Pure Oil Co.

National Labor Relations Board - Board Decisions

Jun 30, 1945

62 N.L.R.B. 1039 (N.L.R.B. 1945)

In the Matter of PURE OIL COMPANY, WOFFORD OIL DIVISION and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN & HELPERS OF AMERICA, LOCAL UNION #612
Case No. 10-C-1335.-Decided June 30, 1945
DECISION
AND
ORDER
On April 3, 1944, the Trial Examiner issued his Intermediate Report
in the above-entitled proceeding, finding that the respondent had engaged
in, and was engaging in, certain unfair labor practices, and recommending
that it cease and desist therefrom and take certain affirmative action, as
set forth in a copy of the Intermediate Report attached hereto. Thereafter,
the respondent filed exceptions to the Intermediate Report and a brief in
support of the exceptions.
The Board has reviewed the rulings on motions and on objections to
the admission of evidence made by the Trial Examiner at the hearing, and
finds that no prejudicial error was committed. The rulings are hereby
affirmed.
The Board has considered the Intermediate Report, the exceptions and
brief, and the entire record, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, except insofar as they are
inconsistent with our findings and order hereinafter set forth.
1. We agree with the Trial Examiner's conclusion that the respondent's
refusal to bargain with the Union on December 21, 1942, was violative of
Section 8 (5) of the Act.
We are of the opinion that, at all times material herein, including Decem-
ber 21, 1942, the date of the respondent's refusal to bargain, the Union
represented a majority in the appropriate unit.
The Trial Examiner properly found that on October 1, 1942, the Union
represented a majority of the employees in the appropriate unit. This
finding is based upon a summary of the Union's records, which was admit-
ted in evidence, showing that 49 of the 85 employees in the appropriate
4
62 N L R. B, No. 131.
1039
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit had paid to the Union either initiation fees or clues' during one or more
of the months of July, August, and September 1942.2 This evidence, in
the circumstances hereinafter considered, constitutes ample proof of ma-
jority status of the Union 3 _
The record discloses that a majority of the employees in the unit paid
no dues to the Union for the period of October 1942 to December 21, 1942,
the date of the respondent's refusal to bargain.' We do not believe that
this circumstance negatives the Union's status as majority representative
as of December 21. An employee's membership in a labor organization,
with the resulting authority in that organization to act as his collective bar-
gaining representative, does not ipso facto terminate with a cessation of
dues payments 6 In the instant case, we think it clear that the Union, on
its part, had not terminated and had no intention of terminating the status
of the employees in question as members for the purpose of having the
Union act as their bargaining representative.' Nor, except for some gen-
eral testimony indicating that some of the employees, prior to the with-
drawal of December 9 and 10, had expressed dissatisfaction with the Union,
is there any evidence which establishes that prior to that withdrawal a
majority of the employees in the unit had terminated their status as mem-
bers of the Union or had otherwise manifested an intention that the Union
no longer act as their bargaining representative. On the contrary, the fact
i Approximately 8 of the 49 were shown to have paid initiation fees, and the balance were shown
to have paid dues It is the practice of the Union not to charge dues for the month during which
the initiation fee is paid.
2 The record discloses that less than a majority of the unit paid their dues for the month of Sep-
tember 1942.
S Cf. Matter of Cowell Portland Cement Co, 40 N L R B 652, 682-5; Matter of Ford Motor
Company, 29 N. L. R. B 873, 904 ; Art Metals Construction Company v. N L. R. B , 110 F. (2d)
148 (C C. A 2); Matter of Martin Brothers Bor Company, 35 N L R B 217, 233-4, Matter of
Brown -McLaren Manufacturing, 34 N. L. R B. 984, 996 - 7. In the present circumstances , our con-
clusion in this regard is not altered by the fact that the contract between the respondent and the
Union, which did not expire until October 7, 1942, contained a provision for maintenance of mem-
bership.
4 This failure to pay dues on the part of a majority of the employees in the unit continued to
April 1943
G Cf. N. L. R B. v National Seal Corporation , 127 F (2d) 776, 779 (C. C. A. 2).
6 While the constitution of the International of the Union (Local No. 612 ) provides that mem-
bers who are in default in dues payment for a period of 3 months "shall stand suspended ," it appears
that the provision was designed principally to deny such employees the right to obtain strike bene-
fits. In any event, it is not shown that such automatic suspension applied to the matter of having
the Union represent the employees in collective bargaining . Moreover , Gamble, president of the
Union, while stating that if an employee is in default in dues payment for more than 3 months lie
is not considered a member in good standing , testified that, "we never have suspended anyone for
being 3 months behind with their dues , we have always given them a chance to pay up," thus
suggesting that, under the Union' s practice , an affirmative act of suspension is required. There
is no showing herein that any action was taken by the Union against the employees in question
because of their default in dues payment . Cf. N. L. R. B. v. National Seal Corporation , supra.
It is also significant that, according to Gamble's testimony , under the Union's practice one is auto-
matically expelled from membership only when he is in arrears in dues payment for a period of 6
months. We further note Gamble's testimony that when negotiations for a new contract between the
respondent and the Union terminated in the middle of November 1942, "Everyone of [the respond-
ent's employees] with exception of about 3 in our jurisdiction were already members [of the Union]."
PURE OIL COMPANY 1041
that they found it necessary to take action at the meeting of December 9,
1942, for the purpose of withdrawing from the Union, and to sign on
December 10, 1942, a petition of resignation from the Union which also
stated that the Union was no longer authorized to represent them as a
bargaining agency, strongly suggests that on these dates they still believed
themselves members of the Union and still regarded the Union as their
bargaining representative. Nor do we believe the Union's status as majority
representative on December 21 to be negatived by the fact that its majority
in the first instance is established as of a date shortly prior to the expiration
of a maintenance-of-membership contract. That contract terminated ap-
proximately 2312 months prior to December 21. The existence of the con-
tract' affords no reasonable basis for inferring an intention on the part of
those who were members of the Union as of the date on which its majority
is first shown to have existed, to withdraw therefrom or to revoke their
designation of such organization as their bargaining representative upon
the expiration of that contract. Such an intention must be clearly established
by some unequivocal act on the part of the employees in question following
the expiration of such contract.' Except for their withdrawal of December
9 and 10, which, for reasons set forth below, we believe to have been
inspired, at least in part, by the respondent's assistance, we find no such
unequivocal act in the instant case .8
We agree with the Trial Examiner that the withdrawal was ineffective
to dissipate or render inconclusive the majority status of the Union,
because it was inspired at least in.part by the respondent! We consider
significant in this respec# following conduct of the respondent : per-
mitting the employees to hold, at the plant, the withdrawal meeting of
December 9, which was a general meeting of employees ; permitting a
7 We do not deem the mere existence of a maintenance -of-membership clause in a contract as hav-
ing the effect upon a union's status as majority representative attributed to it by Mr. Reilly Mem-
berships under such a clause are equally valid in the computation of majority status as are other
designations made in the absence of such clauses . Only where the evidence discloses that authoriza-
tions were secured by coercion , such as threats of violence , fraud or duress , may we discount their
efficacy in this connection . The facts disclosed herein do not fall within any such pattern . We do not
regard Matter of McGough Bakeries Corporation (58 N. L R. B 849) as applicable or controlling
here. In that case, we were dealing with bargaining authorizations required pursuant to a closed-
shop contract , whereas here we are concerned merely with union designations obtained without ref-
erence to any contractual provision and thereafter maintained during the life of a contract provid-
ing for maintenance of membership.
8 Cf. N. L R. B v. National Seal Corporation, supra Moreover , we note that, at no time prior to
the withdrawal , did the respondent raise any question as to the Union' s majority status , and that
the relationship of the parties was interrupted solely because of a break-down in wage negotiations
In fact, the respondent 's refusal to bargain was predicated solely upon its claimed effect of the with-
drawal incident of December 9 and 10, 1942.
6 No ambiguity exists in this case as to the majority status of the Union within the meaning of
our decisions in the Pennsylvania Handbag and Ace Sample Card cases as asserted by Mr. Reilly.
In this case , unlike in those cases, the facts show that the rival group found its initial impetus in
the respondent 's acts of assistance and support. The situation thus created brings this case within a
familiar pattern of employer interference with the statutory representative of his employees toward
the end that its already established majority status might be destroyed . Such conduct is prescribed
by the Act. See N L R B v Bradford Dyeing Ass'n, 310 U S 318
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice of that meeting to be displayed in the plant at a spot located near
Superintendent Hall's desk; telephoning some of the employees who were
not at work and requesting them to attend the meeting;" giving express
permission to six or seven employees to attend the meeting during their
working hours; dictating to one of the employees the contents of the
withdrawal petition; permitting that petition to be typewritten at its office
by one of its stenographers, and permitting the petition to be circulated
among the employees at the plant during working hours.
The respondent contends that certain facts and circumstances disclosed
by the record, dealing particularly with the respondent's past practices in
regard to extra-curricular activities carried on by its employees on com-
pany time and property, neutralized the effect which the afore-mentioned
acts of assistance might otherwise have had upon the employees. Thus, the
respondent points to the evidence which indicates, though not too clearly,
that it permitted employees to hold general meetings at the plant in con-
nection with such matters as the Thrift Club, Credit Union, Community
Fund, and social "get togethers." Our attention is also called to the evi-
dence disclosing the respondent's practice, during the life of its contract
with the Union, of permitting informal meetings at the plant between
groups of employees and union representatives in which the latter would
"talk things over with the boys." As for Superintendent. Hall's conduct in
requesting sonic of the employees to attend the meeting of December 9,
1942, the respondent points to, Hall's uncontradicted testimony that on
other occasions he also telephoned employees who were not at work and
notified them of meetings of "the employees tl^ elves" which were sched-
uled to be held at the plant after working hours.' There is also the testi-
mony of various witnesses indicating that it was the respondent's practice
to permit employees to attend union meetings off the respondent's premises
during working hours, though it is not entirely clear that that practice was
in existence prior to December 9, 1942. Finally, our attention is directed
to the evidence indicating a leniency by the respondent toward the Union
and a willingness on its part to cooperate with that organization, such as
the fact that it entered into an oral and later a written contract with the
Union, without requiring proof of its majority status
We have carefully considered the respondent's contention and we do not
agree that the effect which its acts of assistance in connection with the
withdrawal might otherwise have had upon the employees was neutralized
1O While Hall, who had made these calls , testified that he told the employees that he was calling
them at the request of Evans, who was the Union 's job steward , the testimony of two of the em-
ployees in question concerning Hall's telephone calls nowhere indicated that Hall had made the latter
remark. For example, according to the testimony of Wilson, one of these employees , what Hall told
him was that "the boys was going to have a meeting over there that night and he would like for one
to be there if I could " Upon the entire record, we find that Hall did not advise the employees
that he was calling them at Evans' request.
11 Upon the entire record , we infer and find that these were non-union meetings.
PURE OIL COMPANY 1043
by the foregoing circumstances. With respect to the respondent's practice
of permitting general meetings at the plant for non-union purposes, and of
notifying employees who were not at work of non-union meetings to be
held by the employees at the plant, it is sufficient to observe that while
an employer may be privileged to assist his employees in other ventures,
he may not, under the Act, assist them in their self-organizational activities
Thus, the fact that an employer has paid a sum of money to an athletic club
organized by his employees, to assist in its maintenance, would in no way
legitimatize a similar contribution by him to a labor organization. Similarly,
while an employer may assist his employees in disassociating themselves
from a social club, he may not, tinder the Act, assist them in withdrawing
from a labor organization. It is plain that a contrary result would defeat
the basic -policy underlying the Act of insuring self-organization among the
employees, free from the interference, assistance, or coercion of the
employer.
As for the respondent's practice of not objecting to informal meetings
at the plant between groups of employees and union representatives, and
of permitting employees to attend union meetings off the respondent's
premises during working hours, we have carefully weighed these two
circumstances against the numerous acts of assistance rendered by the
respondent in connection with the withdrawal, as outlined above. In our
opinion, those two circumstances did not offset the effect which the com-
bined force of such acts of assistance had upon the employees. Particularly
objectionable was the respondent's conduct in dictating the terms of the
withdrawal petition to the employees, allowing the petition to be type-
written at the plant by its stenographer, and then permitting it to be circu-
lated at the plant during working hours." Such conduct, in our opinion,
must have led at least a crucial number of employees" to believe that the
withdrawal was sponsored by the respondent.
Nor are we impressed with the contention that the respondent had
manifested a friendliness toward the Union, and that this circumstance also
tended to neutralize the effect upon the employees of the respondent's
assistance in connection with the withdrawal. Even assuming that, upon
all the evidence disclosed by the record, such a friendliness could be found
to have existed, we do not believe that it neutralized the effect of thc:
respondent's acts of assistance. In any event, whatever leniency and good
will the respondent may have exhibited toward the Union was, in our
12 We note that the respondent 's conduct in the present case exceeds by far the action of an em-
ployer in advising inquiring employees how to recover membership cards heretofore found unobicc-
tionable in Matter of W. E. Lipshutz, d/b/a The Monarch Co., 56 N. L. R. B 1749.
13 While a majority of the employees present at the meeting of December 9 voted to withdia%N
from the Union , it was not until the petition was signed that a majority of employees in the unit
had signified their desire to withdraw Also, the petition itself was signed by only 45 employees out
of a total of approximately 80 in the unit.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion, more than offset by its unlawful acts and clear expressions of
hostility with respect to that organization." Thus, as early as the latter
part of 1940, Superintendent Hall and Assistant Zone Manager Pruett
engaged in surveillance of a meeting of the respondent's employees, held
off the respondent's premises, which was called for the purpose of dis-
cussing the matter of the employees affiliating themselves with the Ameri-
can Federation of Labor. On the following day, Hall, in a conversation
with employee Dover, expressed his regrets over the fact that the employ-
ees "got ... a union" and stated: "I can't see why ... you want to .. .
give your hard earned money to that union, when you can join a Com-
pany Union and it won't cost you anything ...." At about the same time,
Zone Manager Lord remarked to employee Davenport, chairman of the
Union, that he did not see why the employees needed a union. As late as
July 1942, Hall asked employees Roland and White whether they intended
to join the Union, and told then that they ought not to "fool with it" and
should "let it go," that "it would probably bust up like it always had" and
the employees "would be left out in the rain," and that Roland and White
"would be taken care of" if they did not join the Union. Finally, in August
1942, Superintendent McBride told Tucker, a new employee, that while
Tucker could join the Union or not, as he saw fit, joining it "would not
help [him] on the job," that McBride "did not see anything to the Union,"
and that Tucker would have to pay dues if he joined that organization. In
the face of this background of expressed hostility toward the Union, the
respondent should have remained scrupulously neutral in the employees'
efforts at withdrawing from that organization, instead of lending a helping
hand in that endeavor.
There remains ,to be considered the respondent's contention that certain
evidence indicating that the employees were dissatisfied with the Union
for some time prior to the withdrawal, demonstrates that the withdrawal
was wholly voluntary and was not influenced by the respondent's acts of
assistance. Various witnesses testified that, because of the Union's inability
to secure a new contract, as well as the belief prevailing among the employ-
ees that in view of the Executive Order of October 3, 1942, stabilizing
wages, there was not much more that the Union could accomplish, many
employees expressed discontent with the Union and discussed the matter
of organizing an independent union. The record also discloses that officials
of the Union (its president and job steward) sponsored and actively par-
ticipated in the withdrawal movements" However, even assuming that many
11 while these acts and statemcuts, as outlined below, piauily evidence the iespondcut's antipathy
to the Union, we do not find them to he unfair labor practices solely because they antedated the date
of the commencement of unfair labor practices alleged in the new complaint.
1" Our attention is also directed to the cessation of dues payment by a majority of the employees
in the unit for approximately 2 months prior to the withdrawal, which matter has already been
treated above
PURE OIL COMPANY 1045
employees, prior to the withdrawal, may have been somewhat dissatisfied
with the Union, it is wholly speculative as to whether, absent the respond-
ent's above-stated assistance and its sponsorship of the withdrawal move-
ment, a majority of the employees in the unit would have withdrawn from
the Union.
on the entire record, we find, as did the Trial Examiner, that the
withdrawal from the Union of December 9 and 10, 1942, was not a free
expression of the will of a majority of the employees in the unit, that such
withdrawal therefore did not destroy the Union's majority status, and that,
accordingly, the respondent's refusal to bargain with the Union on Decem-
ber 21, 1942, because of such withdrawal, was violative of Section 8 (5)
of the Act.
2. The Trial Examiner also concluded that, even assuming that the
withdrawals of December 9 and 10 were to be viewed as having been wholly
voluntary and not induced, even in part, by the respondent's acts of assist-
ance, the respondent violated Section 8 (5) of the Act by refusing to
bargain with the Union during the course of the strike of April 7-16, 1943.
The Trial Examiner's conclusion in this respect is predicated upon his
finding that, in view of the Union's role in connection with the strike and
the settlement thereof, the respondent had convincing evidence at that time
that the majority of the employees in the unit again desired the Union to
represent them. We do not agree." Even if it could be said that, solely
on the basis of the circumstances surrounding the strike and the termina-
tion thereof, a majority of the employees in the unit in fact intended to
designate the Union as their representative for the purposes of collective
bargaining generally," we do not believe that the respondent can reason-
ably be said to have had clear and ample evidence of such an intent.
16 We wish to make it clear, however , that since the respondent did in fact unlawfully refuse to
bargain with the Union as majority representative on December 21, 1942, we find the respondent's
continued refusal to bargain thereafter , including the period in question in April 1943, equally viola.
tive of the Act.
17 That even that inference may not be warranted is suggested by the combination of the follow-
ing circumstances : ( 1) the strike was not called by the Union; ( 2) it was not called for the purposes
of having the Union recognized as majority representative; (3) there is no showing that a majority
of the employees in the unit expressly designated the Union as their representative to negotiate
a settlement of the strike; ( 4) it is doubtful , particularly in view of the existence of a picket line,
that such designation by a majority can be inferred from their participation in the strike after the
Union was expressly designated as such representative by some of the strikers , ( 5) there is no show-
ing that a majority of the employees in the unit attended the meeting called by the Union in which
the settlement agreement negotiated by the Union was in effect approved, ( 6) as for inferring a
designation of the Union by a majority from the fact that all the strikers returned to work on the
day following the aforementioned meeting, it is possible that many of them returned solely because
they did not wish to continue a strike which was being abandoned by a substantial number of em-
ployees, (7) there is some question as to whether, even assuming that a majority can be said to have
designated the Union as their representative to negotiate a strike settlement, such a designation,
under the circumstances of this case , can be reasonably construed as a designation for the purpose
of collective bargaining generally.
1 046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Pure Oil Company, Wofford Oil Divi-
sion, Birmingham, Alabama, and its officers, agents, successors, and
assigns, shall :
1 Cease and desist from:'
(a) Refusing to bargain collectively, in respect to rates of pay, wages,
hours of employment, and other conditions of employment, with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union #612, affiliated with the American. Federation of
Labor, as the exclusive representative of all employees at its Bulk Plant
and Yale Tire Warehouse in Birmingham, Alabama, excluding clerical
employees, painters, the warehouseman at the Birmingham Bulk Plant,
the warehouseman at the Yale Tire Warehouse, and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action;
(h) In any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,- Local Union #612,
affiliated with the American Federation of Labor, or any other Labor
organization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Section 7
of the Act.
2 Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively, in respect to rates of pay, wages,
hours of employment, and other conditions of employment, with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union #612, affiliated with the American Federation
of Labor, as the exclusive representative of all employees at its Bulk Plant
and Yale Tire Warehouse in Birmingham, Alabama, excluding clerical
employees, painters, the warehouseman at the Birmingham Bulk Plant, the
warehouseman at the Yale Tire Warehouse, and supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action,
(b) Post at its Bulk Plant and Yale Tire Warehouse in Birmingham,
Alabama, copies of the notice attached hereto, marked "Appendix A."
Copies of said notice, to be furnished by the Regional Director of the Tenth
Region, shall, after. being duly signed by the respondent's representatives,
PURE OIL COMPANY 1047
be posted by the respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure that
said notices are not altered, defaced, or covered by other material;
(c) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the respondent
has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the respondent, on or about April 6, 1943,
discharged six employees because they attended a meeting of the Union,
and on or about April 7, 1943, locked out all its transport drivers.
MR. GERARD D. REILLY, dissenting :
I am constrained to dissent from the opinion of the majority.
Where, as here, it is alleged that an employer has violated Section 8 (5)
of the Act, the burden is upon the Board, as a condition precedent to find-
ing such violation, to establish that the Union has been designated bar-
gaining representative by a majority of the employees in an appropriate
unit. It is an established corollary that the designation contemplated by
the Act must be free from compulsion from any source.18 Viewed in the
light of these principles, the evidence clearly is insufficient to establish the
Union's status as majority representative.
In April 1941, after the Union was recognized as the bargaining agent
of the respondent's employees," the respondent and the Union entered
into an oral contract which was superseded on October 7, 1941, by a written
contract which contained a maintenance-of-membership clause," and which
was to remain in effect for 1 year, and from year to year thereafter in the
absence of written notice of a desire to change or modify the agreement
60 days prior to the expiration date. Following timely notice by the Union,
the respondent and the Union commenced negotiations for a new contract
on or about October 1, 1942. Conferences were held until about the middle
of November, when an impasse was reached, principally concerning the
Union's request for a general wage increase. No further negotiations were
conducted. At no time during the.negotiations did the respondent request
proof of or question the Union's majority status. On December 9, at a
meeting held in the plant with the respondent's permission, a majority of
the employees present, but less than a majority within the unit,' voted to
withdraw from the Union. On the following day, a petition of withdrawal
is N. L. R . B. v. Dadourian Export Co ., 138 F. ( 2d) 891 ( C. C. A. 2).
19 The respondent did not request , and the Union did not submit, any proof of the Union's majority
status at this time.
29 The maintenance -of-membership clause is as follows. "It is understood and agreed that upon
the signing of this contract all employees who ate now members of the Union and all new employees
who become members must remain members during the life of this contract "
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union was circulated in the plant during working hours and
signed by a majority of the employees within the unit. On December 21,
following the receipt of this petition, the respondent informed the Union
that it would no longer bargain with the Union, but that it would not
object to an election. The majority of the Board finds that on this day the
respondent refused to bargain in violation of Section 8 (5) of the Act.
At the hearing, there was introduced into evidence a summary compiled
from the Union's records showing the following payments of membership
dues and initiation fees between July and September 1942:
July August September
Membership dues 41 38 35
Initiation fees 5 1 3
TOTAL 46 39 38
Upon this proof, the majority of the Board concludes that, since the number
of employees who paid either clues or initiation fees during one or more of
the months of July, August, and September, was in excess of 50 percent
of the total of 85 employees in the appropriate unit, the Union was des-
ignated by a majority of these employees on October 1, when negotiations
for a new contract were started. The majority further finds that the Union's
majority status continued unimpaired to December 21, when the refusal
to bargain occurred.
It is my opinion that the evidence fails to establish that the Union had
been designated by a majority of the employees either on October 1 or
December 21.
While membership in a union ordinarily constitutes evidence of des-
ignation of the Union as bargaining representative, it cannot be regarded
as determinative where there is in existence a contract between the union
and the employer providing for maintenance of union membership as a
condition of employment. Although adequate proof of majority designation
at the time of the execution of a contract of this nature protects the
union's status from challenge during its term, provided it is of reasonable
duration, such proof cannot be deemed conclusive of the union's majority
status in negotiations for a new contract for a succeeding term, since the
policies of the Act in insuring full freedom of choice require that at rea-
sonable intervals the employees be offered an opportunity to express their
desires. Nor, it follows, can membership maintained during the term of
such a contract be considered decisive of the union's authority to bargain
for a succeeding agreement, since it is impossible to determine whether the
maintenance of union membership is dictated by the free choice of the
employees or by the terms of the contract, which proscribe withdrawal
from the union until the contract terminates. Accordingly, the reliance
PURE OIL COMPANY 1049
by the majority of the Board upon the payment of clues during one or
more of the months of July, August, or September to establish the Union's
majority status on October 1 contravenes the basic principle that the
selection of a bargaining agent must be free from compulsion from any
source. Only recently we recognized this principle in Matter of McGouglt
Bakeries Corporation," where we said that any bargaining authorization
obtained by a union during the life of an agreement requiring membership
in the union as a condition of employment "cannot be regarded as a free
and uncoerced selection of representatives contemplated by Section 9 (a)
of the Act," and that "consequently such designations cannot serve to
authorize the Union to act as the employees' representative" after the
expiration of the contract. In view of the coercion inherent in a mainte-
nance-of-membership contract and the consequent deficiency of member-
ship maintained thereunder as proof of authorization in negotiations for a
succeeding contract, it is my opinion that, to be conclusive of the employees'
true desires, their original designation implicit in becoming union members
must be reaffirmed in some manner following the expiration of the con-
tract. In the instant case , there has been no such reaffirmation. Accordingly,
I would find that the payments of union dues and initiation fees during the
months of July, August, and September fail to establish that the Union
was the statutory representative of the employees on October 1, 1942,
when negotiations for a new contract were started.
Even assuming arguendo that the payment of dues in the manner set
forth above constitutes proof of the Union's authority to act for the employ-
ees on October 1, the events which followed the expiration of the contract
on October 7 were such as to rebut conclusively the presumption that
such authority continued until the refusal to bargain on December 21.22 For
several months following the expiration of the contract, a great majority
of the members paid no dues to the Union.23 There is no contention or
showing that this default was caused by any conduct of the respondent.
Indeed, it was not until about 2 months after the expiration of the contract
that the respondent committed the first of the acts which the majority finds
to be illegal. While the default in payment of dues did not automatically
terminate the employees' membership in the Union, it nevertheless, under
these circumstances, raises doubt as to the employees' continuing desire
to be represented by the Union. The record further shows that because of
the Executive Order of October 3, 1942, freezing wages, and the inability
21 58 N. L. R. B. 849
22 It is not necessary , as the majority of the Board states, that the employees ' intention to revoke
their designation be established by some unequivocal act. Any circumstances raising a reasonable
doubt that the Union 's majority continued following the expiration of the contract would suffice,
since the burden of proof as to majority status remains with the Board
29 A majority of the employees paid no dues between October 1, 1942, and April 1, 1943. It was
not until sometime subsequent to April 16, 1943, on which date the Union waived the payment of
dues of some 60 members for the whole or part of this period, that payment of dues was resumed.
1050 DEC1SL0NS OF NATIONAL LABOR RELATIONS BOARD
of the Union to secure fa general wage increase , many members became
dissastisfied with the Union and desirous of organizing an unaffiliated
union. This dissatisfaction culminated in the decision to hold a meeting on
December 9, 1942, for the purpose of considering the severence of ties wi,
the Union." Officials and other leaders of the Union were active in calling
and holding the meeting. Neither the Trial Examiner nor the majority of
the Board has found that the respondent in any way was responsible for
initiating this meeting. The foregoing facts are ample to rebut the pre-
sumption that the Union's majority status continued subsequent to the
expiration of the contract. If any unequivocal acts by the employees were
necessary to show their desire to revoke their designation of the Union,
these acts were the discontinuance of dues payment and the calling of the
meeting of December 9. Indeed, in cases in which a majority of the em-
ployees within the unit had signed authorization cards of the charging
union, the Board held that the conduct of some of these employees in sign-
ing cards of a rival union which had been assisted by the employer' s unfair
labor practices created an ambiguity sufficient to raise doubt as to the
employees' desire to be represented by the charging union and that not-
withstanding the illegal assistance accorded the rival union, the evidence
failed to establish the charging union's-status as majority representative.'
In reaching this conclusion, we recognized that "it was necessary that the
alleged majority be established affirmatively.""
Nor do I agree with the conclusion that the revocation by a majority of
the employees of their designation of the Union on December 10 was influ-
enced by the respondent's conduct in connection with the meeting of Decem-
ber 9 and the petition of December 10. Such conduct was consistent with
the respondent's policy to permit the employees to engage freely in organ-
izational activities upon company time and property ; any coercive effect
these acts might otherwise have had was neutralized thereby. Thus, it
had been the respondent's policy for several years to permit employees to
hold meetings at the plant in connection with such matters as the Thrift
Club and the Credit Union. Of particular significance is the fact that the
respondent, during the life of its contract with the Union permitted informal
meetings at the plant between groups of employees and union representa-
2' The majority states that the fact that the employees found it necessary to hold this meeting
for the purpose of withdrawing from the Union strongly suggests that on December 9 they believed
themselves members of the Union . It may be argued with equal force that the withdrawal meeting
was called only to formalize the desire of a considerable number of employees for the severence of
their relationship with the Union preliminary to further bargaining with the respondent independ-
ently of the Union.
25 Matter of Abraham B. Karron, d/b/a Pennsylvania Handbag Frames Manufacturing Company,
41 N. L. R. B. 1454, and Matter of Harry Stein, et al., d/b/a Ace Sample Card Company, 46
N. L. R. B 129.
26 As to the fact that the respondent itself raised no question as to the Union's majority status in
the negotiations which followed the expiration of the contract , it is sufficient to state that the re-
spondent' s attitude does not relieve the Board of the burden of establishing that the Union, in fact,
was the majority representative of the respondent's employees at the time of the refusal to bargain
PURE OIL COMPANY 1051
tives, some of which were attended by international and local officials of
the Union. Therefore, there was, nothing in the respondent's grant of per-
mission to hold the meeting of December 9 at the plant to suggest to the
employees that the meeting was sponsored by the respondent. With respect
to the telephone calls by Superintendent Hall to two or three drivers
informing them of the meeting of December 9, Hall testified without con-
tradiction that Evans, the union steward, had requested him to notify
these drivers of the meeting because Evans "didn't have the telephone
numbers [of the drivers], and he [Evans] was fixing to go on a trip" ;
that he [Hall] did not know what the meeting was about; and that he had
made calls for drivers on prior occasions, since it was part of his job to
keep the addresses and telephone numbers of the drivers. Hall further testi-
fied that he told the drivers that he was calling them at Evans' request.
The majority finds, however, that Hall did not so inform the employees.
I do not agree with this finding.' In rejecting Hall's testimony, the majority
relies upon the fact that the testimony of two of the employees concerning
the telephone calls nowhere indicates that Hall made this statement. How-
ever, neither of these employees was questioned specifically about this
statement. One of these employees merely testified that his wife had
informed him of Hall's call. Nor would I rely upon the testimony of the
second employee, Wilson, whose testimony regarding another incident was
overwhelmingly refuted in material respects by the testimony of credible
witnesses. On the entire record, I would credit Hall's testimony and find
that his conduct in telephoning the employees was neither intended to
influence, nor had the effect of influencing, the employees to withdraw from
the Union. As for the permission given six or seven of the transport drivers
to attend the meeting of December 9, Hall's uncontradicted testimony,
which is corroborated by that of witnesses called by the Board, establishes
that it had been his policy to permit drivers to attend meetings of the
Union during working hours ; that on such occasions he had requested
the drivers.to make up the time lost because of their attendance; and that
even if they failed to do so, he nevertheless had paid them for the time
Finally, in evaluating all the alleged acts of assistance in connection with
the withdrawal meeting, it must be kept in mind that the record affords
no basis for a finding that the respondent was aware of the purpose of the
meeting. No such inference has been drawn by the Trial Examiner or
by the majority of the Board.
On December 10, Zone Manager Lord was informed by a committee
of employees that a majority of the employees had withdrawn from the
Union at the meeting of the previous evening. Lord asked for proof of
the defection. In reply to the committee's question as to what proof was
required, Lord suggested the use of a petition Up to this point, the
The Trial Exanunet made no such finding.
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent's conduct on this occasion could hardly be viewed as unlawful,
and the majority does not regard it as such.' The majority, however, finds
objectionable the respondent's subsequent conduct in dictating to the com-
mittee the contents of a petition of withdrawal used at another plant, per-
mitting the petition to be typed by one of its stenographers, and permitting
the circulation of the petition among the employees during working hours.'
While it is true that these acts assisted the employees in severing their
affiliation with the Union, they must be viewed in the light of the fact
that the respondent had already been informed that the employees had
voted to withdraw from the Union on the previous evening. This conduct
also must be weighed against the assistance previously granted the Union
in permitting the employees to hold informal union meetings in the plant
and attend union meetings held elsewhere during working hours.
Finally, it is my opinion that the majority, in appraising the respondent's
conduct in connection with the withdrawal meeting and petition, attaches
undue significance to isolated and sporadic anti-union remarks of the
respondent's supervisors, most of which were made long before the events
of December 9 and 10, and fails to accord proper weight to the history of
bargaining between the respondent and the Union. In April 1941, the
respondent, without requiring proof of majority status, recognized the
Union and entered into contractual relations with it for a period of
approximately 1 % years. Following the expiration of the existing contract,
the respondent continued to bargain in gqod faith until al impasse was
reached.
For the reasons set forth above, I would find that the evidence fails to
establish that the Union had been designated by a majority of the employees
within the appropriate unit at the time of the respondent's refusal to bar-
gain. I would therefore dismiss the complaint.
INTERMEDIATE REPORT
Messrs. Paid S. Kuclthau and Joint H. Garver, for the Board.
illessrs. W. F. Wimberly, of Atlanta, Ga., and Allen C. Hutcheson, Jr, of Chicago,
Ill , for the respondent.
Mr. J L Busby, of Birmingham, Ala., for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed on November 18, 1943, by International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union
#612, herein called the Union, the National Labor Relations Board, herein called the
Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its
28 In Matter of W. E Lipshutc, d/bfa The Monarch Co , 56 N. L. R B. 1749, the Board held
that the action of an employer in advising employees who had decided to withdraw from a union as
to how they could recover their union membership cards, in response to their inquiry , was not an
unfair labor practice . See also N L R. B v Mathieson, Alkali Works, 114 F. (2d) 796 (C C. A 4).
ere The most that can be inferred from the record is that the petition was circulated at the plant
and that the respondent took no step to prevent it.
PURE OIL COMPANY 1053
complaint dated November 18, 1943, against Pure Oil Company, Wofford Oil Division,
herein called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of Section
8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49
Stat 449, herein called the Act Copies of the complaint accompanied by notice of
hearing were duly served upon the respondent and the Union.
With respect to the unfair labor practices the complaint, as amended at the hear-
ing, alleged in substance that the respondent on or about December 21, 1942, and on or
about April 7, 1943, and thereafter refused to bargain collectively with the Union as
the exclusive representative of the respondent's employees within an appropriate bar-
gaining unit although the Union represented the majority of the employees in said
unit, and further alleged that from on or about December 1, 1942, the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the rights guaran-
teed in Section 7 of the Act by disparaging the Union, discouraging its employees
from becoming or remaining members of the Union, and encouraging its employees
to abandon the Union, by engaging in the following acts: (a) suggesting and encourag-
ing the circulation among its employees of a petition withdrawing from the Union;
(b) suggesting meetings of its employees for the purpose of withdrawing from the
Union and furnishing a place for such a meeting; and (c) discharging on or about
April 6, 1943, six employees because they attended a meeting of the Union and there-
after on or about April 7, 1943, locking out all of its transport drivers
On December 6, 1943, the respondent filed its answer in which it admitted the juris-
dictional allegations of the complaint, but denied that it had engaged in the unfair
labor practices alleged, and in addition set forth certain affirmative averments by
way of defense.'
Pursuant to notice, a hearing was held on January 6 to January 10, 1943, at Birming-
ham, Alabama, before David Karasick, the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the respondent and the Union were
each represented by counsel and participated in the hearing. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear>rng on
the issues was afforded all parties. At the commencement of the hearing, motion of
counsel for the Board to amend the complaint was granted? The respondent then
moved to have its answer stand with respect to the complaint as amended. This mo-
tion also was granted. At the close of the Board's case in chief, and again at the-con-
clusion of the entire case, the respondent moved to dismiss the complaint Ruling on
these motions was reserved The motions, except as hereinafter stated, are denied.
Motion by counsel for the Board to conform the complaint to the proof insofar as
1 The affirmative defenses, inter aha, are in substance that the Union did not represent a majority
of the employees on and after December 10, 1942, because a majority resigned from the Union on
that date; that by reason of the provisions of an agreement entered into between the respondent and
the Union on April 16, 1943, providing for the settlement of a strike which had occurred on April
7, 1943, the "Union is now estopped to claim a 6iolation of the Act by the Respondent, based on a
refusal to bargain prior to or after April 16, 1943," and the respondent is thereby released from all
obligation to recognize or negotiate with the Union until a determination that it should do so is made
in the present proceeding or until the Union has been chosen as the bargaining agent at an election
2In substance, the complaint was amended as follows: (1) to allege that the Union was designated
by a majority of the employees as a collective bargaining representative in or about October 1942, as
well as on or about April 7, 1943, as the complaint originally alleged, (2) that in or about October
1942, as well as on of about April 7, 1943, as originally alleged in the complaint, the Union requested
the respondent to bargain collectively, (3) that on or about December 21, 1942, in addition to on
or about April 7, 1943, as originally set forth in the complaint, the respondent refused to bargain
collectively with the Union; and (4) to conform the unit alleged as appropriate in the complaint to
the unit agreed upon by the parties at the hearing , as noted hereafter
1054 DECISIONS OF NATIONAL LABOR RELATIONS 130ARD
formal matters were concerned was granted. A similar motion on behalf of the re-
spondent in respect to its answer was likewise granted.'
Opportunity for oral argument was afforded all parties at the close of the hearing
Arguments were presented by counsel for the Board and the respondent, respectively
All parties were given opportunity to file briefs with the undersigned No briefs have
been received.
Upon the record thus made, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Pure Oil Company, an Ohio corporation with its principal office and place of busi-
ness in Chicago, Illinois, is engaged in the production, refining, and distribution of
petroleum products, and the distribution and sale of automobile accessories. The re-
spondent maintains a bulk distribution plant and a tire warehouse in Birmingham,
Alabama, both of which are considered together as a single unit in the respondent's
operations,' and which alone are involved in this proceeding. All gasoline, kerosene
and industrial lubricating oils and greases sold by the respondent, which amount
operations,` and which alone are involved in this proceeding All gasoline, kerosene,
and 750 to 1,000 barrels of industrial lubricating oils and greases are shipped to the
respondent at its Birmingham bulk plant from points located outside the State of
Alabama All of the foregoing articles are sold within the State of Alabama with the
exception of 30 to 40 barrels of diesel lubricant which are sold and shipped each month
to customers in points located outside the State of Alabama
II THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local Union #612, affiliated with the American Federation of Labor, is a
labor organization which admits to membership employees of the respondent
III. THE UNFAIR LABOR PRACTICES
A. Background
In October 1940 the employees of the respondent engaged in their first efforts at
self-organization. In April 1941 the Union was formally established
During the latter part of 1940 or the early part of 1941, the employees of the
respondent held a meeting at the Masonic Hall in East Birmingham, for the purpose
of discussing the matter of affiliating themselves with the American Federation of
Labor. Joe Hall, respondent's superintendent of highway transportation, accompa-
nied by Bud Pruett,' stood outside the Masonic Hall at the time of this meeting and
were seen looking toward the windows by, some of the employees who attended
8 At the beginning , during, and at the conclusion of the hearing , the respondent moved that the
case be continued because of the illness of D. L. Gilland, its general -manager The motion was
denied
4 Approximately 4' or 5 persons are employed at the tire warehouse which is located about a mile
and a half from the bulk distribution plant.
5 Pruett is variously identified in the record as purchasing agent and as assistant to the respond-
ent's zone manager
9 Hall, who admitted that this incident had occurred, testified that he had heard that the employees
were having a meeting , that he stopped at the meeting place on his way home to find out about it,
and that he was curious to see what kind of a meeting the employees were having
PURE OIL COMPANY 1055
Edward Dover , one of these employees , testified as follows with respect to certain
statements made by Hall to Dover the day following the meeting.
And the next day [after the meeting ] Mr. Hall saw me in the office, and he
says "Well, I hear you got you a Union." I says, "Yes, sir." Well, he shook his
head, and he says, "The only thing I have got to say is I wish you hadn't done it,
why, I can't see why that [sic] you want to go down and give your hard earned
money to that Union, when you can join a Company Union and it won't cost you
anything . .17
In November 1940, B. K. Davenport, then an employee of the respondent,' was
elected chairman of the Union. About December 1, 1940, D. L. Gilland, general man-
ager of the respondent, requested Davenport to see L. L. Lord, respondent's zone man-
ager. Davenport testified, and the undersigned finds, that he saw Lord in the latter's
office, that Lord stated that he understood that the employees had a union and that
Davenport was an officer, that Lord then asked why the employees had formed a union
and Davenport replied that they had done so because they had failed to secure an in-
crease in wages, and that Lord then stated that the employees had gotten along all
rigbt, that he did not see why they needed a union and that they had always been able
to come in and talk to Lord or to Gilland.'
0
During August 1942, John Tucker began to work for the respondent, first as a
yardman and later as a plant guard. He was hired by George McBride, plant superin-
tendent. At that time, McBride told Tucker that a union existed at the plant, that
Tucker could join or not as he wished, that joining the Union would not help Tucker
on the job, that McBride did not see anything to the Union, that Tucker would have
to pay dues if he joined, and that McBride had always been about to use his money
some other way ro
In October 1942, employees Jim Roland and Bil$White attended a union meeting
About a week or ten days later, Bill asked Roland and White what they thought of
the Union and whether or not they intended to join. The employees replied that they
had not yet decided, whereupon Hall stated that "he wouldn't fool with it" if he were
the employees, that "he would just let it go," that "it would probably bust up like
it always had," and that the employees "would be left out in the rain." Hall also told
7 During his examination by counsel for the respondent , Hall was asked if he had ever discussed
"the question of whether a man should belong to the union or not with any employees " or had ever
"threatened , persuaded or coerced any employee in an effort to go into or out of any union", and
in each instance, Hall answeied that he had not He did not, however, specifically deny the foregoing
statements attributed to him by Dover and, as noted above, he corroborated Dover's testimony with
respect to surveillance of the Union meeting on the prior evening Under these circumstances and
in view of the fact that Dover impressed the undersigned as a forthright and honest witness, the
undersigned credits his testimony and finds that Hall made the statements as related by Dover
8 Davenport left the employ of the respondent in July 1943.
6 Although Lord testified as a witness for the respondent , he did not deny the foregoing testimony
of Davenport
iU Upon direct examination by counsel for the respondent , McBride was asked if he had "eves
coerced, persuaded , threatened or promised any reward to any employee to come into or stay out of
the union" or if he had ever discussed "with the men whether they ought to stay in the union or
not." McBride answered both questions in the negative . He did not , however, specifically deny the
testimony of Tucker , above set forth. Tucker impressed the undersigned as a credible witness The
testimony of McBride was evasive and his demeanor on the witness stand was not such as to inspire
confidence in his credibility . The undersigned credits Tucker's testimony and finds that McBride
made the foregoing statements as related by Tucker
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roland and White on this occasion that they "would be taken care of" if they stayed
out of the Union li
It is not alleged and the undersigned hence does not find that any of the foregoing
incidents constitute violations of the Act. These incidents have, however, been con-
sidered by the undersigned as evidence of the respondent's attitude toward the Union.12
B. The refusals to bargain; interference, restraint, and coercion
1. Events immediately preceding the refusals to bargain
In April 1941, the respondent and the Union entered into an oral agreement which
was superseded on October 7, 1941, by a written contract which provided that it
would remain in effect for one year and, in the absence of written notice of a desire
to change or modify the agreement given 60 days prior to the expiration date, would
renew itself annually thereafter. On August 6, 1942, the Union sent a letter to the
respondent, requesting that negotiations be commenced for the purpose of arriving
at a new contract.
On about October 1, 1942, the respondent and the Union commenced negotiations
pursuant to the Union's request set forth in its letter Conferences were held on five
or six occasions between that date and approximately the middle of November 1942
At no time during these conferences did the respondent raise any question as to, the
majority status of the Union. The parties failed to arrive at a final agreement and
no further negotiations were held.
2. The meeting of December 9, the revocation petition of December 10, 1942, and
succeeding events to April 6, 1943
On December 7 or 8, 1942, employee Mitchell Mink told George McBride, plant
superintendent, that the employees wished to hold a meeting on December 9 but that
they did not wish to use the union hall, and he asked permission to use the plant
for that purpose. Mink told McBride that the meeting was to be held at about 7 o'clock
in the evening and that it was toe attended by all of the truck drivers as well as the
plant employees. McBride stated that-it was all right to hold such a meeting, but that
he would like to speak to L. L. Lord, zone manager, about it. Apparently after Mink,
had asked McBride for permission to hold the meeting, McBride asked employee John
Roland if he could suggest a place for the meeting. Roland suggested the shop, and
McBride requested Roland to speak to the shop foreman about it and report back to
McBride. Roland thereupon spoke to the shop foreman who objected to the use of the
shop on the ground that gasoline was stored there. Roland accordingly reported to
McBride what the shop foreman had said and McBride then stated that the best place
to hold the meeting would be in the office of the plant.
On the day of the meeting, both Plant Superintendent McBride and Zone Manager
Lord instructed the watchmen at the gate to let employees who wished to attend the
meeting into the plant that evening, even though they did not have passes or were
not on duty.13 Notice of the meeting was attached to a post next to the desk of Super-
intendent Joe Hall.
n Hall denied in general terms that he had ever spoken to any employee about the Union ( see foot-
note 8, supra), but did not specifically deny Roland's testimony, as above set forth Hall's interest
with respect to the efforts of the employees to attain self -organization is illustrated by his admitted
surveillance of the meeting at the Masonic Hall , as previously related The undersigned credits
Roland's testimony and finds that Hall made the foregoing statements attributed to him by Roland
12 See Texas and New Orleans R R. Co. v. Brotherhood of Railway Clerks, 281 U S. 548.
13 The respondent 's plant property is surrounded by a fence One of the duties of the watchmen is
to keep the gate at the entrance to the plant locked at night. Ordinarily, office employees are required
to display passes in order to gain entry to the plant at any time, and all other employees, although
they do not carry passes, are not permitted by the watchmen to enter unless they are on duty at the
time.
PURE OIL COMPANY 1057
On the afternoon of the meeting, Hall personally telephoned several of the em-
ployees not then at work, told them of the impending meeting and asked them to
attend 14 Hall also gave permission to six or seven truck drivers then on duty to take
time off from their work in order to attend the meeting. These drivers were scheduled
to work from 6 o'clock on the evening of the meeting to 6 o'clock the following morn-
ing. Immediately prior to the beginning of the meeting, Hall instructed the drivers
in question to call him after the meeting as over, and stated that he would then
return to the plant and tell them where to drive that night.16 These truck drivers were
paid for the time they spent at the meeting 1'
At about 7 p.m. on December 9, 1942, the meeting, which lasted two and a half
or three hours, was held in the office of the plant. Among the employees present were
the six or seven truck drivers whom Hall had given permission to attend. None of
the respondent's officials were present during the meeting, though Superintendent Hall
was present in the plant near the office for some time before the meeting started. Lord
had, however, instructed Hall to leave the plant so that he would not be present dur-
ing the meeting.
B. K. Davenport, then chairman of the Union, presided at the meeting. Employees
Mitchell Mini, and Bill Evans urged' the employees present to withdraw from the
Union, stating that the respondent would grant them an increase in wages if they did
so.17 A ballot was taken and 33 persons, a majority of those present, voted to withdraw.
A committee was thereupon appointed for the purpose of informing Lord of the action
taken.
On December 10, the committee called upon Lord. In addition to Lord, General
Manager Gilland, District Manager Hunt, Office Manager Lindsey, and Superin-
tendent Hall were present at this meeting. The committee informed Lord that a
majority of the employees had withdrawn from the Union. Lord replied that the re-
spondent would require proof of that fact. When the committee asked what evidence
would be necessary, Lord dictated to them a revocation petition in the same form as
one which the respondent had received from its employees at Mobile, Alabama, ap-
proximately a year before. One of the employees on the committee wrote out the form
of the petition as it was dictated by Lord. The petition, dated December 10, 1942, was
then typed, with the permission of the respondent's office manager, by one of its
stenographers. It was then placed at the order desk for the purpose of securing the
signatures of the employees, and shortly thereafter was turned over to Lord." The
names of 46 persons appear on the petition, a copy of which was received in evidence."
14 Hall testified that he had made these telephone calls at the request of employee Bill Evans
Evans was one of the sponsors of the meeting.
15 Hall testified that he did not remember the incident
le Hall testified that he always paid the employees for working time lost by reason of attendance
at meetings , even if they were unable to make up the time The record dos not show, however, that
any meetings of a similar kind had previously been held in the plant
lr At the conclusion of the hearing , the respondent moved to strike testimony in the record con-
cerning such statements made by Mink Ruling on the motion was reserved . The motion to strike
is hereby denied
18 The petition read as follows:
We, the undersigned , have resigned from the International Brotherhood of Teamsters , Chauf-
feurs , Warehousemen and Helpers of America , A. F. of I. and Local Union No 612 , and the
Union is no longer authorized to represent us as a bargaining agency
1" The respondent 's pay roll for December 1 through December 15, 1942, lists the names of 79 per-
sons, exclusive of the warehouseman at the Birmingham bulk plant and the warehouseman at the
Yale tire warehouse , each of whom exercises supervisory authority and is not to be considered as
within the appropriate unit, as noted hereafter . This figure is also exclusive of the four watchmen
who at that time were members of the auxiliary military police and were likewise outside the scope
of the unit
1O:)8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The uncontradicted testimony in the record shows that employees Wilson and Green
signed the petition at the order desk during working hours at the request of Mitchell
Mink, and that Mink brought the petition into the office and asked employee Tucker
to sign it; and told Tucker that when the employees had withdrawn from the Union,
Lord would grant them an increase in wages 2° Employee Dover testified without con-
tradiction that Mink also requested him to sign the petition, that Dover refused to do
so, and that Dover's name, which appears upon the petition, is not his signature and
was not written on the petition by him. Mink worked in the warehouse, which is on the
opposite side of the building from the order desk, where he requested Wilson and
Green to sign the petition, and away from the office where he requested Tucker to sign
Mink also brought the petition during working hours to the warehouseman's office
where it was first signed by Mannie Alverson, warehouseman, and then by three of the
employees who worked in that department. William Moor, one of the employees who
signed the petition, testified without contradiction that he was not a member of the
Union at the time he signed. When the revocation petition was submitted to Lord, he
did not compare the names which appeared thereon with the names contained on the
respondent's pay roll nor did he make any other check to assure himself of the gen-
uineness of the document.
On about December 16, 1942, an unidentified person left a copy of the petition at the
union offices. On December 21, the respondent infoi med the Union that it would no
longer bargain with it since a majority of the employees had informed the respondent
that they had resigned from the Union, but that the respondent would not object to
an election 21 Shortly after the Union learned of the revocation petition of December
10, its officers held meetings with employees, two or three such meetings being held
before March 18, 1943. On the latter date, the Union wrote to the respondent request-
ing it to resume negotiations To this, reply was made on March 23 that the respond-
ent refused the request for the reason it had given on December 21. Thereafter the
Union held two or three further meetings of the employees before April 622
3 The strike
On April 7, 1943, a majority of the respondent's employees went on strike because
of the alleged discharge of six employees ' This strike was not called by the Union,
but it acted as the representative of and negotiated for the strikers during the entire
time they remained away from work.
During the morning of April 7, several of the strikers were called to Lord's office
and were asked by him if they were ready to return to work. When the employees
failed to answer, Lord told them to go outside and let him know when they had come
to a decision That afternoon, Hall and McBride told the employees outside the plant
that Lord again wished to see them in his office. The employees refused to meet with
Lord unless Robert Borden, a representative of the Union, was also present An hour
20 See footnote 17, supra
21 In December 1943, the Union agreed that a consent election should be conducted by the Board
but refused to consummate such agreement since it understood that the respondent took the position
that the Union would have to withdraw certain charges of unfair labor practices then on file and
agree that such charges would not be reinstated , even if the respondent were to engage in unfair
labor practices in connection with the election.
z: Official notice is taken of the fact that the original charge herein , alleging violations of Section
8 (1) and (5) of the Act, was filed by the Union on April 6, 1943.
23 The six employees in question were reinstated and paid for the time they had lost as a part of
a strike -settlement agreement , referred to hereafter. The amended complaint alleges that six em-
ployees were discharged , and that they, together with other employees , were locked-out in violation
of Section 8 (1) of the Act. The undersigned finds that the evidence is not sufficient to support the
allegations of the amended complaint in this respect and will accordingly recommend that such allega-
tions be dismissed.
0
I'UFI 01 1. COiNI PAN V 1059
or two later, Borden and some of the employees conferred with Lord in the latter's
office. Borden requested that the negotiations which had been broken off in November
he resumed and that the old contract be recognized until a new agreement could be
reached. Lord replied that the respondent would not bargain with the Union unless an
election were held to determine whether or not it represented a majority. Borden
answered that the Union represented a majority, as could be seen by the number of
employees who were standing outside the plant gate, and that an election was not
necessary. Borden next requested reinstatement for the 6 employees whose alleged
discharges had caused the strike Lord refused this request, saying that he had not
decided what action he would take with respect to them. During the following ten
days, representatives of the respondent and the Union conferred on several occasions
During this time, the respondent agreed to grant reinstatement and back pay to the
6 employees, but the rest of the strikers still refused to return to work until the re-
spondent signed a contract with the Union.
On April 16, 1943, however, the respondent and the Union entered into a strike-
settlement agreement " That evening, the representatives of the Union held a meeting
of the striking employees, at which the strike-settlement agreement was explained and
the strikers advised by the union representatives to return to work The employees
voted in favor of ending the strike, and on the following day all the strikers returned
to work.
4 Conclusions with respect to the meeting of December 9 and the revocation petition
of December 10, 1942
The Board contends, and the respondent denies, that the vote taken at the meeting
of December 9 and the revocation petition of December 10 were influenced by the
respondent While the record does not show that the idea for holding the meeting
zs The agreement so referred to is as follows April 16, 1943
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
CHAUFFEURS, WAREHOUSEMEN AND HELPERS
OF AMERICA, A. F. OF L. LOCAL UNION NO. 612
WHEREAS the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, A. F. of L. Local Union No. 612, hereinafter referred to as "Union", has filed charges
of unfair labor practices with the National Labor Relations Board against Pure Oil Company, and
WHEREAS the Pure Oil Company declines to recognize the Union as the Bargaining Agent for
its employees to negotiate a contract unless and until it is ordered so to do by the National Labor
Relations Board or unless and until an election is duly held and it is determined by a majority of
the employees that the Union is its Bargaining Agent, and
WHEREAS the Union desires a statement by the Pure Oil Company as to what its policy would
he with regard to the employees not at work if such employees should return to work at the Birming-
ham Bulk Plant of the Pure Oil Company.
NOW, THEREFORE, the Pure Oil Company makes this statement of policy That, pending the
determination of the charges filed against it by the Union with the National Labor Relations Board,
it would not deviate so far as rates of pay, seniority or past practice of dealing with its Birming-
ham Bulk Plant employees is concerned from the policy laid down in that certain contract dated the
7th day of October, 1941; and further, that if, when, said charges are determined, the Pure Oil
Company should be found guilty of such charges, and ordered to negotiate with the Union by the
National Labor Relations Board, that the Pure Oil Company would, in good faith, negotiate with
the Union for a contract.
The Company also would pay all employees for any time lost from work up until they return to
work, provided they return to work immediately upon the Company signing this declaration.
The Company would allow C. V. Watson, G. H. Oakes, L. M. Bates, L I. Baird, J. H Roberts
and J. W. Campbell to return to work without any discrimination against them
The Company would not discriminate against any employees because of his membership in, or
his affiliation with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, A F. of L Local Union No 612
WOFFORD OIL DIVISION OF
THE PURE OIL COMPANY
By /s/ L L Lord
Zone Manager
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
originated with the respondent, it does show that the respondent participated in the
preparations for the meeting to such an extent as to induce the employees reasonably
to believe that the meeting was held by reason of the respondent's support and that the
respondent approved of its purpose. The meeting was held, with the respondent's per-
mission, on plant premises and the regular rules were relaxed to the extent of permit-
ting employees to enter the plant on that occasion when they would not otherwise be
allowed to do so. Several of the employees not at work at the time of the meeting
were encouraged to attend by reason of the telephone calls they received from Hall.
In addition, Hall gave express permission to the six or seven truck drivers then on
duty to attend the meeting, despite the fact that the meeting was not scheduled to
begin until an hour after the truck drivers were to start then- work, w ith the result that
each of them was away from his job for several hours. Each of these employees was
paid for the time which he spent at the meeting.
The contention of the respondent that other such meetings of the employees had
been held in the plant is not supported by the record The only other meetings of
employees alone which had been there held differed from the meeting in question in
that they had either been meetings of special groups, such as a local loan and credit
union, or gatherings for the purpose of presenting a gift to a departing employee. No
showing was made, moreover, that the respondent encouraged attendance at such
meetings by telephoning employees then absent from work in order to notify them that
such meetings were to be held, or that it gave specific instructions at such times to
allow the employees to enter the plant without passes, as was done on December 9.
In addition to the foregoing facts, the respondent's conduct with respect to the meet-
ing of December 9 is to be viewed in the light of its attitude, as otherwise shown,
toward the Union As noted in Section III, A, above, from the time the employees
engaged in their first efforts toward self-organization in the latter part of 1940 or
early part of 1941 to about the time the first annual term of the union contract had
run, officials of the respondent clearly manifested the respondent's antipathy toward
the Union by engaging in surveillance of a meeting of the employees, by interrogating
the employees concerning their union membership, and by advising employees not to
join the Union
From the foregoing facts and upon the basis of the entire record, the undersigned
is convinced and finds that the respondent's actions were such as to lead the employees
reasonably to believe that the meeting of December 9 was held with the approval and
support of the respondent, and that the statements there made that the respondent
would grant the employees an increase in wages if they withdrew from the Union,
were ones which reflected the respondent's attitude.' This belief was confirmed by the
respondent's subsequent conduct in supplying the employees with the form for the
revocation petition, in providing the means by which it could be typewritten, and by
permitting it to be signed during regular working hours in the, plant2a
25 As a matter of fact, the respondent did apply to the National War Labor Board for wage
increases on January 29, 1943, and it sought approval to grant increases to a number of employees
whose wages it had refused to increase when requested to do so by the Union during the negotiations
which ended in November 1942
20 In H. J. Heins Company v N L R B , 311 U. S. 514, the Supreme Court stated.
The question is not one of legal liability of the employer in damages or for penalties on princi-
ples of agency or respondeat supcrioi, but only whether the Act condemns such activities as
unfair labor practices so far as the employer may gain from them any advantage in the bar-
gaining process of a kind which the Act proscribes. To that extent we hold that the employer
is, within reach of the Board's order to prevent any repetition of such activities and to re-
move the consequences of them upon the employees' right of self-organization, quite as much
as if he had directed them
PURE OIL COMPANY .1061
Whether or not a majority of the employees might have withdrawn from the Uniom
absent the assistance thus afforded is wholly speculative There is no evidence that the
result would have been the same without it 27 The evidence, on the contrary, is that
this assistance played at least a substantial and material part in the withdrawal.
In and of itself, this conduct interfered with, restrained, and coerced the employees
in violation of Section 8 (1) of the Act.
Moreover, irrespective of any showing made of the respondent's responsibility for
the meeting of December 9, the record shows that the respondent suggested the revoca-
tion petition of December 10, supplied the form for the petition as well as the steno-
graphic services by means of which it was typed, and permitted it to be signed and
circulated in the plant during working hours. It may reasonably be inferred that the
respondent knew that the petition was being circulated in the plant during working
hours by reason of the open manner in which such circulation was carried on and the
small size of the plant which employs from 125 to 150 persons, approximately half of
whom are office *employees. Indeed, one of the persons who signed the petition during
working hours was Mannie Alverson, a supervisory employee as noted hereafter 28
Although only 33 employees, less than a majority in the appropriate unit, voted to
withdraw from the Union at the meeting on December 9, the petition of December 10
was signed by 46 persons, a majority of those in the unit. The respondent's conduct
in connection with the petition thus accomplished the result of providing ostensible
proof of a withdrawal by a majority. When the petition was submitted to Lord, he
made no attempt to check the names thereon against the pay roll of the respondent
or otherwise to assure himself of the genuineness of the document. Yet a reasonable
attempt at verification would have shown that the authenticity of the document was
questionable. At least one employee, Moor, was not a member of the Union at the time
he signed, although the petition pui ported to consist of the names of union members
who had resigned therefrom ; and the signature of at least one employee, Dover, was
spurious.
What has been said makes it clear that neither the withdrawal of December 9, nor
the signing of the petition on December 10, can fairly be regarded as the free and
unhampered expression of the choice of the employees
The undersigned finds that by permitting and assisting in the arrangements for the
meeting in the plant on December 9, by suggesting on December 10 the use of the
revocation petition, by supplying the form thereof and the stenographic services for its
preparation, and by permitting the petition to be circulated and signed in the plant
during working hours, the respondent thereby induced its employees to resign from
the Union, and thereby interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act, in violation of Section 8 (1)
of the Act. As is discussed hereinafter, all this is involved as well in the allegation
that the respondent violated Section 8 (5) of the Act
27 See N L R B v Remington Rand, Inc , 94 F (2d) 862 (C C A 2), cert den 394 U S.
576, wherein the Court said that the burden rested upon the respondent "to disentangle the conse-
quences for which it was chargeable from those from which it was immune."
28 Counsel for the Board contends that Alverson 's act in signing the petition was in itself an un-
fair labor practice. Alverson was a member of the Union and was covered by the contract entered
into between the Union and the respondent The parties at the hearing , contrary to the finding as to
the warehouseman 's status herein made by the undersigned, agreed that such position should be
included in the unit. Under these circumstances , the undersigned finds that the respondent did not
violate the Act, merely by reason of Alverson ' s conduct in signing the petition See Matter of
Duluth Bottling Association , et at., 48 N. L. R. B. 1335.
1062 DECISION OF NATIONAL LABOR RELATIO NS BOARD
5. The appropriate unit
Counsel stipulated at the hearing that all employees of the respondent' s Birmingham
bulk plant and Yale tire warehouse, excluding supervisory employees, clerical employ-
ees, and painters , constitute and at all times material herein constituted, an appropri-
ate bargaining unit.
The warehouseman and assistant warehouseman at the bulk plant and the ware-
houseman at the Yale tire warehouse are included in the unit agreed upon as appropri-
ate. A consideration of the duties and authority of these employees is necessary in
order to determine whether their functions are supervisory in character and therefore
whether they may properly be included in the unit
The warehouseman at the hulk plant is in charge of eight or nine employees in the
warehouse to whom he assigns work and whose work he supervises. He is paid a
regular salary, while the other employees in the warehouse at the bulk plant are paid
on an hourly basis He has authority to recommend the hire or discharge of employees
under him, and most of his time is spent in checking the work of such other employees.
as distinguished from time spent during which he himself works Upon the basis of
the foregoing facts, the undersigned finds that the warehouseman at the bulk plant
is a supervisory employee and should be excluded from the appropriate unit.
The assistant warehouseman at the bulk plant acts as warehouseman during the
latter's absence, handles minor matters of discipline himself, refers other matters to
the warehouseman, and reports to the warehouseman concerning the work done by the
other employees in the department He has no authority to recommend the hire or
discharge of employees in the department. He is paid 75 cents, while the other em-
ployees in the department are paid 65 cents, per hour The undersigned finds that the
evidence does not show that the assistant warehouseman at the bulk plant exercises
sufficient supervisory authority to warrant his exclusion from the appropriate unit
The warehouseman at the Yale tire warehouse instructs and assigns work to the
clerk, the tire rebuilder, and the truck driver who are are employed in that division of
the respondent's operations He is under a duty to see that orders for tires, batteries,
and accessories which are kept at the warehouse are properly received and delivered
and that records of such orders are maintained He is under the supervision of the
manager of the Yale tire warehouse, whose office is in the general office located at the
bulk plant but who spends approximately half of his time at the warehouse Approxi-
mately 75 percent of the warehouseman' s time is spent at work which he himself per-
forms and the balance of his time is spent in directing the work of the other employees
In the absence of the manager, he can grant an employee's request for time off
from work The wages he receives are greater than those of the clerk, the tire re-
builder, or the truck driver, and he has the authority to recommend their hire or dis-
charge. The undersigned finds that the duties of the warehouseman at the Yale tire
warehouse are sufficiently supervisory in character so that he should be excluded from
the appropriate unit.
The undersigned finds that all employees of the respondent's Birmingham bulk plant
and Yale tire warehouse, excluding clerical employees, the warehouseman at the
Birmingham bulk plant, the warehouseman at the Yale tire warehouse, and supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise effect
changes to the, status of employees, or effectively recommend such action, constitute,
PURE 011- COMPANY 1063
and at all times material herein constituted , a unit appropriate for the purposes of
collective bargaining.20
6. Representation by the Union of a majority in the appropriate unit
The amended complaint alleges that the respondent refused to bargain collectively
with the Union on or about December 21, 1942, as-well as on or about April 7, 1943,
and at all times thereafter . From the time the respondent and the Union began negoti-
ations on about October 1, 1942, and until December 21, no question was raised by the
respondent with respect to the majority status of the Union. The record shows and the
undersigned finds that the Union represented 49 out of the 85 employees in the appro-
priate unit at the time negotiations began 80
In view of the respondent 's acts of interference above found , the action of a majority
of the employees in indicating their withdrawal from the Union at the meeting on
December 9, or by signing the petition of December 10, cannot be regarded as a free
and unharnpered choice on their part, and did not, therefore, destroy the majority status
of the Union.
Thereafter, a large majority of the employees ceased working on April 7, 1943
These employees again demonstrated their continued adherence to the Union and their
designation of it as their bargaining agency by insisting that negotiations concerning
settlement of the strike be conducted through representatives of the Union, and by
refusing to return to work until a satisfactory arrangement of the dispute had been
worked out between the respondent and the Union and until the Union advised the
employees to return to their jobs '
The undersigned accordingly finds that on and at all times after October 1, 1942,
including December 10, 1942, and April 7, 1943, the Union was the duly designated
bargaining representative of a majority of the employees in the unit herein found
29 From November 1942 to November 1943, watchmen employed by the respondent acted as auxili-
ary military police under the direction of the armed forces of the United States In accordance with
the Board 's usual practice , the undersigned finds that these watchmen are to be considered included
in the appropriate unit from the time they were discharged as auxiliary military police in November
1943. Cf. Matter of Commonwealth Edison Company , 55 N. L. R. B. 732.
-The respondent's pay roll for the period October 1 through October 15, 1942, lists the names of
87 employees Two of these employees (the warehouseman at the Birmingham bulk plant and the
warehouseman at the Yale tire warehouse) exercised supervisory authority, at noted above, and
are not to be considered as included within the appropriate unit Thus , the appropriate unit com-
prised a total of 85 employees . The above figure as to the Union's representation is based upon a
summary of the ledger records of the Union which show that 49 persons whose names are listed
on the respondent's October 1-October 15, 1942, pay roll paid initiation fees to the Union or paid
dues during one or more of the months of July, August , and September 1942
az Zone Manager Lord testified that only 13 employees worked 'during the strike , and of these a
total of 5 (4 guards , who were then military police, and the warehouseman ) are excluded from the
appropriate unit . In addition , uncontradicted testimony in the record shows that of the remaining
seven persons who then worked , one (the order clerk) was a member of and desired the Union to
represent him but continued to work only because he expected to be called for military service within
a few days after April 7, 1943, and did not wish to impair in any way his opportunity of receiving
a part of his wages which the respondent made a practice of paying its employees while in military
service. The pay roll of April 8, 1943, lists 77 names, including the five guards or watchmen, the
warehouseman at the Birmingham bulk plant, and the warehouseman at the Yale tire plant. Thus,
all but 7 of the 70 employees in the appropriate unit at the time of the strike designated the Union
as their representative by reason of their participation in the strike Matter of Chicago Casket Com-
pany, 21 N. L . R B 235. The respondent sought to show that 12 employees who worked during
the morning of the first day of the strike left the plant because they had been threatened by unidenti-
fied persons . The undersigned has considered this evidence and rejects it as inconclusive Cf
N L R B i Dadourian Export Corp, 13S F (2d) 891 (C C A 2) In this connection it may he
noted, however, that even if these 12 employees were not considered is union adherents the majority
status of the Union during the strike nevertheless remained unimpaired , and the Union was desig-
nated and selected by a majority of the employees in the appropriate unit
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate, and that, pursuant to the provisions of Section 9 (a) of the Act, the
Union was on October 1, 1942, December 10, 1942, and April 7, 1943, and at all
times thereafter has been and is now the exclusive representative of all employees in
the unit herein found appropriate for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other conditions of employment.
7. The refusals to bargain
In a letter dated December 21, 1942, the Union was informed by the respondent as
-found above, that the latter had received the revocation petition of December 10 and
that the respondent would no longer recognize or bargain with the Union. Since the
purported repudiation of the Union by the employees was attributable to the respondent,
the latter was not justified in its refusal to bargain on December 21, 1942. But even if
the results of the meeting of December 9 and the revocation petition of December 10
were to be regarded as uninfluenced expressions of the desires of the employees, the
respondent was nevertheless unjustified in its refusal to bargain with thetUnion on
and after April,7, under the circumstances shown in this record. On April 7, a vast
majority of the employees went on strike. On that afternoon, they refused to confer
with Lord with respect to the strike unless accompanied by a representative of the
Union. Thereafter, they illustrated their determination to negotiate with the respond-
ent through the agency of the Union, and they affirmed that determination by refusing
to return to work until a strike-settlement agreement had been worked out by and
with the Union. Whatever doubts the respondent may have had before as to the ma-
jority status of the Union, it was thus provided with a convincing demonstration and
the fact that a majority of the employees desired the Union to represent them on and
after April 7, without the necessity of going to an election '
The respondent itself recognized this to be the situation as shown by the fact that
it conferred with the Union throughout the period of the strike in an attempt to arrive
at a settlement, and finally, when the strike settlement agreement of April 16 was
concluded, the document setting forth its terms and signed by the respondent was
addressed to the Union. The respondent was thus willing to recognize the Union as the
representative of a majority of the employees for the purpose of settling the strike
but not for the purpose of negotiating a contract. The Act, however, imposed the duty
upon it to bargain with the Union for both purposes.
The undersigned accordingly finds that the respondent, on December 21, 1942, and
April 7, 1943, and at all times thereafter has refused to bargain collectively with the
Union as the exclusive representative of its employees in the appropriate unit, and by
such conduct and by its further conduct with respect to the meeting of December 9
32 In discussing what form of proof the employer may require of the bargaining agent's authority
to represent the employees , the Second Circuit Court of Appeals in N. L. R B. v. Remington Rand,
Inc , 94 F (2d) 862, cert denied 304 U S 596, stated that when the employer is in doubt as to
the bargaining agent's majority "it does not in the least follow that he need be satisfied with no
evidence except the Board's certificate " and that "it may be entirely apparent from other sources"
that the requisite majority exists . In Lebanon Steel Foundry v. N. L. R B , 130 F (2d) 404, the
Circuit Court of Appeals of the District of Columbia, in dealing with a similar situation, said:
The Wagner Act requires no specific form of authority to bargain collectively. * * * Not
form, but intent , is the essential thing. The intent required is merely that the union or other
organization or person act as the employees ' representative in collective bargaining The intent
has been found from participating in a strike vote taken by the union, a strike called by the
union, and acceptance of strike benefits. It is only necessary that it be manifested in some
manner capable of proof, whether by behavior or language . Oral authority is not invalid. It is
merely, as always , more difficult to prove. Lawyers formulae, formalities and words are not
needed The agreements or authorizations are laborers , not scriveners ,' expressions of inten.
tion. They are expected to be made in the workingman 's manner, not in that of management as
it conducts corporate affairs, with a lawyer at its side.
PURE OIL COMPANY 1065
and the revocation petition of December 10, 1942, has thereby interfered with, re-
strained,-and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act 37
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in connec-
tion with the operations of the respondent described in Section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and have led to and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair labor
practices, it will be recommended that the respondent cease and desist therefrom and
take certain affirmative action designed to effectutate the policies of the Act.
It has been found that the respondent refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate unit . It will therefore
be recommended that the respondent on request bargain collectively with the Union
as the exclusive representative of its employees in the appropriate unit in respect to
rates of pay, hours of employment, and other conditions of employment.
Because of the respondent's unlawful conduct, the undersigned is convinced that
the unfair labor practices found are persuasively related to the other unfair labor
practices proscribed and that a danger of their commission in the future is to be
anticipated from the course of the respondent's conduct in the past 3' The preventive
purpose of the Act will be thwarted unless the recommendations herein are co-
extensive with the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby
minimize strife which burdens and obstructs commerce, and thus effectuate the policies
of the Act, the undersigned will recommend that the respondent cease and desist
from in any manner infringing the rights guaranteed in Section 7 of the Act.
Upon the foregoing findings of fact and upon the entire record of the case, the
undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union #612, affiliated with the American Federation of Labor, is
ss In its answer , the respondent avers by way of affirmative defense that by virtue of the strike-
settlement agreement it was understood that the respondent would not recognize or negotiate with the
Union unless it were ordered to do so as a result of the charges then pending or the Union was
chosen as bargaining agent at an election, and that therefore, the "Union is now estopped to claim
a violation of the Act by Respondent, based on a refusal to bargain prior to or after April 16, 1943."
As a corollary to this defense , the respondent further avers that by virtue of the strike- settlement
agreement it is released from all obligation to recognize or negotiate with the Union unless it is
ordered to do so in the present proceedings or unless the Union is chosen as bargaining agent at an
election. Neither of these defenses has merit A reading of the strike settlement agreement does not
support the interpretation placed upon it by the respondent Furthermore, the Act itself provides that
the Board ' s power to prevent the commission of unfair labor practices " shall be exclusive, and
shall not be affected by any other means of .ad)ustment or prevention that has been or may be estab-
lished by agreement , code, law, or otherwise ." Nor is the agreement in this case of such a kind as
to induce the Board in the exercise of its administrative discretion to withhold its determination on
the merits . On the contrary, the agreement itself clearly shows that it is based upon an assumption
that such a determination will be made. -
11 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426
1066 1)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
a labor organization, within the meaning of Section 2 (5) of the Act.
2. All employees of the respondent's Birmingham Bulk Plant and Yale Tire Ware-
house, excluding clerical employees, painters, the warehouseman at the Birmingham
Bulk Plant, the warehouseman at the Yale Tire Warehouse, and supervisory employ-
ees with authority to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, have at all times
material herein constituted and they now constitute a unit appropriate for the pur-
poses of collective bargaining, within the meaning of Section 9 (b) of the Act
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union #612 in or about October 1942, was and at all times
thereafter has been the exclusive representative of all employees in the aforesaid
unit for the purposes of collective bargaining, within the meaning of Section 9 (a)
of • the Act.
4 By refusing on December 21, 1942, and April 7, 1943, and at all times thereafter
to bargain collectively with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Local Union #612, as the exclusive represen-
tative of its employees in the aforesaid appropriate unit, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of
the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the respondent has engaged in unfair
labor practices, within the meaning of Section 8 (1) of the Act
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
7 The respondent has not engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act by discharging on or about April 6, 1943, the six employ-
ees named in the amended complaint, or by locking-out on or about April 7, 1943,
all its transport drivers
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the_ under-
signed recommends that the respondent, Pure Oil Company, and its officers, agents,
successors, and assigns shall :
1. Cease and desist from •
(a) Refusing to bargain collectively with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Local Union #612, as the
exclusive representative of all employees of the respondent's Birmingham Bulk Plant
and Yale Tire Warehouse, excluding clerical employees, painters, the warehouseman
at the Birmingham Bulk Plant, the warehouseman at the Yale Tire Warehouse, and
supervisory employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees or effectively recommend such
action ;
(b) In any other manner interfering with, restraining, and coercing its employees
in the exercise of their right 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 purposes of collective bargaining or
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) Upon request bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, Local Union #612, as the
PUKE OIL CODI PANY 1067
exclusive bargaining representative of the employees in the aforesaid appropriate
unit ;
(b) Post immediately in conspicuous places at its Bulk Plant arid Tire Warehouse
located in Birmingham, Alabama, 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 recommended that it
cease and desist in paragraphs 1 (a) and (b) of these recommendations and (2) that
the respondent will take the affirmative action set forth in paragraph 2 (a) of these
recommendations ;
(c) File with the Regional Director for the Tenth Region on or before ten (10)
days from the date of the receipt of this Intermediate Report, a report in writing
setting forth in detail the manner and form in which the respondent has complied
with the foregoing recommendations.
It is further recommended that unless on or before ten (10 ) days from the receipt
of this Intermediate Report. the respondent notifies said Regional Director in writing
that it has complied with the foregoing recommendations, the National Labor Rela-
tions 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 discharged six employees on or about April 6, 1943, because they
attended a meeting of the Union, and thereafter on or about April 7, 1943, locked-out
all of its transport drivers.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, effective November 26, 1943, any party or
counsel for the Board may within fifteen (15) days from the date of the entry of
the order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations file with the Board, Rochambeau Building, Washing-
ton, 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 proceed-
ing (including rulings upon all motions or objections) as he relies upon, together
with the original and four copies of a brief in support thereof Immediately upon
the filing of such statement of exceptions and/or brief, the party or counsel for the
Board filing the same shall serve a copy thereof upon each of the other parties and
shall file a copy with the Regional Director As further provided in said Section 33,
should any party desire permission to argue orally before the Board, request therefor
must be made in writing within ten (10) days from the date of the order transferring
the case to the Board
DAVID KARASICK
Trial Erani:iier
Dated April 3, 1944