Socony Vacuum Oil Co., Inc.

National Labor Relations Board - Board Decisions

Aug 20, 1948

78 N.L.R.B. 1185 (N.L.R.B. 1948)

In the Matter of SOCONY VACUUM OIL COMPANY, IN-C. and FEDERAL
LABOR UNION No. 19119, AFL
Case No. 14-C-1109.-Decided August 20, 1948
DECISION
AND
ORDER
On May 12, 1947, Trial Examiner Frederic B. Parkes, 2nd, issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices 1 and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent has requested oral argument before the Board. Because
the record and brief adequately present the issues and positions of the
parties, the request for oral argument is hereby denied.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts only those findings of fact of the Trial Exam-
iner that are consistent with this decision. For the reasons set forth
below, the Board does not adopt the Trial Examiner's conclusions and
recommendations.
1. The Trial Examiner found that the Respondent, in violation of
Section 8 (3) and (1) of the Act, discriminatorily discharged 2 named
employees and imposed disciplinary lay-offs on 4 other named em-
ployees because of their protected concerted activities. We do not
agree. In finding discrimination, the Trial Examiner apparently
attached no significance to the serious misconduct of the participants
in the initial work stoppage on the morning of July 12, 1945, which
we believe is determinative of the issue in the case. As fully dis-
1 The provisions of Section 8 (1) and (3) of the National Labor Relations Act, which the
Trial Examiner found were violated , are continued in Section 8 (a) (1) and ( 3) of the Act,
as amended by the Labor Management Relations Act, 1947.
78 N. L. R. B., No. 169.
1185
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussed in the Intermediate Report, the work stoppage arose out of
the Union representatives' refusal to accede to the Respondent's pro-
posal to employ the Dowell Chemical Company to clean certain heat
exchangers, which the Respondent assured the Union representa-
tives would not result in any loss of time to the maintenance em-
ployees. Determined, however, "to prevent the Dowell Company
from doing this [disputed] work," as the minutes of the July 11 Union
Executive Board meeting show, a plan was adopted at that meeting
whereby a volunteer committee would question the Dowell employees
as to their union affiliation "as an excuse to prevent their entering
the gate," while the maintenance employees "were to be notified to
wander toward the inner gate as a mass demonstration to discourage
any (sic) entering the gate over our protest." The minutes also
disclose that "as long as the [Dowell] truck did not enter the inner
gate, the men would return to work." Therefore, the next morning,
when the Dowell cars arrived outside the inner gate, the Committee
following the preconceived plan, checked out of the plant and, almost
simultaneously, about 125 to 150 maintenance employees from all parts
of the refinery congregated inside the inner gate. Without making
any pretense at ascertaining the union affiliation of the Dowell em-
ployees, Pratt, one of the discharged employees, as the spokesman
for the Committee, requested the Dowell foreman not "to bring his
trucks in" until the Union's dispute with the Respondent was settled.
In these circumstances, the Dowell employees did not attempt to enter
the plant at that time to perform the work which Dowell had con-
tracted to do.
We find that the mass demonstration was a show of force designed
to implement the Committee's request to the Dowell foreman and
constituted an effective implied threat of bodily harm to the Dowell
employees should they risk entering the plant. This joint action of
the Committee and the massed maintenance employees was, in our
opinion, more than peaceful persuasion and actually amounted to a
forcible debarment of persons lawfully entitled to enter the plant, as
it was intended to be.2 For this reason, we find that the Respondent
was privileged to discharge or discipline any participant in such
unlawful activity a Accordingly, we conclude, contrary to the Trial
,Examiner, that the Respondent did not discriminate against the named
2 The Respondent points out in its brief that "No attempt was made by the Dowell trucks
to enter the plant , nor would the Company officials request them to do so With 150 men
massed at the gate , this obviously would be a most reckless move The request [of the
committee] that the Dowell trucks do not come in, backed up by 150 standing men, was as
it was meant to be , a very effective lock out of trucks " The Respondent also states in its
brief that the maintenance employees ' action in massing at the gate and "requesting" the
Dowell trucks not to come in, prevented the Company from carrying on necessary work
3N. L R. B. v. Perfect Circle Company , 162 F ( 2d) 566 (C. C. A. 7) ; Matter of The
International Nickel Company , Inc., 77 N. L. R B 286.
SOCONY VACUUM OIL COMPANY, INC. 1187
employees, in violation of Section 8 (3) and (1) of the Act. Because
of our determination herein, we find it unnecessary to pass upon the
Respondent's other contentions.
2. We also are unable to agree with the Trial Examiner that the
Respondent violated Section 8 (1) of the Act by interrogating certain
employees concerning the July 12 walk-out. As shown in the Inter-
mediate Report; the Respondent notified the Union of its contemplated
action beforehand and, without any official objection from the Union,
conducted the interviews in the presence of Union representatives.
Under the particular facts and circumstances of this case, we find that
the Respondent did not engage in interference, restraint, and coercion,
within the meaning of Section 8 (1) of the Act.
ORDER
Upon the entire record in the case, and pursuant to the National
Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that the complaint issued herein against the
Respondent, Socony Vacuum Oil Company, Inc., East St. Louis,
Illinois, be, and it hereby is, dismissed.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Charles K. Hackler, for the Board.
Messrs. George S. Logan and Owen D. Fender, of St. Louis, Mo., and Messrs.
William Montgomery and Richard H. Lowe, of New York City, for the respondent.
Mr. Thomas J. Sharnklin, of East St. Louis, Ill., and Mr. George 7'. Sinn, of
St. Louis, Mo., for the Union.
STATEMENT OF THE CASH
Upon an amended charge duly filed by Federal Labor Union No. 19119, AFL,
herein called the Union, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Fourteenth Region (St. Louis, Missouri),
issued its complaint dated November 22, 1946, against Socony Vacuum Oil
Company, Inc, East St. Louis, Missouri, herein called the respondent, alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the complaint, accompanied by notice of hearing, were duly
served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent : (1) on or about July 12, 1945, locked out Morris Pratt,
George Konroy, Noble Needham, and Syvester Geolat ; ' on or about August 1,
1945, discharged Morris Pratt and John Williams and has refused and failed
to reinstate them ; and on August 1, 1945, laid off for stated periods of time
1 At the hearing , the complaint was amended so as to correct a mispelling of Geolat's
name.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George Konroy, Noble Needham, Edward C. Clark, and Sylvester Geolat, because
the above-named employees joined and assisted the Union and engaged in con-
certed activities with other employees for the purpose of collective bargaining
and other mutual aid and protection ; ( 2) in or about July 1945, " interfered with,
restrained , and coerced its employees in the exercise of the rights guaranteed
in-Section 7 of the Act by interrogating a number of its employees concerning
their concerted activities on behalf of the Union and the internal votes, actions,
discussions , and affairs of the Union . The complaint alleged that by the fore-
going conduct the respondent engaged in violations of Section 8 (1) and (3) of
the Act. - - `
On or about November 30 and December 13, 1946, respectively , the respondent
filed an answer and amended answer, admitting certain allegations of the com-
plaint but denying the commission of any unfair labor practices : In its amended
answer, the respondent affirmatively alleged, inter alia , that the discharge of
Pratt and Williams and the lay -off of Konroy, Needham , Geolat , and Clark were
justified because of their activity in an unauthorized work stoppage and walk-
out "in violation of the provisions of the collective bargaining contract existing
between the company and its employees , including said individuals , previously
entered into on their behalf by" the Union "as their bargaining agent."
- Pursuant to notice , a hearing was held at St. Louis, Missouri, from December
17 to 20, 1946 , and from January 6 to 10, 1947 , inclusive , before Frederic B.
Parkes, 2nd , the undersigned Trial Examiner , duly designated by the Chief
Trial Examiner . The Board and the respondent were represented by counsel
and the Union by representatives . Full opportunity to be heard , to examine
and cross -examine witnesses , and to introduce evidence bearing on the issues
was afforded all parties.
At the close of the hearing , the undersigned granted a joint motion by counsel
for the Board and the respondent to conform the pleadings to the proof as to
dates and minor variances At the same time, counsel for the respondent moved
that the complaint be dismissed on the ground that the evidence adduced by
the Board failed to sustain the allegations of the complaint . The undersigned
reserved ruling on the motion. It is hereby denied to the extent consistent with
the findings hereinafter made. Upon the conclusion of the hearing, the under-
signed advised the parties that they might argue orally before, and file briefs
or proposed findings of fact and conclusions of law, or both, with , the Trial
Examiner . The respondent and the Board participated in oral argument, and
later filed memoranda in the nature of briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Socony Vacuum Oil Company, Inc., a New York corporation with its principal
office and place of business in New York City, operates factories , warehouses,
and branch offices throughout the United States and in foreign countries. The
instant proceeding is concerned with the respondent 's Lubrite Division in East
St. Louis, Illinois, where the respondent is engaged in the manufacture, sale,
and transportation of petroleum products . In the course and conduct of its
operations , the respondent causes and has continuously caused a substantial
amount of materials , consisting of crude oil , machinery , trucks, et cetera, to be
SOCONY VACUUM OIL COMPANY, INC. 1189
purchased and transported in interstate commerce from and through States of
the United States other than the State of Illinois to its Lubrite Division and
causes and has continuously caused large quantities of petroleum products
to.be transported in interstate commerce to, into, and through States of the
United States other than the State of Illinois from its Lubrite Division!
H. THE ORGANIZATION INVOLVED
Federal Labor Union No. 19119 is a labor organization affiliated with the
American Federation of Labor, admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
1. Background
Since 1934, the respondent has recognized the Union as the exclusive bargain-
ing representative of the respondent's employees and has bargained with the
Union. On August 26, 1940, the respondent and the Union entered into their first
formal collective bargaining contract in writing and have maintained such a
contractual relationship since that time. The contract in effect from Septem-
ber 1, 1944, to April 1, 1946, the period during which the events material to the
instant proceeding occurred, provided, inter aalia, in the section governing griev-
ance procedure and arbitration :
SECTION 1. A grievance is defined to be any controversy between an em-
ployee or employees covered by.this Agreement and the Company arising
out of the subject matter of this Agreement.
SECTION 2. No grievance shall be considered unless it is presented in
accordance with the following grievance procedure within twenty (20) days
of the time when the employee has knowledge of such grievance.
m s s * * s •
In the event the Company and the Union are not able to adjust a grievance
concerning a question of fact in dispute under the [grievance] procedure
above provided for, or in the event any question of fact in dispute arises
between the Company and the Union during the term of this Working
Agreement, and that dispute is not settled by the grievance procedure, the
grievance or dispute shall, on the written demand of either party, be sub-
mitted to arbitration. . . . The decision of a majority of the Board of Arbi-
tration shall be conclusive and binding on both parties, and it is mutually
agreed that there shall be no lock-out by the Company or strike or stoppage
of work by the employees pending the decision of the Board of Arbitration.
It is agreed that any differences arising incident to negotiations of terms
of a new Agreement are not covered by this Section, the sole purpose of
which is to make grievances arising out of and during the term of this
Working Agreement subject to arbitration.
On July 12, 1945, the date of the strike hereinafter discussed, the appropriate
unit set forth in this contract for the refinery comprised 576 employees, of whom
approximately 200 were employed in the maintenance division 9
2 These findings are based upon the pleadings of the parties.
8 Another contract containing these provisions governed the 44 employees of the
respondent's bulk plant in St. Louis, Missouri
798767-49-vol. 78-76
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As early as 1937, disputes between the Union and the respondent arose with
respect to the respondent's engaging independent contractors to perform con-
struction or maintenance work which in the opinion of the Union could have
been performed by the respondent 's regular maintenance force. The Union
was concerned that the employment of outside contractors would reduce the
amount of work available for the respondent's regular employees and might lead
to a reduction in force. From time to time in negotiations on a contract, the
Union sought to include a clause in the contract providing in substance, accord-
ing to the credible testimony of employee Morris Pratt, "All work would be
mutually agreed to between the union and the company before it would be con-
tracted out to an outside firm." The respondent would not consent to the inclu-
sion of such a provision but agreed orally to notify the Union before hiring an
independent contractor for the performance of maintenance or construction work
and to discuss the matter with the Union. It appears that in most instances
this practice was followed.'
2. The strike of July 12, 1945
In early July 1945, three major units in the refinery process were shut down
for repair and cleaning. Among other work to be done, was the cleaning of a
number of heat exchangers °-work customarily performed manually by em-
ployees of the maintenance division's still cleaning departments Having pre-
viously made satisfactory tests, the respondent determined, on July 5, 1945, to
employ the Dowell Chemical Company, herein called Dowell, to clean approxi-
mately half of these exchangers by a comparatively new method using acid and
other products devised by Dowell The record establishes that heat exchangers
not having a coke residue could be more efficiently, quickly, and less expensively
cleaned by the Dowell process than by the respondent's still cleaners.
On July 5, 1945, Lawrence J Keenan, the respondent's maintenance super-
intendent, informed the Union's representatives, William Newbold and Robert
Simon, of the respondent's decision to employ Dowell to clean half of the heat
exchangers, but to have the remainder cleaned by the employees of the still
cleaning department, explaining the reasons for the decision. On July 6, 1945,
Newbold requested that Keenan meet with the shop stewards and explain the
situation. On the following day, Keenan met with four stewards and committee-
men of the various departments in the maintenance division aril discussed for
about 2 hours the action the respondent proposed to take in respect to hiring
Dowell to clean the heat exchangers. He explained the advantages of the Dowell
process and also the impossibility for the still cleaning department to clean all
the exchangers within the time limit set before the exchangers should be put
back in operation. The committee protested that the work should be done by
the maintenance staff and made various proposals, such as buying the acid from
Dowell and performing the work with the respondent' s employees . Keenan
* R W Fuhrhop, the respondent ' s refinery industrial relations manager, testified that in
some instances the respondent had failed to consult the Union before hiring independent
contractors and that the Union Objected
5 A heat exchanger is a laige cylindrical unit about 30 feet long filled with from 10 to 800
tubes. To reduce the temperature of one liquid and at the same time to increase the tem-
perature of another, one liquid is circulated through the tubes while the other flows between
the tubes . As a result of this process, residue forms both in and outside the tubes and from
time to time the exchangers must he cleaned
B The still cleaning department was principally concerned with cleaning heat exchangers.
Incident to cleaning the exchangers , the carpenter department , pipefittmg department, and,
on occasion , the insulating department were also involved in duties supplemental to those
of the still cleaning department.
SO9ONY VACUUM OIL COMPANY, INC. 1191
'rejected these suggestions but assured the committee that none of the mainte.
nance staff would lose any working time as a result of the employment of Dowell.
On July 9, 1945, William H. Montgomery, the respondent's manager, and
Industrial Relations Manager Fuhrhop met with William Newbold and Ed Rea,
who were respectively vice-president and recording secretary of the Union. The
advantages of employing Dowell were again enumerated by the respondent's
representatives. Rea'suggested that two maintenance employees be permitted
to "stand-by" while Dowell performed the work, but the respondent would not
assent. Newbold acknowledged the advantages of the Dowell process and stated
that, "We can't block progress" but, "We can't quite explain it to the men."
Since it was contemplated to commence the work the following day, Montgomery
asked whether the Union would like to have the work postponed for a few days
in order to explain the natter more fully to the employees. Newbold stated,
"Well, that would certainly help" and Montgomery accordingly arranged with
Dowell to defer the cleaning until July 12, 1945, and so advised Newbold. No
further word about the matter was given the respondent by the Union's ofFicials'
At a regular meeting of the Union's executive committee on the evening of July
11, 1945, a group of 35 or 40 maintenance employees attended to discuss the
Dowell matter In regard to this discussion, the following excerpt from the
minutes of the meeting states :
The main item for consideration of this meeting was brought up, that of
the Dowell Chemical Company being brought into the plant to clean eighteen
exchangers at the Gas Plant. After considerable discussion it was agreed
by the Board and the shop stewards who were present, that the following
means be used to prevent the Dowell Chemical Company from doing this
work. As there is a possibility that the men who operate this equipment
are non-union , a committee volunteered to meet the truck at the inner gate 8
and question their union affiliation. This would be used as an excuse to
prevent their entering the gate. The Maintenance men in the Refinery were
to be notified to wander toward the inner gate as a mass demonstration to
discourage any entering the gate over our protest. It was understood that
as long as the truck did not enter the inner gate, the men would return to
work. Everyone present was advised against anyone walking out, due to
the effect it would have on the War Labor Board cases which are very
important to the Union and on which much time and hard work had been
spent"
On the morning of July 12, 1945, H. G. Powell, manager of the respondent's
guard department, came to the refinery between 6: 45 and 7: 00, about an hour
and a half before the time he usually came to work, because he had heard rumors
the, previous day,that the employees might strike if Dowell came into the plant.
When the guard shift changed at 7:,00, he instructed Guards Edward Clark and
William Wright to be "on [their] toes." About 40 minutes after the production
and maintenance workers on the first shift reported for work at 7: 30, Powell
went into the plant to ascertain whether there were any signs of unrest among
the employees.
7 The findings in this and the preceding paragraph are based for the most part on the
mutually corroborative and credible testimony of Keenan and Montgomery.
8 The inner gate led from an areaway serving as parking lot and loading rack for trucks
into the plant proper On one side was the guard house with time clocks and turnstiles.
The outer gate led fi om the areaway to a public thoroughfare
"Testimony that these minutes do not accurately reflect the action taken at the meeting
is not credited `
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 8: 15 or 8: 20 a. in., shortly after Dowell cars had stopped at the
inner gate, the Union's volunteer committee consisting of Shop Steward Noble
Needham, employee Sylvester Geolat, and Maintenance Committeemen Morris
Pratt and George Konroy turned in their time cards with the guard at the inner
gate and checked out of the plant.10 Pratt asked Guard Clark to telephone the
foreman of Dowell's employees for him. When Foreman Green of Dowell
was located in the engineering office, Pratt took the telephone and stated, accord-
ing to his testimony which the undersigned credits in this regard, "I had been
appointed by the union to talk to him about this work . He said he would be
out in a minute."
In the meantime , as soon as the committee had checked out of the plant, main-
tenance employees began to gather in the plant inside the inner gate. Within
10 minutes at least 125 or 150 employees were there assembled.
According to the credible testimony of W. A. Heideman, who was the respond-
ent's corrosion and inspection engineer, Foreman Green of Dowell received the
telephone call from Pratt in Heideman's office and informed Heideman of its
substance. Noticing the group of men congregated within the plant at the gate
and recalling that Plant Superintendent Keenan had been negotiating with the
Union in regard to the employment of Dowell for cleaning the heat exchangers,
Heideman telephoned Keenan and asked him "if he would come up and listen
in on the conversation to Mr. Green." Keenan replied that he would come to the
gate at once. Green and Heideman waited until they saw Keenan reach the
gate and then went out to meet him and the three men went to the Union's
committee, for whom Pratt acted as spokesman.'] According to Pratt's testi-
mony, which is in substantial agreement with that of other witnesses present at
the meeting, he "explained to [Green] we had been appointed by the union to
ask him not to bring his trucks in until the jurisdictional issue could be settled
between the company and the union " Keenan asked on whose authority the
committee was acting and Pratt replied that they had been appointed by the
executive board of the Union "to ask Mr. Green if he will keep the trucks out
until the issue can be settled between the company and the union." During the
conference, Industrial Relations Manager Fuhrllop joined the group and asked
if the employees standing in the plant at the gate expected to be paid and also
10 Of the four committeemen , only Geolat informed his foreman that he was leaving the
plant ; and the reason given by Geolat for his departure was illness . When it was neces-
sary for employees to conduct union business during working hours, the practice was,
according to Pratt, that "normally the Executive Board would tell the company when you
were to be off on union business."
"The findings in this paragraph to this point are based upon the testimony of Keenan'
and Heideman . Pratt, the other three committeemen , and Clark, all Board witnesses, tes-
tified that Keenan did not join the group until after Pratt had spoken to Green. Although
the conflict in testimony on this issue is not of vital importance to the issues in the case, the
undersigned has accepted the version of Keenan and Heideman , inasmuch as their version
appears to the undersigned to have been more accurate from a standpoint of the probable
course of events under the circumstances of the moment . That is, a large group of
enlplo3ees were assembled at the inner gate, a spokesman for the employees and the Union
desired to speak to the Dowelll foreman , and the matter of contracting the work had been
under discussion with the Union for some time . Under these circumstances , management
representatives undoubtedly would take immediate steps to ascertain the nature of the con-
ference demanded with the Dowell foreman and to avert if possible any demonstration on
the part of the employees . Although Clark and Pratt were among the most impressive of
the Board ' s witnesses and the undersigned in other portions of the text has relied upon
their testimony , Keenan and Heideman appeared to the undersigned to be reliable witnesses,
accurate and truthful as to the details herein set forth.
SOCONY VACUUM OIL COMPANY, INC . 1193
told Pratt that the question of hiring Dowell had been discussed with the Union."
Pratt replied that the Union desired further negotiation on the matter. Keenan
then said, according to the undenied and credible testimony of the four committee
members, that the employees were disconcerted at losing the work of cleaning
the heat exchanger but "that would not be all [they] would lose." No inquiry
as to the union affiliation of the Dowell truck drivers was made during this
conversation." Keenan instructed the group to wait in the areaway and he and
Fuhrhop went to the office of Plant Manager Montgomery, who had arrived
at the plant during the colloquy between the committee and Green.
During the conference between Green, the committee, and management repre-
sentatives, Guard Department Manager Powell returned from his inspection tour
of the plant and inquired of the guards as to the events which had transpired in
his absence. On learning that the committee had turned in their time cards
and punched out, Powell, according to his credible testimony, "refreshed [the
guards'] memory of the fact that there was a certain procedure to be applied
in that case, that the men could not get back in without approval of their foreman
or a signed pass." 14
In addition, Powell instructed the guards to keep the screen door to the guard
house latched and not to allow any employee to come in the guard house to use
the telephone. Theretofore, the turnstiles had been adjusted so that they were
free to turn as employees walked through. However, Powell changed the stiles
so that they could revolve only when released by the guard inside the guard
house."
Shortly thereafter, Keenan returned from Montgomery's office and, according
to his and Powell's credited testimony, relayed to Powell Montgomery's orders
11 There is also a minor dispute in the testimony as to the time of Fuhrhop's arrival in
the plant on the morning in question Pratt and other Board witnesses testified that he
.arrived several minutes after the meeting between Green and the committee had terminated.
Keenan ' s and Fuhrhop 's verision has been accepted by the undersigned for the reasons here-
tofore mentioned and has been set forth in the text above.
ii Despite the statement in the minutes of the executive board meeting held on July 11,
1945, that the committee should inquire as to the union affiliation of the Dowell truck
drivers, some witnesses testified that at the meeting it was announced that the drivers
were not organized
11 This instruction was merely a reiteration of the normal pass procedure governing
employees who left the plant during working hours In such instances , they were supposed
to have a pass from the foreman, permitting their exit and return to the plant. In the
event that an employee left without such a pass, it was customary for the guard to tele-
phone the employee's foreman from the gate and obtain permission for the employee to
return. After giving permission to enter, the foreman later complied with the regulations
and turned in a written pass covering the entrance of the employee.
15 These findings are based upon the testimony of Guard Clark, a witness for the Board,
and Powell , a witness for the respondent , both of whom impressed the undersigned as excep-
tionally reliable and truthful witnesses As to all details set forth in the text, they were
in agreement except as to the time the adjustment was made in the turnstiles. Clark tes-
tified that the change was made about 7 a. in. with the instruction to "check every pass
through " Powell testified that the change was made when he returned from hie inspection
tour of the plant and found the large group of employees assembled at the gate . Again,
this conflict in the testimony is minor and not of controlling importance to the issues of
the case. However , the undersigned has accepted Powell's version since it appears to be
the more probable course of action taken in accordance with the trend of of her events.
Powell stated at the hearing that on July 11, he had heard rumors of a walk-out if the
Dowell trucks came into the plant, but that he had also heard opinions expressed to the
contrary . So far as the record shows , the respondent had no knowledge of the action taken
the previous night by the executive board of the Union. Therefore, it seems unlikely that
the turnstiles would have been readjusted until the situation resolved concretely and there
was immediate danger of a walk-out.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the regular badge and pass procedure should be followed as to employees who,
checked out of the plant, i. e., that they should not be permitted to reenter
the plant unless they had a pass or permission from their foreman. Powell„
having already cautioned the guards to enforce the pass system with care that
morning, did not again bring the matter to their attention.
In this regard, Pratt, a witness for the Board, testified that he overheard
Keenan tell Powell, "Don't let these men back in the plant " The undersigned
is convinced that Pratt was mistaken and did not correctly overhear Keenan's,
remarks to Powell. As previously found, Guard Clark, also a witness for the
Board, testified that he was instructed to follow the normal pass and badge pro-
cedure that morning and not to re-admit employees to the plant "without an O. K_
or pass from their foreman." Keenan denied that he forebade the admission of
anyone to the plant that morning From his observation of the witnesses and in.
view of all the circumstances, the undersigned credits Keenan's and Powell's•
testimony in regard to the pass procedure as set forth above.
Guard Clark testified that only one of the Union's volunteer committee at-
tempted to reenter the plant after checking out, namely, Noble Needham, and that
he told Needham that "lie could not get back in without the OK from his fore-
man." Needham, also a Board witness, testified that when he attAipted to return.
to the plant, he was refused admission by Clark who stated that the members of
the committee "were locked out." In addition, Pratt testified that he asked Clark
"if we could get in, and he said no he had been instructed not to let us back into the
plant." Of these three Board witnesses, Clark impressed the undersigned as being
the most accurate in his testimony. Moreover, his version as to this incident
coincides in all details with a statement given by him to the respondent on July
31, 1945, 19 days after the occurrence. The undersigned accordingly credits-
Clark and finds that of the committee only Needham attempted to return to the
plant and was told by Clark that the approval of Needham's foreman was neces-
sary. Although the testimony of Pratt and Needham in this regard is not credited„
it seems clear that they mistakenly assumed that the committee was locked out
for they so informed some of the employees and stewards inside the plant and a
rumor to that effect soon swept through the assembly at the inner gate.16
After relaying Montgomery's instructions to Powell, Keenan went into the
plant to his office in 'the machine shop, where he met Committeetten Lee Neal
and Robert Simon and Trustee Hubert. According to the credible testimony of
Keenan, he inquired "why they weren't out there" at the gate and they replied.
that "it wasn't authorized by the union " In response to Keenan's question as-
to "why Pratt, Konroy, Needham and Geolat were out there," they replied
that the four employees "had been appointed by the Executive Committee the
night before to question the Dowell trucks about union affiliation" and stated
that they might possibly settle the issue if two employees were permitted to•
"stand by" while Dowell cleaned the heat exchangers.
1e A portion of Pratt's testimony, if it be credited, indicates that the committee was mis-
taken in the assumption that they had been locked out and that Pratt had not attempted to
reenter the plant. On rebuttal he testified that his foreman, Herbert Young, "came outside
and told me if I wanted to go back in I would not have to have a pass. I told him we had
been informed we had been locked out He just shrugged his shoulders and walked back
in " This testimony is somewhat inconsistent with that given by Pratt on original cross-
examination to the following effect "when my foreman cane out through the gate and
said I would have to have a pass, and I told him I had been instructed by the guard r
could not get in, he just throwed his hands up and walked on " The undersigned finds it
unnecessary to resolve this conflict in Pratt's testimony, but has considered it in reaching
the conclusion that Pratt's testimony in regard to the lock-out issue is not entitled to,
credence.
SOCONY VACUUM OIL COMPANY, INC. - . - 1195
About this time, a group of stewards and committeemen of the Union, among
them Neal, Simon, Hubert, and Woods, determined to consult the officers of the
Union They attempted unsuccessfully to reach Richard Mahoney, president of
the Union, and Vice-President Newbold, who were absent from the plant that
morning." They then went to consult Ed Rea, recording secretary of the Union,
who was at work in the alkylation unit of-the plant.
Neal informed Rea of the occurrences of the morning and stated that "the
men up there were just milling around the gate, they weren't doing any work
or discussing anything, but apparently the situation had reached a stalemate
and something should be done." Rea telephoned Montgomery and said, "We
had a situation down there that should be corrected some way or other. Appar-
ently the men would not go back to work as long as they felt the trucks might
come in through the inner gate, but I thought we might arrange a meeting to
work out something so that the men could get back to work." Montgomery
promised to telephone Rea later about the matter. Montgomery then attempted
to reach higher ranking union officials by telephone. After waiting 15 minutes
for Montgomery's return call, Rea telephoned Montgomery again and, with the
consent of the stewards present, proposed that the employees would return to
work if the respondent would agree to keep the Dowell trucks out of'the plant.
He stated in addition that he did not know what the employees might do if the
trucks came into the plant, and that the demonstration by the employees was
spontaneous. Montgomery replied that he would not discuss the matter further
until the men returned to work and that he could not promise to keep the Dowell
trucks out of the plant'
About 10: 35 a. m. Montgomery spoke to Union Vice-President Newbold on the
telephone and asked whether Pratt, Konroy, Geolat, and Needham had been
elected by the employees to represent them and if the men had ceased work at
the Union's direction. Newbold replied that he knew nothing about the matter,
having had to leave the executive board meeting before it ended the night before,
but that he knew that the men had been cautioned by President Mahoney not to
strike. The conversation ended, according to the transcription made by Mont-
gomery's secretary, with Newbold's saying, "Bill, there was no authorization
whatever by the Union on this "
Around 10: 30 a. m. the employees at the inner gate began to check out the time
cards and leave the plant. A little later when the stewards and committeemen
returned to the inner gate from their consultation with Rea, discussed above,
they encountered Committeeman John Williams, explained the results of their
consultation with Rea, and suggested that they attempt to get the employees
back to work. Williams addressed the employees remaining at the inner gate
and asked them whether they would go back to work if Montgomery permitted
the return of those who had left the plant. The group indicated that Williams
should determine Montgomery's attitude on the matter. Thereupon, Williams
telephoned Montgomery and asked whether the respondent would negotiate the
Dowell matter and whether the employees who had left the inner gate might
return. Montgomery replied that he could not discuss the matter until the
men returned to work, but that he would call Williams again. Williams re-
ported the conversation with Montgomery to the assembled employees. It was
suggested that Williams and Neal talk to the employees who had left the plant
17 Mahoney was on vacation at the time and Newbold was working in the respondent's
bulk plant in St. Louis , Missouri.
IS The findings in this and the preceding paragraphs are based upon the mutually
corroborative testimony of Rea and Montgomery.
1196 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
and were at the outer gate. Williams and Neal went to the outer gate where.5O
employees were gathered and informed them of the conversation with Mont-
gomery. The employees at the outer gate refused to return and suggested that
Williams and Neal join the walk-out. As they returned to the plant, Montgomery
telephoned Williams at the inner gate and told him that the employees who had
walked out would be permitted to return to work. Williams asked Montgomery
to promise that if the employees returned to work, the trucks would not come into
the plant but Montgomery replied that he could not promise to keep the trucks
out of the plant 1B
At 11: 45 a. in., Newbold telephoned Montgomery and said that he had talked
with several employees at the bulk plant and had been informed that the em-
ployees had not been authorized by the Union to strike. By this time practically
all the employees who had originally gathered at the inner gate had left the
plant, many of them assembling in front of the outer gate leading from the
plant to the boulevard.
Pursuant to Montgomery's orders, Keenan and James Hickey, operating super-
intendent of the respondent, went at noon to the outer gate where a large group
of employees were assembled, Pratt and employee James Fowlks being in the
foreground, and the following occurred, according to the credible testimony of
Keenan :
I told them that the company requested all of them to return to work.
I think somebody in the group said, "Under what conditions?" I don't
know who said that, but somebody did. I told them the same conditions as
when they went to work that morning. Pratt turned away from me, and
Jimmy Fowlks said "Larry, we can't come in." I said, "Well, if you are
not coming in we will have to close the gate, because this is still a War
plant." 20
19 The findings in this paragraph are based for the most part upon the testimony of
Montgomery and to a certain extent upon Williams' testimony when not in conflict with
that of Montgomery. Williams insisted that he had only one telephone conversation with
Montgomery on the morning of July 12 and that Montgomery never called him to inform him
that the men could return to work Guard Clark's testimony and statement given to the
respondent on July 31 indicate that Montgomery did telephone Williams at the inner gate.
In addition, the transcript of a telephone call between Montgomery and Newbold made at
11,: 45 a. in July 12, 1945, attributes to Montgomeiy the following:
Kid Williams called me a few minutes ago and as some of the men had gone through
the inner gate he wanted to know if the men came out if they would be alloyied•to go
back. He asked if the company would negotiate this if the men would go back. I
told him we had no objections to the men coming out and that they could go back.
As previously indicated, Montgomery impressed the undersigned as a reliable and accurate
witness From his observation of the witness and in view of the corroboration of
Montgomery by Claik, anothei impressive witness, the undeisigned credits Montgomery
and finds that the second telephone call to Williams was made as testified to by Montgomery.
20 Pratt's testimony on rebuttal was in substantial accord with Keenan's testimony set
forth above In cross-examination during the presentation of the Board's case in chief,
Pratt testified that when Keenan and Hickey came to the outer gate and asked the employees
to return to work, employee O'Leary asked, "Does that mean everybody?" and that Keenan
replied, "I can't say that." O'Leary then said, according to Pratt, "Close the gate then."
The undersigned does not credit this portion of Pratt' s testimony . When called as a rebut-
tal witness for the Board , Pratt testified as follows , in accordance with Keenan 's version set
forth in the text above .
Jim Hickey was some distance behind [Keenan], and Parker stood at little building.
He (lid not come up to me, for I turned my back on him when I seen him coming and
walked back. I did overhear the conversation . . . he said, "If any of you fellows
want to come hack to work, you can come to work" Mr. Vahli said to him, "does
that mean you would take the trucks out?" The trucks were still parked at the
SOCONY VACUUM OIL "COMPANY, INC. - . 1197
At 3 p. in. Newbold telephoned Montgomery and reported that Mahoney was
out of town for a short while but would be back that afternoon. About 4 p. in.,
Mahoney telephoned Montgomery and, according to the latter's uncontroverted
and credible testimony, the following conversation ensued :
[Mahoney] said he just got back, and wanted to know what happened at
the plant. I told him. He said, "Bill, this thing is entirely unauthorized.
There is no strike, and the men are supposed to be at work." I said, "That
may be true, but I can look out of the window and see-a hundred or a hun-
dred and fifty of them." He said, "They are . . . supposed to be at work,"
and he could not understand why anything happened that the men were
away from, work. I asked him then about the committee of Pratt and
the other three men. He said yes, the executive board had appointed
those fellows to ask about the union affiliation of the truck drivers and
that only. I said, "Well, I don't know whether they did that or not. You
tell me the men are supposed to be at work. After they found out these
men were non-union what were they supposed to do?" He said, "Report
back to the executive board." He said there might be.a minority that wanted
to stay out, but that he could get the men back to work and would get them
back to work, but it might be they would need some protection. . . . We
talked a little bit about various means. . . . He said, "Well, if you assure
me the men will be protected, I will get them back to work."
On July 12, the respondent notified the Conciliation Service of U. S. Depart-
ment of Labor and the Sixth Service Command of the U. S Army of the strike
and discussed the matter with a representative from the latter. On July 13, the
employees of the respondent's bulk plant in St. Louis joined the strike, and a
group of 200 or 250 employees of independent contractors employed by the
respondent at the refinery failed to report for work.
On July 13, Mahoney informed Montgomery by telephone, according to the
latter's uncontroverted and credible testimony, "There had been some kind of a
gathering the night before, and that there was quite a large group of men that
did not want to go back to work until we agreed the truck would not come in, and
that he did not know that it would do any good for me to proceed further with
the request he made the night before with regard to getting protection."
On the evening of July 13 and the morning of July 14, two meetings of the
Union were held for the day and night shift employees respectively so that they
might vote upon the question of continuing the strike. The balloting of the
members at both meetings showed that 65 percent of those voting desired to con-
tinue the strike. Inasmuch as the Union's constitution and by-laws provided
that no strike should be authorized unless 75 percent of the members present
voted in favor of a strike, it was decided to terminate the strike and return to
work.Z1 Mahoney telephoned Montgomery on the morning of July 14, informed
outer gate . . . He told them if they did not come back in be would close the gate.
Vahli said, "Close the damned gate, then."
This portion of Pratt 's testimony considered in context with Keenan ' s above clearly indi-
cates that the employees were refusing at this time to return to work unless the Dowell
trucks were removed from the plant
21 The provision of the constitution and by-laws of the Union governing the initiation of
strikes reads as follows :
In the event of a disagreement between the employer and members of this Union, the
committeeman of the Division in which the complaint originated shall immediately
report such complaint to the Grievance Committee who shall make an investigation
and, if necessary , shall, with the committeeman involved , confer with the employer for
the purpose of security , if possible , an amicable settlement . Should the committee
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him of the result of the balloting, and stated, according to Montgomery's testi-
mony, that "the men would go back to work." Montgomery replied that all
strikers might return to work and further stated, according to his credited testi-
mony,
I told him I wanted it understood so that there would not be any misunder-
standing, and that everything would be open and above board-we wanted
them to understand we would have the right to have Dowell come in and
clean the exchangers, and we intended to conduct an investigation to deter-
mine how the thing had started and taken place, to find whether it would
be necessary for us to take any disciplinary action in connection with it. '2
Mahoney expressed doubt that the Union would accede to the respondent's posi-
tion. About 4 p. m., Mahoney telephoned Montgomery that in view of the posi-
tion taken by the respondent, the Union was "going to shut the plant down
completely," by having the operating departments join the strike of the mainte-
nance and labor divisions. With the cooperation of the Union, the refinery was
shut down in as orderly a fashion as possible under the circumstances and ceased
operations July 15, 1945.
fail to adjust the grievance a full statement of circumstances shall be forwarded to
the President of the American Federation of Labor, with a request for immediate sup-
port. Should he or his representative fail to adjust the grievance and in conjunction
with the Executive Council of the American Federation of Labor decide that a strike
is= justifimtble, then the President of the Union shall, within twenty-four hours, call a
meeting of which all members shall be notified to take action thereon, and no member
shall vote on such question unless in good standing. ( In this case good standing
means dues paid for the current month and no charges pending against the member )
Should three-fourths of the members present decide, by SECRET BALLOT, on a
strike, the President of the Union shall immediately notify the President of the Ameri-
can Federation of Labor and give the number of men involved, Union and non-Union,
but under no circumstances shall a strike be declared until the endorsement of the
President of the American Federation of Labor and its Executive Council has been
secured
So far as the record shows, at no time during the course of the strike did the Union fully
comply with these provisions. It further appears that the strike was never authorized by
75 percent of members voting
22 The findings in this paragraph are based upon the testimony of Montgomery, for the
most part, and upon that of Rea, when not in conflict with Montgomery's testimony. Rea
testified that it was his understanding that Montgomery told Mahoney that all strikers
might return "with a few exceptions" until the respondent conducted an investigation -A
statement of the executive board of the Union issued on July 16, 1945, over the signatures
of Mahoney and Rea states, in part,
We agree that the walkout which took place on Thursday, July 12, was unauthorized
and ensued over the objections of Union Officers. But what is the position at the
present time? The men have agreed to return to work since the non-union operators
and their equipment has been removed from the plant Company Management was so
notified on Saturday, July 14 Their answer was in effect a "lockout." They agreed
to the men returning to work with a "few exceptions" until an investigation could
be made. To this the Union could obviously not agree Our position is that any inves-
tigation or disciplinary action is the obligation of the Union and not the Company.
This statement was issued in reply to a statement which was given by H T. Ashton, general
manager of the respondent's Lubrite Division, to the press on July 16, and which supports
Montgomery's version of his conversation with Mahoney. Mahoney was not called as a
witness Montgomery specifically denied that he told Mahoney that all strikers could
return to work with a few exceptions. As previously mentioned, Montgomery impressed
the undersigned as an accurate witness. Moreover, other documentary evidence reveals
that in subsequent negotiations the respondent maintained the position which Montgomery
testified was taken at the outset of the negotiations for the termination of the strike. The
undersigned accordingly credits Montgomery's version of the conversation with Mahoney in
regard to the reinstatement of the strikers. Evidence to the effect that the respondent
agreed to the return of all strikers with a few exceptions'is not credited.
SOCONY VACUUM OIL COMPANY , INC. 1199
• On July 18, 1945 , the respondent wrote the Union as follows :
The Company would be glad to have all employees return to work. By
making this statement the Company wants to make it definite and clear that
this permission to return to work does not in any way waive or impair the
right of the Company to take such disciplinary action as it may find ad-
visable with reference to individual employees , and further , that the Com-
pany reserves , unimpaired , the right to have such work done by' outside
contractors as the Company may find desirable , adhering to its past'prac-
tice of notifying the Union representatives in advance of such work being
done.
On July 19 , 1945 , the Union sent the following reply to the respondent:
This will acknowledge receipt of your letter of July 18, on the issue of
our men returning to work.
It is the understanding of the Executive Board of this Union, that all men
will return to work and will continue to work, under the same conditions
as previously existed, also the company ' s position on the subject of disci-
plinary action is herewith acknowledged
Your letter will be read to the assembled membership , and will be in-
terpreted by the officers of the Union as stated above.
The results of the vote of the membership on this question will be made
known to the Company as soon as possible.
On the evening of July 19, 1945 , a meeting of the union membership was held
with Captain Kelliher of the U. S. Army , 6th Service Command in attendance.
The letters of July 18 and 19, 1945 , above set forth, were read to the membership
and were discussed . Kelliher addressed the membership and urged them to
return to work . The following are excerpts from minutes of that meeting :
. . . Brother Harris asked if the Executive Board had agreed with the
company on this matter . Mahoney answered this liy stating that we had
investigated through the War Labor Board in Chicago , and through various
labor publications and that the law states that companies have the right
to make the initial move in effecting disciplinary action. Pemberton asked
if this disciplinary action applied only in this instance . Mahoney answered
that it applied in all instances and not just this particular case. He pointed
.out that companies have always maintained the right to discipline . This was
affirmed by a telephone call to Mr. Ipstein of the 6th Regional War Labor
Board in Chicago by Captain Kelliher. Rea pointed out that the Executive
Board had backed up the individuals involved as much as possible in refusing
the company 's offer to allow the men to return to work with exceptions,
but that there was no way to prevent the company making an investigation
and taking disciplinary action as a result thereof . However, if we felt
the action unjustified, the Union could negotiate through Arbitration and
the 'United States Conciliation Service for justice and collect back pay for
those individuals involved if our contentions were upheld . Brother Woods
wanted - to know if these men had been named by the Company . Mahoney
answered that no names had ever been mentioned .... [Captain Kelliher]
pointed out that not only Socony-Vacuum but all companies have the right
to discipline their employees , but that in our case, Step 5 in our Grievance
procedure gives us the right to object . He reminded everyone that accord-
ing to our working agreement we are the sole bargaining agent for all em-
ployees of the company and its E. St. Louis Refinery and its St. Louis Bulk
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant but not the employees of contractors. He outlined the procedure
which was taken in setting up the War Labor Board and the United States
Conciliation Service for handling grievances in war time. This was a con-
cession made by the government to compensate labor for the No-Strike Pledge.
He advised the men to return to work and utilize the legality of the, Smith-
Conally [sic] Act. He pointed out that we cannot gain anything by staying
out. . . . He ended his discussion with an appeal to the membership to return
to work where they would be in a better position to obtain what they desired.
Mahoney then asked for a motion. Pratt moved that all men return to
work under the same conditions as existed previous to the walk-out and to
disregard the letter from Ashton. A secret ballot was then taken with the
following results :
Total Votes--------------------------------------------- 384
Yes------------------------ --------------------------- 355
No---------------------------------------------------- 17
Blanks------------------------------------------------ 5
The Union notified the respondent of the outcome of the meeting by the following:
letter dated July 20, 1945:
This is to inform you of the results of the vote taken by the Union member-
ship on the subject of the men returning to work.
In order to clarify the motion that was voted on, it is necessary to state
that it was the intent of the maker of the motion to eliminate any possibility
of the Company changing previously established procedures used for notifying
the Union on the matter of contracting out work.
It is likewise recognized by the Union membership, that any rights pre-
viously enjoyed by the Company, will not be changed as a condition of the men
returning to work. This is meant to apply particularly to the right of the
Company to contract out work on the same basis as in the past. Also, the
right of the Company to impose disciplinary action on the same basis as in the
past is recognized.
I trust that this will clarify the Union's position.
The Union's reply and the action taken by the union membership in respect to
the respondent's offer of reinstatement were clarified by two telephone coh"rsa-
tions between Montgomery and Mahoney on July 20, 1945 23 The following are
excerpts from the conversations as recorded by Montgomery's secretary :
MONTGOMERY. I don't know that it's clear exactly what transpired at the
meeting last night. Can you give.it to me?
MAHONEY. We explained all the negotiations and the last line that was
added on to Mr. Ashton's letter and we all agreed that we on the committee
and the majority of the men agreed that the intent of that letter and nothing
would be changed with respect to previous conditions, that is, that the juris-
diction of the Company should be continued, and so on. However, on reading
the letter out, it appeared rather suspicious. The men did vote to go back to
work, but wanted to be sure that nothing would be changed. If there is no
action on that on the part of the Company everything is all right.
"The Union's letter of July 20, apparently wwas received by the respondent immediately
after these conversations However, the letter must be interpreted in context with the
conversations since the contents of the letter were discussed and certain paragraphs were
read to Montgomery during the conversations.
SOCgNY VACUUM OIL COMPANY, INC . - 1201
MONTGOMERY. What does the article in the morning Globe mean . .. "pro-
vided all employees are reinstated in their jobs without prejudice or disci-
plinary action."
MAHONEY. There is nothing to that. I think that what you want to do is
right and is the understanding of the Union Committee. The basis on which
you wish it handled would meet with us. There-is a letter in the mail. Wait
a minute and I'll get it.
MONTGOMERY. I think we have that letter.... Did the men vote to go
back to work?
MAHONEY. Yes, they would go along with the same conditions, because the
Company had the right before of disciplinary action and we still think that
you have the right. That definitely had to be understood and the Captain
explained it thoroughly. At first there was objection to the part about the
disciplinary action but we told them it was definitely clear. We agreed that
it was all right for you to bring [Dowell] in to clean the heat exchangers
subject to the same conditions as before. You will have to notify us in the
same way as before.
MONTGOMERY. I want to clear up an item or two. Do I understand from the
conversation we had a little bit ago that the Union understands that Mr.
Ashton's letter of July 1S is the basis on which the Union proposes to return
the men to work?
MAHONEY. This is right. The interpretation of that was as we outlined it
in our letter. It shouldn't interfere with any of the rights that the Company
had in the past and we interpreted it to mean, that is why we added that last
line. There will be nothing changed It will remain as before we went out.
MONTGOMERY. How will you put an application like that on?
MAHONEY. Nothing is changed with the method that was used between
yourselves and us and we get notified when you contemplate contracting out
work. Also, disciplinary action was the right you had before. You still have
it. We are not trying to break anything down that you had in the past.
Everything will be the same. The Company is entitled to make its investiga-
tion. Also, if it employs disciplinary action, the usual procedure will be
carried out in the usual way, that is the right to arbitrate. The part that we
were unable to get over to the men was that the Company was going to use this
to make some change. We assured them it was not true. I put that in so that
it had to be clarified with the Company. The Captain was going to get a hold
of Mr. Ashton last night but got him this morning
MONTGOMERY. Did the Union vote for the acceptance and clear understand-
ing of the conditions set forth in that letter?
MAHONEY. Yes, I don't hesitate a minute to say they accepted it then as
they said.
* * * * * * *
MONTGOMERY. What about the part that was to disregard Mr. Ashton's
letter. Is there a possibility that the men in voting on it were voting against
the letter?
MAHONEY. No, there is no possibility of that. You can verify that with
Captain Kellerher. . . . There was quite a long discussion what the letter
meant and how it would take away conditions that they had. This motion
followed right on the heels stating that they would disregard that. Well,
let us say that our letter of yesterday pretty much covers what the Union's
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
understanding is. The men are willing to return to work and continue to
work as previously.
MONTGOMERY. I am quite sure that you and the Executive Board have that
understanding. The only thing that is difficult for me to understand is that
the men have that understanding, when they vote on a motion when they
vote to disregard that. .
MAHONEY. Well I can 't see anyway there that they could. All these,points
were discussed at great length. I am satisfied in my mind that they knew
what they were voting for. I talked with the Captain and he agreed that
we would be safe in having him call you up and stating it that way. I don't
know what he told you this morning but I'm willing to say it was sub-
stantially the same thing.
In view of the foregoing, the undersigned is convinced and finds that the Union
accepted the respondent's offer of reinstatement of the striking employees and the
conditions attached thereto, as set forth above in the respondent's letter of July
18, 1945, but without waiving its right to protest action taken by the respondent
as a result of the strike.
On July 20, 1945, the respondent sent to each employee the following letter
with enclosures of copies of its statement to the press, dated July 16, 1945, and
copies of its letters of July 18 and of the Union's letters of July 19 and 20:
We are informed that at a meeting last night, the employees voted by a
large majority to return to work.
Employees will be individually notified to return as soon as possible, in
accordance with the necessities of operating procedure
IF YOU HAVE NOT PREVIOUSLY BEEN NOTIFIED TO RETURN,
REPORT ON YOUR REGULAR SCHEDULE AS FOLLOWS.
Bulk Plant Employees-Monday, July 23.
Refinery Employees-Tuesday, July 24.
In accordance with these instructions, all strikers returned to work and plant
operations were resumed on July 24.24 From about July 21 to 28, the respondent
sought all information available to management representatives with respect to
events occurring on July 12 Shortly thereafter, it notified Mahoney and New-
bold that it proposed to continue the investigation and to interrogate employees
but that the Union might have a representative present during the interviews.
On July 30 and 31, 13 employees were so interrogated by the respondent in the
presence of a union representative in respect to action taken by the Union regard-
ing the walk-out and the activities of employees on July 12 and all interviews were
recorded by a court stenographer. According to Montgomery, the reason for the
investigation was that although there had been three or four work stoppages
prior to that of July 12, 1945, this was the first which had not been authorized
by the Union.
On the morning of August 1, 1945, the respondent notified Mahoney and New-
bold of the disciplinary action it proposed to take as a result of the work stop-
page commencing July 12, namely the discharge of Pratt and Williams and the
lay-off of Konroy, Needham, Geolat, and Clark. The only remonstrance made by
these officers of the Union was asuggestion that the proposed lay-off of Geolat
for 2 weeks was too severe. At their suggestion, the respondent further con-
sidered the matter and reduced the lay-off for Geolat to 1 week. That after-
24 It appears that some strikers did not receive the instructions in time to return to work
on July 24, but reported to work the following day.
SOCONY VACUUM OIL COMPANY, INC. 1203
noon , the employees in question were notified of the disciplinary action which had
been taken and were discharged or laid off
On August 2, 1945, the respondent met with the Union's committee in the first
regular monthly meeting to dispose of grievances following the July strike. The
minutes of that meeting read, in part , as follows :
Mr. Mahoney stated that the Union probably will want to arbitrate the
case of the men who were disciplined over the walkout and that there is a
special meeting called for tomorrow night to discuss the matter . Mr. Mont-
gomery said that the Company will not delay in handling any grievance
which is raised and asked Mahoney to notify him so that he could arrange
a meeting immediately , after which Mr. Mahoney could write his letter to
Mr. Ashton requesting an immediate answer if he wished to take the case
further.
On August 6, 1945 , Mahoney telephoned Montgomery to advise him of the
action taken by the Union with regard to the disciplinary lay-offs and discharges
arising from the July strike . Immediately thereafter , a summary of the con-
versation was made by Montgomery and reads , in part, as follows :
Mr. Mahoney advised me that the Union had had a meeting on Friday
night and Saturday morning and that the motion that was passed was
probably quite confusing but that he would advise me the entire story. Mr.
Mahoney stated that the statement had been made by the Committee that
they would like to take up the disciplinary action through the grievance
procedure to arbitration , if necessary , and that the Company had already
agreed to this. The members of the Union who had been disciplined, how-
ever, felt that they would obtain a fairer hearing by the War Labor Board
and a motion was proposed and passed requiring the Union . officers to take
the case up to the War Labor Board and that if a favorable decision was not
given to the Union by the War Labor Board that a strike vote would be taken
under the terms of the Smith-Connolly Act.
I advised Mr. Mahoney that I understood that the policy of the War
Labor Board was to require arbitration on cases of this nature and asked
him how he would proceed to have the case handled by the War Labor
Board. Mr. Mahoney stated that he didn't quite know but presumed he
should advise the Conciliation Service that a dispute existed between the
Company and the Union and to request them to certify it to the War Labor
Board. He stated that the War Labor Board then would probably reply
that the case would have to go to arbitration . I asked him where this
would put the thing , since the Union had apparently refused to take the
case to arbitration , and he stated that in this case he presumed he would have
to take the matter back to the Union body.
I advised Mr. Mahoney that I certainly agreed the Union position did
confuse matters and would result in excessive delays. I also advised him
that I felt sure the Company would not arbitrate the issues with the threat
of a strike vote already passed by the Union and that I did not know
whether the War Labor Board would handle the case when the Union had
already made its position clear-that it would not abide by the decision of
the Board but would request a strike vote under Smith -Connelly if the
decision was not favorable to them.
Thereupon the Union took steps to bring the matter before the National War
Labor Board, herein called the W. L. B., through the Conciliation Service of
the United States Department of Labor. On August 10, 1945, representatives of
1204 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
the respondent and of the Union met with Commissioner Gillis of the Concilia-
tion Service. The Union assumed the, position, according to the credible testi-
mony of Owen D. Fender, industrial relations manager for the respondent's
Lubrite Division, that "they wanted to refer it to the War Labor Board, because
they would rather have it referred to a three man panel than a single Arbitrator.
They further stated in their opinion it wasn't a matter for arbitration under the
grievance procedure." The respondent contended that the matter should be
handled under the grievance procedure of the contract, and, if necessary, carried
to arbitration. Commissioner Gillis also advised the Union that the matter was
one for arbitration under the contract and that the case "would probably be
returned by the War Labor Board, because he did not think they would take such
a case.25
In due course the case was submitted to the W. L. B. and was returned on
September 7, 1945, to Commissioner Gillis with the following notation :
The case has been returned for further effort at settlement through con-
ciliation. You will notify the parties that the case is being reopened by you
for further conciliation, and to reconvene conferences for that purpose. If
you are unable to adjust through further conciliation, you should attempt to
have the parties agree to voluntary arbitration, or endeavor-to secure a joint
statement of the parties in which they agree to submit the case to the War
Labor Board for final decision and determination.
On September 17, 1945, the case was closed by the commissioner. Nevertheless,
the Union requested that the respondent agree that the disciplinary cases in
question be submitted to arbitration. By letter dated October 15, 1945, the
respondent declined the Union's proposal for the reason that the contract between
the respondent and the Union provided, as noted previously, that no grievance
should be considered unless it had been filed within 20 days of the time the.
employee had knowledge of such grievance and that more than 20 days had elapsed
since the grievances in respect to the disciplinary cases had accrued.
Pursuant to the terms of the War Labor Disputes Act,26 the Union filed a notice
of a labor dispute involving the respondent's employees. On December 11, 1945,
the respondent sent a letter to each employee, briefly stating the issues involved,
referring to various benefits enjoyed by the respondent's employees, and urging
the employees to consider the facts and "vote in accordance with your own best
judgment." 21
The Board, on December 13, 1945, conducted an election among the respondent's
employees. The major issue as stated on the official ballot was that'the Union
"objects to the Company's refusal to arbitrate the disciplinary discharge of two
men and the disciplinary lay-off of five men.28 The Company contends that the
Union has failed to follow the provisions of the contract pertaining to grievances
and are not now entitled to arbitrate the grievances." Of the 484 eligible voters,
424 cast valid ballots, of which 137 were in favor of striking and 287 were opposed
to strike action.
23 Montgomery testified credibly that lie and Commissioner Gillis reminded the Union
that earlier the W. L. B had stated that disiplinary cases such as those involved herein
should be disposed of by arbitration and that "if they did go to the War Labor Board they
would return them and not handle any such cases "
2657 Stat 167.
27 No allegation was made in the complaint that this letter was violative of the Act It
is clear and the undersigned finds that the letter was within the constitutional privilege of
free speech.
26 The statement that five employees were laid off is concededly erroneous
SOCONY VACUUM OIL COMPANY , INC . 1205
B. Conclusions
1. The alleged lock-out
The complaint alleged that the respondent locked out Pratt, Konroy, Need-
ham, and Geolat on July 12 , 1945, in violation of Section 8 (3) of the Act. In
view of the findings heretofore made, the evidence does not support this allega-
tion of the complaint , inasmuch as no change was made in the respondent's pass
procedure on that date . These employees would have been able to reenter the
plant had they followed the customary rule of obtaining a pass or oral permis-
sion for readmission from their foreman. The undersigned accordingly finds
that the respondent did not lock out Pratt , Konroy, Needham , and Geolat.
2. The strike
Although the minutes of the executive board meeting of July 11 , 1945, indicate
that the employees were advised not to engage in a strike , nevertheless the em-
ployees of the maintenance and labor departments walked out of the plant on
July 12. It is clear, as evidenced in Montgomery 's conversations with the officers
of the Union on July 12, as well as by the response made by the employees at
the gate when Keenan sought to induce them to return to work, that the prin-
cipal cause for the work stoppage was the then current labor dispute arising
from the employment of Dowell to clean the heat exchangers . In the past , similar
disputes had evolved from the hiring of independent contractors to perform work
which the Union believed was within the proper province of the maintenance
staff. In these instances , the Union was concerned that the employment of
independent contractors would reduce the amount of work available for the
respondent 's regular employees and consequently necessitate a reduction in the
number of employees . In addition , the rumor that the volunteer committee
had been locked out undoubtedly added impetus to the strike . However, it is
clear that in no sense was the work stoppage attributable to unfair labor prac-
tices on the part of the respondent , for aside from the position assumed by the
respondent as to whether the employment of independent contractors was a
proper subject matter for collective bargaining ,29 the record is barren of any
29 Both Montgomery and Fuhrhop testified that the respondent had always insisted that
the employment of independent contractors was not a proper subject matter for collective
bargaining or arbitration . However, the Board has held that such subcontracting of
work is a proper subject matter for collective bargaining and that a refusal to bargain
in that regard is a violation of Section 8 (5) of the Act . See Matter of The Timken Roller
Bearing Company , 70 N. L R B 500 , where the Board stated at 518,
without attempting generally to delimit the subject matter properly included
within the scope of collective bargaining , it seems apparent that the respondent's
system of subcontracting work may vitally affect its employees by progressively
undermining their tenure of employment in removing or withdrawing more a_.d more
work, and hence more and more jobs , from the unit . Of equal concern to the
employees are the rules which regulate their everyday life in the factory and the
hours they are asked or required to work It is the respondent ' s duty to sit down
and discuss these matters with the Union when requested to do so. During such
discussion it may develop , for example , that the Union will engage to supply suffi-
cient skilled labor in the crafts in question , so that more work may be done by the
respondent's employees and less by workers outside the unit, it might be that the
respondent will convince the bargaining representative that there is no reasonable
alternative to a continuation of the respondent ' s present practice in this respect ;
or some other and presently unthought of solution agreeable to both parties may,
suggest itself
On none of the issues now dividing the parties is the respondent compelled to
reach an agreement with the Union . Much less , as the respondent ' s brief seems to
798767-49-vol 78-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anti-union bias or evidence of the commission by the respondent of unfair labor
practices prior to the strike. The undersigned accordingly finds that the strike
was economic in nature.
Counsel for the Board contended that the work stoppage became an unfair
labor practice strike when in response to the Union's unconditional offer on
July 14 to abandon the strike and return to work, the respondent stated that
all strikers might return to work but only with the understanding that Dowell
would clean the exchangers and that the respondent might take disciplinary
action. The undersigned cannot agree. As found above, the respondent had
discussed the employment of Dowell with the Union and the parties had, in
effect, reached an impasse on that issue. It was therefore not unreasonable for
the respondent to insist, in reinstating the strikers, that the work of cleaning
the exchangers sub-contracted to Dowell proceed. As for the" respondent's
proposed investigation of the strike and discipline of the strikers, it is clear
that this position was assumed by the respondent in order to avoid the inference
that by reinstating all strikers it had waived its right to discipline leaders of
the strike for illegal activities. Moreover, as subsequent negotiations with the
Union revealed, the respondent did not insist that the Union waive its right to
object to any disciplinary action the respondent might take in connection
with the strike or to bargain with the respondent in regard thereto 80 In view
of these considerations, as well as all the circumstances of the case, the under-
signed is of the opinion and finds that the respondent did not impose an illegal
condition upon its offer of reinstatement to the strikers on July 14 and that the
work stoppage accordingly did not on that date become an unfair labor practice
strike.
3. The discriminatory discharges and lay-offs
On August 1, 1945, Pratt, Williams, Konroy, Needham, Geolat, and Clark were
individually summoned to Montgomery's office. Montgomery informed each of
these employees of the disciplinary action which the respondent had taken and
the reasons for such action, as follows :
imply, would it be required to accede in tote to the demands of the bargaining repre-
sentative. The requirement is that the respondent consult with the Union and
explore in good faith the possibility of reaching an agreement so that, in conformity
with the purposes of the Act, the matter may be removed, so far as is possible, as a
cause of industrial strife.
The complaint did not allege that this attitude of the respondent had led to a violation of
the Act. The record establishes that as to the employment of Dowell the respondent had
discharged its duty to bargain with the Union ; the respondent early in July informed the
Union of the action in respect to the heat exchangers that the respondent proposed to take
and had on three occasions discussed the matter with the Union's representatives Al-
though Fuhrhop testified that in the past the respondent had not always discussed the
subcontracting of work with the Union, the undersigned does not find that this action
constituted violation of the Act inasmuch as the issue was not raised by either the plead-
ings or the proof. However, the undersigned does not mean to indicate that refusal or
failure to discuss subcontracting of work with the Union in the future-would not be
violative of the Act.
"In oral argument, counsel for the respondent stated that no contention was made by
the respondent that the Union's acceptance of the respondent's terms for settling the
strike constituted a waiver by the Union of the right to challenge the legality of the
disciplinary action subsequently taken by the respondent. It is clear that such an agree-
ment between a union and an employer cannot estop the Board from the exercise of its
authority. See N. L. R. B. v. General Motors Corp., 116 F. (2d) 306 (C. C. A. 7).
SOCONY VACUUM OIL COMPANY, INC . 1207
a. Pratt 33-discharge. "This action is being taken because of your activity and
leadership in an unauthorized work stoppage; an unauthorized walkout; an
unauthorized picketing ; and as the culmination of unsatisfactory services as
an employee."
b. William s.'Z-discharge. "This action is being taken because of your activity
and leadership in an unauthorized work stoppage ; an unauthorized walkout ;
an unauthorized picketing ; and generally unsatisfactory attitude as an
employee." 33
c. Konroy 8 and Needham-4 weeks' lay-off. "This action is being taken be-
cause of your activity in an unauthorized work stoppage ; an unauthorized walk-
out ; and an unauthorized picketing."
d. Geolat 3e-1 week lay-off. "This action is being taken because of your
activity in an unauthorized work stoppage and an unauthorized walkout.",
e. Clark 97-2 weeks' lay-off. "This action is being taken because of your
activity in connection with an unauthorized work stoppage; violation of instruc-
tions ; and leaving place of duty without permission."
Thus, the respondent conceded that it disciplined these employees because of
their leadership or activity in the strike commencing July 12, 1945, but contended
that it was justified in doing so because their conduct was not protected by Section
7 of the Act. As expressed in oral argument, that contention was predicated
upon the ground that the strike was not authorized by the Union but, in fact, was
in contravention of the express instructions of the Union's officers and executive
board. In support of its contentions, the respondent relied upon the Draper 38
and Carey Salt 39 cases, which held that the discharge of strikers under certain
circumstances was justified.
In the opinion of the undersigned, these cases have no application inasmuch as
the essential factor upon which they rest, the illegality of the strike in question,
is absent from the instant proceeding. In the Carey Salt case the strike was
illegal and the employer, had it chosen to do so, could have discharged the
91 Pratt was employed as a laborer by the respondent on June 24, 1937, and joined the
Union on the same date. On August 30, 1943, he was promoted to the position of leadman
in the carpenter shop Pratt was one of the Union's most active adherents. He was
president of the Union from August 1939 to December 31, 1943, and was a committeeman
in the maintenance department from January 1 to December 31, 1944.
12 Williams was hired as a laborer by the respondent in 1932 Following a lay-off, he
returned to work in 1933 as a pipefitter helper in the maintenance department. After a
second lay-off he was reemployed in 1935 as a laborer. In 1938 or 1939, he became a pipe-
fitter helper again and in 1944 became a crane operator helper. He joined the Union when
it was organized. He was quite active in its behalf, being a committeeman for the labor
and maintenance departments for several years.
33 Williams' testimony as to reasons for discharge given by Montgomery on August 1,
1945, is not credited.
34 Konroy commenced his employment with the respondent on May 11, 1939, as a laborer
and joined the Union at that time In 1943 or 1944, he was a committeeman for the
maintenance department At the time of his lay-off he was a pipefitter leadman.
11 Needham entered the employ of the respondent on August 30, 1940, as a laborer At
the time of his lay-off he was a carpenter helper and was steward for the carpenter shop.
36 Geolat became an employee of the respondent on July 10, 1940, as a laborer. Following
a period of service in the United States Army from June 8, 1941, to October 27, 1942, he
was reemployed as a still cleaner.
"Clark was hired by the respondent as a guard on October 27, 1944, and joined the
Union at the same time. At the time of the strike, he was a steward of the Union for the
guard department. At the time of the hearing, he was not in the respondent's employ,
having been laid off in October or November 1945, as a result of a reduction in force.
38 N. L. R. B. v. Draper Corp., 145 F. (2d) 199 (C. C A. 4), setting aside 52 N. L. R B. 1477.
11 Matter of The Carey Salt Company, 70 N. L. R. B. 1099.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers because the work stoppage was called in violation of the express terms
of a contract between the Union and the employer and because the employees,
by seizing the plant, engaged in conduct of the type condemned in N. L. R. B. v.
Fansteel Corp, 306 U. S. 240. In respect to the conduct of the strikers in the
instant case, no violence occurred at any time, picketing was peaceful and orderly,
and there was no seizure of the respondent's property except such as may have
been involved by the employees stopping work and congregating for a few hours
at the inner gate on the morning of July 12 before determining to strike. As
indicated by the Court in the Draper case, such action does not constitute conduct
condemned by the Fansteel doctrine.
Turning to the question of legality of the strike viewed in the light of the con-
tract between the respondent and the Union in effect at the time of the work
stoppage'40 the section of the contract dealing with grievance and arbitration
procedures, previously set forth, stated that "the sole purpose" of such section
was "to make grievances arising out of and during the term of this Working
Agreement subject to arbitration," defined grievances as controversies "arising
out of the subject matter of this Agreement," confined arbitration to "a grievance
concerning a question of fact in dispute" or "any question of fact in dispute .. .
between the Company and the Union during the term of this Working Agreement,"
and stated "there shall be no lock-out by the Company or strike or stoppage of
work by the employees pending the decision of the Board of Arbitration." The
right of the Union to strike was in no other way limited by the terms of the
contract. Although it was understood by the parties that when the respondent
proposed to employ independent contractors it would give notice to the Union
and would discuss the matter with the Union, there is no mention in the contract
'of the employment of independent contractors, although the Union had sought
to include a provision with respect thereto. Furthermore, at all times material
herein, the respondent maintained the position that the employment of Dowell,
an independent contractor, was not a proper subject matter for collective bar-
gaining or for arbitration. Clearly, therefore, the dispute over the employment
of Dowell which gave rise to the work stoppage of July 12, cannot be termed
a grievance "arising out of the subject matter" of the contract or one that would
be subject to arbitration under the contract. Since the only limitation imposed
upon the Union's right to strike is that there should be no "strike or stoppage
of work by the employees pending the decision of the Board of Arbitration," clearly
the work stoppage of July 12 and the strike which followed were not in violation
of the contract."
In the absence in the instant matter of the two essential factors of the Carey
Salt case, namely unlawful activity on the part of the strikers and a strike in
40 The respondent has assumed a shifting position as to whether the strike was a viola-
tion of the contract. During the course of the strike and in its answer, the respondent
contended that the strike was violative of the contract. At the hearing it assumed an
antipodal position, and stated in oral argument that it did not contend that the "strike
was a violation of any provision of the contract between the company and the Union."
Yet a memorandum filed with the Trial Examiner states, "The work stoppage was in
violation of the existing contract." In oral argument the respondent also stated that
the strike was in violation of the Union's wartime no-strike pledge. Clearly the violation
of such a pledge cannot be relied upon as justification for the discharge of the strikers.
See Matter of Columbia Pictures Corporation, 64 N. L . R B. 490 ; Matter of Union City
Body Company, Inc, 69 N. L. R. B. 172.
41 Cf. Westinghouse Electric Corporation v. United Electrical, Radio & Machine Workers
of America (CIO), Local 601, et al, 17 L. R. It. M. 847; Matter of Steel Producing Sub-
sidiaries of United Steel Corporation and United Steelworkers of America (CIO), 1 L. A.
X630.
SOCONY VACUUM OIL COMPANY, INC. 1209
violation of a contract, the Carey Salt case lends the respondent no authority for
the disciplinary action taken.
As to the Draper case, the Court found that the discharge of strikers was justi-
fied because a minority of the employees in the appropriate unit struck in an
attempt to usurp the collective bargaining prerogatives of their duly designated
bargaining agent and that to permit such usurpation would disrupt the funda-
mental bargaining process which the Act seeks to protect .42 In the instant matter,
the strikers did not attempt to usurp the bargaining prerogatives of the Union.
Indeed , the Union and the respondent, as set forth above, had discussed the Dowell
matter on three occasions. When the maintenance force voiced further objec-
tion to the employment of Dowell, a matter which vitally affected the employ-
ment of the employees and which was clearly a proper subject for collective
bargaining, the executive board of the Union authorized (1) a volunteer committee
to question the union affiliation of the Dowell employees "as an excuse to prevent
their entering the gate" and (2) the maintenance force to assemble at the gate
"as a mass demonstration to discourage any entering the gate over our protest"
with the understanding "that as long as the truck did not enter the inner gate,
the men would return to work." It is true that the volunteer committee was
more forthright in dealing with Dowell than authorized by the executive board
in that they did not resort to the subterfuge of questioning the union affiliation
of the Dowell employees but instead attempted to accomplish the Union's purpose
by asking Dowell to stay out of the plant until the jurisdictional issue could be
settled with the respondent. Also, by striking, the employees disregarded the
executive board's advice that they not engage in a walk-out. However, these
variances from the proposed course of action agreed to in the executive board
meeting of July 11 do not, in the undersigned's opinion, constitute a usurpation
by the employees of the position and function of their duly designated bargaining
representatives, as contended by the respondent. Their action rather was an
attempt to achieve the aim of the Union, as stated in the minutes of the executive
board meeting of July 11, "to prevent the Dowell Chemical Company from doing
this work." Discussions by the respondent with officers of the Union and with
the strikers on July 12 clearly indicated that this was the cause of the strike.
42 See also Matter of International Envelope Corporation , 34 N. L. it. B. 1277 , wherein
the Board stated :
The respondent and the Union were operating under a written contract This
contract provided orderly methods for settling grievances and other disputes through
duly designated representatives of the employees. The three discharged men took it
upon themselves to make a demand upon the employer for straight-time pay, which
would change the terms of the existing contract. The provisions of the contract
with respect to rates of pay, hours, and other conditions were equally applicable to
the discharged employees as to other employees. The Union was not only the statu-
tory representative of the discharged employees by virtue of Section 9 (a) of the
Act, but they had themselves designated it as their representative by becoming mem-
bers. When the Union was unable to effectuate their desires, the discharged em-
ployees decided to take matters into their own hands. The Union, as the authorized
representative of all the employees, disapproved of the action of the minority group
by twice at regular meetings declining to support complaints of the discharged men
and by intervening in behalf of the respondent in the present case. Under such
circumstances, when a dissident minority group takes action contrary to the terms
of an existing contract and contrary to the wishes of the duly designated representa-
tive chosen by the majority, disciplinary action by the employer and by the Union
is clearly justified. To rule otherwise would be to permit self-appointed dissenting
groups within a union to ignore or to defy the legally designated representative, to
take matters into their own hands, to destroy the collective agreements negotiated
by majority organization , and to undermine the process of collective bargaining itself.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the language of the Eighth Circuit Court of Appeals, the employees "had a
fear that their jobs were likely to be taken over by non-union men. In their
minds it was a justified grievance; this makes it a `legal' strike preserved by
Section 13 of the Act." 48 Moreover, the walk-out of the maintenance and labor
departments was ratified by the Union as shown by establishment of official picket
lines, by negotiations between officers of the Union and the respondent, and by
ultimate participation of all employees in the strike. Clearly, the instant case
falls within that class referred to by the Court in the Draper case in the follow-
ing language:
We do not mean to say, of course,. that a strike can be called only by a
bargaining union, or that less than a majority of employees will not be pro-
tected when they go on strike in protection of their rights."
The undersigned concludes and finds that whether or not the walk-out on the
part of the respondent's employees was well-advised, it did constitute such a
concerted activity as is protected by the Act from employer interference, restraint,
and coercion 48 It follows that to single out and discharge Pratt and Williams
and lay off Konroy, Geolat, Needham, and Clark because the respondent con-
sidered them the leaders and instigators of this legitimate concerted activity,
constituted discrimination against them in violation of the Act ,e
Inasmuch as the material reason, indeed the principal reason for the lay-off
of Clark and the discharge of Pratt and Williams admittedly was their leader-
ship and activity in the strike, the undersigned finds it unnecessary to detail the
evidence in respect to the respondent's additional defenses for the discipline
given these employees 47 As found above, the strike was not unlawful and the
actions of these employees in connection with it were concerted activities pro-
tected by the Act.. Even if it be assumed that the additional reasons advanced
by the respondent for the discipline of these employees were valid, we would
thus have two causes for the disciplinary action in each instance, one legal and
the other illegal. If the disciplinary action taken against these employees was
48 Firth Carpet Co. v. N. L. R. B., 129 F. (2d) 633 (C. C. A 2), enf'g 33 N. L. R. B. 191.
Section 13 reads, "Nothing in this Act shall be construed so as to interfere with or impede
or diminish in any way the right to strike."
44 The fact that the strike was not called in compliance with the procedure set up in
the Union 's Constitution and By-Laws affords the respondent no justification for its
discipline of the strikers. The constitution was for the protection of the members and
governed the relationship between the local body and the national organization with
which it was affiliated . In no sense did the constitution confer upon the respondent any
legal rights for the breach of which the respondent might take action. Moreover, the
record shows that in other work stoppages the Union had failed to comply with these
provisions of its Constitution and By-Laws, yet the strikes were amicably settled between
the Union and the respondent.
41 See N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333; Carter Carburetor
Corp. v. N. L. R. B., 140 F. (2d) 714 (C. C. A. 8) ; Firth Carpet Co. v. N. L R. B., supra.
96N. L . R. B. v. Kalamazoo Stationery Company, 160 F. (2d) 465 ( C. C. A. 6), enf'g
66 N. L. R B 930; N. L. R. B. v. Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F.
(2d) 503 (C. C. A 2), enf'g 33 N. L. it. B. 1170; Matter, of Reynolds International Pen
Company, 70 N. L. it. B. 932.
47 In addition to their leadership and activities in the strike, the further defense relied
on by the respondent for the discharge of Pratt was "the culmination of unsatisfactory
services as an employee" and for the discharge of Williams was his "generally unsatis-
factory attitude as an employee." The additional justification for the lay-off of Clark
was "his violation of instructions ; and leaving place of duty without permission " In
oral argument, counsel for the respondent stated, "I want to state now that the reason
for the language of the last line of the discharges in regard to Pratt and Williams'
`Unsatisfactory work record' and `Unsatisfactory attitude,' was no portion of the ground
for the discharges but was a portion of the reasons why the penalties were not the same."
i
SOCONY VACUUM OIL COMPANY, INC . 1211
motivated by two reasons, one legal and the other illegal, the burden was on
the respondent under such circumstances to separate the two ; that is to say, to
show that the disciplinary action would have in any event taken place, absent the
illegal motivation." This the respondent has failed to do. The facts, indeed,
establish the contrary.
On the basis of the whole record, the undersigned finds that the respondent on
August 1, 1945, discriminatorily discharged Morris Pratt and John Williams
and discriminatorily laid off George Konroy, Noble Needham, Edward C. Clark,
and Sylvester Geolat in violation of Section 8 (3) of the Act because of their
leadership and participation in, concerted activities of its employees and because
of their affiliation with and activities on behalf of the Union. The undersigned
further finds that by thus discriminating against Pratt, Williams, Konroy,
Needham, Clark, and Geolat and by the respondent's interrogation of 13 em-
ployees on July 30 and 31, 1945, in respect to their concerted activities on be-
half of the Union and the internal votes, discussions, and affairs of the Union,
the respondent has discouraged membership in the Union and interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act."
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
Since it has been found that the respondent has'engaged in unfair labor
practices, it will be recommended that the respondent cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Having found that the respondent has discriminated in regard to the hire and
tenure of employment of Morris Pratt, John Williams, George Konroy, Noble
Needham, Edward C. Clark, and Sylvester Geolat, the undersigned will therefore
recommend that the respondent offer Pratt and Williams each immediate and
full reinstatement to his former or substantially equivalent position," without
prejudice to his seniority and other rights and privileges. The undersigned will
further recommend that the respondent make whole Pratt, Williams, Konroy,
Needham, Clark, and Geolat for any loss of pay they may have suffered by reason
u N. L. R. B. v. Remington Rand, Inc., 94 F. (2d) 862 (C. C. A. 2), cert . den., 304 U. S. 576,
" Needham and Konroy testified that upon their return to work following their lay-off
they were unnecessarily criticized in their work performance , plant rules were more strin-
gently enforced, and their supervisors watched them more closely. Clark and Geolat did
not testify with regard to any change in management's attitude as to them. It seems
clear that most of the alleged change of attitude testified to by Needham and Konroy was
in relation to enforcement of legitimate plant rules and that, especially as to Needham,
the alleged difficulty arose from a personal conflict with their supervisors. The under-
signed finds that the matters testified to by Needham and Konroy in this regard did not
constitute unlawful interference, restraint, or coercion.
a' In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position " is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position ." See Matter of The Chase National Bank of the City of New York, San Juan,
Puerto Rico , Branch, 65 N. L. R. B 827.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the respondent's discrimination against them, by the payment to Pratt and
Williams of a sum of money equal to the amount which each would normally
have earned as wages from the date of the discrimination against him 'to the
date of the offer of reinstatement, less his net earnings,51 during such period, and
by the payment to Konroy, Needham, Clark, and Geolat of a sum of money equal
to the amount which each would normally have earned as wages during the pe-
riod he was discriminatorily laid off, less his net earnings during such period.
Because of the circumstances leading to the discharges and lay-offs, as indi-
cated in the facts found, and because of the absence of any evidence that danger
of other unfair labor practices is to be anticipated from the respondent's conduct
in the past, the undersigned will not recommend that the respondent cease and
desist from the commission of any other unfair labor practices. Nevertheless,
in order to effectuate the policies of the Act, the undersigned will recommend
that the respondent cease and desist from the unfair practices found.62
Upon the basis of the above findings of fact and upon the entire record in the
case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Federal Labor Union No. 19119, AFL, is a labor organization, within the
meaning of Section 2, (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Morris
Pratt, John Williams, George Konroy, Noble Needham, Edward C. Clark, and
Sylvester Geolat, thereby discouraging membership in a labor organization, the
respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act. '
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
5. The respondent has not locked out Morris Pratt, George Konroy, Noble
Needham, and Sylvester Geolat in violation of Section 8 (3) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Socony Vacuum Oil Company, Inc., East
St. Louis, Illinois, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Federal Labor Union No. 19119, AFL, or any
other labor organization of its employees, by discharging, laying off, or refusing
to reinstate any of its employees or in any other manner discriminating in regard
to their hire or tenure of employment, or any term or condition of employment ;
(b) Interrogating its employees in respect to their concerted activities on be-
half of Federal Labor Union No. 19119, AFL, and the internal votes, discussions,
and affairs of that organization ;
(c) In any like or related manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form labor or,
61 See Matter of Crossett Lumber Company , 8 N. L. R . B. 440, 497-498.
52 See N. L. R. B. v. Express Publishing Company, 312 U. S. 426.
SOCONY VACUUM OIL COMPANY, INC. 1213
ganizations , to,join or assist Federal Labor Union No. 19119, AFL, 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to Morris Pratt and John Williams immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to
their seniority and other rights and privileges ;
(b) Make whole Morris Pratt and John Williams for any loss of pay that
they may have suffered by reason of the respondent's discrimination against
them, by payment to each of them of a sum of money equal to the amount which
he would normally have earned as wages from the date of the discrimination
against him to the date of the respondent's offer of reinstatement, less his net
earnings during said period ;
(c) Make whole George Konroy, Noble Needham, Edward C. Clark, and Sylves-
ter Geolat for any loss of pay that they may have suffered by reason of the
respondent's discrimination against them, by payment to each of them of a
sum of money equal to the amount which he would normally have earned as
wages during the period he was discriminatorily laid off,,less his net earnings
during said period ;
(d) Post at its refinery at East St. Louis, Illinois, copies of the notice attached
hereto and marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Fourteenth Region, after being signed by the respond-
ent's representative, shall be posted immediately by the respondent upon the
receipt thereof and maintained by it for sixty (60) consecutive days thereafter
in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material ;
(e) Notify the Regional Director for the Fourteenth Region in writing within
'ten (10); days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent locked out Morris Pratt, George Konroy, Noble Needham,
and Sylvester Geolat in violation of Section 8 (3) of the Act.
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 will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or coun-
sel for the Board may, within fifteen (15) days from the date of service of the
order transferring the case to the Board, pursuant to Section 203.38 of said Rules
and Regulations, file with the Board, Rochambeau Building, Washington 25,
D. C, an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve a copy upon each of the other parties
and shall file a copy with the Regional Director. Proof of service on the other
parties of all papers filed with the Board shall be promptly made as required by
Section 203.65. As further provided in said Section 203.39, 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.
FREDERIC B. PARKES, 2nd,
Trial Examiner.
Dated May 12, 1947.
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 OFFER to Morris Pratt and John Williams immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay suffered as a result of the
discrimination.
WE WILL MAKE WHOLE George Konroy, Noble Needham, Edward C. Clark,
and Sylvester Geolat for any loss of pay suffered as a result of the dis-
crimination against them.
WE WILL NOT discourage membership in FEDERAL LABOR UNION No. 19119,
AFL, or any other labor organization, by discharging, laying off, or refusing
to reinstate any of our employees or by discriminating in any other manner
in regard to their hire and tenure of employment or any term or condition
of their employment.
WE WILL NOT interrogate our employees in respect to their concerted
activities on behalf of FEDERAL LABOR UNION No. 19119, AFL, and the internal
votes, discussions, and affairs of that organization.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist FEDERAL LABOR UNION No. 19119,
AFL, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or protection.
SOCONY VACUUM OIL COMPANY, INC.,
Employer.
By -------------------------------------
(Representative) (Title)
Dated --------------------•
NoTE.-Any of the above-named employees presently serving in the Armed
Forces of the United States will be offered full reinstatement upon application
in accordance with the Selective Service Act, after discharge from the Armed
Forces.
This notice must remain posted for 60 days from the date thereof, and must not
be altered, defaced, or covered by any other material.