the foregoing meetings; that lie told Mitchell that he had assumed the
meetings had been approved because of the notice on the bulletin board and his
talks with Ric-hie; that Mitchell Said that he (lid not uvant to "throw cold water"'
on the mea but that Gammons had been given plenty of work to do and would
have time for no further meetings, and that when lie told Mitchell lie had asked
two A F L men to leave the meeting, Mitchell complimented him for doing so.
On'cross-exannnation, Gallagher testified, that he understood from Ritchie that
the purpose of the meeting held outside the plant was to start an independent
union and that Gtunmoris had approved the meeting in a conference between the
employee and the management representatives under he Plan Gallagher was'
a credible witness None of his testimony set out above was contradicted.'
On the contrary it was corroborated by'-that of Bush. The undersigned accepts
the above testimony of Gallagher and Inds that in the fall of 1935, Shortly after
the effective (late of the Act, sonic ennp!oyees of the Kansas City Refinery
who had become dissatisfied with the operation of the Plan, believing that they
had secured through their representatives under the Plan the respondent's. per-
mission to do so, attempted to form a independent union and that their attempt
proved abortive because of the respondent's disapproval and intervention.
About the middle of November 1936, approximately 40 employees were laid off
at the Kansas City Refinery Among them were Paul Rush, Arthur Strid, Lee
Judy, and Jack Johnson, all of whom are mentioned elsewhere herein. As testn-
fled by Bush, some of the men filed a charge with the Board that they had been
laid off because of the above meetings outside of the plant. Bush also testified
that "all of the officers and two of the representatives were in the bunch laid off."
As is set out above, Jack Johnson had been elected permanent chairman at the
second meeting Lee Judy, who became secretary of the Tndependent in 1941, was
off only 12 days, being reinstated to the same position after applying for rem--
statement four or five times.7 Strid returned to work the latter part of December
1936 about 2 days after a conference with Mitchell. During their 30 minute con-
versation Mitchell asked Strid who had attended the meetings and Strid told him.
Mitchell then told Strid that he had heard he was an agitator "trying to organ-
ize." Strid denied that he had been and asked why he had been laid off Mitchell-
said that they had been "reducing the force" but that Strid could come back
to work in the yard ; a and that in the future "when a majority goes one way"
Strid should "go with the majority all the time" Thereafter for about 3 months
Strid worked in the yard, at the rate of a new employee. 4S cents an hour He
was then given a back pay check for the difference between 48 cents an hour and
89 cents an hour after an employee representative under the Plan had intervened.
On August 10, 1937, during a hearing involving some of the above laid-off
employees, the Board and the respondent and six individual employees involved,'
entered into an agreement settling the case. The-agreement involved reinstate-
a Tudy testified. , "I think_I probably wore them out." - -
s New employees and employees who have been demoted start to «orh their way up
through the various stages of- the respondent's progression chart from positions in the
yard gang. ,
1,328 DECISION'S OF NATIONAL LABOR RELATIONS BOARD
ment and payment of specified sums to five of the employees and the payment of
$350 to Jack Johnson, who did not desire reinstatement. Paul Bush was rein-
stated to a position as an oiler at 93 cents an hour and given the sum of $696 23
"in complete settlement of any and all claims."
3 The Representatives and developments through 1040
During the latter part of 1936, an election was held under the Plan. The three
employee representatives elected were Paul Gallagher, James Brush, and Art
Gray After then' election, Manager Mitchell had the representatives to dinner
at a hotel and explained in detail the operation of the Plan.
Early in March 1937, Mitchell called the employee iepresentatives into his
office.° Mitchell informed the three representatives that lie desired to find out
just what the men in the refinery wanted, what grievances they had, and anything
which they had on their minds He asked the representatives to canvass the
entire refinery, taking vamions groups of employees group by group Thereafter
under the date of March 5, 1937, and over the signature of EMPLOYEES COUN-
CIL, Paul Gallagher, Secretary, a notice was posted at 10 places throughout
the plant with the following caption:
SUBJECT: DISCUSSION OF FACE, WORKING, AND OTHER CONDITIONS IN
KANSAS CITY, KANSAS REFINERY
The posted announcement opened with the statement that the management had
requested. the council representing the employees to investigate wages, working,
and other conditions in the refinery, and that the council had requested that the
problem be solved through discussion and secret ballot and had secured the
management's permission. The announcement then stated that all groups in the
various branches'of'the refinery would meet during the following week at times
to be posted on the bulletin board
Pursuant to the ibove notice, the three employee representatives conducted
meetings in the hand ball court 1° which were attended department by department
by substantially all of the employees in the refinery These various meetings
covered the week beginning March 8 They were presided over by employee rep-
resentative McNeil who acted as chairman Representative Gallagher served'
as secretary, keeping a record of the motions and requests of the various groups
Each of the departments also conducted elections of representatives to confer
with the management in all, approximately 30 such representatives were
elected. The consensus of opinion, requests, and actions of the various depart-
ment meetings were reduced to writing in the form of letters to the respondent
from the respective departments. These several letters which were transcribed
from Gallagher's notes by Mitchell's secretary were dated from March9 to March
26, and were for the most part signed by the various employees in the respective
departments. These letters covered a wido mange of subjects under such general
headings as wages, hours, conditions, sick policy, vacations, seniority, sick bene-
fits, sanitary conditions, and miscellaneous An examination of these, letters
establishes that substantially the entire field of working conditions, subject to,
negotiations between employer and employees, was covered in the various meet-
ings. All expenses connected with the above meetings, elections, and prepara-
0 By this time , G V McNeil had replaced Brush as a representative , Brush having been
promoted to a foreman ' s position
10 The hand ball court in a lneh the meetings wore held is on the property of the Kansas
City Refinery.
PHILLIPS PETROLEUM COMPANY 1329
tion of reports u of these meetings, including the time spent by the three repre-
sentatives and the various emplloyees, was borne by the respondent.
About March 15, the three employee representatives and the approximately
30 representatives elected by the respective departments, held a meeting with
Mitchell and William G Hiatt, an official of the respondent from Bartlesville r"
So much confusion arose as the result of so many people trying to join in the,
discussion that Mitchell told the group of representatives•to get together and
elect a committee of live to meet with the management. Such an election was
conducted, seven employees being elected as the committee One of these, Galla-
gher, was then serving as an employee representative under the Plan.
During conferences which lasted about a week, the committee of seven dis-
cussed, with Mitchell and Hiatt the various proposals and requests which hail
been made by the employees in their respective departments and the provisions
of a contract which was then being negotiated at the respondent's Okinulgee Re-
finery.13 Toward the end of the week beginning March 15, the seven committee-
men took the proposed contract back to the 30 representatives which had elected
them. The pn oposed contract was substantially in the form of the contract being
executed at the Oknn lgee Refinery After considering the proposal the 30 repre-
sentatives authorized its committee of 7 to enter into the agreement. That com-
inittee then reported to Mitchell and Hiatt that the 30 representatives were satis-
fied and had authorized them to enter Into the agieenient. The final agreement
was then drawn up by the respondent. It was signed on March 24, 1937, for the
employees by six representatives, Lincoln. Ricliie, McUiady, Gorsline, Hile, and
Gallagher, and by Mitchell, Hiatt, and Vice-president Youker for the respondent
The above document, which is in evidence, is entitled "WORKING AGREEMENT"
The opening sentence states that the working agreement is 'between "the em-
ployees -of the Kansas City Refinery who are represented by the undersigned.
Committee of the employees, and the employer . . ." and that the purpose
is to establish "an 'understanding as to the conditions of employment." The
period of the agreement is stated as from March 1, 1937, to March 1, 1938, and
annually thereafter unless written notice of cancellation or desire to amend
is given by "either party to the other party" " 30 days prior to the anniversary
of the agreement The agreement covered wages, hours of work, lay-offs, re-
employment, promotions, settlement of disputes, employee duties, and vacations.
The agreement provided that there should be no cessation of work through
strikes or lockouts; that all general instructions or announcements of changes
in or additions to company policy should be posted in writing and signed; and
"The respondent 's printed , letterhead for "Interoffice Correspondence ," upon which
these minutes were typed , bore the following printed legend across the bottom
HONESTY, LOYALTY, AND COOPERATION BUILDS TILE FOUNDATION FOR PROGRI•SS, SUCCESS,
AND HAPPINESS
"At the time of the hearing , Hiatt was the general manager of the mcfining department
of the respondent , which department included the three refineries. At the time of the
above events in 1937, ' Hiatt was either manager of the refinery department or assistant
to Vice-president Youker who was in charge of refining and chairman of the respondent's
refining committee
"It is not clear from the record whether the Okmulgee contract was in effect or not
during this discussion.- In its decision of May 13, 1940, involving the Okmulgee Refinery
the Board found that the "working agreement" at the Okmulgee plant was executed on
March 20, 1937 . See Matter of Phillips' Pettoteuva Company and Oil Workers Intenaa-
t iotAl Union, Local No . 212, 23 N L R B 741.
14 The use of the terms "either party" and "other party." is not consistent with the
respondent ' s contention - that the above agreement was not a collective agreement , but'was
merely an individual agreement between the respondent and each of its emplo3ees
49,3508-43-vol. 45--84
11
1330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that no change or-ntodiflcation in conflict with the agreement should be made
"except by mutual agreement between employees and employer through their
own designated agents."
After the agreement was signed, the employee representati-, es spent several days
circulating a statement through the plan which was signed by substantially
all of the employees That statement read as follows:
We, the undersigned employees of the Kansas City Refinery of the
Phillips Petroleum Company, hereby ratify working Agreement and Rate
Schedule entered into on Maich 24th, 1937, between Messrs J. F. Lincoln,
14, L Richie, L M. McCrady, T. T Gorslme, L V Hile, and Paul Gallagher,
representing the employees, and Mr J W Mitchell and Mr. W. G. Hiatt,
representing the management, and posted on the plant Bulletin Board
The above statement was circulated in the plant during working hours and the
representatives circulating it were paid for then- time. In fact, all expenses
connected with negotiating and ratifying the working agreement were borne by
the respondent
On April 8, 1937, Mitchell wrote Paid Gallagher a-letter in which lie addressed
him as Chairman, Employees Wage and Grievance Committee to The letter
enclosed a copy of the "revised Wage and Working Agreement as adopted by the
employees of this Plant and its Management." On the same clay,' Mitchell
addressed a letter to Gallagher in the foregoing capacity, expressing apprecia-
tion on behalf of the management for the "fairness, cooperative spirit, and con-
sideration of the other man's point of view," which had been exhibited during
the negotiations. The three-page, single-spaced letter was devoted largely to a
discussion of 19 separately listed items upon which further negotiations were
in progress . Copies of the above letter were sent to all the representatives who
had signed the contract, and to other individuals, some of whom were repre-
,sentatives of the respondent and the employees, respectively, under the, Plan.
Sometime in the spring of 1937, about a month or two after the agreement was
entered into, a blanket pay increase of 5 cents an hour was announced through-
out the respondent's entire system
During the spring of 1937, a letter on the respondent's letterhead, signed by
Frank Phillips, President, was posted under the date of May 10, 1937. The
letter was addressed TO L'11PIOYEES' COUNCILMEN: and concerned the P_ann
which was established in 1933 The letter referred to the relations between
the respondent and its employees under the Plan as "harmonious" and stated
that decisions of the Supreme Court, sustaining the validity of the Act, made it
necessary for the respondent to stop- participath'g"in the Plan by payment of
traveling expenses, cost of elections, and the "doing of other things incident to
the existence Of such a Plan " The letter stated that the respondent Ryas with-
drawing its representatives from the councils and from further participation in
the Plan, and that the respondent was leaving its employees "entirely free, to
administer Employer Employee relations by contract with the Management of
the Company through their chosen representatives " The last three paragraphs
of the letter read as follows :
In full accord uu ith the Wagner Act, as construed by the Supreme Court, the
Employees have the right to initiate their own organization or Plan for
h thi Company.etnegotiating w
15 The contention or the respondent and the Independent that the above agreement and
those which succeeded it in 1941 are merely agreements with individual employees is dis-
cussed below in the section containing the conclusions
1° The above title, the term , Grievance Committee , and the term , Representatives, are
used interchangeably throughout the record. . - • -
PHILLIPS PETROLEUM COMPANY 1331
Various field groups of Employees have recently entered into Working
Agreements with the Company These wet e negotiated through fellow
workers, chosen as employees' representatives in full compliance with the
Wagner Act. Such an approach, so initiated by the Employees without any
interference, coercion, or restraint on the part of the Company, may be
sustained by adopting some more permanent method of negotiating with
the Company, from time to time, in reference to all matters affecting work-
ing conditions and matters of mutual interest
It is the earnest hope of-the Management that the friendly relations that
now exist may continue.
At no point in the letter did the respondent renounce the policy which it had
explained in detail to its employees in its manual concerning the Plan. On the
contrary the letter referred to the relationship under the Plan as "harmonious,"
and expressed the "earnest hope" that the friendly relations continue. The
letter was not posted at the Kansas City Refinery until the Working Agreement
of March 1937 had been negotiated. Presumably that agreement was one of
the agreements referred to in the letter as "negotiated through fellow workers,
chosen as employees' representatives in full compliance with the Wagner Act."
From the 4 years' activity of the Representatives discussed hereinafter, it is
evident that the Representatives performed the function at the Kansas City
Refinery referred to in the foregoing letter as "some more permanent method
of negotiating with the Company."
During the summer of 1937 a party was held at the Fairfax Airport near
the Kansas City Refinery which was attended by municipal officials and of i-
c.als of the respondent. Approximately 350 of the refinery employees attended,
only a skeleton crew remaining at the refinery that evening Talks were made
by municipal officials and several officials of the respondent. The princi-
pal -address of the evening was made by President Frank Phillips, who an-
nounced that lie was retiring as president and that Boots Adams would succeed
hint. Phillips then stated that the respondent had planned to enlarge the
Kansas'City Refinery and make it the largest one of its refineries. Phillips
also told the employees that he wanted to talk to them about labor organizations
and unrest in the country; that while he might get 6 months in jail for making
the statement, lie needed a Vacation anyway; that he did not want any outside
labor organizations running his business; that before lie would let that happen,
lie world shut down the refinery, since he had been a millionaire before lie
entered the refining business and could get along all right; that if any of the
employees were figuring on joining the C I 0 or A F L or any other "alpha-
betical labor organization" they could "go to Sinclair or Standard and look
for employment" but that they could not "join one said work for Phillips;" and
that if union inen came around to organize, the, liest thing the employees, could
do was to "take them-and throw them in the river 11 17 -
- After the election of the Representatives in March 1937, the joint council of
three employee and three employer representatives under the Plan ceased to'
function. In like manner, after their second meeting in which they authorized
the Itepresentalives to sign the working agreement, the 30 elected departmental
representatives never met again nor functioned in,any wad. However, front
19<,7 through February 1941 the employee.representatives,-reduced to 6 in num-
ber, had some 20 or 30 meetings with representatives of the manageunent on
The above findings concerning Phillips' address are made upon the undenied testimony
of four Board , witnesses„Gallagher , 1-luston, Watson, and Tindall Phillips was not called
by the respondent.
1332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matters concerning wages, hours, conditions of employment, and employee
grievances Dining the period through March 1940, Paul Gallagher served
as chairman of the Representatives, having been elected by the group. There
was no Secretary and no minutes of the meetings were kept The Representa-,
times had no constitution, bylaws, membership, or dues However, it is clear
that the Representatives selected as above described served as the medium
through which employees bargained on wages, grievances, and working condi-
tions within the general framework of the 1937 working agreement, until they
were succeeded in the spring of 1941 by a new group of representatives. In the
me.intime, the Representatives elected in 1937 conducted one election in the
plant in which Charlie McClain was elected to fill the position of representative
Rile who had been transferred to Borger, Texas These representatives also
conducted an election in the spring of 1941 in the plant when their successors
were elected. As stipulated by the respondent, none of the representatives
"lost any time or pay by reason of having conferred with the management at
any time." From all the evidence the undersigned is convinced and finds that
from its inception in March 197 to its abandonment in 1942 after the recog-
nition of the Independent, the respondent bore all of the expenses of the opera-
tion of the Representatives, just as the respondent had borne all expenses con-
nected with the Plan.
During the period of the operation of the Plan and the Representatives, the
respondent requested and received from its watchmen reports concerning union
activities. During an approximately 5-year period, William C Evans, a watch-
man, made such reports to his superior, Hinton. Evans' instructions from
Hinton were to report any union activities and any conversations among the
employees "in detriment to the Company." Hinton told Evans to keep his eyes
open and get all conversations on union activity which he possibly could as
unions were not wanted in the refinery. Evans overheard Hinton giving similar
instructions to two other watchmen, Lucas and Edwards Pursuant to the
above instructions, Evans made several oral reports beginning in the fall of
1936 and continuing to about 1941. During the above period, Evans reported
activities and discussions about several different organizations, including an
independent as well,as organizations affiliated with the C I. 0 and the A. F. L
Hinton put the information furnished hint in written form and passed it on
to Manager Mitchell. About September 1939, the respondent's personnel officer,
Hedgecock, told Evans that "Reds" were active in the plant and to keep his
eyes peeled for them" and to report at once "any conversation . .. pertaining
to union activities." 1"
4. The developments in 1941 through September
Early in 1941, because the employees were dissatisfied, desired some changes,
and were talking about a new contract, the Representatives told Manager
Mitchell that they felt that they were no longer representative of the refinery
employees, and that the employees wanted a new contract. This action was
taken in accordance with the provision requiring 30 days notice by-either
party prior to the expiration date of the contract, the aiiiversary of which
was March 24. Mitchell commented favorably upon the suggestion of the
Representatives and plans were drawn up for an election The election was
r
18 The above findings are made on uncontradicted testimony of Evans which the under-
signed credits . None of the several persons mentioned in the above paragraph were called
to testify . While Evans ' testimony was somewhat confused at times , the undersigned is
convinced that Etans was a tiuthtul witness amid the above took place as he testified
PHILLIPS PETROLEUM COMPANY 1333
conducted by the Representatives in the plant, notices for-the election and the
results being posted on the bulletin board The six new representatives who
were elected on the basis of departments were: Paul Bush, E M Reif, T. O.
Strannigan, E H Croley, H F. Gorman, and A. J. Wheatley. They held
their first meeting with Mitchell on March 31, 1941.
For about 4 months, beginning February 1941, Hugh Ciawford, of- the per-
sonnel department at Bartlesville, conducted a survey among the' employees
of the Kansas City Refinery. He talked with about 95 percent of the em-
ployees personally during this period. He questioned them concerning the
work which they performed and thereafter wrote a manual describing the
various positions in the refinery. Crawford also found out -whether the em-
ployees were satisfied with their jobs While Crawford denied that lie made
any effort to talk about the union affiliations of the men, he dud testify that
the men at first seemed to think that he was "spying on them'" and that a
lot of them tried to tell him they were not C. I. 0 members and did not
expect to be. Sometime during his survey Crawford told an employee, James
O'Brien, that the refinery manager, Mitchell, had been threatening the offi-
cials at Bartlesville that if they did not give the men at the Kansas City
Refinery what they wanted, the mien would organize Crawford told O'Brien.
that from what lie had found out that Mitchell's position "was a lot of
poppycock, due to the fact that the men wei e too well satisfied " 19
The newly elected representatives had three meetings with Mitchell during
the spring of 1941. At their first meeting on March 31, several matters were
taken up including the congestion in the maintenance department at the time
the men punched out their time card ; the pay received, by lead-off men
while filling a vacancy; and the status of the business left by the former
representatives It was decided to meet regularly each month Strannigan
was elected chairman and Gorman was elected secretary. The Representatives
were familiarized with the circumstances under which the respondent would
pay the wages of employees while serving as representatives. It was decided
that for the time being the working agreement of 'larch 1937 was satisfactory
except for the general rate of pay and differentials between jobs. Concerning
the question of a general wage increase, after discussion of the company's
financial, situation and competitive position in the oil industry, it.was decided
to follow the plan of the former representatives and the management and to
continue to study the situation in relation to any increases in the cost of
living. Concerning differentials in pay, it was pointed out by Mitchell that
Crawford; was making a job • study and upon completion ct "that study the
matter of job differentials would be given a "thorough going over."
At the meeting of April 15 several matters were discussed, including loss of
group seniority due to transfers, the complaints of several men in different
job classifications, and the lack of drinking fountains. Petitions from first
class mechanics and mechanics' helpers were discussed at some length. Those
petitions involved the duties of the aforesaid groups and their progression. It
was decided that Mitchell would give the two petitions careful consideration
and make up an Organization Chart showing "the jobs, the men on them and,
their duties and responsibilities." During the session word was received con-
cerning a general pay increase and the information was posted on the bulletin
board. That pay increase of 5 percent was effective as of April 1. The minutes
of the meeting of May 12 between the six representatives and Mitchell con-
19 This finding is based on O'Brien's testnnony which was not specifically denied by
Crawford who did, however, testify, that lie did not discuss union activities with the
employees.
1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tamed three pages under nine headings showing discussion of several ' petitions;
complaints , and grievances . Those varied from several individual grievances to
a number of petitions concerning job classifications and duties of groups of
employees.
In May or June, Vernon Leatherwood and Elmer Richie met with Paul Bush
at his hoine .20 The meeting was for the purpose of discussing the possibility
of forming a union in the refinery Leatherwood wanted Bush to take the lead
and told him that he thought the nien fit the refinery would vote for the
A. F. L Bush contended that the C. I 0 was better because of its ihdustrial
type of organization and also stated that an independent union was as good as
any other type. Leatherwood believed that the A F. L. had a new industrial
type of organization which he wanted to investigate . The next day the three
met at the local labor temple, but the organizer whom Bush wanted to see was
not there . Bush and Leatherwood then rode home together discussing labor
organizations Bush
organizer and either
would get in touch
about the matter.
told Leatherwood that he would get in touch with the
have the organizer get in touch with Leatherwood or he
with Leatherwood. Leatherwood heard nothing further
On June 1, 1941, J. B
Refinery. On June 1 also,
refining department of the
that time Mitchell went to
Bogk became superintendent of the Kansas City
William G. Hiatt became general manager of the
respondent , with headquarters in Bartlesville At
Bartlesville where he shared with Hugh Miller the
responsibility, under Hiatt. for the general supervision of the operations of
the three refineries 2i About the middle of June, employees in the various de-
partments of the Kansas City Refinery presented signed petitions stating in
effect that the wage uicicase of April 1 was not sufficient fit view of general
conditions then existing and appealing for a wage increase of 15 cents an hour
because of the increased cost of living.
On July 1, 1941, the six representatives,22 signing as Employee Representatives,
and Bogk and Hiatt, signing as Superintendent, Kansas City Refinery, and
Manager, Refining Department, respectively, signed a document entitled WORK-
ING RULES AND Poaciie.s The document set forth tinder 10 articles, "rules and
policies" for all employees in standard job classifications at the refinery for a
period of 1. year from .Iuly 1, 1941, and thereafter until 30-day notification by
written and posted notice of termination. Those articles covered working con-
ditions, wages, hours, seniority, lay-offs, reemployment, promotion and demo-
tion, employee duties, misunderstandings and complaints, employee security,
vacations, and the posting of notices. The document also contained, a schedule
of rates to be paid for various job classifications marked "revised and effective
7-1-41 " The document was posted without the signatures of individual. em-
ployees.' The rate posted for stillmen' was $1.20 an hour and for still helper,
$1.02, making a differential of 18 cents in these two positions The stillman's
rate of $120 was the highest rate and that of 55 cents for "laborer-entrance''
20Leatlrerwood had been a slillm,iit foi about 8 scars He iNas latei elected in August
1941 as it iepieseutative when two'additional men weir elected to bring,the number of
representatnes hum six to eight Riclue, who had ser%ed as an employee representative
undei the Plan, sas than a stillnian At the time of the healing lie was shift still fore-
niau Bush was then one of the six reps esentatives
2i Iliatt testified that hiller Nas in direct charge of plant operations and plant personnel
for the refining department, and that-Mitchell was in charge of general business organiza-
tion, enguicenng, and construction
22 It E . Ai hold had displaced Il ii Croley after the meeting of May 13
Hiatt testified that lie did not request that individual employees be asked to sign
this document be(auie he knew it would be impossible to secure tlieir'signatu'ies since the
wage petitions were still pending
PHILLIPS -PETROLEUM COMPANY 1335
was the lowest rate At the bottom of the posted document was a large chart
marked "effective July 1" signed by Bogk and the six representatives This
chart was entitled "Promotional Progression for Employees in Classified Jobs"
The chart set forth the various stages through which employees could progress,
step by step, from entrance positions as laborers in the yard through to the
higher ranking jobs in the maintenance and the operating divisions. The chart
-was prepared in response to the desires of employees to have parallel stages
in progression clarified, as is indicated by grievances, and complaints set out
above, and became the basis of much of the negotiations which followed As
testified by Bush, some 3 weeks were taken in drawing up the organizational
chart, and for the time thus spent the employee representatives received no
pay deductions -.
Shortly after the posting of the above discussed document, six meetings were
held between the Representatives and the respondent According to the minutes,
these meetings occurred on July 12, July 19, July 26, August 2, August 9, and
,August 16 At the first four of these meetings, the respondent was repre-
sented only by Superintendent, Bogk. During these meetings the discussion
-included various conditions in the plant, individual and departmental grievances,
dissatisfaction with classifications on the progression chart, and provisions as
to certain rates and job classifications on the progression chart The recur-
ring -subject- of discussion upon which clippings were presented by employee
representaatives was the trend in the cost of living in Kansas City as it bore
on the subject of a general wage increase.
The meeting of August 9 was attended not only by the six employee repre-
sentatives and Superintendent Bogk, but by Hiatt and Miller, officials from
Bartlesville. After the discussion of several matters similar to those set forth
above, Hiatt presented the results of a survey conducted by the respondent
relative to "present wage and living cost levels" Hiatt's presentation was set
forth in the form of a letter. The letter recited that in response to petitions
signed by 278 employees of the Kansas City Refinery in June, the respondent had
'made an'exhansfive and detailed study of living cost trends and income levels.
A chart was set forth in connection with the letter showing the blanket increases
of July 1, 1937, and of April 1, 1941, in ielation to various cost of living indexes.
The letter recited that this comparison showed how wages at the refinery were
91/, percent ahone March 1937 levels while living costs were only 3, percent
above that level After reciting various conditions in the industry and in the
respondent's operations, the letter stated that those conditions "coupled with
the probability of Government control of prices and the ever increasing taxes
assessed for the National Defense Program, create a most precarious future
which can be met only with prudence and forethought "- The conclusion reached
in the letter read by Hiatt was that employees who would give the facts
"serious and impartial consideration" would agree with the correctness and '
propriety'of the respondent's conclusion that a "general increase in wage rates"
was not justifiable
At the conclusion of Hiatt's reading of the above letter, the meeting of
August 9 adjourned to August 16. No record of any discussion of the above
letter is contained iri the minutes On August 16 the six employee representa-
tives and Superintendent Bogk had a short meeting in which a few classifications
were discussed' and it was reported that steps would be taken to correct some
difficulties in returning laundry. As to the "Comparison of Income and Living
.Costs" chart presented at the previous meeting by Hiatt along with his letter,
it was discussed and agreed that the chart would be currently revised and
available for discussion at meetings. The meeting was adjourned to Saturday,
August 23. 1941
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Tuesday evening, August 10, and Wednesday morning, August 20„ the
Union mailed out approximately 200 notices of an "Important Meeting of
Phillips Refinery Workers" for Friday, August 22, at 7:30 p. in. This was
the first open iueeting to be announced by the Union, which was then under-
taking an intensive campaign among the employees of the refiuery.^
The, next meeting of the --Representatives was not held on August. 23 ac-
cording to schedule but was moved up 2 days and held on Thursday, August 21.
In addition to Bogk, the management was represented by three officials from
Bartlesville, Hiatt, Mitchell, and Miller. According to the minutes of that
meeting, several requests were acted upon. Pay-roll deduction, to cover em-
ployee payments to the Credit Union, which request had previously been pre-
sented by Paul Bush, the treasurer of the Credit Union, were approved by
the management effective as of September 1. As to the request for overtime
rates for weekend work, Mitchell stated that lie had had an informal under-
standing with 'the previous Representatives that overtime rates would be paid
for Saturday work other than that involved in normal still clean-outs. Ac-
cording to the minutes, Mitchell's statement cast "a little different light on
the problem since the Committee bad been unable to ascertain exactly what
practice had been in effect previously." It was finally agreed after "thorough
discussion" that overtime rates would be paid for work done (luring normal
off-time periods Because of apprehension concerning the demotion clause in
the. Working Rules posted July 1, it was decided that -there was ' no serious
objection to the modification or complete removal of the clause. Hiatt stated
that in keeping with a promise previously made to the Representatives, that
the existing wage differentials would be reviewed and adjusted before the ap-
plication of any "future blanket increase." that he was desirous of reviewing
the entire present wage structure with the Representatives, in anticipation of a
"general increase to all Company employees which will undoubtedly be an-
nounced within the next week or so" It was decided that an advisory coin-'
inittee should be selected from the plant personnel to insure that all groups
would be satisfactorily represented The selection of the committee was re-
quested immediately so that the advisory committee could meet on Tuesday,
August 26, along with the Representatives.
Under a closing heading entitled "GENERAL", the minutes of the August 21
meeting stated that while the reorganization steps which had been put into
effect during the previous 3 months were disturbing-some employees, the com-
pany wanted to insure all employees that the plant and the refining department
were in the process of preparing themselves for "expanded operations and
growth" which were anticipated in the immediate future because of the Na-
tional Defense Program. While no project had been definitely decided upon, it
was pointed out that numerous projects were under consideration and that
"things move so iapiclly nowadays that they may be announced at any time"
The earnest cooperation of all employees in making changes effective and suc"
cessful was requested.
Pursuant to announcement made shortly befoiehaud, meetings were held on
Friday, August 22, which all of the respondent's employees were required to
attend. The meetings were held 'in the garage on the respondent's property
and employees did not suffer pay deductions for time spent in attending the
meetings Most of the employees attended the afternoon meeting which started
21 While several attempts had been made duiing the preceding 4 or 5 years by the
,Union to organize, plans for the current campaign were not made until- tbepresident.of
the Local took his vacation during August 1941 from the Sinclair Oil Company.
PHILLIPS PETROLEUM COMPANY 1337
shortly after 3 o'clock and lasted until sometime after 6 o'clock The evening
meeting, which began about 11, was attended by a smaller number of employees,
lasted only about an hour, and constituted in part a summary of the discussion
which had taken place in the afternoon.
The meetings were attended by the employee representatives and by Hiatt,
Mitchell, Miller and Bogk, all of whom spoke. aStranIIigan, chairman of the
Representatives, opened the meeting and introduced the speakers. Superintendent
Bogk read to the employees all of the minutes of the meeting of the Representa-
tives which had been held the day before. During his address Mitchell stated
that the respondent and the employees had always cooperated "across the confer-
ence table" and could continue to do so. He said that they did not need any
outside help in settling their differences and could settle them themselves. Stran-
nigan announced a general 5 percent increase in wages but during the discussion
which followed employees attending the afternoon meeting dissented and asked,
for a blanket increase of 5 cents an hour This question was discussed for
almost an hour. During this discussion Mitchell sought out one of the foremen,
R. L. Wells, and asked him how many men in the refinery belonged toy the
C. I. O. Wells, who testified that he stretched the point, told Mitchell that
about 75 or, SO percent belonged. Finally the respondent announced that a 5-
cent an hour increase would be made effective as of August 26 During the
meeting the demotion clause which had been discussed the preceding day came
up for further discussion The men voted by a large majority that they pre-
ferred to'return to their former positions if they failed to make good on a
promotion rather than to "revert to the yard with his full plant seniority" as
provided in the working rules of July 1 Mitchell then asked the men if they
understood how they had voted Thereafter the matter was further discussed
and the clause was again voted down by the men. Mitchell then got up and
said, "Now, boys, you see how we do things, the democratic way."
The meeting of the Union was held as announced. That evening some of the-
employees attending, including Floyd Joiner, saw Milton Lothrop who was the
carpenter foreman,"' walking up and down on the other side of the street across
from the union hall. After deciding that Lothrop was there for no good pur-
pose the employees decided to take him into the meeting They went over and
accosted him and asked him why lie was there. Lothrop said, "Well, if you
was told to be here, I guess you would be here, wouldn't you?" Joiner then said
that he was not told to be there but he was there anyway and asked Lothrop to
go inside. Lothrop went to the meeting. The meeting was also attended by
Foreman Wells, who was at that time on the hourly pay roll
On the Monday following the C. I. 0 meeting, Bogk called Wells to his
othee" Bogk told Wells that lie did not think he was selling the respondent
100 percent -to the boys. Wells asked him why he thought that and Bogk
replied that it was Wells' actions and attitude. Wells then told Bogk that he
thought Bogk had said what he did because he (%yells) belonged to the C. I., O.
and Strannigan had told him about it L'ogk denied that the C. I. O. had any-
thing to do with it Upon another occasion 2 or 3 weeks later, during a dis-
26 In its decision in the case cited above, the Board found that Lothrop was one of the
supervisors at the Okniulgee rehneiy who had been active in discouraging membership
in the C I 0 in that refinery Lothrop's activities in Okmulgee preceded the' period
discussed above
29 Wells testified that he saw Strannigan, who had been at the C I. 0 meeting Friday
evening, go into Bogk 's office Satuiday morning.
1338- DECISIONS- OF -NATIONAL -LABOR RELATIONS BOARD
cussion on another matter, Bogk told Wells that he thought he might be Rutting
the respondent on the spot by being it foreman and belonging to the Union n
Late in August or early in September. J .l Glover, who had worked for the
respondent most iof the time during the preceding 20 years and who, was then
a second, class mechanic,.started passing out cards for membership in, the
"LAST MAN'S CLUB " This card stated that the holder was an Amer!can
citizen; appreciated his church, home, government, and job, felt it his duty in
the national emergency to keep his job "ft ee of any entanglements" ; and that
the holder ienounced all allegiance to "any Un-American organization of sabo-
teurs or fifth-colunmists" The bottom of the card bore the legend "I WANT
TO PROTECT WHAT I HAVE." Shortly thereafter, evidently, about the first
week in September, Glover started circulating throughout the plant a petition
about afoot and a half wide and three feet long containing spaces for some
300 signatures in 4 columns The petition was headed "LABOR BOARD,
C 1 0. & PHILLIPS I'L'71POLEM11 CO."; and on either side of the heading
was an American flag. The petition read as tollows :
WE THE UNDERSIGNED ARE PATRIOTIC _AMERICANS AND HOURLY EM-
PLOYEES OF THE PHILLIPS PETROLEUM COMPANY AT THEIR KANSAS CITY,
KANSAS REFINERY
WE WISH TO STATE EMPHATICALLY, THAT-THIS ARTICLE WAS UNDER-
T.AIIEN WI'T'H NO THOUGHT OF RESTRAINT, OR ENCOURAGEMENT, FROM
OUR EMPLOYER
,1Nl7 ARE NOT 11TUBERS OF THE C. 1 0, AND HAVE,NO INTENTION OF
JOINING EACH OF US CARRTES A CARD IDENTIFYING US INDIVIDUALLY
AS A_11[1EEMBER OF THE "LAST MAN'S CLUB
AYE HAVE BEEN TOLD THAT TIIE C I 0 HAS ASKED TO REPRESENT
US AS OUR BARGAINING AGENT BEFORE TIIE LABOR BOARD
WE [IERRBY ASK THE C I 0 TO CEASE THEIR ATTEMPTS AT ORGANI-
ZATION Ob' OUR PLANT UNTIL WE REQUEST THEIR IIEL1'
The above-quoted petition which is in evidence bears 208 signatures. Glover
admitted that he secured the signatures but stated that he did it in a clay and
a half and that Superintendent Bogk called him up at noon on the second day
and told him fo stop circulating the petition Bogk corroborated -Glover's testi-
mony that lie had told Glover by telephone to stop circulating the petition, testi-
fying that he had learned of the petition from two foremen at a meeting that
moi rung According to Gloi er, he got sonic -60 or 70 signatures the first clay
at noon and got most of the rest of the srgnatutes that evening outside the plant.
Glover's testimony was very haryias to how many signatures he secured other
than those secured during the noon hour the first day There is-testimony by
several witnesses which the undersigned credits, that Glover circulated the
petition on company property during working hours and that lie was seen at
many places, far removed from his place of usual emplo)menta Prom the large
area coveted by the refinery, the number of signatures actually secured. to the
petition, Glover's hazy explanation of ]row he secured the signatures, and the
credible evidence that he circulated the petition widely in the plant, the under-
signed concludes and finds that Glover openly circulated the above petition during
27The above findnrgs concerning the couvers.iIion between Bogle and Wells are based
upon testimony of Wells which the undersigned credits. Bogk testified that -lie told Wells
that- the men in the coin pound plant were entitled to progress to better jobs and that
lie had felt that wells might be disconiaging his nien'troin uioiing because he had had
difficulty in bie.rking ni new Dien He testified that he had not leaitied until after that
time that Well, belonged to the Union
-'RGiovei's work its a value repair man took him to various parts of the plant but lie
usually spent most of Ills tune iwalcing at one place The respondent's refinery covers
approxnnately- 200 acres, haling a maxitnun length of between a male and a quarter
and a mile and a hall and an aveiage width of between one-quarter and one-third of a mile
PHILLIPS PETROLEUM COMPANY • - - 1339
working hours for a substantial period of time in the respondent's p]ant,some-
t, inie shortly after Mitchell's speech of August 22 when he stated that `outside
help".was not needed in settling problems between employer and employees at
the refinery. The undersigned further finds that under all-of the circumstances;
the employees were justified in inferring that Glover's "LAST 'MAN'S CLUB"
and his petition had the approval of the respondent' -
When Glover was securing meinhersf of his "LAST MAN'S Ci.L'B", which name,
meant that each joiner pledged to be the last man to join the Union, he had a,
talk at the plant with employee Earl Ordway concerning how he felt about the
C. I 0 Ordway said he did not think much of it. Glover then asked him
how lie felt about an independent union. Ordway said that if an independent
union was run right it would be all right but that the way the "Gri6vance
Committee" had been run, lie was not in favor of it Glover then said that
if they organized an independent union they would meet away from the plant,,
elect their own officers, have their own grievance committee, and control it
themselves Ordway replied that if it was run that way it would be all right.
At that point Glover told Ordway that he had talked with Hiatt just a few
days before and had asked him what he thought about organizing an independent
union. Glover said that Hiatt had said to go ahead and that the respondent`
would gladly recognize it.'0
On August 28, a meeting was held between employee representatives and man-
agement representatives. In the meantime the regular Representatives had been
supplemented by adding two to the six employee i epresentatives, making a total,
of eight The new representatives were Vernon Leatherwood and Scott Stanley.
An advisory committee consisting of 15 was also present, one being J. C.
McChristy whose activities in soliciting membership for the Independent are,
discussed' below. The management was represented by Bogk, McCarthy, Het-
tinger, and Hedgecock of the Kansas City Refinery and Hugh Miller from Bartles-
ville For the beiefit,of those who had not been present before, the organization
chart was discussed and explained. Most of the afternoon was spent in discuss-
ing wage differentials among several classes of employees including stillten,
still, helpers, senior operators, operators, operator helpers and several similar
classifications Bush presented the results of a canvass indicating a desire for
a 12 cent differential between stillmen and still helpers Management explained
that it felt a minimum of 15 cents should be established as the differential. A
discussion resulted in a tentative schedule of differentials which placed stillmen
at $1.25, still helpers, senior opei ators and others in that group at $1 12, opera-
tors and othei s in parallel groups at $103, operator helpers and those in pat-allel
groups at 05 cents The above i:ites were based on the new wage increase which
had been announced. Miller agreed to present the matter to the management
"" Among the factors not set out above which lead to the conclusion stated is the on-
denied and credible testimony of an employee, Lee Mitchell, who went to Assistant Super-
intendent Hettinger to protest against "Spec" Glover's activities lie told Hettinger
that he was a world war ieteran and that lie did not like to have adorer of an'.body else
in the refinery accusing him of being uu-Anieiican or connected with nn-Aiueiican activi-
ties because lie had refused to loin the "LAST DIAN 'S CLUii" Lettinger merely politely
asked Mitchell why lie did not ask Glover for one of his cards in the "LAST Hix's CLUB."
3' The above findings are made upon testimony of Oidii ay which the undei signed be-
lieves Gloiems account of his talk with Ordway differs materially fiom Ordi'ays-only
in that Glo6er denied mentioning Hmtt's name On the whole Glover was not a credible
witness In,.liis conversation frith Ordway he believed he was talking with a^ man who
disapproved of the C I 0, as Ordway slid at that tune Finthernuire Glover had known
Hiatt for some 20 } ears and only a short time betoie Hiatt had been in Kansas City
attending meetings during the last part of August . `' - -
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Bartlesville and to advise the committee further. It was agreed rates would
be retroactive to August 26.
On September 5, a meeting of substantially the same individuals who had
attended the meeting ,on August 28 was held Leatherwood reported that he'
had made a canvass of the stillmen and found that they desired that the 18 cent
differential then prevailing between stillmen and helpers be retained. After
considerable discussion the management, which had been asked to step out in
order that the committee could discuss its differences, was called in and the
matter was put to a vote. Six of the representatives 31 voted for the rate of $1.25
for stillmen and $112 for still helpers. Leatherwood voted for an 1S cent differ-
ential. Representative Bush was not present. At the conclusion of the voting
Miller stated that the opinion of the majority would govern in such "arbitration"
and assured those pieseut that lie would present the plan to the management in
Bartlesville for its apps oval, after which a revised working agreement would
be given to the employee representatives for ratification by the employees.
Early in September a document entitled "working Rules and Policies", similar
to that posted July 1, was signed between the management and the Representa-
tives. This document also contained ten articles covering subjects which had
been covered in the July 1 document. It also contained a promotional progression
chart similar to that previously posted. A rate schedule was included similar
to that previously posted except for certain modifications in rates along lines
discussed above. The rate for stillinen was set at $1 25 and for helpers at $1.12.
Other rates were comparable The document was cii culated in the plant by
the Representatives and the signatures of 355 employees were secured. The rules
and policies involved were to run for one year from September 1, 1941 Article 8
entitled "EMPLOYEE SECURITY" was the same as that contained in the
document posted about July 1. and read as follows:
The thing that concerns most of us perhaps more than anything else as
we progress through life is the establishment of a secure position, as measured
by our own needs This urge is an incentive behind almost everything we do.
Phillips Petroleum Company recognizes that this vital interest exists in the
long-range program-of each of its employees and therefore has committed
itself to the continuous support of such of those several methods of increasing
employee security as may be within its proper jurisdiction and ability to fulfill.
Information covering (a) Group Accident and Sickness Insurance, Surgi-
cal Reimbursement Benefits, and Hospital Confinement Benefits, (b) Un-
avoidable Absence, (c) Group Life Insurance and Total and Permanent
Disability Benefits, and (d) Retirement Income Plan is omitted here
because of lack of space. You may be informed relative to this security
program by referring to the booklets, various issues of Philnews, land the
policies pertaining thereto, or by contacting the Peisonne' Officer.
On September 16, over the signatuie of Superintendent Bogk, a notice was
posted "To Ara: OUR EMPLOYF-ES" stating that checks for the first half of
September would carry a 5-cent an hour blanket increase and that differential
adjustments above that 'had not been included because of the lateness of
notice to the pay-roll department. The notice further advised that "a detailed
study of all differentials has been made and further adjustments will be made
to a number of classifications in addition to those agreed to last week." It
was then stated that the new rate schedule would be posted in a few days
and would include upward revisions both in differentials and in the blanket-pay
11 There is no evidence that the members of the advisory committee voted.
PHILLIPS PETROLEUM COMPANY 1341
increase, such increases to be reflected in the checks for the last half of
September, making the new schedule retroactive to August 26.
On September 23, Bogk posted a revised promotional progression chart over
the chart on the posted document which bore the signatures of the Representa-
tives and of the individual employees. Likewise a new classification and rate
schedule was posted over the classification and rate schedule previously posted.
The progressional chart contained some minor revisions and clarifications.
The new rates contained some increases Still helpers and similar classifications
were increased to $1.14 an hour. The Iates for stillmen posted were 'froiu
$122 to $1.37 an hour with the notation that all present stillmen would receive
at least $1 25. The evidence shows that the stillmen were divided into three
groups, A, B, and C. The A group was rated at $1 37 an hour and consisted
of the stillmen considered able to operate the most complicated stills. The B
group was rated at $1 30 an hour and classified as those who could operate the
stills of medium complexity. The C group was rated at $122 and classified as
those able to operate only the less complicated stills. The division of stillmen
into three groups was made without the approval of the Representatives. This
classification into three groups caused considerable resentment among the still-
men who felt that no such subdivision of stillmen was 'justified. They took,
the position that any man capable of operating a still should be classified as a
stillman and paid a stillman's rate.
It is evident that the above unilateral action of the respondent proved a
disturbing factor in its relations with its employees. As a result thereof,
discussion developed among the employees concerning organization of a union.
According to the uncontradicted testimony of Paul Gallagher who was a credible
witness, ,tile morning after the increase was posted still foreman Harry Burns
approached Gallagher who was rated as a Class A stillman at $137 an hour
and told hun that lie was getting a lot of money and that it was a part of his
job to help stop the unrest and ill feeling among the employees.
5. Inception and organization of the Independent
About the middle of October, Paul Bush telephoned Superintendent Bogk
at the plant and asked permission for the employee representatives to meet an
hour earlier than their scheduled meeting for 0 o'clock with management repre-
sentatives. L'ogk gave his permission for the meeting. That meeting, the first
of its kind ever held, took place about 8 o'clock on October 14 " a The meeting
was held in the plant in the room usually used for meetings of the Representa-
tives with management. All eight representatives attended, notices of the
meeting having been posted by Bush on the bulletin boards The representa-
tives who attended received pay for the time thus spent. Bush explained, that
there was considerable dissatisfaction and that a number of men wanted to
form an independent union!" Bush stated that a meeting was being planned
32'1 he testimony is in agieenient that the niceting took place b' fore the regular meeting
of the Representatives with the management There is testimony that such regular meet-
ings were then taking place on the second Tuesday of each month The second Tuesday in
October was October 14 Furthermore the minutes of a meeting of,the Representatives on
Januaiy 13, 1942, refer in two places to a meeting on October 14, 1941
33 The undersigned does not believe that any substantial number of men approached Binh
about foaming an independent union pi for to this meeting while Bush testified that 100
to 150 men had come to him, he named only two of them Furthermore Gallagher, a credible
witness, testified that he had not heard discussion of an independent union prior to that
time Scott Stanley, one of the representatives who was called by the respondent, testified
that lie had previously-heard nothing about the matter but was interested in the proposal.
1342 DECISIONS OF NATIONAL LABOR ` RELATIONS BOARD
to o'ganizp an independent union and that he wished the,Repiesentatives would
help condi ct the meeting and an election of officers It was pointed out that
as Representatives tlie) represented all the Wien in the plant, but that they
-might -sem e as "tndn iduals" in conducting the meeting and election. All of
the Representatives except Vernon Leatherwood" decided to go along with
Rusin-on the plan to ioim an independent union After then decision to assist
in establishing an independent, the Representatives held their regular meeting
with tine management. -
On November 19, the first meeting of the Independent was held in a hall off of
the respondent's property for which' Bush had made a rraungements. Notices
of the Inecting had been mauled out to a list of employees compiled by Bush
who had signified their approval of the Independent and, according to the min-
utes, 64 of the 104 "members" were present.' The meeting was opened by Strait-
ii gan, chairman of the Representatives, who presided until officers were elected.
The principal uitioductory talk was made by Bush who explained the purpose
of the meeting and the merits of an independent union. An election of officers
wars then conducted by the Representatives, four of whom were in attendance.
After the officers were elected, none of whorl had been representatives ender
either the Plan or the Representatives, they took over the conduct of the nieeL-
ing.36 After the election of officers at the first meetnig the following matters
were agreed upon "by unaunnious acclamation" (1) that bylaws atial constitu-
tion be drafted by the officers; (2) that the treasurer be bonded for $1,000; (3)
that dues be $1 a month; (4) that officers should immediately retain a lawyer
for legal help and guidance; and (5) that the officers should draw up a skeleton
working agreement to present to the company in the event the Independent was
recognized as the bargaiining agent"
The minutes of several subsequent meetings of the Independent are in evi-
dence. All meetings were held off of the respondent's property. The second
i meeting on December 8, accoirhng to the minutes, was attended by 162 members
out of at membership of 247. At that meeting a working draft of a contract
was presented to the members and discussed section by section. At a meeting
"It should lie noted that Leatherwood refused to assist in the fir et meeting of the Inde-
pendent and that shortly after the aboveaueeting lie iesigned as it iepaesentafne
No open meeting of the Independent was held until _ll,aich 5, 1942, at whack tune the
contract which had been entered into between the Independent and the respondent was
lead to the einplot ees The et idence shows that there was (onsidei able secrecy connected
with the solicitation of membeis during the early stages of the organization of the Inde-
pendent and that Wien who were believed to be sympathetic with the C I 0 were not ap-
proached Only pea son, who wet e members were permitted to attend env of the meetings
of the Independent prior to March 5, 1942 The eniphasin' upon securing men for the fiist
meeting was to get only those who could be "taunted '
The officers elected were M P Spaight, president, Ray Scoville, vice president; Lee
Judv, secretary; J I1 Wiesing. tieaasuiter; and J H Muuai, sergeant at aims Secietary
Jody was the only individual elected without opposition and the nannies show that the vote
for him was "by actla ination " Judv latex becanie leading negotiator toi the Independent
'I here is some evidence that the president, at least, was "hand picked " His nomination was
sag,,ested to the employee who nominated him by Paul Bush Also Spaight's damghtei told
another employee whom Spaight was soliciting to join the Independent at the employees
house that hei father expected to become paesrdent
14 It should be noted that at the hoe of this meeting, according to the minutes, the Inde-
pendent had only 104 membeis out of the appiox mntely 4,50 employeos in the unit which
was later accepted by the Independent and the respondent as an aplnopiiate unit for col-
lective baigaLmng It should also be noted, as is pointed out mote fully below, that on
November 19, the Independent wrote the.respondeut claiming baiganung rights as the
iepresent.itive of a majority of the employees in-the Kinsas City Refinery
PHILLIPS PETROLEUM COMPANY ' 1343
-ion January 8, proposed bylaws were read but die to poor attendance their aduptioii
-was postponed. At a meeting on January 29, recognition of the independent
by-the company was announced The attorney who represented the Independent
at the hearing made a short talk The constitution and bylaws were unanimously
adopted The contract proposed to be presented to the company was read to the
members and approved No meetings of the Independent were held nn Feb-
ruary, during the time negotiations were in progress between the Independent
and the respondent On -March 5, an open meeting was held at' which the con-
tract between the respondent and the Independent, signed oil Minch 3, wa, read.
Thereafter the Independent continued to meet once or twice a month
According to the constitution of the Independent, only American citizens are
-eligible to membership and any officer who leaves the employ of the Kansas City
Refinery vacates his office The "Executive-Grievance Committee" is des'gnated
by the constitution as the bargaining agent of the Independent. That committee
is composed of the five officers plus the chairman of the departmental representa-
-tives who are elected by the employees by depart ients to take ip grievances
The bylaws provide that an individual may be suspended from ruenibership if
his dues are more than 1 month in arrears.
During the fall of 1941 there was widespread discussion both of the Independ-
ent and the' Union throughout the respondent's refinery Tliete were also
persons with supervisory authority who were active in securing membership
for both the Union and, the Independent For instance, Foreman Wells of the
compound plant solicited membership for the Union. Oil the other hand. J D
McChristy' openly and repeatedly asked employees to join the independent-"
Both McChristy and Wells were hourly-paid employees but each had substan-
tial supervisory authority Wells was in charge of the compound plant lVIc-
Christy was in charge of a yard gang in which new employees worked when
they first entered the refinery. While McChristy's position had been reclassi-
fled during the discussions in the sunnier of 1941, and his title changed from
that of gang foreman to that of first class pipe fitter, his actual duties and
responsibilities had not been changed. A third supervisory employee, a first
class pipe fitter named Bill Howard, solicited one of the employees in his gang,
John Erickson, to join the Union. In addition to the foiegoing solicitation by
supervisory employees.there was widespread solicitation on company time and
property for both the Union and the Independent by interested employees From
the record it appears that the respondent made no effort to prohibit solicitation
by -hourly employees oil behalf of either the independent or the Union, and no
-adverse inference is drawn herein because of this freedom of solicitation °
During the-period of the organization of the Independent, leaders in forming
the Independent told employees -that %the' Independent was favored by the
respondent ' When Spaight, who became president of the Independent at the
first meeting , solicited, James Hippman at his home he told Hippman in response
to a question as to whether the respondent would accept an organization like the
Independent that he thought "the Company would much rather deal with an
organization like that' than it would an outside organization " Paul Bush,
\[cChristy had also encouiaged the employees to sign the Petition mentioned ,rboie
which had been circulated by Glover in relation to the "Last Man 's Club
The above finding does not include Bogk 's statement to Wells that he was not selling
the company 100 percent and his furthei statement that We]] s might he getting the re-
spondent into difficulty by his belonging to the Union These wei e attempts on Bogk,y pa i t
to persuade Wells not to be active in-the Union Ilowevei the undersigned believes that
the respondent did not attempt to draw any line on solicitation after the fniegoiug talk
,between Bogk and Wells -
k
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whose leadership in forming the Independent is clear, told employee Watson
when asked why he favored an independent union, that he believed "the com-
pany would be more willing to give us an Independent than they would any
other union, and . . . they would give something in the Independent Union
we couldn't get in any other Union, and . . . that we wouldn't have as much
trouble working under those conditions, as we would any other Union." When
Lee Judy was soliciting employee Strid to join the 'Independent, Strid asked
Judy. if the respondent was behind the Independent. Judy replied, "Art, I
can't say that they are for or against it, because they can't come out and say they
are behind it, but I do believe that they are in favor of it."
Shortly before the meeting of the representatives in mid-October at which it
was decided to proceed with the formation of the Independent, Bush had a con-
versation with employee Elmo Huston in which he asked Huston what he thought
of an independent union Huston told Bush that anything was better than what
they had at that time and that he was "quite hot under the collar" about the
way the wage differentials had been changed above his signature. Huston
asked Bush what the company thought of an independent union. Bush replied
that Hiatt had approved one and that lie had been in conference with Bogk;
that they would have gotten started "a couple months sooner" if Miller had
approved ; that they had just got Miller's approval ; and that there would be a
meeting of the employee representatives to "start the ball to rolling." The
foregoing finding is made upon testimony of Huston. Before the contract was
signed in the spring of 1942, Huston had been an ardent supporter of the
Independent. While Bush denied that he had had conversations about an
Independent with Hiatt or Miller or had told Huston that he had had,t0 Bush
did testify that he had talked with Huston and had told him that he had
,already had a talk with Bogk and that so far as Bush was concerned, "it was
okay to go ahead with the formation of it " Bogk's testimony confirms that of
,Bush that a conference took place between them in Bogk's office, According
to Bush he went to Bogk because he had been asked by employees what the
management would think of an independent union and lie "thought it would
be a good thing to settle the matter" in his own mind. This he did. He told
Bogk that a large number of men including himself, were thinking strongly, of
joining a labor organization. According to the testimony, Bush received Bogk's
assurance that the law protected the men and that they were privileged to do
as they saw fit. Bush testified that he did not believe that be told Bogk what
organization they were planning on joining. In connection with Bush's state-
ment to Huston, which was made sometime in October, or early November,
it should be rioted that about 2 months previously Hiatt had informed J. J.
Glover, as relayed by Glover to Ordway, that the respondent would gladly
recognize an independent union.
6. The recognition of the Independent, the contract, and events thereafter
The first request in the fall of 1941 received by the respondent from any labor
organization for recognition was a letter dated November 5 from the Union u
That letter sought recognition as the majority representative of "certain em-
ployees" which the Union contended constituted an appropriate bargaining unit.
<° Huston did not testify that Bush said he had had such conversations but rather that
approval had been received fiom Ihatt and Miller
to the Independent.
The original proposals presented by the Union under Article 22 included the
following provisions :
After this contract has been in effect for six months, all present employees
and all future employees of the Company shall become members of the Union.
Any cases arising out of a disagreement under this section shall be referred
to a committee consisfing of two individuals appointed by the President of
the Union and two appointed by the Management, and a unanimous vote
must be had to warrant dismissal.
The provision finally included in the contract under the heading "EMPLOYMENT
QUALIFICATIONS" requires that all new employees apply for membership in
the Independent within thirty clays after entering employment; that temporary
and contruction employees would be excluded from the provisions of the agree-
ment ; that persons then employed would be required to make application for
membership in the Independent within 6 months of the date of the agreement ; 48
and that any employee who was or became a member of the Independent would be
required to remain a member in good standing. The provision for handling
disagreements, first proposed by the Independent, was dropped when the manage-
ment pointed out that no exceptions should be made.' The provision requiring
new employees to make 'application within thirty days first appeared in the
counter proposals presented by the respondent on February 19.
The working contract signed on March 3, and read to the first open meeting
of the Independent on March 5,' was similar in many respects to the Working
Rules and Policies 'which had been entered into with the Representatives in
July and in September of 1941. For instance, all three included the progression
chart, a section on the security plans and benefits of the respondent discussed
above, and a section entitled "Employees Duties" describing the conditions under
which the disciplinary penalties of discharge and suspension would be applied.
The contract of March 3 provided for the use of bulletin boards by the Independent
and for the deduction of dues for members of the Independent who specifically
authorized such deductions in writing The agreement was signed by the six
members of the Executive-Grievance Committee for the Independent and by
Hiatt, Felton and Eddleman for the respondent The period of the agreement
is for one year from March 11, 1942, and thereafter subject to termination on
30 days notice by either party'9
About the middle of March, employee James O'Brien had a talk in Bartlesville
with Hugh Miller at the latter's office.60 O'Brien explained that he believed
the unrest at the refinery was due to the contract with the Independent. Miller
said he was very much disgusted with the employees at the refinery in general ;
that the ink was hardly dry on the contract before the Independent was "scream-
18 It is not clear from the wording of the agi eement whether this provision is intended to
operate as of the day upon which the agreement was signed, March 3, 1942, or of the date
upon which the agreement became effective, March 11, 1942.
'9The provisions requiring membership in the Independent ace set forth above
ai O'Brien was in Bartlesville at a bowling tournament. The conference between O'Brien
and Miller was arranged by Crawford, head of the personnel department at Bartlesville.
O Brien had met Crawford in the bowling alley and had discussed the unrest at the Kansas
City Refinery
1350 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
ing to open negotiations" ; that he considered the trouble was caused by "agents
of Hirohito or Mussolini or Hitler" ; that there would absolutely be no general
increase at the refinery, because of unstable conditions; 0' and that until the
situation calmed down in Kansas City there would be no new equipment
On March.31, the-Union filed with the Board a second petition for investigation
and, certification of representatives. The Board's Field Examiner wrote the
Independent stating that the Union had filed a petition The letter traced the
history of previous correspondence and conferences among the Independent, the
respondent, the Board and the Union. The,-nature of the charge which had
previously been filed by the Union was set forth. The letter closed with the
suggestion that the situation be worked out through a consent election with the
Union and the Independent on the ballot, with the Union withdrawing its charge.62
On April 10, Superintendent Bogk wrote employee Kenneth W. Mears a letter
which read in part as follows :
We have been notified by the Phillips Employees Independent Union that
your membership in that organization has been terminated
Under the provisions of the Working Agreement made with that Union,
effective March 11, 1942, and pursuant to its request through its Executive
Grievance Committee you are hereby advised of -your discharge from em-
ployment on receipt of this notice.
Mears had joined the Independent and had been nothuiated as sergeant-at-arms
at the first, meeting in November Mears paid $1 dues which was credited as
his December dues Prior to his discharge in accordance with the above-quoted
letter, Mears had been asked several times to pay his dues to the Independent
and had refused'
On April 12, the Independent wrote the Board in reply to the Board's letter of
April 2,-reviewing the situation and stating that the need for an election had
passed and that 'the Independent had come by its gains legally and, intended to
keep them. On April 13, the Union filed its first amended charge alleging among
other things that Mears had been discriminated against and that the Independent
was dominated by the respondent.
About the time of the foregoing events, the Union voted to strike at the Kansas
City Refinery 54 Shortly thereafter, about April 14, the relief still superin-
tendent, Terrell, told employee Lee Mitchell at his post in his still in the presence
of another employee, Charlie Langston, in a discussion of the strike vote, `-You
guys are unAmerican as hell to belong to the CIO and vote in this strike, you
are helping Hitler win this war
About April 16, an employee named Alfred Miller, a brother of the respondent's
Bartlesville official hereinabove named. Hugh Miller, met two employees, Lee
Mitchell and William Stewart, outside the paymasters office They discussed
the strike vote Miller told Mitchell that they had always been good friends
- Gi At the close of the negotiations with the independent, the iespondent had refused to
grant a blanket wage increase
52 The above letter fioni the Board's Field Examiner was wiitten aftei conferences had
been held with officers of the Independent at the Board's office in which the situation had
been discussed
sa The fact that Mears had refused to pay his dues in the Independent and had been dis-
charged therefoie in accordance with tbe,provisions,of the contract Ras not disputed by•any-'
of the patties at the hearing
54 The strike vote was approximately April 11.
PHILLIPS PETROLEUM COMPANY _ 1351
and that his brother, Hugh biller, had said that every man who went on strike
at the Kansas City Refinery would be discharged 55
About the first of May, conferences between the respondent, the Unioii and the
Independent were held by a Federal Conciliator, the Board's Field Examiner
being present as an observer. During those conferences, Hiatt, who was repre-
senting the respondent, proposed that a sort of "primary election or Gallup poll"
be held at the refinery to determine whether or not the employees desired to have
an electioli conducted by the Board This proposal was turned down-by the In-
dependent, after it had been referred to the membership. During those'confer-
ences, the Independent refused to enter into a consent election agreement,
although urged to do so. About the time of the foregoing conferences letters
were being prepared for employees by the Independent to be sent to the Union
stating that the signers wished to withdraw membership from the Union and to
acknowledge "affiliation and allegiance" only to the Independent.
On June 6, 1942, The Refiners Athletic Social Club, Incorporated, an organiza-
tion of several years' standing of the respondent's employees, including, super-
visory personnel, held a party at the Memorial Hall in Kansas City, Kansas
Elmo Huston, who was a member of the, club's board of directors, attended the
party and had a conversation lasting approximately an hour with Hiatt. After
discussing the fact that Huston had been on the pay roll for quite a long time
and that the respondent needed good stillmen,ss Hiatt asked Huston if he belonged
to the-C.:I 'O Huston said that he did The cause of the unrest in the Kansas
City Refinery was then discussed Huston said that he thought the unrest
originated about the time of the meeting called in the garage in August 1941.
Hiatt stated that the meeting had accomplished its purpose since the company
wanted "to, give the boys a nickte raise, or whatever it took, to quiet them down
until they could get across the conference table." During the conversation,
Hiatt also told Huston that the employees thought the "Last Man's Club" was
his "baby" but that was because of a 20 years' friendship between himself and
"Spec" Glover."
B. Conclusions as to the unfair labor practices
The Plan, which functioned at the Kansas City Refinery for approximately 3
years from the spring of 1934 to March 1937, was in every respect the creature of
the respondent. Its structure and functions mark it unmistakably as a labor
organization which had the full weight of the respondent's approval and through
which the respondent expected its employees to approach the management with
individual grievances and group requests concerning such matters as wages,
hours and conditions .of employment. The structure of the Plan was such as
to insure its domination by the respondent. The respondent established the
06 The above finding is made upon testimony p f Mitchell and Stewart which the under-
signed credits . Alfred Miller 's explanation of the conversation as a discussion of lhe'dis-
charge of employees for failure" to dour the Independent was not imps essive Furthermore,
as is found above , Hugh Miller was highly impatient with the discontent at the Kansas
City Refinery
w Huston advised Hiatt that he was then a still helper.
The above findings are based upon testimony of Huston who was a credible witness
Hiatt did not specifically deny the statements attributed to him by Huston Ile testified
that Huston 's,testimony concerning the 5 cent inciease as reported -to him-was substantially
correct . He testified that if he asked Huston about belonging to the C I 0 it was only
to make conversation because lie knew that Huston belonged 'to both organizations Hiatt's
version of the conversation stressed his desire to find out why Huston belonged both to the
Union and the Independent. ,
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plan, supervised and financed its operation, and commended it highly in a
manual issued to its employees in 1934: Many of those. employees were still
employed by the respondent during 1941 when the Independent was being organ-
ized. The structure of the Plan and the tenor of the respondent's commenda-
tion 'of it were clearly incompatible with approval of an outside union. Yet,
while the Plan was superseded in 1937 by the Representatives, the respondent
never effectively disavowed the Plan.
In,the fall of 1935, shortly after the effective date of the Act, the employees
grew discontented with' the Plan and meetings were held off refinery property
to organize an independent Union. While the idea at first appeared to have
official approval, the attempt proved abortive because of the respondent's inter-
ference. Some of the leaders were laid off about nine months later, but some of
them were later reinstated in,settlement of a case before the Board.
In March 1937, the respondent instructed the three employee representatives
under the Plan to ascertain the desires of ,the refinery , employees as to wages,
hours, and conditions of employment.' Pursuant to those instructions, the
employees met by departments to express their desires and to elect some 30
representatives. Thereafter the three employee representatives under the Plan
and the 30 departmental respresentatives met with Hiatt and Mitchell, representa-
'tives of the respondent. At Mitchell's suggestion all of the representatives of the
employees elected a committee of seven of whom one, Gallagher, was an employee-
representative under the Plan. That committee of seven men spent about a week
negotiating an agreement with the respondent. _ After taking the agreement back
to the 30 representatives who had elected them and after securing the permission
,of those 30 to do so, six of the committee signed the working agreement with
the management representatives. Thereafter, at the request of the management,
that committee secured signatures from most of the employees ratifying the
agreement.
In their respective briefs, the respondent and the Independent contend in
effect that the agreement of March 24, 1937, was not a collective agreement with
a labor organization, and cite the Board's decision in the case ",involving the
Okmulgee Refinery of the respondent where the Board held that the Okmulgee
agreement of March 20, 1937, was "clearly one directly between the respondent
and its employees as individuals,'and not between the respondent and any labor
organization of its employees." The respondent contends that the committee was
acting "solely and simply as representatives, of the management in negotiating
a contract with individual employees " The Independent contends, that the
Representatives of the Kansas City Refinery "were similar in all respects" to the
representatives of the Okmulgee Refinery and that the Board's decision in the
Okmulgee case is controlling. The Independent further contends that,under the
Okmulgee decision the Representatives of the Kansas City Refinery can in no
sense be deemed a labor organization and therefore the Independent cannot be
a successor to the Representatives.
From the Board's decision in the Okmulgee case, it is evident that there were
many similarities between the procedure followed at the Okmulgee Refinery'and
that followed at the Kansas City Refinery in drawing up the working agreement
in 1937. However, in the Okmulgee decision, the Board 'pointed out that the
record therein did not reveal "the exact method of the selection of these repre-
sentatives, nor the origin of the idea for such a selection"- or "whether the
employees at the Okmulgee Refinery'were-1nformed of this procedure by other
employees of the respondent or by, the respondent itself.", There is no such
"See footnote 13 above.
PHILLIPS PETROLEUM COMPANY 1353
ambiguity in the record in the instant matter. 'While the Board made no finding'
as to whether or not the representatives at the 'Okmulgee Refinery constituted'
'a' labor organization,' there is nothing' in 'the Board's decision in that case to
show that those representatives ever functioned after the agreement was ratified.
In fact,' shortly after the signin'g' of ' the Okmulgee agreement, activities got
under way which resulted'in the formation in the early summer of '1937 of the
Employees' Federation of the Phillips' Petroleum Company, bkmulgee Refinery.'
The Federation, the Board found, adopted and operated under the'agreement'
of'March 29, 1937, and was dominated by the respondent in'vielation of Section
8 (2j of the'Act. The record 'in the-insta' n't matter shows that at the Kansas
City Refinery, the original Representatives continued to function almost 4 years
after the execution of the March 24, 1937, agreement ; that they were succeeded
in March 1941 by another group of'elected representatives ; and 'that those latter,
representatives functioned until February 6, 1942, at which time they resigned
because the respondent had recognized'the'•Independent.
From the activities of the Representatives, from March 1937 to early-1942, a
period of almost 5 years, the undersigned finds that the Representatives was
successor to the Plan and was a labor, organization within the meaning of the
Act." The Representatives continued- to perform the functions of the employee
representatives under the Plan, and their activities clearly grew out of the Plan.
Their purpose was the same as that of the employee representatives 'under the
Plan and they continued to deal with representatives of the management on
wages, hours, conditions of employment, and individual grievances.
From the way in which the working agreement of March 24, 1937, was nego-
tiated, from the wording of the agreement itself, from the subsequent negotia-
tions between the Representatives and the respondent for over a period of almost
5 years, the undersigned finds that the agreement of March 24, 1937, and the
succeeding agreements of July 1 and September 1, 1941, although called "Working
Rules and Policies," were not unilateral announcements of company policies or
contracts with individual employees, but were collective agreements with a labor
organization of the respondent's Kansas City Refinery employees, which labor
organization was established, dominated, and assisted by the respondent. The
undersigned further finds that ratification by individual employees, under the
coilons of this case, does not destroy the collective nature of the agreement
any more than ratification of constitutional amendments makes those amend-
ments merely individual contracts between the 'respective States and the Federal
Government. From all the evidence, .the undersigned is convinced that the
respondent secured ratification by a''substantial majority of its employees; in
addition to the signatures of the Representatives to the Working Agreement of)
March 24, 1937, and the Working Rules and Policies of September 1, 1941, to
increase-their effectiveness' in binding employees te'the respondent and in'pre-
venting'an outside labor organization'from ' securing 'a foothold in the Kansas
City Refinery.
During the summer of 1937 Frank Phillips made his opposition to outside labor
organizations unmistakably clear in an address to a majority of the respondent's
employees. When discontentment arose in 'the'refinery' in the spring of 1941,
a personnel survey was' undertaken and' a new group of 'representatives was
elected, the old representatives conducting the election in the plant: About the
same time , on April 1, a blanket'increase of 5,percent was granted: Thereafter
while the Representatives was',attexapting to" out a progression chart and
so The fact that there was no constitution ,' by-laws, membership requirements or dues
is immaterial. The pattern of activity had been well established - under the Plan. -
1354 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
establish satisfactory differentials, the employees, about the middle of June,
filed petitions asking for a blanket wage increase of 15 cents an hour., During,
May or June some employees, including Paul Bush, discussed organizing various
types of unions. About July 1, a new agreement, called "Working Rules and
Policies," signed by the Representatives and the respondent was posted.. There-
after,the Representatives held meetings even more frequently concerning griev-
ances, differentials, the progression chart, and the justification for a blanket in-
crease in relation to the cost of living. Following the foregoing intensive activity
on the part of the Representatives, on August 16, two officials from Bartlesville,
Hiatt and Miller, met with the Representatives and Bogk. Hiatt read a letter
flatly stating that. a blanket increase was then impossible and not justified in
terms of ,the cost of living.
Early during the week of August 17 to 23, the first open meeting of the Union,
set for Friday evening, August 22, was announced. The Representatives, which
had adjourned to Saturday, August 23, held a meeting instead on Thursday,
August 21, at which officials from Bartlesville were present and at which action
was taken on several matters some of which had been pending for some time
The respondent told the Representatives that a blanket wage increase would
probably be made within the next week or 10 days. Meetings were also announced
for all of the employees of the respondent to be held on August 22, the sane date
as that announced by the Union for its meeting. In an address to the employees
at the August 22 meeting, Mitchell made it clear that the respondent did not
believe that outside labor organizations were needed to adjust differences
between the respondent and its employees A blanket increase of 5' cents an
hour was granted, to the employees at these meetings. The meetings were
scheduled and lasted throughout periods which made it difficult although not im-
possible for employees to attend the announced meeting of the Union. From all
of the circumstances surrounding the calling of the meetings in the garage on
August 22, and what transpired at those meetings, the undersigned is convinced
and finds that the meetings were scheduled in order to obstruct organizational
attempts by the Union. From the sequence of events preceding the blanket
increase granted on August 22, the way in which the increase was granted, and
the admissions concerning that increase which Hiatt made in June 1942 to Huston
to the effect that the increase served the purpbse of quieting the men down until
the respondent could get them around a conference table, the undersigned infers
and finds that the blanket pay increase to the Kansas City Refinery employees
on August 22,\1941, was made at a time and under conditions calculated to ob-
struct organizational attempts by the Union.'
Following the meeting of August 22, the respondent continued its pattern ex-
hibited at that meeting of attempting to appease the employees on the one hand
and discourage outside labor organizations on the other. Two permanent rep-
resentatives were added to the six representatives, making a total of eight em-
ployee representatives. A group of 15 elected advisors was included in the meet-
ings thereafter between the Representatives and the management. The question
of differentials was given intensive study and upward revisions were agreed- to
in some of the classifications About this time, "Spec" Glover, an employee who
had worked for the respondent and had known Hiatt for some 20 years, started
80 Due consideration has been given to the fact that a general increase was put into effect
throughout the respondent 's several properties shortly thereafter Assuming that the
respondent had previously intended to grant an increase on September 1, it is clear that
its granting the increase almost ten days earlier than it had intended , constituted an
attempt to obstruct the Union 's organizational campaign , when considered in the ligbt,of
the surrounding circumstances.
PHILLIPS PETROLEUM COMPANY I . 1355
circulating widely throughout the plant during working hours a petition against-
the C. I. 0. and passing out cards in his "Last Man's Club." He told one em-
ployee that Hiatt-was in favor of an independent union. In the meantime a.
supervisory employee named Lothrop had been taken into the union meeting on
'August 22 wlienemployees,found him in front of the meeting hall,, ostensibly,
watching to see who was attending Bogk also told Foreman Wells, a member
of the Union, that he was not selling the respondent 100 percent and, later, that,
lie might embarrass the respondent by being in the Union in view of his super-,
visory duties. While Glover claimed sole responsibility for his petition and his
"Last Man's Club," and Glover and Bogk testified that Bogk told him to stop
circulating the petition, the undersigned is convinced and finds from the sur-
rounding circumstances and the testimony concerning the extent to which the
petition was circulated, as well as the wording of the petition itself, that the
petition and the Last Man's Club had the approval of the respondent.
Shortly after the middle of September the respondent without consultation
with the Representatives posted further upward revisions in its classifications
and a division of stillmen into three groups.with the A group substantially in-
creased in rate. The way in which the notice was posted, the division of stillmen
into three groups, and the failure to increase some groups as much as the em-
ployees wished, operated to create further discontentment among the employees
What the respondent had done as a measure of further appeasement proved, in
part, a boomerang. About this time Paul Bush had a talk with Superintendent
Bogk and "satisfied himself" that it was all right to go ahead with the organiza-
tion of an independent union Sometime thereafter he told Huston, who was at
first strongly in favor of an independent, that he had seen Bogk, that Hiatt bad
approved of an independent, and that if Miller, whose approval had just been-
secured, had approved earlier an independent would have been started two,
months earlier He also told Huston that he was going to call together the Rep-
resentatives. After securing Bogk's permission to have the Representatives
meet an hour earlier than their scheduled meeting with the management. Bush
called together the eight employee representatives who met on the respondent's
property without loss of pay. At that meeting Bush convinced all but one of
the representatives that an independent union was desirable and that they
should assist in starting one. Thereafter a list of employees, found to be in-
terested in an independent union and who could be "trusted," was compiled by,
Bush. This list was used in checking in the employees who attended the first
meeting on November 19 ^ That meeting was opened by Strannigan, the chairman
of the Representatives, and was addressed by Bush who explained the desir-
ability of an independent. The four representatives present then conducted an
election of officers. After their election, the new officers of the Independent took
charge. In soliciting for the Independent several leaders in that organization
told employees that the respondent favored or that they "believed" it favored an
independent union. No open meeting of the Independent was held until after the
contract had been signed
From the facts found, hereinabove the undersigned is convinced and'finds that
for a period of'at least 8•years prior to the, organization, of the-Independent, the
respondent had pursued it strongly paternalistic policy toward its employees and
had opposed outside labor organizations ; that this policy had been made known
clearly, emphatically, and officially by such acts as the distribution of the em-
ployees' manual for the Plan in 1934, the address of Phillips in 1937, and the
statements of Mitchell at the garage meeting on August 22, 1941; that the
employees had come to look upon the Representatives as operating upon a basis
1356 DECISIONS OF NATLONAI• LABOR RELATIONS BOARD'
which had the approval of the respondent; 81 and that the respondent at no' time
took any effective action which' would dissipate its previous unfair labor praetices,
wipe the slate clean, and render its employees as free in'their exercise of their
right to self-organization' as the Act requires. The undersigned' believes and
finds that while the respondent first resisted the formation of an independent
union and attempted to appease its employees, it finally became convinced that it
was confronted with a choice between an inside labor organization or an outside-
labor organization and' thereupon gave its approval of the former to-certain
employees, among them Paul Bush ' and "Spec" Glover. Bush then assumed the
leadership, first in selling the idea to the Representatives and later in discussing
it with employees. After the four representatives had opened the Independent's
first meeting and had conducted the election, some'of them assisted in securing
membership. While the Independent was getting under way, the Representa-
tives remained practically dormant, holding only one meeting, on January 13,
1942, so far as the minutes show, but it was only after the recognition of the
Independent by the respondent that the Representatives resigned in a body.
Under all the circumstances, while there was clearly provocation because of
the unilateral posting of changes by the management in September, 1941, and
hile some of the leaders in the Independent were undoubtedly sincere, in desiring
an independent union, -the undersigned is convinced -and finds that, because of
the leadership of the Representatives in forming the Independent, the respondent's
openly expressed hostility toward outside labor organizations, the respondent's
failure to take clear positive action to free its employees from years of domi-
nation, and the procedure followed and the statements made in organizing
the Independent, from its inception the Independent was so tainted with the
respondent's domination as to be incapable of'serving as a free bargaining agent
of the employees of the Kansas City Refinery.
In its negotiations with the respondent, the Independent in several ways
carried on from, where the Representatives left off, without questioning such
frames of reference as the promotional progression chart ' The same impotence
in the face of Hiatt's flat refusal to consider a blanket increase was shown by the
Independent on March 2 as had been shown by the Representatives on August 16.
In view of the respondent's labor relations policies, the circumstances surrounding
,the formation of the Independent, and the respondent's failure to take unmis-
takeable positive action to "wipe the slate clean," the respondent's employees
had every reason to assume that the respondent was offering them the Independ-
ent'in lieu of the Representatives. In view of all of the facts, exterior dissimilari-
ties between the, Representatives and the Independent are not controlling The
undersigned finds that the Independent is the successor to-the Representatives
which in turn was the successor to-the Plan.
By granting recognition to the Independent on the basis of its claimed majority,
which majority was not the result of the exercise of the free and uncoerced choice
of the respondent's employees, and by-entering into the Working Agreement on
March 3, 1942,' with the Independent based upon that recognition,' th e respondent
further aided and assisted the Independent Since the Independent was the
successor to the Representatives, and was formed, aided, and assisted by the
respondent,' the Working Agreement of March 3 is not valid, and no provisions
of, that agreement-can' stand as, a defense to the discharge' of Kenneth W. Mears
on,April 10, 1942.
°i Oil the basis of the? respondent's conteiition, the ' iepresentatives' were in fact agents
of the respondent, selected by the respondent and paid by''the respondent for the purpose
of keeping it in touch with the desires of the refinery employees Whichever theory be
accepted, the responsibility of the respondent for the actions of those representatives is
substantially the same.
PHILLIPS PETROLEUM COMPANY 1357
, Upon -weighing the evidence, the undersigned does not believe that the allega-
tion,of ,the complaint, that the respondent failed and refused to promote employees
lbecause.of,activtties on behalf of the Union, is sustained. In his specification of
particulars, counsel for the Board stated that the respondent had failed to promote
Floyd E. Joiner on November 1, 1941. Joiner was then a still helper whose
activities on behalf of the Union were known to the respondent. About November
1, two still helpers, T. E. Dodd and E. H. Hines, were made stillmen. They had
both started to work at the refinery in April 1933. Joiner, who had started -to
work in December 1932, was not so promoted. One other employee with seniority
greater than Dodd and Hines was also passed over in the promotions. The four
foregoing employees ranked highest in seniority, constituting the top ten percent
in seniority of the approximately 40 still helpers. The respondent's policy in
promotions had been to consider seniority as one of the factors,'but as controlling
only when ability was equal.
The 'evidence, both oral and documentary, shows that in September 1941 the
respondent started a system of grading its employees and that the promotion of
Hines and Dodd was made upon the basis of the ratings given still helpers. These
ratings of still helpers were made by some eight supervisors in accordance with
written instructions. The still helpers were rated "very good" if they were
handling their jobs well, were improving in knowledge, and could probably handle
the job of stillman. The rating "good" was given to those who were handling their
jobs•but not in such a way as to justify, maximum confidence in ability to be
transferred to another unit and pick up the work rapidly. The rating "fair"
was given to those who were doing their present jobs well under ordinary cir-
cumstances but would not be transferred to another unit because of inability to
pick up the work; such persons were not showing improvement. The rating
"poor" was given to those just "getting by" on their present jobs.' In September,
Joiner was rated "good" by two of his supervisors, "fair" by five, and "poor" by
one. In October he was rated "good" by one and "fair" by four. On the other
hand, in September, Hines was rated "very good" by six supervisors .and "good"
,by one.- In October, he was rated "good" by three supervisors and "fair" by one.
In September Dodd, was rated "very good" by all eight raters. In October he
received one rating of "very good" and two of "good".'
On. the basis of the foregoing ratings, Hines and 'Dodd rated in the upper '10
percent while Joiner rated well toward the bottom of the still helpers. In, Sep-
tember, the raters were also asked, in getting the rating system started, to place
all of the still helpers in a list,beginning with the most efficient at the top. On
the basis of a compilation of this order of listing, Dodd was rated 1, Hines 3,
and Joiner 40. In addition to the foregoing ratings, there was credible testimony
by several of Joiner's superiors that he was not considered qualified to accept
the responsibilities of stillman. A stillman 'has high responsibilities for the
operation of a still. The value of a still varies, from a quarter of a million to
three-quarters of a million dollars. The duties of stillmen are varied and
complicated. - '
There is documentary evidence to show that before the Union started its drive
in August 1941, Joiner had had difficulties with his work as still helper. For
instance, on March 17, 1940, a letter was written by a still foreman to the process
superintendent explaining that Joiner had been shifted from one still to another
at the request of the stillman on the first still, who had stated that Joiner had
no "feeling for operation" and did not have enough interest and application in
62 The number of persons rating varied from month to month depending'on the particular
work being performed by'a given individual , some work being observed by a smaller number
of supervisors than other work. \
1358 DECISIONS OF ' NATIONAL - LABOR RELATIONS BOARD
-attempting to learn the operation of a still. On April 6, 1941, Joiner received
a letter reprimanding him for closing a valve in a manner which had necessitated
a costly repair. Joiner had admitted closing the valve too quickly.
According to Joiner's testimony, after he had been'informed why he had not
been promoted, he asked several of the supervisors who had rated him why
they had rated him as they did The explanations given by these supervisors,
according to Joiner, with two exceptions, were in terms of Joiner's inefficiency
along certain lines According to Joiner, Night Superintendent Brush said that
the vote had not been a fair vote and that the foremen had been told how to
vote. Joiner admitted he had been "pretty - hot" when lie had seen Brush
According to the testimony of Brush,- which testimony the undersigned credits,
Brush did not say that the vote had been unfair but had tried to explain the
instructions which had been issued to the various supervisors as the basis upon
which the ratings were to be made. ' Joiner also testified that one of the fore-
men, W?odie Wilson, a few days later m'a conversation which lasted anywhere
from 10 to 30 minutes, said to him, after lie had made the assertion that the
two still helpers who had been promoted were members of the "company union"
and that he was not and never expected to be; "that is the hell of it with you,
you are riding the wrong train." - The foregoing testimony was not denied
Assuming that some such remark as that testified to by Joiner was made by
Wilson, the undersigned believes that, while it is further evidence of the re-
spondent's approval of the Independent it does not establish that Joiner's low
ratings had been given him because of his membership in the Union, especially,
in view of Joiner's difficulties in 1940 and early 1941. The undersigned be-
lieves and finds that Joiner's failure to receive a promotion to the position of
stillman about November 1, 1941, was due to the respondent's belief that Joiner
was not as well qualified for that position as were Dodd and Hines. Accord-
ingly it will be recommended below that the complaint be dismissed insofar as
it alleges that the respondent has failed and refused to promote employees be-
cause of their affiliation with the Union.
The undersigned finds that the respondent has dominated and interfered with
the formation and administration of the Plan, the Representatives, and the
Independent, and has contributed financial and other support to them, and has
thereby interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section7 of the Act.
The undersigned also finds that the respondent, by its discharge of Kenneth
W. Mears on April 10, 1942,63 under a provision in its invalid working agreement
with the Independent, discriminated in regard to the hire and tenure of eni-
ployment of Mears and thereby discouraged membership in a labor organization,
and that the respondent has thereby 'interfered with,^restrained and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
- The undersigned further finds, that in addition to the activities set out above,
the respondent, by statements and speeches prejudicial to the Union, by watch-
ing and spying upon its employees, by threatening discharge, by permitting the
circulation of petitions, by questioning employees concerning union matters, by
scheduling meetings in such a way as to obstruct organizational attempts by the
Union, and by giving blanket pay raises at times and under conditions calculated
to interfere with and obstruct organizational activity by the Union, has inter-
fered with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
as Until April 13, Mears could have secured reinstatement by paying his dues in the
Independent.
-PHILLIPS `PET'ROLE(UM COMPANY i359 '
IT. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent - as' set forth in Section III above , occurring in
connection with the operations 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
Having found that the respondent has engaged in unfair labor practices, the
undersigned will recommend that it cease and desist therefrom, and take certain
affirmative action which the undersigned finds necessary to effectuate the policies
of theAct.
It has been found that the respondent dominated and interfered with the formna-
tion and administration of the Plan, the Representatives, and the Independent,
and has contributed support to them. The Plan and the Representatives are no
longer active, but since neither has been effectively disestablished by the respond-
ent it will be recommended herein that the respondent cease and desist from
dominating or interfering with the administration of the Plan and the Repre-
sentatives and hereafter refrain from recognizing the Plan or the Representative's
should either ever return to active existence The ettect and consequence of the
respondent's domination, interference with, and support of the Independent, as
well as the continued recognition of the Independent as the bargaining repre-
si ntative`of its employees, constitute a continuing obstacle to the free exercise by
the employees of their right to self-organization and to bargain collectively
through representatives of their own choosing. Because of the 'respondent's
illegal conduct, the Independent is incapable of serving the employees as a genuine
collective bargaining agency. Moreover, the continued recognition of' the Inde-
pendent would be obstructive of the free exercise by the employees of the rights
guaranteed to them by the Act. Accordingly, it will be recommended that the
respondent disestablish and withdraw all recognition from the Independent as
the representative of any of the employees at the Kansas City Refinery for the
purpose of dealing with them concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment.
Under the facts found, the contract with the Independent constituted and was
a part of the unfair labor practices. It is recommended below that the Iespondent
cease and desist fnom giving effect to the contract with the Independent signed
on or about March 3, 1942, as well as to any extension, renewal, modification, or
supplement thereof, and any superseding contract which may now be in force.
Nothing herein shall be taken to require the respondent to vary those wages,
hours, seniority, and other such substantive features of their relations with the
employees themselves which the respondent has established in the performance
of the contract or as it has been extended, renewed, modified, supplemented, or
superseded.
Having found that the respondent discriminated in regard to the hire and
tenure of employment of Kenneth W. Mears by discharging hum pursuant to its
contract with the Independent which contract was invalid, the undersigned will
recommend that the respondent offer immediate and full reinstatement to Ken-
neth W. Mears to his former or substantially equivalent position, without preju-
dice to his seniority or other rights or privileges, and that it make him whole
for any loss of pay he may have suffered by reason of the discrimination against
him, by payment to him of a sum of money equal to the amount which he normally
1360 , DECISIONS OF-NATIONAL LABOR,RELATIONS BOARD
would have earned as' wages from the date of such discrimination to the date of
the offer of reinstatement, less his net earnings 64 during said period.
Upon 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, Local No. 348, affiliated with the Congress
of Industrial Organizations, and The Phillips Employees Independent Union of
the Phillips Refinery of Kansas City, Kansas, are and Phillips Plan of Employee
Representation and The Employee Representatives were labor organizations,
within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Phillips Plan of Employee Representation, The Employee Representatives, anil
the Phillips Employees Independent Union of the Phillips Refinery of Kansas
City, Kansas, ,and contributing support to them, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
3. By discriminating in regard to the hire and tenure of employment of Ken
neth W. Mears and thereby discouraging membership in Oil Workers Interna-
tional Union, Local No. 348, affiliated with the Congress of Industrial Organiza-
tions, the respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining and coercing its employees in the exercise
of the, rights guaranteed in Section 7 of the Act, the-respondent has engaged in
and is engaging in unfair labor practices, within the, meaning of Section 8 (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 •(6),and (7) of the Act.
6. The respondent has not engaged in unfair labor practices by failing and
refusing to promote employees because of their membership and activities in
behalf of Oil Workers International Union, Local No. 348, affiliated with the
Congress' of Industrial Organizations.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Phillips Petroleum Company, its officers,
agents, successors, and assigns, shall:
1.! Cease and desist from :
(a) Dominating or interfering with the administration of the Phillips Plan
of Employee Representation or its successor, The Employee Representatives, or
its successor, Phillips, Employees Independent Union of the Phillips Refinery of
Kansas City, Kansas, or with the formation or administration of any other labor
organization, and from contributing financial or other support to said labor
organization or to any other labor organization ;
84 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-
wheie 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 Unitcd Brotherhood of Carpeniteis 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.
PHILLIPS PETROLEUM COMPANY 1361
• (b) Recognizing the Phillips Employees Independent Union of the Phillips
Refinery of Kansas City, Kansas, as the representative of any of its employees
for the purpose of dealing with the respondent concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions of employ-
ment;
(c) Giving effect to the contract'of March 3, 1942, with the Phillips Employees
Independent Union of the Phillips Refinery of Kansas City, Kansas, or to any,
modification, extension, supplement, or renewal thereof, or to any superseding
contract with it ;
(d) Discouraging membership in Oil Workers International Union, Local No.
348, affiliated with the Congress of, Industrial Organizations, or any other labor
organization of its employees, by discharging any of its employees or in'any other
manner discriminating in regard to their hire or tenure of employment, or any
term or condition of employment;
(e) In any other manner interfering with, restraining, or coercing its em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
labor organizations, 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.
2 Take the following affirmative action, which the undersigned finds,will effec-
tuate the policies of the Act :
(a) Withdraw all recognition from and completely disestablish the Phillips
Employees Independent Union of the Phillips Refinery of Kansas City, Kansas,
as the representative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment, and refrain from recognizing
Phillips Plan of Employee Representation or The Employee Representatives
should either ever return to active existence.
(b) Offer to Kenneth W. Mears immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights or privileges ;
(c) Make whole Kenneth W. Mears for any loss of pay he may have suf-
fered by reason of the respondent's discrimination against him, by payment to
him of a sum of money equal to that which he normally would have earned as
wages during the period from the date of the discrimination to the date of the
respondent's offer of reinstatement, less his net earnings Q during said period;
(d) Post immediately in conspicuous places throughout its Kansas City,
Kansas, refinery, and maintain for a period of at least sixty (60) consecutive
clays from the date of posting, notices stating that the respondent will not
engage in the conduct from which it has been recommended that it cease and
desist in paragraphs 1• (a), (b), (c), (d), and (e) of these recommendations;
(2) that the respondent will take the affirmative action set forth in Para-
graphs 2 (a), (b), and (c) of these recommendations; (3) that the respond-
ent's employees are free to become or remain members of Oil Workers Inter-
national Union, Local No. 348, affiliated with the Congress of Industrial
Organizations, and that the respondent will not discriminate against any em-
ployee because of membership or activity ' in that organization ;
(e) Notify the Regional Director for the Seventeenth Region,' in writing,
within twenty (20) days from the date of the receipt of this Intermediate
Report, what steps the respondent has taken to comply herewith.
It is further recommended that, unless on or before twenty (20) days from
the receipt of this Intermediate Report, the respondent notifies said Regional
ss See footnote 64 above.
493508-43-86
1362 DECISIONS - OF NATIONAL LABOR RELATIONS BOARD
'Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring the respondent to
take the action aforesaid.- -
It is further recommended that the complaint be dismissed insofar as - it
alleges that the respondent, -Phillips Petroleum Company, has engaged in unfair
labor practices by failing and refusing to promote employees because of their
membership and activities in behalf of Oil Workers International Union, Local
348, affiliated with the Congress of Industrial Organizations.
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) clays 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.
EARL S. BELLMAN -
Tn,al Examiner.
Dated August, 31, 1942.