Pure Oil Co.

National Labor Relations Board - Board Decisions

Aug 2, 1950

90 N.L.R.B. 1661 (N.L.R.B. 1950)

In the Matter of PURE OIL COMPANY (ILLINOIS PRODUCING DIVISION
and OIL WORKERS INTERNATIONAL UNION, CIO
Case No. 14-CA-380.Decided August 2,1950
DECISION AND ORDER
L
On March 21, 1950, Trial Examiner Stephen S. Bean issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the copy of the Intermediate Report attached.
hereto. The Trial Examiner also recommended that the complaint be
dismissed insofar as it alleged that the Respondent had engaged in cer-
tain other unfair labor practices. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief ; the
Respondent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this proceeding to a three-member panel [Members Hous-
ton, Reynolds, and Murdock].
The Board has reviewed the rulings'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 Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, except insofar as they are inconsistent with this
Decision and Order.
1. We agree with the Trial Examiner's finding that the Respondent
violated Section 8 (a) (1) of the Act (1) by engaging in surveillance
of union meetings of its employees, and (2) by interrogating its em-
ployees concerning their union views, affiliation, and activities, as de-
tailed in the Intermediate Report. We do not, however, predicate
our 8 (a) (1) finding on Superintendent England's interrogation of
Hallie Zalus Carder, or England's direction to Carder to resign from
the Union. Carder, although employed primarily in a rank and file
capacity, regularly relieved Gang Foreman Hatch 1 day each week.
' The name of the Respondent appears as amended by the Trial Examiner upon motion
made at the hearing.
90 NLRB No. 215. 1661
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On these occasions he performed the usual functions and exercised the
customary authority of a gang foreman, a position which the parties
:stipulated is supervisory. We find, therefore that because of his regu-
lar and frequent employment as a gang foreman, Carder was a super-
visor at the time the above statements were made.2 Accordingly, we
conclude that the Respondent was privileged to inquire as to his union
affiliation and to insist as a condition to Carder's continued employ-
ment as a supervisor that he relinquish his membership in the Union.3
In view of the foregoing findings with respect to Carder, we find no
merit in the General Counsel's exception to the Trial Examiner's fail-
ure to find violative of the Act Gang Foreman Hatch's statement to
employee Smithberger that Carder was ineligible to continue to relieve
Hatch because he had joined the Union.
2. The Trial Examiner found no evidence of coercive conduct by
the Respondent independent of that implicit in the surveillance and in-
terrogation heretofore found unlawful. He specifically found that
certain allegedly coercive statements made by Supervisor Donheiser
and. Gang Foreman Delaney represented isolated incidents, were not
coercive, that they were not authorized or ratified by the Respondent,
and were privileged expressions of opinion, attitude, and belief. In
conclusion, the Trial Examiner recommended dismissal of that por-
tion of the complaint which encompasses coercive conduct independ-
ent of that related to surveillance and interrogation.
We disagree with these 'findings and conclusion and reject the
Trial Examiner's recommendation in this respect. The record shows,
as detailed in the Intermediate Report, that the Respondent had from
the inception of the organizing campaign by the Union embarked upon
a systematic program of surveillance and interrogation under the
auspices of its general manager and with the active participation
of its supervisors. Donheiser's outburst., "Do you think I am going
to take this laying down?", made to the union representative upon the
latter's request that Donheiser cease his surveillance after he was seen
peering through a window at a union meeting, and his continued
suveillance of this meeting together with at least four other super-
visors, cannot be treated as an isolated, unauthorized incident. On
the contrary, we find that this statement is attributable to the Re-
spondent and contains a threat. of reprisal against the organizational
activities of the employees and therefore is violative of Section 8 (a)
2 Tennessee Coach Company, 88 NLRB 253 , The Texas Company, Salem Gasoline Plant,
85 NLRB 1211.
3 Lily-Tulip Cup Corporation, 88 NLRB 892; El Dorado Limestone Company, 83
NLRB 746. In view of our other unfair labor practice findings herein we deem it unneces-
sary to make any finding with respect to England's request to Supervisor Carder that he
procure the resignation from the Union of other employee -members.
Pt R'EI OIL COMPANY " 1663
(1) of the Act . Viewed against the same background , we find that
Delaney's direction to employees under him not to mention the Union
to another employee, and his threat , to "make it rough" on them if they
did, was clearly coercive and constitutes an additional violation by the
Respondent of Section 8 (a) (1). In this connection we note that
the Respondent had not publicized any printed rule against union
solicitation by its employees , nor does it appear that employees were
aware of any such oral rule.
We also find coercive Superintendent England's solicitation of em-
ployee Keen to get together with four or five other employees and to
tear up their union cards and to throw them on his desk, and his added
comment that he would call the boys from Olney to come out to "get
you out of this mess." We construe this as averbal act in the nature
of a direction by Superintendent England to a rank-and -file employee
to resign from the Union and to procure the resignation of other em-
ployees from the Union and an offer of assistance for this purpose in
violation of Section 8 (a) (1) of the Act.4
The Remedy
The Trial Examiner, because he found no unlawful conduct other
than that flowing out of the Respondent's interrogation and surveil-
lance, concluded that the record discloses no danger of further com-
mission by the Respondent of unfair labor practices other than those
related to interrogation and surveillance. Accordingly, he recom-
mended that the usual broad cease and desist order should not be
issued in this case. We have found however, contrary to the Trial
Examiner, that the Respondent has committed other unlawful acts
independent of surveillance and interrogation. We believe. moreover,
that the systematic and extensive surveillance and interrogation con-
ducted by the Respondent discloses a hostile intent to defeat the
attempts by its employees at self-organization. Unlike the Trial Ex-
aminer, therefore, we find that the unfair labor practices committed
by the Respondent are potentially related to other unfair labor prac-
tices proscribed by the Act, and that the danger of their commission
in the future is to be anticipated from the Respondent's past conduct.
The preventative purpose of the Act will be thwarted unless our order
is coextensive with the threat. Accordingly, in order to make effective
the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, we shall issue a broad ceast and desist order.
4 Earl Severin, Inc., 90 NLRB 86; Empire Pencil Company, Division of Hassenfeld
Bros. , Inc., 86 NLRB 1187 ; Chicopee Manufacturing Company, 85 NLRB 1439 ; National
Biscuit Company , 83 NLRB 487.
1664 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, as amended, the National Labor
Relations Board hereby orders that the Respondent, Pure Oil Com-
pany (Illinois Producing Division), Olney, Illinois, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union member-
ship, activities, or sympathies ;
(b) Engaging in surveillance of its employees' self-organizational
activities ;
(c) Soliciting its employees to withdraw from membership in a
labor organization ;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist Oil Workers International Union, CIO, or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to
refrain from any and all such activity except to the extent that such
rights may be affected by an agreement requiring membership in a
labor organization as condition of employment, as authorized in Sec-
tion 9 (a) (3) of the Act, as amended.
2.. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post for a period of sixty (60) consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted, at its premises in Olney, Illinois, and in the
four districts of Casey, Noble, Clay City, and Sisney, where it con-
ducts operations, signed copies of the notice attached hereto, marked
Appendix A,5 upon receipt of copies of said notices to be furnished
by the Regional Director for the Fourteenth Region. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material;
(b) Notify the Regional Director for the Fourteenth Region in
writing within ten (10) days from the date of this Decision and Order,
what steps the Respondent has taken to comply therewith.
In the event this Order is enforced by decree of a United States Court of Appeals, there
shall be inserted in the notice before the words, "A Decision and Order," the words, "A
Decree of the United States Court of Appeals Enforcing."
PURE' OIL COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
1665
. Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor-
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees in any manner as to,
their union membership, activities, or sympathies;
WE WILL NOT engage in surveillance of our employees in self--
organizational activities;
WE WILL NOT solicit our employees to withdraw from member--
ship in a labor organization;
WE WILL NOT in any other manner interfere with, restrain, or-
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join, or assist OIL WORKERS INTERNATIONAL UNION,.
CIO, or any other labor organization, to bargain collectively-
through representatives of their own choosing, to engage in con
certed activities for the purpose of collective bargaining or other
mutual aid or protection, and to refrain from any and all such
activity except to the extent that such rights may be affected by
an agreement requiring membership in a labor organization as,
a condition of employment, as authorized in Section 8 (a) (3).
of the Act, as amended.
PURE OIL COMPANY (ILLINOIS
PRODUCING DIVISION),
Employer.
By ------------------------------
(Representative ) (Title)
Dated ------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Ralph Kennedy, Esq., for the General Counsel.
Vinson, Elkins & Weems, by Allen C. Hutcheson, Jr., Esq., of Chicago, Ill.,.
for the Respondent.
Mr. Clarence M. Masningale, of Flora, Ill., for the Union.
STATEMENT OF THE CASE
Upon an amended charge filed December 15, 1949, by Oil Workers Inter-
national Union, C. I. 0., herein called the Union, the General Counsel for the
National Labor Relations Board, called herein respectively the General Counsel
and the Board, by the Regional Director for the Fourteenth Region (St. Louis,
Missouri), issued a complaint dated January 18, 1950, against Pure Oil Corn-
`903847-51-vol. 90-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany, herein called the Respondent. The complaint alleged that the Respondent
had engaged in and was engaging in certain unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the complaint and the amended charge, together with notice of
hearing were duly served upon the Respondent.
With respect to the unfair labor practices, the complaint alleged in substance,
that during the period from on or about July 1, 1949, until the date of the
issuance of the complaint, the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act by : (a) Interrogating its employees concerning their union affilia-
tion, membership, and sympathies; (b) making coercive statements to its em-
ployees in order to discourage union membership; and (c) keeping under sur-
veillance the meeting places, meetings, and activities of the Union and/or the
concerted activities of the Respondent's employees for the purpose of collective
bargaining or other mutual aid or protection. In its duly filed answer, the
Respondent, admitted that on occasion its supervisory employees had been
around, near, or in the vicinity of meetings attended by some of its employees
and that it is engaged in the production of crude oil which is thereafter shipped
in interstate commerce, but denied that it had committed any of the unfair labor
practices alleged in the complaint.
Pursuant to notice, a hearing was held on February 21 and 22, 1950, at Olney,
Illinois, before Stephen S. Bean, the undersigned Trial Examiner, duly designated
by the Chief Trial Examiner. The General Counsel and Respondent were repre-
sented by counsel and participated in the hearing, and the representative who
appeared for the Union was present throughout and testified during the course
of the hearing. An assented-to stipulation and motion to amend the caption of
the case, to "Pure Oil Company, Illinois Producing Division," and to substitute
for the words "Olney Division" wherever same appear in the pleadings the words
"Illinois Producing Division" were admitted and allowed. Respondent's mo-
tion to exclude its employees during the testimony of its manager who was
called as the first witness by the General Counsel, was denied. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. The General Counsel's motion
to conform the pleadings to the proof as to names, dates, and other variances
was granted without objection. The General Counsel and the Respondent
argued the case at the close of the hearing. Counsel did not avail themselves
.of the opportunity afforded them to file briefs.
Upon the entire record in the case and from observation of the witnesses, I
make the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with an office and place of business
in Olney, Illinois, a city situated in approximately the center of an area including
the State of Illinois, about the west half of the State of Indiana, and the western
portion of the State of Kentucky, where its Illinois Producing Division has a
working force of about 700 employees and is engaged in the production and
processing of crude oil or petroleum. A substantial portion of the crude oil
or petroleum produced and processed by the Respondent is transported to its
refineries in Ohio, Michigan, West Virginia, and Texas, through the pipe lines
PURE ) OIL COMPANY 1667
of its subsidiaries, which pipe lines consist of approximately 1,000 miles of main
and gathering lines and numerous pumping stations located in a number of
States. Its products are sold in at least 10 States. Oil or petroleum produced
and processed in the Illinois Producing Division is transported in the Respond-
ent's subsidiaries pipe lines to the Respondent's refineries where it is com-
mingled with other oil or petroleum carried in the same lines, thereby losing
its identity. Approximately 20,000 barrels of oil or petroleum are transported
daily from the division, all of it being shipped in interstate commerce to points
outside the State of Illinois.
The Respondent admits that it is engaged in commerce within the meaning of
the Act and I find that its operations affect commerce within the meaning of
the Act.
If. THE LABOR ORGANIZATION INVOLVED
Oil Workers International Union, C. I. 0., is a labor organization which admits
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES.
A- Factual narrative
After learning in June 1949 of the Union's plan to institute an organization
campaign among the employees of the Respondent, Mr. Mark H. Plummer, the
Respondent's manager called a meeting. of the Respondent's supervisors, sub-
ordinate to him. Mr: Plummer told these subordinates that there was going
to be a union organization campaign and that he had information that a lot
of the employees were dissatisfied with their conditions. He instructed the
supervisors to contact employees to find out whether they had heard of or had
been approached by the Union and put them straight if they had been misled by
false. reports, to investigate, and if anything was wrong to straighten it out,
to get the men back to working, and to keep down unrest and uneasiness. Each
supervisor was instructed to go out unaccompanied and interview each employee
under his supervision individually as to his attitude toward the Union and
report back the results of his questioning. Mr. Plummer told the supervisors
to inform the employees that they did not have to belong to a union in order
to hold their jobs and to dispell rumors to the contrary as well as rumors to the
effect that veterans would be admitted to union membership free of initiation
fee provided they joined before a certain date. It was pointed out at the meet-
ing of supervisors called by Mr. Plummer that employees had the right to join
or not join a union. He instructed the supervisors to warn employees not to
solicit union memberships during working hours. Mr. Plummer suggested to the
supervisors that they watch the whole union operation, its organizational meet-
ings, and see what was happening at the meetings.
The first of a series of union meetings, variously estimated to have been at-
tended by from 15 to 25 employees, was held in the town of Fairfield, Illinois,
on August 2, 1949. All subsequent meetings took place weekly commencing about
August 17, 1949, and continuing until sometime in January 1950, in convention
hall located on the ground floor of the county court house in Olney. All
sessions were attended by approximately the same as well as the same number
of employees. Mr. Plummer observed a dozen or more of these meetings and the
meeting place, and various supervisory employees of the Respondent were present
before and remained in the immediate vicinity of each of these meetings and
made observations during a part or all of the time they were in session until
1668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after January 19, 1950, the date the Respondent was served with the complaint.
At Fairfield, Clarence M. Massingale, International representative of the Union,
spoke to Mr. Glover, who with Messrs. Elizey, King, and Turner were seated in
a motor vehicle parked directly across the street from the meeting hall. All
four were company supervisors. When asked what he was doing there, Mr.
Glover stated that he had a perfect right"to be there on a public thoroughfare.
Mr. Massingale said he did not think the Company' was doing right that way,
discouraging attendance at the meeting. At the Olney meetings several super-
visors as well as Mr. Plummer and Mr. Homer F. England, district superintendent
of the Respondent, kept parking and patrolling up and down in cars and on foot,
in front of the meeting place. The constituency of the supervisors varied from
time to time. Mr. Massingale was speaking to the group of employees in at-
tendance at the second Olney meeting on August 24, 1949, while this was going
on outside and finally Respondent's supervisor Donnheiser came up on the steps.
It appeared that Mr. Donnheiser was peering in the window and Mr. Massingale
stopped speaking, went out and asked Donnheiser to refrain from surveillance.
Mr. Donnheiser said "Do you think I'm going to take this laying down?" After
that at least five supervisory employees continued to walk back and forth on the
sidewalk immediately in front of the building. At both the original meeting at
Fairfield, and the second Olney meeting, Mr. Massingale, after the above two
incidents had occurred, invited supervisory employees of the Respondent who
had been seen outside, to come inside. Mr. Plummer was among those invited
at Olney, but not at Fairfield. The invitations were not acepted. Mr. Massin-
gale's reason for asking these officials to come inside was that quite a few em-
ployees who had come along and seen them outside had driven on by, and that
he would try to keep down fear among the employees by having company
representatives inside the hall in order that it would look more like the Company
was not fighting the Union than if its supervisors remained outside.
In July 1949, District Superintendent Homer F. England asked employee
Charles W. Williams if he had heard any rumors of a union and what he thought
about the Union and told Williams the Company was afraid the Union would
cause confusion among the employees. About the first of September 1949, Mr.
England asked Mr. Williams how the Union was getting along and whether
Williams and three other employees had tried to sign up some men. In July
1949, Mr. England asked employee Hallie Zalus Carder if he had heard about
the Union, if there was anything to it, how strong it was, and if he had attended a
meeting at Laurenceville and told him not to get mixed up in anything and to stay
out of anything he did not know anything about. On July 28, 1949, Mr. England
advised Mr. Carder that the Company could not use him in a relief foreman posi-
tion if he were a union member and asked him to tear up his CIO card. The
following day Mr. Carder told Mr. England he wanted to keep his truck driver's
job and to give up the relief foreman's position. Thereupon Mr. England told
Mr. Carder to get out of the Union and asked him to talk to other employees and
see if they would not tear up their union cards and throw them on his desk. In
June 1949, Gang Foreman William T. Hatch asked employee Leo A. Smithberger
his attitude toward organization. About July 27, 1949, Mr. Hatch requested Mr.
Smithberger to relieve him as foreman during Mr. Hatch's day off, stating that
Mr. Carder was ineligible because Mr. Carder had joined the Union. Mr. Smith-
berger told Mr. Hatch he too was ineligible. under the same circumstances as
Mr. Carder. On December 3, 1949, Gang Foreman Delaney told Mr. Smithberger
and others working with him as they were about to be taken to another job that
he didn't want them to mention the Union toa tractor driver who would be down
PURE) OIL COMPANY 1669
from another area of the division ' s operations . When Mr. Smithberger protested,
Mr. Delaney said if you mention the Union to that guy I'll make it rough on you.
Sometime the first part of August 1949, Mr. England asked employee Ivan F.
Keen what he thought about and heard about the Union . Mr. England said that
he would like to get Mr. Keen and four or five of the other , boys to tear up their
union cards and throw them on his desk, and that he would call the boys from
Olney to come out and get him out of a mess, and that he didn't want any of the
boys to get into anything they wouldn't want to get into or do anything wrong.
Gang Foreman Hatch told Mr. Keen that he had been instructed to contact each
man working under his supervision to see what his attitude was toward the,Union.
Employee Ray E. Ballew had a conversation with Mr. England relative to the
reason for the lay-off of a fellow employee and Mr. Ballew ' s belief that conditions
were such as to cause men to join the Union . Mr. England said to Mr. Ballew
"what about the Union?", and asked him what the trouble was, what the boys
were unhappy about, if he had heard about the Union and if the Union was work-
ing out there. Gang Foreman Hatch inquired of Mr. Ballew what he thought
about the Union and stated he had been instructed by higher officials to question
each of his subordinates . In addition to interviewing Mr. Smithberger, Mr.
Keen, and Mr . Ballew, Mr . Hatch upon instructions from Mr. Plummer to find
out whether his subordinates were joining the Union and what was their attitude
toward the Union, talked to employees Schmidt, Seymore, Hall, King, Cochran,
Totten, Stein, Resler, Jones, Nealy, Cook, Larry, Friend, Ely, Dellsell,
Cravens, and Ellison and asked them concerning their attitudes toward the Union
and reported results to Mr. England. Gang Foreman Allen Sigler interviewed
employees under his supervision ; Gang Foreman Fred Brooks was told by Mr.
Plummer that he wanted him and other supervisors to contact their respective
subordinates to correct misleading reports that if they didn 't join the Union they
couldn't hold'their jobs. He could find out whether they had been approached by
union members and whether they had been told they must join to work. He
could and did ask employees whether they had heard any union news. He asked
all the employees he interviewed whether they had heard of the Union or had
been contacted by `the Union and in substance though not directly, asked each
individual employee whether he had been told he could not work for the Company
if he did not join the Union.'
B. Discussion and concluding findings
This is one more case involving surveillance of union conduct and interrogation
of employees as to union membership, activities , or sympathies . The legal prin-
ciples controlling the decision are so well established that no useful purpose
would be served by extended analysis of authorities
' The chronicle of events set forth in this Section A of portion III of this Report is based
upon substantial credited testimony ( with a minimum of paraphrasing deemed desirable
for. clarification or condensation ) of witnesses called by the General Counsel and counsel
for the Respondent.
2 However, preparing this Report the Trial Examiner has considered the following cases
dealing with the subject of interrogation of employees as to union membership , activities,
or sympathies :
B. A. Laboratories, Inc., 88 NLRB 673 (February 15, 1950) ; Standard-Coosa-Thatcher
Company, 85 NLRB 224; Foremost Dairies, Inc ., 83 NLRB 1094; Elwood M. Jenks, 81
NLRB 707; Minnesota Mining & Manufacturing Company, 81 NLRB 557 ; N. L. R. B. v.
Illinois Tool Works, 153 F. 2d 811 (C. A. 7) ; N. L. R. B. v. Vail Manufacturing Company,
158 F. 2d 664 (C. A. 7) cert. den. 331 U. S. 835; Goodyear Footwear Corporation, 80
NLRB 800; Lancaster Garment Company , 78 NLRB 935; Fontaine Converting Works, Inc.,
77 NLRB 1386; Morrison Turning Co ., Inc:, 77 NLRB 670; Reeves -Ely Laboratories, Inc.,
1670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is no sharp conflict respecting fundamental facts material to a determi-
nation of the issues.
The Respondent's supervisors testified that acting for the Respondent, they
observed union meetings and interrogated employees concerning matters related
to union activities. This is admitted by the Respondent. Thus the General
Counsel asserts we have a prima facie case of an employer's interfering with, re-
straining, and coercing its employees in the exercise of their right provided them
by the Act to engage in organization and association fully free from intermed-
dling or intrusion.'
The Respondent, however, takes the position that under the circumstances of
this case its observations and interrogations were outside the proscriptions of
the Act. Its chief contentions are that : (1) The General Counsel cannot be heard
to complain of management's observations at union meetings since the invitations
to attend two of them negative any conclusion that the observations did in
fact intimidate or coerce employees in their efforts to self-organization; (2)
Respondent's inquiries of employees were directed toward dispelling false rumors,
the existence, cause and correction of complaints and eligibility for foremen's
jobs, rather than toward the subject of union membership, activities, or sym-
pathies.
(1) In support of its first position , the Respondent relies upon Strathmore
Packing House Company, 68 NLRB 214. There, a foreman while passing a
union hall shortly before the meeting started, was invited to attend the meeting
by the union's sergeant at arms. In concluding that there was no support for
finding the foreman's presence while walking by (on the street side of the hall
from which point it was possible to observe about half of the people in attend-
ance) would have coerced employees' in their efforts at self-organization and
that it appeared irrelevant to consider .whether or not the foreman did or did
not look into the hall or whether he could have seen if he had,' the Board
limited itself to the particular record of that case. There, there was but one
instance of alleged surveillance. Here, the observation of meetings continued
and recurred regularly during a series of about 20 sessions throughout a period
of at least 5 months. It persisted for several weeks after the service of the
original charge on October 27, 1949. It was "vigilant surveillance" (R. R.
Donnelley Co. v. N. L. R. B. 156 F. 2d 416 (C. A. 7) ). In the Strathmore case,
no motive for the invitation appeared. Here, the explanation that its purpose
was calculated to allay fear is contained in the record. The explanation is
logical and plausible. It is credited. The fact, if it be a fact, that on other
than the two occasions where express invitations were extended, employees
"would wave and motion (Respondent's manager) on in" is without real sig-
76 NLRB 728 ; Pioneer Electric Co., 75 NLRB 117: Southshore Packing Corporation, 73
NLRB 1116 ; Montgomery Hardwood Flooring Company , Inc., 72 NLRB 113; American
Gear & Mfg. Co ., 69 NLRB 663.
He has considered the following cases dealing with the subject of surveillance of union
activity : Premier Worsted Mills, 85 NLRB 985; The North Electric Manufacturing. Com-
pany, 84 NLRB 136; N. L. R . B. v. Collins & Aikman Corporation , 146 F. 2d 454 ( C. A. 4) ;
R. R. Donnelley & Sons Company v. N. L. R. B. , 60 NLRB 635 , 156 F. 2d 416 ( C. A. 7)
("vigilant surveillance ") ; The B. F. Goodrich Company , 64 NLRB 1303 ; Barr Packing
Company, 82 NLRB 1 ; Macon Textiles , 80 NLRB 1525 ; The Electric City Dyeing Company,
79 NLRB 872 ; Public Service Corporation of New Jersey , 77 NLRB 153 ; The Colonial Life
Insurance Company of America, 76 NLRB 653 ; Sohio Pipe Line Company, 75 NLRB 858;
Sewell Manufacturing Company, 72 NLRB 85, aff 'd as. to surveillance and interrogation,
172 F. 2d 459 ( C. A. 5) ; Clark Bros . Co., 70 NLRB 802, enf 'd. 163 F. 2d 373 ( C. A. 2)
May Department Stores, 70 NLRB 94 , enf'd. 162 F . 2d 247 ( C. A. 8).
Standard-Coosa -Thatcher Company and cases there cited , 85 NLRB 1358.
PURE OIL COMPANY 1671
nificance . Such a gesture smacks more of taunt than welcome. I conclude that
the facts in the instant case distinguish it from the Strathmore case. There, the
invitation was to attend a meeting. There was no question of surveillance of
employees arrivals at meetings. Here, there was no invitation to the Employer
to engage in such surveillance. There was no acquiescense in such conduct.
The invitation was given to minimize the effects of the surveillance and conse-
quent intimidation of employees before entering the meetings and to terminate
its continuance. There was no approbation of the Respondent's conduct.
Indeed, it does not avail the Respondent to attempt to show that its observa-
tions of its employees meetings were prompted by worthy motives.
"Even though there may be no testimony that the Respondent intended to
coerce employees and the record does not disclose that in fact employees were
coerced, the test of interference, restraint, and coercion does not turn on the
employers motive or on whether the coercion succeeded or failed but rather on
whether the employer engaged in conduct which it may reasonably be said, tends
to interfere with the free exercise of the employees rights under the Act."
N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811. (C. A. 7).
In my view it may reasonably be said that the Respondent's conduct in sur-
veillance at meetings of its employees did tend to interfere with the free exercise
of its employees' rights under the Act and is a violation of Section 8 (a) (1) of
the Act.
If, as arguendo, it may be contended, or materially contended, that the Re-
spondent's surveillance was not intimidatory per se, and that the test of deter-
mining coercion rests upon the question of the propriety or impropriety of the
motive actuating the conduct, the evidence by that very standard establishes the
impropriety of the motive contrarily to the Respondent's professions of innocuous
intent. The record contains evidence that management' s reasons for surveillance
were two: (1) That it desired to determine who were in attendance to avoid the
possibility of discrimination.; (2) that it wished to be in a position to prevent
possible disorder. These reasons are vulnerable. The evidence clearly disclosed
that practically the same employees were present at each meeting and that from
the first there was no disorder and were no reasonable grounds for the anticipa-
tion of disorder. (N. L. R. B. v. Collins & Aikman Corporation, 146 F. 2d 454
(C. A. 4).) Therefore, were it incumbent upon him to arrive at conclusions,
the Trial Examiner would be constrained to find to the effect that the expressed
reasons were not the real or only reasons, that the motives actuating the
surveillance were more ulterior than worthy and their purposes more malign than
benign.
Concluding Finding Respecting Surveillance
I find therefore that the Respondent by its surveillance of the meeting places,
meetings, and activities of the Union and of its employees while engaged in
concerted activities for the purpose of collective bargaining or other mutual aid
and protection over a period from August 1949 to January 1950, interfered with,
restrained, and coerced its employees in the exercise of their rights guaranteed in
Section 7 of the Act, thereby committing unfair labor practices as defined in
Section 8 (a) (1) of the Act.
(2) In support of its second position, the Respondent argues that the inter-
rogations and discussions between supervisors and employees were not about
the extent of organization or membership, but concerning rumors that employees
would have to join the Union in order to hold their jobs and the matter of
1672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veterans ' initiation fees' and complaints employees might have and that conse-
quently these interrogations and discussions were not violative of the Act.
If this were the full extent of the interrogations, the Trial Examiner would
be inclined to agree with the Respondent. The credited evidence in this case
leads to the conclusion that the interrogations and discussions went much further
than the Respondent asserts they went. While it is true they did cover such
topics as rumors and complaints, the management inspired inquiries and conver-
sations also and in addition followed such lines, previously adverted to in Section
A of this portion III of this Report, as:
(a) Mr. England's asking Mr. Williams what he thought- about the Union,
how the Union'was getting along, and whether he and three other employees had
tried to sign up members; (b) Mr. England's asking Mr. Carder if he had heard
about the Union, if there was anything to it, how strong it was, if he had attended
a meeting, and to talk to other employees and see if they wouldn't tear up their
union cards and throw them on his desk; (c) Mr. England's asking Mr. Keen
what he thought about and heard about the Union and stating that he would
like to get Mr. Keen and 4 or 5 of the other boys to tear up their union cards and
throw them on his desk ; (d) Mr. England's asking Mr. Ballew "what about the
union," if he had heard about the Union, and if the Union was working out there ;
(e) Mr. Hatch 's stating to Mr. Keen that he had been instructed to contact
each employee under his supervision to see what his attitude was toward the
Union; (f) Mr. Hatch 's interviewing and talking to 21 employees upon instruc-
tions from Mr. Plummer to find out and report whether they were joining the
Union and what was their attitude toward the Union, and questioning them con-
cerning their attitude toward the Union; and (g) Mr. Brooks' asking employees
whether they had heard of the Union, heard any union news, or if they had been
contacted by the Union.
It is difficult to believe that the ascribed reasons for these interrogations were
the real or only reasons. It is not difficult to conclude that these interrogations
had a reasonable tendency to interfere with the employees' enjoyment of the
rights guaranteed them by the Act. They invaded the employees' privacy and
had the reasonable effect upon employees of leading them to believe that their
employer not only wanted 'to correct false rumors and investigate complaints,'
but also sought information on the nature and extent of their union interests,
activities, or sympathies which, when once obtained, contemplated some form
of reprisal.
The very means of approach through the medium of individual interviews,
coming at the time they did, gave an import to the inquiries far out of proportion
° The Respondent 's purpose in discussing union fees to veterans more accurately than
stated by Mr. Plummer was to express disbelief in a rumored story rather than to correct
a false statement , it being clear that the Respondent knew not whether the report was true
or false. However described, discussions dealing with this particular subject under the
special circumstances of this case, like those concerning the effect of union membership upon
work status , are unimpeachable since protected by the constitutional guarantee of free
speech . Neither type forms a basis of arrival at the ultimate findings
5It seems unnecessary to prolong this Report by a discussion of whether inquiries into
the existence or causes of dissatisfaction constitute interference "in the form of the guise
of friendly cooperation ." See N . L. R. B. v. Norfolk Southern Bus Company , 159 F. 2d
516 (C. A. 4) cert. den. 330 U. S.' 844. Many courts have held that direct interrogation
constitutes a flagrant and obvious form of intimidation of individual employees . Indian-
apolis Power and Light Company, 25 NLRB 193 , enf'd as modified ( on the other grounds)
122 F. 2d 757 (C. A. 7) cert. den. 315 U. S. 804; H. J. Heinz Co. v. N. L. R. B., 311 U. S.
514; N. L. R. B. v. Botany Worsted Mills, Inc., 106 F. 2d 263 (C. A. 3) ; N. L. R. B. v.
Harris-Woodson Co., Inc ., 162 F. 2d 97 ( C. A. 4) ; N. L. R. B. v . Brown Paper Mill Co., 133
F. 2d 988 (C. A. 5).
PUREI OIL COMPANY 1673
to any mere investigation of complaints or correction of misapprehensions.
Here again we must judge the nature of the Respondent's conduct not by the
actual coercive effect on the statements upon the employees concerned, but on
the basis of their reasonable tendency to interfere with the free exercise of the
rights guaranteed to employees by the Act. Chicopee Manufacturing Corporation
of Georgia, 85 NLRB 1439. Adopting this accepted standard of testing the effect
of the employer's conduct on the basis of its reasonable tendency to coerce its
employees rather than on the basis of the employer's motive, I conclude that its
interrogations interfered with the free exercise of its employees' rights under
the Act.
Concluding Finding Respecting Interrogation
Therefore, it is found that Respondent by its interrogation of its employees
concerning their union affiliation, membership, or sympathies has interfered
with, restrained, and coerced its employees in the exercise of'the rights guar-
anteed in Section 7 of the Act thereby committing unfair labor practices as
defined in Section 8 (a) (1) of the Act.
Such isolated statements as are illustrated by Mr. Donnheiser's outburst that
the Company was not going to take the Union's effort to organize laying down
and Mr. Delaney's threat that he would make it hot for subordinates mentioning
the Union, while indicative of animus, are not persuasively supportive of the
allegation of coercion in order to discourage union membership. The Trial
Examiner is not satisfied they were reasonably likely to cause apprehension
among the employees or that they were authorized or ratified by the Respondent.'
In the main they were no more than privileged expressions of opinion, attitude,.
and belief.
Concluding Finding Respecting other Coercion
Therefore, I find that the portion of the complaint, insofar as it encompasses
conduct independent of that related to surveillance and interrogation, finds no
substantial support in the evidence and accordingly recommend dismissal of this
portion of the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
. The activities of the Respondent set forth in Section III, above, occurring
in connection 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 tend to lead to labor disputes burdening
and obstructing commerce, and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices
set forth above, I shall recommend that it cease and desist therefrom and that
it take certain affirmative action designed to effectuate the policies of the Act..
Except for the unlawful conduct flowing out of the Respondent's interroga-
tion of its employees concerning their union affiliation, membership, or sympa-
thies and keeping under surveillance the organizational meetings of, the Union
and employees of the Company attending such meetings the record does not
disclose that a danger exists that the Respondent in the future may commit
other unfair labor practices unrelated in kind to those found. Therefore, it
will not be recommended that the Board issue the usual broad cease and desist
order.
I
1674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the above findings of fact and upon the entire record of
the case, I make the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, C. I. 0., is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By interrogation of its employees of its Illinois Producing Division concern-
ing their union affiliation, membership, or sympathies and by keeping under
surveillance the meetings of the Union and conserted activities of its Illinois
Producing Division employees held and engaged in for the purpose of collective
bargaining or other mutual aid or protection, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act, and has thereby engaged in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. Apart from the conduct implicit in unfair labor practices set forth in
paragraph 2 of these conclusions of law, the Respondent has not made coercive
statements to its Illinois Producing Division employees in order to discourage
union membership.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, it is
recommended that the Respondent, Pure Oil Company, Illinois Producing Divi-
sion, of Olney, Illinois, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interrogating its employees concerning their union affiliation, membership,
or sympathies;'
(b) Surveillance of any meetings held by Oil Workers International Union,
C. I. O:, or any other labor organization and any concerted activities engaged in
by its employees, for the purpose of collective bargaining or other mutual aid
or protection ;
(c) Otherwise interfering with the right of its employees to join or assist a
labor organization of their own choosing or with their right to refrain from
such activity except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act :
(a) Post for a period of sixty (60) consecutive days thereafter in conspicuous
places at its premises in Olney, Illinois, and in the four districts of Casey, Noble,
Clay City, and Sisney where it conducts operations, signed copies of the notice
attached hereto, marked Appendix A, upon receipt of copies of said notice to be
furnished by the Regional Director for the Fourteenth Region. Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered,
defaced. or covered by an other material;
(b) Notify the Regional Director for the Fourteenth Region (St. Louis, Mis-
souri) in writing, within twenty (20) days from the receipt of this Intermediate
Report. It is further recommended that unless on or before twenty (20) days
from the receipt of this Intermediate Report, Respondent notify said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take the
action aforesaid. .
PURE OIL COMPANY 1675
As provided in Section 203.46 of the Rules and Regulations of the National
Labor Relations Board any party may, within twenty (20) days from the date
of service of the order transferring the case to the Board, pursuant to Section
203.45 of said Rules and Regulations, file with the Board, Washington 25, D. C.,
an original and six copies of a statement in writing setting forth such exceptions
to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he. relies upon, together
with the original and six copies of a brief in support thereof ; and any party may,
within the same period, file an original and six copies of a brief in support of the
Intermediate Report. Immediately upon the filing of such statement of excep-
tions and/or briefs, the party filing the same shall serve a copy thereof upon each
of the other parties. Statements of exceptions and briefs shall designate by
precise citation the portions of the record relied upon and shall be legibly printed
or mimeographed, and if mimeographed shall be double spaced. Proof of service
on the other parties of all papers filed with the Board shall be promptly made as
required by Section 203.85. As further provided in said Section 203.46, should
any party desire permission to argue orally before the Board, request therefor
must be made in writing to the Board within ten (10) days from the date of
service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, and recommendations herein
contained, shall, as provided in Section 203.48 of said Rules and Regulations, be
adopted by the Board and become its findings, conclusions and order, and all
objections thereto shall be deemed waived for all purposes.
Dated at Washington, D. C., this 21st day of March 1950.
STEPHEN S. BEAN,
Trial Examiner.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to' the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union affilia-
tions, activities, or sympathies or those of their coworkers.
WE WILL NOT engage in surveillance of the meetings or meeting places
of OIL WORKERS INTERNATIONAL UNION, C. I. 0., or any other labor organi-
zation or the concerted activities of our employees having the purpose of
collective bargaining or other mutual aid or protection.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named union or any other labor organization except to the
extent that this right may be affected by an agreement in conformity with
;Section 8 (a) (3) of the Act.
PURE OIL COMPANY (ILLINOIS
PRODUCING DIVISION),
Employer.
Dated --------------------------- By ---------------------------------
(Representative) (Title)
'This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.