Standard Oil Co. of California

National Labor Relations Board - Board Decisions

Oct 10, 1950

91 N.L.R.B. 783 (N.L.R.B. 1950)

In the Matter of STANDARD OIL COMPANY OF CALIFORNIA and OIL
WORKERS INTERNATIONAL UNION, CIO
Case No. 20-CA-150.-Decided October 10, 1950
DECISION AND ORDER
On September 30, 1949, Trial Examiner Howard Myers issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices by discharging 40 strikers in violation of Section 8
(a) (3) of the Act, and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondent had not violated the Act by discharging
16 other strikers, and recommended that the complaint be dismissed as
to them. Thereafter the Respondent and the Union filed exceptions
to the Intermediate Report; the Respondent also filed a supporting
brief. The requests of the Respondent and the Union for oral argu-
ment are hereby denied, as, in our opinion, the record, including the
exceptions and brief, adequately present the issues and positions of the
parties.
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 the Respondent's brief, and the
entire record in the case, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations with the following additions,
exceptions , and modifications.'
Respondent's Motions
1. On May 1, 1950, the Respondent filed a motion to reopen the
record to show that the full 60-day notice required by Section 8 (d)
I The Intermediate Report contains erroneous statements which do not affect our ulti-
mate conclusions. These statements are to the effect that Paasch, one of the victims in
the Clark Harbor assault , more-fully described in the Intermediate Report, admitted in
his testimony that he could not identify the attackers; that Donald Donaldson took no
part in the rock -throwing incident of October 18; and that Warner testified that he
overheard a conversation between Hardin, Kelley, and a cab driver on October 25, 1948,
as set forth in the Intermediate Report. Paasch and Warner did not so testify ; and the
record shows that Donaldson threw one rock in the direction of a building. We therefore
reject these inaccurate statements.
91 NLRB No. 87.
783
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act had not been served, as a result of which the .strikers lost
their employee status, and for leave to except to the Trial Examiner's
finding, namely, that the Union elected to reopen the wage clause of
the existing contract 90 days before the inception of the strike. In
its motion, supported by affidavits and brief, the Respondent asserts
that post-office records of registered mail show that the Union de-
posited its notice in the post office on July 2, 1948; that the post office
delivered the notice to the Respondent at 9.10 a. in. on July 6, 1948;
and that the strikers went out on strike at midnight on September 3,
1948, 59 days after receipt of notice by the Respondent. The Respond-
ent further asserts that, due to "inadvertence and a reasonable mis-
take," certain of this evidence was not discovered until between April
18 and April 25, 1950; 2 and that a ruling by a Trial Examiner in the
Intermediate Report in The Ohio Oil case, 21-CA-300, issued on April
7, 1950, established for the first time the materiality of the additional
evidence now offered.
The Respondent's motion is denied as untimely filed, coming -as
it does approximately 10 months after the hearing began, 91/2 months
after the hearing closed, and 7 months after the Intermediate Report
was issued. The Respondent had knowledge as to when it received
the notice when that-event occurred, and it could have made an investi-
gation before the, hearing similar to that it made in April 1950 to
unearth the allegedly newly discovered evidence. Moreover, even
if the motion were to be regarded as timely, it is denied as being
without merit for the reasons set forth in the Board's Order in The
Ohio Oil case, 91 NLRB No. 138, where the Board is holding that the
day of receipt of notice should be included in computing the 60-day.
notice period required by Section 8 (d) of the Act. - Assuming for the
purposes of this decision, as the Respondent contends, that it did
not receive the notice until July 6, 1948, as the strike did not begin
until after completion of the shift which ended at midnight on Sep-
2 The notice In this case, attached as an exhibit to the Respondent's brief in support of
its motion, bears on Its face a stamp indicating receipt thereof by the Respondent on July
5, 1948. The Respondent contends that the notice was mistakenly so stamped, and should
have been stamped "July 6, 1948," when It was received by the Respondent. In an
affidavit, accompanying the Respondent's motion, Its personnel manager, R. W. Codeglia,
states that the alleged mistake occurred in the following manner : It is his practice, after
reading mail routed to his desk, to mark it with a stamp showing his name and the date ;
the Respondent's office is "generally" closed on Saturdays and Sundays ; from force of
long habit, on Mondays he changes his date stamp forward 3 days before using it ; In 1948,
July 4 fell on a Sunday and was celebrated on Monday, July 5, on which date the office
was closed, and he spent the day elsewhere ; Tuesday, July 6, was the first day that he
attended his office since the previous week ; and, he erred in stamping the notice "July 5"
instead of "July 6," In that he changed his stamp the usual 3 days forward.
STANDARD OIL COMPANY OF CALIFORNIA 785
tember 3, 1948, namely, on September 4, 1948,3 the Respondent re-
ceived the full 60-day notice required by the statute.
2.' On May 18, 1950, the Respondent filed a motion to dismiss this
proceeding on the ground that the Congress of Industrial Organiza-
tions, the parent of the charging union, was. not in compliance with
Section 9 (f), (g), and (h) of the Act at the time of issuance of the
complaint. For the reasons stated in Bethlehem Steel Company,
Shipbuilding Division, and Bethlehem-Sparrows Point Shipyard, Inc.,
89 NLRB 1476 and in J. H. Rutter-Rex Manufacturing Co., Inc., 90
NLRB 130, this motion is hereby denied.
3. On June 19, 1950, the Respondent filed another motion to reopen
and supplement the record together with a motion that the Board take
judicial notice of certain proceedings on the ground that a California
State court, on June 14, 1950, found 24 complainants here (of whom
we hereinafter give relief to 15) guilty of violating an injunction re-
straining mass picketing and acts of violence in connection with the
strike involved in the instant case. This Board is not bound by deter-
minations of a State court in a proceeding to which the Board is not
a party; and, so far as appears, the California court did not make spe-
cific findings of fact as to the alleged misconduct of the strikers. Un-
der these nircumstances, we must rest our findings upon the evidence
in the record before us. These motions are hereby denied.
On September 4, 1948, more than 3,000 employees at the Respond-
ent's refinery at Richmond, California, at the instance of the Union,
went on strike when bargaining negotiations to renew a contract
proved unsuccessful. During the course of the strike, violence and
disorder occurred, participated in by strikers and nonstrikers. Dur-
ing the strike, the Respondent took pictures of the strikers and their
activities near the refinery premises but did not similarly cover the
activities of nonstriking employees who engaged in missile-throwing
episodes with the strikers. At the end of the strike, on or about
November 8, 1948, the Respondent reinstated the bulk of the strikers,
but discharged 62 purportedly for cause. Included among the 62
were those whom management identified as appearing in the photo-
graph S.4
8 The Trial Examiner in the instant case found that the strike occurred "at midnight on
September 3." As a new day begins simultaneously with the ending of the preceding day,
we find that the strike began on September 4_1948. We therefore include September 3 in
computing the 00-day period.
The Respondent reinstated two union officers although they were identified by manage-
ment as appearing in the photographs , but they were reinstated because of their long
service with the Respondent.
Except as to one striker , who abandoned the strike before the Union terminated it, the
Respondent did not discharge any nonstriker . This employee allegedly was discharged
because he called others who abandoned the strike names.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges in substance that the Respondent discharged
and refused to reinstate 60 employees at the end of the strike because
of their membership in the Union and because of their concerted ac-
tivities during the strike, in violation of Section 8 (a) (3) and Sec-
tion 8 (a) (1) of the Act. In its answer, the Respondent stated that
the complainants involved here "were refused reinstatement and dis-
charged solely because of their . . . misconduct and their participa-
tion in . . . unlawful and violent acts.".
At the hearing the Trial Examiner granted the General Counsel's
motion to dismiss the complaint as to 4 employees. In his Interme-
diate Report, the Trial Examiner found that 16 employees engaged
in unprotected activity and that the Respondent was therefore jus-
tified in discharging them. He also found that the remaining 40
employees had not engaged in any unprotected activity and con-
cluded that, by discharging them because of their union activities, the
Respondent violated Section 8 (a) (3) and Section 8 (a) (1) of the
Act.
1. We agree with the Trial Examiner that the 40 employees listed
in Appendix A of the Intermediate Report did not engage in unpro-
tected activity. However, our reasons for this conclusion differ from
those of the Trial Examiner in the cases of James A. Bradley and
Rovick Ottino, Jr.
(a) According to its bill of particulars, the Respondent discharged
Bradley because he prevented, the passage of railroad trains to and
from the refinery by standing on the tracks and refusing to move
therefrom, and by physically resisting attempts by police officers to
clear the railroad tracks. At the hearing, there was conflicting testi-
mony as to whether Bradley walked back and forth across the rail-
road tracks or walked parallel to the tracks when locomotives ap-
proached the picket line at gate No. 31. Bradley testified that he
walked back and forth parallel to the tracks on October 6, and again
on October 7 or 8, 1948, when the police pushed him to one side as
a locomotive proceeded into the refinery.5 On the other hand, the Re-
spondent's witnesses testified that Bradley continued to walk back and
forth across the tracks as the locomotives approached the picket line.
The Trial Examiner did not resolve this conflict in testimony because
he regarded it "as of no great moment." He stated in substance that
the conflict need not be resolved. because the Respondent itself had
erected barricades at gate No. 31 at the inception of the strike so that
no vehicle could enter or leave through the gate before October 7 or 8.
However, the record does not support the Trial Examiner's finding
5 On October 6, the locomotive departed without entering the refinery premises because the
train crew chose not to cross the picket line.
ST'AN'DARD OIL COMPANY OF CALIFORNIA 787
that the Respondent had blocked entry to and from gate No. 31. The
record shows that the Respondent placed barriers, easily removable,
at the side tracks but left the main *track clear at all times, and that
locomotives, en route to destinations beyond the Respondent's refinery,
actually passed through gate No. 31 throughout the strike .6 Never-
theless, like the Trial Examiner, we find it unnecessary to determine
whether Bradley walked back and forth across the railroad tracks
or parallel to the tracks when the locomotives approached the picket
line.
Bradley's conduct in picketing across the railroad tracks is no dif-
ferent from the picketing engaged, in by striker Charles Borreani
across the entrance way to the Respondent's parking lot which . we
hereinafter find to be protected activity. The record does not estab-
lish that Bradley was blocking ingress by merely walking back and
forth across the track when an approaching locomotive was some dis-
tance away. Nor do we regard Bradley's mere statement, uttered in
the heat of controversy, that he would lie down on the tracks rather
than permit passage of trains, as sufficient under the circumstances to
constitute an attempt to block entry to the refinery.
We conclude therefore that in either event Bradley's conduct did
not constitute illegal activity or exceed the bounds of picketing pro-
tected by the Act.
(b) While at the union hall, Ottino was attracted by a commo-
tion at refinery gate No. 1, about a block away. When he approached
the gate, he found strikers on the outside of the gate and nonstrikers
on the inside of the gate throwing missiles at each other. Because
rocks were thrown at him, Ottino threw two stones, each "a little
bigger than the size of a penny" back. The stones did not travel far
as Ottino has a "crooked" right arm, and fell harmlessly. While not
condoning Ottino's conduct, the Trial Examiner concluded that
Ottino's discharge was unlawful because the Respondent did not dis-
cipline any nonstriker for throwing missiles. We do not adopt the
Trial Examiner's rationale. In our opinion, Ottino's conduct under
the circumstances hereinabove set forth, unlike that of striker Brackin 7
and that in the Smith Cabinet case 8 relied on by our dissenting col-
6 refers to passage of trains to which the Union had no objection . In addition, the
Trial Examiner did not determine whether Bradley walked back and forth across the tracks
when the locomotive approached the picket line on October 7 or 8, when concededly the
Respondent removed all self-erected barricades.
7 Brackin was arrested while he had his hand raised to throw a rock at three police officers
who were escorting to a squad ear a nonemployee who had smashed the windows of a num-
ber of cars which were . being driven into the Respondent 's parking lot. Brackin refused to
throw the rock away when ordered to do so by the arresting officer.
I In the Smith Cabinet case, the only issue was whether certain conduct engaged in by
unions or their agents violated Section 8 (b) (1) (A) of the Act. The Board found that
the Respondent Unions or their agents engaged in restraint and coercion by conduct cover-
ing 14 incidents which included the following, set forth in the Intermediate Report which
917572-51-vol. 91-51
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
league, was not of such a serious nature as to pass the limits of pro-
tected activity. We conclude that the Respondent was not justified
in discharging Ottino for such conduct.
2. Except as to Charles J. Borreani, William E. McLaughlin, and
Thomas B. Ogden, we agree with the Trial Examiner that the em-
ployees listed in Appendix B of the Intermediate Report engaged in
unprotected activity.
(a) While picketing, Charles J. Borreani walked back and- forth
.across the entranceway to the Respondent's parking lot; he was
bumped by cars seeking to enter; police officers pulled him out of the
way at least twice; and, after being so removed by police on at least
two occasions, he continued to walk back and forth in the entrance-
way.
(b) The Trial Examiner concluded that William E. McLaughlin
engaged in unprotected activity because of his admission at the hear-
ing that he was "shoved" and "pushed" by police officers while on the
picket line and because of a photograph which, in the Trial Examiner's
view, shows that McLaughlin is "about to go to the aid of the person
with whom the police officers are struggling." 9 We reject this view
as speculative. The photograph does not show that McLaughlin was
engaged in any improper activity. McLaughlin testified that, when
cars approached the picket line the police cleared a lane for them by
forming a line on each side of the driveway and pushed the crowd
back, and that he got out of the picket line because the police started
pushing without giving the pickets an opportunity to get out of the
way of approaching cars. The Trial Examiner reasoned that Mc-
Laughlin was engaged in illegal activity as otherwise the police
would not have "pushed" him. We reject this reasoning.
(c) The Trial Examiner found that Thomas B. Ogden engaged in
unprotected activity "by 'attempting to prevent employees desiring
to enter the refinery from doing so." Ogden testified that, when
employees arrived in their cars, police officers pushed "the people"
so that the cars could enter the parking lot; that police officers pushed
him back almost continuously; that he did not walk back and forth
in the entrance of the driveway, but spent most of his time "trying
to stay" on his feet, as he is a cripple. The Trial Examiner discredited
the Board adopted ( 81 NLRB 886 , 901) : "On September 4, [Union] President Burger
brought some building bricks to the picket line, broke them into small pieces and deposited
them in several piles along Market Street in the vicinity of the main plant entrance and
close to the pickets. As he deposited them he said, `There is something if we have trouble.'
The bricks which were in plain view of all passersby as well as the various union officials
on the scene were removed after the pickets were told on September 12 to discard their
sticks."
9 The Trial Examiner did not mention testimony of a picket that he saw McLaughlin
"tusseling with the police ." However , we give this testimony no weight as the witness
did not describe the circumstances giving rise to the incident.
STANDARD OIL COMPANY OF CALIFORNIA 789
Ogden's entire testimony and found that a "picture shows Ogden
walking across the entrance of the parking lot unassisted." 10 While
we do not disturb these credibility findings, there is no affirmative
testimony in the record showing that Ogden engaged in any improper
activity.
On the basis of , the foregoing, we conclude that Borreani,11 Mc-
Laughlin, and Ogden did not engage in unprotected activity and that
the Respondent was not justified in discharging them. 'Accordingly
we find, that the Respondent, on or about November 8, 1948, dis-
charged Borreani, McLaughlin, and Ogden, as well as the 40 em-
ployees listed in Appendix A of the Intermediate Report,- because
of their union and concerted activities, particularly, their activities
connected with the strike. We further find that, by the discharge'
of these 43 employees, the Respondent discriminated in regard to their
hire or tenure of employment to discourage membership in the Union
in violation of Section 8 (a) (3) of the Act, and thereby interferred
with, restrained, or coerced employees in the exercise of the rights
guaranteed in Section 7, in.violation of Section 8 (a) (1) thereof.
3. The Respondent contends that, even though the record does not
establish that the strikers individually engaged in any specific act of
misconduct, the Respondent had "a right to discharge all those identi-
fied in the mob" which gathered at refinery gates, because "the massed
. .. employees was . . . 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." 12 However, unlike the situation
in Socomy Vacuum the strikers here did not gather at the gates pur-
suant to any plan to obstruct entry to or from the refinery, or any
other illegal plan; and the record discloses, as the Trial Examiner
found, that many of these strikers who are accused of being a mem-
ber of a mob were merely observers who stood apart from those who
gathered directly in front of the Respondent's gates. Moreover, as
the' record shows, many cars and persons entered the refinery gates
without incident despite the presence of the crowds.
4. The Respondent further contends that, even though it be estab-
lished that the strikers did not engage in any unprotected activity,
nevertheless the Respondent in good faith believed tb Wt they did, and
therefore its action in discharging them was not violative of the
Act-an unlawful motive being absent. In our opinion this con-
'0 Although the picture. shows Ogden walking across the driveway, there is no car in
sight and Ogden is not shown to be blocking passage of anyone.
11 Unlike our dissenting colleague, we do not construe the record as showing a "fixed
determination to bar ingress to plant property" on Borreani's part. Nor in our opinion
would such a mere determination or intent, in the absence of any attempt or effort to bar
ingress , al1ieit unsuccessful, be sufficient to deprive an employee of the protection of the Act.
12 Quoting from Socony Vacuum Oil Co., Inc., 78 NLRB 1185, 1186.
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tention has no basis in fact as the Respondent did not act on the
basis of a good-faith belief. During the strike, violence had occurred,
participated in by both the strikers and nonstrikers. In general, the
Respondent selected the strikers for discharge after viewing pictures
showing strikers in the vicinity of the refinery during the strike;
any striker identified was discharged, except as stated above. The
Respondent did not take any picture showing the activities of the non-
strikers. Although some were arrested, none of the 43 strikers, re-
ferred to above, have been tried or convicted of any crime. None of
the strikers accused of misconduct were interviewed by the Respond-
ent; nor were any of them given any opportunity to contradict the
charges against them. Other than stating that the dismissals were
for "cause," at the time of the discharges the Respondent gave no ex-
planation for its action although the complainants asked why they
were being discharged. At the protracted hearing before the Trial
Examiner, it became clear that the Respondent had no evidence in
many instances to link these strikers with any specific act of miscon-
duct; yet, so far as it appears, the Respondent did not see fit to offer
reinstatement to any of these strikers. Finally, in its answer, the
Respondent stated that it discharged the strikers "solely" because they
engaged in misconduct; it was not until the Respondent filed its brief,
long after the discharges, that it shifted its position to the defense now
urged.
In any event, assuming arguendo that the Respondent entertained
such a good-faith belief at the time of the discharges, we hold that
this defense is invalid as a matter of law. In the Mid Continent
Petrolewrm Corp. case (54 NLRB 912), the Board enunciated the rule
that an employer who refused to reinstate strikers, as such, even upon
an honestly mistaken belief that they had engaged in forbidden con-
duct, has no valid defense, if, in fact, the employees were not guilty
of the forbidden conduct.13 Under this doctrine, the discharges may
be viewed, as we view them here, as having been made because of law-
13 The principle announced in the Mid-Continent case grew out of the alleged seizure of
the employer's plant by strikers. However, the Board dismissed the complaint in that case
as to these strikers because of prejudicial errors of the Trial Examiner not pertinent here.
In Perfect Circle, 70 NLRB 526, reversed on other grounds in 162 F . ( 2d) 566 , the Board
applied the Mid-Continent doctrine to a situation in which the employer urged that its
plant manager reasonably believed that striking employees barred his entry to the plant
under threat of violence. See, also, N. L. R. B. v. Clinchfield Coal Corp., 145 F. (2d) 66. In
that case , the Court reversed the Board's findings of unlawful discrimination with respect
to a group of employees who during a strike engaged in unlawful interference with the
employer ' s property . However, with respect to the discharge of three other strikers who
were dismissed by the employer because of a belief that they also engaged in such mis-
conduct , the Court stated that the Board found upon conflicting evidence that, although
these three men were present at the scene , they took no part in the unlawful conduct.
Consequently , the Court concluded that the employer did not have good cause to discharge
these strikers and sustained the Board 's reinstatement and back-pay order as to them.
STANDARD OIL COMPANY OF CALIFORNIA 791
ful strike activity, unless the employer affirmatively proves employee
misconduct. To hold otherwise would be to place employees who en-
gage in lawful strike activities with the hope of returning to their
jobs at the end of the economic struggle at the mercy of an employer
who. may sincerely regard their conduct as unlawful. The function
of determining whether the strikers' conduct is lawful or unlawful has
been entrusted by the Congress to the Board, subject to judicial review,
and not to any private agency. Thus an employer, who discharges a
striker on the ground that he has engaged in unlawful strike activi-
ties, does so at the peril of deciding wrongly. As the record does not
establish that the 43 strikers, referred to above, engaged in any un-
protected activity, the doctrine of the llid-Continent case is appli-
cable as to them.
The Respondent also urges that Section 10 (c) of the amended Act,
which requires the. Board to base its decisions "upon the preponder-
ance of the testimony," precludes us from imposing on the Respond-
ent the burden of showing that the strikers had in fact been guilty of
misconduct. We hold that this requirement is met, as it is here, upon
a showing that the Respondent discharged the strikers because of their
strike activity. As we have noted, misconduct is an affirmative de-
fense. Section 10 (c) does not operate to overturn the well estab-
lished principle of law that the burden of establishing an affirmative
defense is on the party alleging it.
The Remedy
In accordance with our usual practice, the ,period from the date of
service of the Intermediate Report to the date of our Order herein
will be excluded in computing the amount of back pay to which
Charles J. Borreani, William E. ]McLaughlin, and Thomas B. Ogden
are entitled, as the Trial Examiner did not recommend their rein-
statement or an award of back pay to them.
Since the issuance of the Trial Examiner's Intermediate Report, the
Board has adopted a method of computing back pay different from
that prescribed by the Trial Examiner.14 Consistent with`the new
policy, we shall order that the loss of pay be computed on the basis of
each separate. calendar quarter or portion thereof during the period
from the Respondent's discriminatory conduct to the date of a proper
offer of reinstatement. The quarterly periods, hereinafter called
"quarters," shall begin with the first day of January, April, July, and
October. Loss of pay shall be determined by deducting from a sum
equal to that which the employee would normally have earned for each
14 F. W. Woolworth Company, 90 NLRB 289.
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter or portion thereof, his net earnings,15 if any, in other employ-
ment during that period. Earnings in one particular. quarter shall
have no effect upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board,
upon request, payroll and other records to facilitate the checking of
the amount of back pay due and to determine the right to reinstate-
ment.16
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders` that the Respondent, Standard Oil
Company of California, San Francisco, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union,
affiliated with the Congress of Industrial Organizations, or any other
labor organization of its employees, by discharging or refusing to
reinstate any of its employees or by discriminating in any other man-
ner in regard to their hire or tenure of employment, or any term or
condition of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist Oil Workers International Union,
affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to re-
frain from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to the persons whose names appear upon Appendix A,
hereto annexed, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges;
(b) Make whole the persons whose names appear upon Appendix A,.
hereto annexed, for any loss of pay each may have suffered by reason
of the Respondent's discrimination against him by payment to each
w Crossett Lumber Company, S NLRB 440; Republic Steel Corporation V. N. L. R. B.,
311 U. S. 7.
36F. W. Woolworth Company, supra.
STANDARD OIL COMPANY OF CALIFORNIA 793
of them of a sum of money equal to the amount which he normally
would have earned as wages in the manner set forth in the section of
the Intermediate Report entitled, "The remedy," and in our Decision
herein ;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other rec-
ords necessary to analyze the amounts of back pay due and the right
of reinstatement under the terms of this Order;
(d) Post at its refinery in Richmond, California, copies of the notice
attached hereto, marked Appendix C.17 Copies of said notice, to be
furnished by the Regional Director for the Twentieth Region, shall,
after being signed by the Respondent's representative, be posted by the
Respondent, and maintained by it for sixty (60) consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material;
(e) Notify the Regional Director for the Twentieth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT is r: URTIIER ORDERED that the complaint with respect to the 13 per-
sons whose names appear upon Appendix B, hereto annexed,^be, and
it hereby is, dismissed.
CHAIRMAN' HERZOG took no part in the consideration of the above
Decision and Order.
MEMBER REYNOLDS, dissenting in part :
I concur in the majority opinion, except insofar as it finds that
strikers Ottino, Borreani, and Bradley engaged in protected strike
activity, and that the Respondent therefore violated Section S (a). (3)
and 8 (a) (1) in discharging them.
Ottino: It is undisputed that Ottino engaged in the rock-throwing
incident of October 18, with strikers and nonstrikers throwing over
the plant fence at each other. Although fortuitous for those at whom
Ott] no aimed the stones, the fact that the stones thrown by him were
but "a little bigger than the size of a penny" does not lessen the serious-
ness of his activity. Nor does the fact that because of his "crooked
right arm," Ottino, as found by the Trial Examiner, "doubted whether
the stones he threw went over the fence", exonerate him. Accord-
11 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order ," on this notice , the words,
"A Decree of the United States Court of Appeals Enforcing."
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ingly, as we are herein finding that striker Hosea D. Brackin engaged
in unprotected. activity merely by picking up a stone for the purpose
of throwing it in a fracas not unlike the October 18 incident, and as
we have previously found that the mere "open piling of bricks for the
use by the pickets" constitutes illegal activity within the meaning of
the Act,"' I believe that the Board should find that the actual throwing
of stones by Ottino constituted unprotected activity.
B.orreani: As set forth in the majority opinion, Borreani, while
picketing, walked back and forth across the entranceway to the
Respondent's parking lot, was bumped by cars seeking to enter the
lot, and was pulled out of the way at least twice by police officers. As
Borreani was bumped by cars attempting to enter the parking lot and
as he was forcibly moved by the police from the entranceway, Bor-
reani exhibited a fixed determination to bar ingress to plant property,
which determination was thwarted only by superior mechanical and
physical force. It is immaterial- that Borreani's efforts did not suc-
ceed for as we have held, in evaluating violations of Section 8 (b) (1)
(A), "the Act does not require the . . . efforts to prevent employees
from entering or leaving the plant to be successful." 19 In my opin-
ion, Borreani's conduct exceeded the bounds of peaceful picket line
persuasion and constituted unprotected activity.20
Bradley: The majority opinion finds it unnecessary to resolve a con-
flict in testimony to determine whether Bradley walked back and forth
across the railroad tracks, or parallel to the tracks, when locomotives
approached the picket line, for in either event it concludes that Brad-
ley's conduct did not constitute illegal activity or exceed the bounds of
picketing protected by the Act. I cannot agree with this conclusion,
for if Bradley did in fact bar'ingress, or attempted to bar ingress, his
conduct in my opinion would not be protected.
Bradley testified that he walked back and forth parall el to the tracks
on October 7 or 8, 1948, when the police shoved him to one side as a
locomotive proceeded into the refinery. On the other hand, Acting
Chief of Police Phipps testified that Bradley continued to walk back
and forth across the tracks as the locomotive approached the picket
line. Police Captain Brown and J. L. Creighton, the Respondent's
chief special agent, whose primary duty it is to protect the Respond-
ent's property, corroborated Phipps' testimony. Thus, to resolve the
iS United Furniture Workers of America; Local 309, CIO, at al. (Smith Cabinet Manufac-
tnring •Company, Inc.), 81 NLRB 886.
19 Local No . 1150 , United Electrical, Radio 0 Machine Workers of America, at al. (Cory
Corporation). 84 NLRB 972.
20 United Furniture Workers of America , CIO, at al . ( Colonial Hardwood Flooring Co.),
84 NLRB 563. Borreani's conduct is to be distinguished from that of picketers McLaughlin,
Ogden , and Emmanuele , all of whom the Board unanimously finds engaged in protected
activity. The latter three made no attempt to bar ingress as they were pushed away from
the parking lot entrance by police before cars attempted to enter the lot.
STANDARD OIL COMPANR OF CALIFORNIA 795
conflict, Bradleys' testimony must be balanced against that of Phipps.
The Trial Examiner credited Phipps' testimony as to other matters.
Phipps' testimony in this insta-nce is supported by that of Creighton
and Brown. Brown testified that the trains would have run into
Bradley had they proceeded without having him removed. Bradley,
although called in rebuttal, did not deny Phipps' testimony that
Bradley stated, in substance, that he would "lay down on the tracks
first," rather than permit passage of trains into the refinery. In my
opinion, the weight of the testimony supports the conclusion that
Bradley blocked entry to the refinery on October 7 or 8, and that he
had to be removed physically by police officers to permit the passage
of railroad trains to the refinery. My reasons for finding Borreani's
conduct unprotected are therefore applicable here. I would there-
fore find that Bradley's conduct does not constitute protected
activity.,,
Upon the basis of the foregoing, I would dismiss the complaint with
respect to Ottino, Borreani, and Bradley.
APPENDIX A
Al Alcaraz
Edward Anschutz
Charles J. Borreani
James A. Bradley
William J. Brakke
Aaron H. Bright
Glenn H. Brock
Harvey G. Bushong
Harry A. Coleman
William T. Collinsworth
Leonard E. Dausy
William J. Dodson
Daniel H. DQnaldson, Jr.
Salvatore Ei inanuele
Antone Gayanich
Frank Gayanich
Kenneth H. Gillespie
Carl Grothues
Elmer K. Gunter
Leon Hall
Max R. Hammon
Carroll F. Hardin
Carlos Higginbotham
John D. Hollis
James W. Kelley
Herman W. Langensand
Elroy H. Leighty
Bert F. Lods
Lewis MacDonald
Chaverlo Martinez
William E. McLaughlin
Theodore Moczkowski
Vernon L. Morgan
Rudolph P. Nelson
Thomas B. Ogden
Rovick Ottino, Jr.
Sl The October 7 or 8 incident is to be distinguished from the October 6 incident wherein,
as detailed in the Intermediate Report , a Santa Fe Railroad locomotive approached the
picket line , came within 3 or 4 feet of the picketers and stopped , remained there 3 or 4
minutes, and then backed away . On October 6, as found by the Trial Examiner , the reason
the locomotive backed away instead of proceeding into the refinery was because, as the
Santa Fe Railroad yardmaster who was aboard the locomotive stated , the crew of the
locomotive voluntarily determined not to pass through the picket line.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
William A. Peterson Edwin L. Vanek
Wilburn Pittman, Jr. Buford L. Vetter
Porter A. Poison Daniel T. Wyatt
Doris G. Snead
APPENDIX B
Hosea D. Brackin George D. Moore
Louis Ferreira George Rothacker
John Gayanich Floyd C. Selle
Martin Harwayne Thomas R. Vandergrift
Owen D. Keenan W. L. Vetter
Patrick A. MacDonald Archie G. Wyrick
Edward A. Meindersee
APPENDIX C
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,.
to form labor organizations, to join or assist OIL WORKERS IN-
TERNATIONAL UNION, affiliated with CONGRESS OF INDUSTRIAL
ORGANIZATIONS, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities, except to the extent that any such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as amended.
WE WILL OFFER to the employees named below 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.
Al Alcaraz
Edward Anschutz
Charles J. Borreani
James A. Bradley
William J. Brakke
Aaron H. Bright
Glenn H. Brock
Harvey G. Bushong
Harry A. Coleman
William T., Collinsworth
Leonard E. Dausey
William J. Dodson
STANDARD OIL COMPA'TR OF CALIFORNIA
Daniel. H. Donaldson,
Jr.
Salvatore Emmanuele
Antone Gayanich
Frank Gayanich
Kenneth H. Gillespie
Carl Grothues
Elmer K. Gunter
Leon Hall
Max R. Hammon
Carroll F. Hardin
Carlos Higginbotham
John D. Hollis
James W. Kelley
Herman W. Langensand
Elroy H. Leighty
Bert F. Lads
Lewis MacDonald
Chaverlo Martinez
William E. McLaughlin
Theodore Moczkowski
Vernon L. Morgan
Rudolph P. Nelson
Thomas B. Ogden
Rovick Ottino, Jr.
William A. Peterson
Wilburn Pittman, Jr.
Porter A. Polson
Doris G. Snead
Edwin L. Vanek
Bufford L. Vetter
Daniel T. Wyatt
797
All our employees are free to become or remain members of the
above-named union or any other labor organization. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of membership
in or activity on behalf of any such labor organization.
STANDARD OIL COMPANY OF CALIFORNIA,
Ein plover.
By ------------------------------------------
(Representative ) ( Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced or covered by any other material.
INTERMEDIATE REPORT
Messrs. Benjamin B . Law and Clayton O. Rost, for the General Counsel.
Pillsbury , Madison & Sutro , by Messrs . Charles F. Praet, Samuel L. Wright, and
Richard J. MacLaury , for the Respondent.
Jay A. Darwin, Esq., for the Union.
STATEMENT OF THE CASE
Upon a second amended charge, duly filed on February 9, 1949, by Oil Workers
International Union, affiliated with Congress of Industrial Organizations, herein
called the Union, the General Counsel of the 'National Labor Relations Board,
herein respectively called the General Counsel and the Board, by the Regional
Director for the Twentieth Region (San Francisco, California), issued his com-
plaint on March 23, 1949 alleging that Standard Oil Company of California, San
Francisco, California, herein called the Respondent, had engaged in, and was
engaging in, unfair labor practices affecting commerce, within the meaning of
Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, as amended, 61 Stat. 136, herein called the Act.
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of the complaint and the second amended charge, together with notice
of hearing thereon, were duly served upon the Respondent and the Union.
With respect to the unfair labor practices, the complaint, as amended at the
hearing, alleged in substance, that between November 8 and 13, 1948, or within
a few days thereafter, the Respondent discharged, and thereafter refused to
reinstate, 60 named persons because of their membership in the Union and
because of their concerted activities for the purpose of. collective bargaining and
other mutual aid or protection during the strike which took place at the Re-
spondent's Richmond, California, refinery between September 3 and November 8,
1948, thereby discouraging membership in the Union in violation of Section
8 (a) (1),and (3) of the Act.
On March 31, 1949, the Respondent duly filed an answer denying the commis-
sion of the alleged unfair labor practices. The answer affirmatively averred
that 2 of the alleged discriminatory dischargees, George Davis and D. J. Greiner,
were not discharged but that each had voluntarily resigned and terminated his
employment with the Respondent on certain stated dates. As to the remaining
58 persons named in the complaint, the answer averred that they were discharged
and were refused reinstatement after the aforesaid strike because each of the
said persons had engaged in certain misconduct and had participated in certain
unlawful and violent acts during the said strike.
Pursuant to notice, a hearing was held in Richmond, California, from June
21 to August 15, 1949, before Howard Myers, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. The General Counsel, the Respond-
ent, and the Union were represented by counsel and participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence pertinent to the issues was afforded all parties.
Before the taking of any evidence, the motion of the General Counsel to dismiss
the complaint as to D. J. Greiner was granted without objection. At the conclu-
sion of the General Counsel' s case-in-chief, the Respondent's counsel moved to
dismiss the complaint as to George S. Davis. The motion was granted. The
Respondent's counsel then moved to dismiss the complaint in its entirety for
lack of proof. The motion was denied. Before the close of the hearing, the
General Counsel moved to dismiss the complaint as to Orley R. Hershberger and
Joseph C. Regan. The motion was granted. During the course of the hearing,
the undersigned reserved decision upon the Respondent's motion to strike a
certain answer of witness Edward A. Meindersee which answer appears on
pages 859-860 of the stenographic transcript of the proceeding herein. The
motion is hereby granted.
At the conclusion of the taking of the evidence, the undersigned informed the
parties that they might file briefs with him on or before August 30, 1949. Upon
the request of the Respondent, the time was extended to September 14, 1949.
Briefs have been received from the General Counsel and from counsel for the
Respondent, which have been carefully considered by the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Standard Oil Company of California, a Delaware corporation, has its principal
place of business and offices in San Francisco, California, and is engaged in the
production, refining, transporting, sale, and distribution of petroleum and
STANDARD OIL CUMPANT OF CALIFORNIA 799
petroleta l products . The Respondent oWns and operates refineries at Richmond,.
BakeW-Aeld , and El Segundo, California , and through certain subsidiaries operates.
refineries in the State of'Texas and in British Columbia . Besides these refineries,..
the Respondent , its subsidiaries , and its affiliates own, lease , or hold under con-
tract extensive oil fields within the United States and in certain foreign countries..
During 1948 , the Respondent produced in the State of California over 70 million
barrels of refined .petroleum products of which more than 75 percent was shipped
to points located outside the State of California . During 1949, substantial
amounts of Respondent ' s products were shipped from its California refineries to
points located outside the State of California.
The undersigned finds that the Respondent, at its Richmond, California,
refinery, the -employees of which are the only ones involved in this proceeding,
is engaged in commerce , within the meaning of the Act.
II. THE 1O.RaA-NLZATI1DN INVOLVED
Oil Workers International Union, affiliated with the Congress of Industrial
(Oaga'nizations, is a labor organization admitting to membership employees at the
Respondent's Richmond, California, refinery.
IIS. 'TIMER: UNFAIR LABOR Pn.AUTICES
-A. Background
For several years prior to 1048, the Respondent had Thad )llective bargaining:
contractual relations with thief Uni.on. By its ?terms the last agreement expired- on.
December 411, 1947. The terms of the said agreement, However, remainedy. tiy'
:mutual consent, in full force: and effect after its expiration date with the proviso
that they would continue to be effective until either party gave notice to, tbie,
other party that it desired to.reopen the wage clause of that said contract:.
Approximately 90 days prmr.to . September 3, 1948, ',the Union elected to reopen
(the wage clause. Thereupon., the parties entered into collective bargaining con-
ferences. No agreement was reached due mainly to the fact that the parties were
unable to eume to any agreement regarding wages.
The'kUnion called a strike which began at midnight on September 3, and a picket
nine was linniediately established around the refinery. Of the approximately
x,900 persons employed at the refinery at the time of the strike, all but 277 left.
,the refinery.
tmn or about September 13, the members of the various AFL craft unions em-
p1,oyed by the Respondent prior to the strike returned to the refinery and con-
tinued to work therein throughout the balance of the strike.
0etween September 3 and November 8, the day when the strike ended, about,
six or eight collective bargaining conferences were had between the officials of
the Respondent and the officials of the Union. These conferences were dis-
continued by the Respondent because it maintained, and properly so, that it
could not legally continue to bargain collectively with the Union because a repre-
sentation petition had been filed with the Board.
At a meeting between the Respondent and the Union held on or about October
29, which was attended by a conciliator of the Conciliation Service of the State
of California, the Respondent's spokesman stated that the Respondent would
prepare a memorandum embracing the terms upon which it would agree to a
strike settlement and wowid submit the said memorandum to the conciliator,
who, in turn, could .give It iipy thereof to the Union if he so desired.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about November 4, the parties again met with the conciliator and dis-
cussion was had with respect to the Respondent's memorandum. At this meet-
ing, the Respondent's spokesman stated that the Respondent would agree to
immediately reinstate all the strikers who, in its opinion, had not engaged in
any acts or conduct during the strike which would deprive them of their statu-
tory right to reinstatement.
On November 8, the Union called off the strike.' Thereupon all persons who
were still on strike, and desired reinstatement, registered for reemployment at
the Respondent's employment office pursuant to the Respondent's instructions.
All but 62 strikers were refused reinstatement and admittedly these 62 persons
were discharged, by the Respondent despite the fact that each of thesd 62 persons
unconditionally applied for reinstatment shortly after the end of the strike.
B. Interference, restraint, and coercion; the discharges
This case involves the very narrow issue whether the Respondent violated
Section 8 (a) (1) and (3) of the Act by discharging the 56 complainants here
involved in whole or in part because they had engaged in a strike called by the
Union or whether the Respondent validly discharged them, as it contends, for
the commission by them of certain illegal, unprotected acts during the strike,
The resolution of this issue revolves around the strike activities complained of
by the Respondent of these 56 persons. The facts regarding the strike activities
of the persons here involved will be discussed seriatim.
Albert Alcaraz was refused reinstatement because, as the Respondent alleged
in its bill of particulars :
Beginning -on or about the end of September 1948, to and including October
26, 1948, Alcaraz, and others, engaged in a campaign of terrorizing the
employees of respondent then working in its refinery at Richmond, California,
by pursuing in force said employees as they attempted to enter or leave said
refinery, by patrolling the area surrounding said refinery, particularly at
night, armed with clubs, rocks and other weapons in a manner calculated
to and which did under the circumstances intimidate respondent's employees
attempting to go to work ; and on October 12, 1948, with others, pursued,
assaulted, beat, molested and intimidated certain employees of respondent
at or near Clark's Yacht Harbor, adjacent to respondent's said refinery.
Although the Respondent contended that during the strike Alcaraz engaged
in various and sundry forms of misconduct, the only evidence introduced by the
Respondent of any purported misconduct was with respect to certain events
that took place during the early hours of October 12.
With respect to the events of that morning, Alcaraz testified that he got off
picket duty at about 11 o'clock the previous evening; 2 that he then went to the
union hall, as was . his custom, and at about 4 o'clock, Theodore Moczkowski
asked him if he wanted to go for a ride ; that he, Moczkowski, and three other
strikers, namely, Chaverlo Martinez, George Vetter, and Patrick A. MacDonald
got into Moczkowski's car and drove about with no particular destination in
I From time to time, throughout the course of the strike employees returned to their jobs
in the refinery so that by November 7, about 2,435 of them had abandoned the strike and
returned to their jobs. No new employees were hired during the strike.
2 For the first 3 or 4 weeks of the strike, Alcaraz usually picketed from 7 to 11 in the
morning, thereafter his hours were from 7 to 11 at night. After he had finished his picket
duty, at about 11 p. in., he normally remained at the union hall until 4 or 5 o'clock in the
morning.
STANDARD OIL COMPANY OF CALIFORNIA 801.
mind; that they eventually got on the road leading to Clark's Yacht Harbor ; 3
that en route to the Naval Depot he did not notice any other automobiles ; that
the car was stopped at the Naval Depot gate and the make and license number.
was recorded by a Respondent watchman who also recorded the number of
passengers in the car; that after leaving the Naval Depot he saw three or four
cars parked along the side of the road ; that upon arriving at the parking area of
the Yacht Harbor, they parked for about 15 or 20 minutes, during which time
the only person to alight from the car was Moczkowski who did so in order to
void and whD again got into the car within a few minutes ; that they parked
under a large floodlight which illuminated the entire parking area; that he saw
some cars parked in the parking area, but saw no people except the occupants
of Moczkowski's car, nor did he see any cars arrive or leave the Yacht Harbor
during the period they were parked; that while returning from the Yacht
Harbor the car was stopped about 200 or 300 yards from the Naval Depot gate
by the Respondent's guards who had been patrolling the vicinity of the Yacht
Harbor in an automobile ; that the guards ordered them to stop at the gate and
then refused to allow them to proceed further ; that about 20 minutes later a
police officer attached to the Police Department of the city of Richmond arrived
and, ordered the occupants of the car to alight therefrom, and searched the car ;
that thereafter two squad cars containing about six or eight additional Richmond
police officers arrived and they searched the other cars that were stopped behind
Moczkowski's ; that several hours later the police officers brought four men to
Moczkowski's,car, ordered the persons therein to alight, and then asked each
of the four men to carefully scrutinize the occupants of the car and to state
whether any of them were their attackers ; ' that he was personally acquainted
with three of the four,men who had been assaulted ; that as they approached
Moczkowski's car, he and the three men whom he knew smiled and cordially
greeted one another ; that besides the seven or nine police officers present when
the four men scrutinized the persons who had been in Moczkowski's car, there
also were present several of the Respondent's guards and several of the Re-
spondent's watchmen ; that after the assaulted men had failed to identify any
of the occupants of Moczkowski's car as being their attackers, the police officers
took the four men to the car parked directly behind Moczkowski's, ordered the
occupants thereof to alight, and after the four men stated to the police officers
that none of them committed the assaults, the police officers, without making any
arrests, permitted the halted cars to proceed.
The testimony of Moczkowski, MacDonald, and Martinez regarding what trans-
pired during their ride to and from the Yacht Harbor on the morning of October
12, is substantially in accord with that of Alcaraz'
Thomas Ogden, Harry A. Coleman, and Buford Vetter each testified, and the
undersigned credits their testimony, that they left the union hall on October 12,
3 A distance of about 10 miles from the union hall which is located directly across the
street from the refinery proper. The Yacht Harbor lies near the end of a peninsula which
is about 2 miles long and generally about a mile wide. The road to the Yacht Harbor passes
through a Naval Depot, the northwest boundary of which is about a mile or two from the
Yacht Harbor. Beyond this boundary is the Respondent's property. Where the Re-
spondent ' s property begins and the Naval Depot ends there is a gate at which , during the
strike, the Respondent maintained watchmen whose duties , among others , were to record
the make and license number of all cars passing through the said gate and to also note the
number of passengers in each car . The gate was erected and maintained by the Re-
spondent. The road passing through the gate is the only highway to the Yacht Harbor.
4 Five men were attacked along the railroad tracks that lead from the Yacht Harbor to
the refinery but only four of them were brought to the Naval Depot gate.
5 George Vetter did not testify , nor is hea complainant herein.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with another striker ' about the same time that Moczkowski and his companions
testified that they had left the Union Hall that morning ; that when they started
out in Coleman's automobile none of the occupants thereof, including Coleman,
had any particular designation in mind nor did they know that Moczkowski was
en route to the Yacht Harbor; and that, after driving about for awhile, they
decided to go to the Yacht Harbor.
Ogden's, Coleman's and Buford Vetter's testimony' is substantially in accord
with the testimony of Alcaraz, Moczkowski, Martinez, and MacDonald regard-
ing the procedure they wont through with respect to the Respondent's watch-
men's recordation at the Naval Depot gate, about seeking parked cars at the
Yacht Harbor's parking area but not seeing any persons there except those in
their own car, about parking their car near the floodlight which illuminated the
entire parking area,' about remaining at the parking area for a short period and
then leaving, about being stopped near the Naval Depot gate and held there for
several hours, about being confronted by four' men who, after looking at them
carefully, informed the police officers that none of the men in Coleman's car had
assaulted them, and about being permitted to proceed through the gate.
Dailey, Tieger, Paasch, Vaughn, and Antaki were the five who were assaulted
near the Yacht Harbor on the morning of October 12. They drove to the Yacht
Harbor for the purpose of entering the refinery to go to work instead of going
through a gate of the refinery proper because, as Dailey and Vaughn testified,
they did not wish to cross the picket lines which had been established around
the refinery for fear of being molested. Upon their arrival at the Yacht Harbor
they drove upon the railroad tracks that lead from the Yacht Harbor directly
into the refinery, there being no road or highway from the Yacht Harbor into
the refinery.
After driving about 200 feet they saw a blockade across the tracks made of
ties and steel girders. The driver, Tieger, stopped the car and as the 5 men
were removing the obstruction they were attacked by a group of men, estimated
at about 15 or 20 in number. The attackers shouted vile names at the 5 men,
threw rocks at them, beat them with sticks, and kicked one in the mouth. Dur-
ing the attack, the lights of Tieger's car illuminated the area and admittedly
the assaulted men obtained some impression of the appearance and dress of the
attackers.
After the attack, Vaughn and Antaki, who had been knocked down, got up and
climbed over the hill and eventually found their way into the refinery. Accord-
ing to Vaughn's testimony, about 15 minutes after the attack he and Antaki saw
two cars leave the vicinity of the attack.
Dailey and Tieger escaped in the latter's car. According to the former's
testimony,. within a few minutes after the attack they reported the incident
to the Respondent's guards whom they met near the Yacht Harbor ; that while
so reporting, he saw two sedans coining from the direction of the Yacht Harbor
and said to the guards that the sedans "looked like a couple of cars that were
parked" at the Yacht Harbor; and that thereupon the guards followed the, sedans
and stopped them near the Naval Depot gate.
Paasch testified that he fled under a barge that was anchored at the Yacht
Harbor and while so hiding he saw two cars leave the Yacht-Harbor about
9 Namely , Hiawatha Autry.
' Autry, did not testify nor is he a complainant herein.
8 Before reaching the Yacht Harbor , but after passing through the Naval Depot gate,
Coleman stopped his car and parked on the road for a brief period.
STANDARD OIL COMPANY OF CALIFORNIA 803
10 minutes after the attack. He further testified that after leaving the Yacht
Harbor he went home and was not called upon by the police to identify anyone
in an attempt to ascertain who his attackers were.
Vaughn testified that while being assaulted by 2 men he heard their voices ;
that he did not recognize any of the 15 or 20 attackers; that at the time of the
attack he did not notice any "article of dress or general appearance" of the
attackers which enabled him to identify them ; that shortly after reaching
the refinery, he and Antaki, accompanied by 1 of the Respondent's guards, went
to the Naval Depot gate and at the request of the Richmond police officers,
who were at the gate when he and Antaki arrived, he and his 3 companions
carefully scrutinized the occupants of Moczkowski's and Coleman's cars but he
was unable to see "any resemblance between any of the men . . . at the Navy
gate and what [he] saw of the men who attacked [him] down at the Yacht Har-
bor . . . [there being no] similarity" at all; that he personally knew George
and Buford Vetter prior to October 12, and had seen Moczkowski in the plant
prior to the strike; and that he, Tieger, Dailey, and Antaki each told the police
officers that the occupants of Moczkowski's and Coleman's cars had not com-
mitted the assaults.
Dailey testified that at the time of the assault he noticed that one of the
attackers wore a white cap and a Navy foul weather jacket, that another at-
tacker had very light blond hair, and two others wore "fluffy brim" hats. Re-
garding what transpired at the Naval Depot gate when he and his companions
were asked by the police officers whether the persons in Moczkowski's and Cole-
man's cars were the attackers, Dailey testified as follows :
Q. Now, did you see any similarity between the men in these two cars
and the people or the. men that you had seen down on the railroad track
when this attack took place`?
A. Well, I seen the clothing and this here man with the blond hair, the
features.
Q. Any other similarity in clothing, or dress or appearance?
A. No. That was about it.
Q. At the time of the attack down there on the railroad track, did you
recognize any of the individuals?
A. No, I didn't recognize them there because it was too fast.
Q. You were only hit once, as I understand it, by a rock?
A. Yes, that is right.
Q. Now, when you saw these men, a group of men at the Navy gate,
did you recognize any of those fellows?
A. Yes, I recognized some of them.
Q. Who did you recognize in the group that was there?
A. Well, I had personally known several of the men.
Q. Who did you personally know of that group that was there?
A. I knew George Vetter, Coleman, Buford'Vetter and Alcaraz. I guess
they were about the only ones.
Q. Were there several others besides these?
A. Oh, yes.
Q. Now, did any of these men that you could identify, or that you knew,
did they have any particular dress that you recognized as similar to the men
that you saw on the railroad track?
A. Yes, Coleman did.
Q. How was he dressed?
917572-51-vol. 91-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Well, he had on this hat, and he was about the same build, same fea-
tures, and he always wore this little floppy hat around, and he had it on
then.
Q. It was a hat with a brim on it?
A. Yes, small brim. And Autry.
Q. Was Autry one of this group, and did you recognize him?
A. Yes.
Q. Hiawatha Autry?
A. Yes, Hiawatha Autry.
I don't know the fellow's name that had on the white cap. I didn't per-
sonally know him and I still don't know his name.
Q. Was it one of the group you saw at the Navy gate that had a white
cap on?
A. Yes.
Q. And a fellow down at the railroad track attack had a white cap on?
A. Yes. And the one I seen hit Vaughn, lie also had a white cal), and this
Navy jacket, and was kind of slender built. And Vetter, I noticed, with
blonde hair, George Vetter.
Q. Did you talk to any of the fellows at that time?
A. No.
Q. You say later there were some policemen there?
A. Yes.
Q. Did they ask you if you could identify any of these men?
A. They asked if we could.
Q. What did you say?
A. I told them no, I didn't know if it was them or not.
Dailey further testified that he told the police officers that the men who had
been apprehended at the gate were not among those who had attacked him because
he was afraid of bodily harm and other reprisals.
The undersigned was favorably impressed with the frankness and sincerity with
which Alcaraz, Moczkowski, Martinez, MacDonald, Buford Vetter, Odgen, and
Coleman testified and therefore the undersigned finds their testimony to be sub-
stantially in accord with the facts. This finding is buttressed by the fact that
Paasch, and Vaughn e not only admitted to the police officers at the Naval Depot
gate, a few hours after.the attack, that none of the occupants of Moczkowski's
and Coleman's cars were among the persons who had committed the attacks, but
they also renewed these admissions at the hearing herein.
Dailey did not impress the undersigned as a forthright and honest witness.
His demeanor while on the witness stand clearly indicated to the undersigned
that he was not telling the truth. His testimony that the reason he falsely told
the police officers that the occupants of the two cars were not among his attackers
because lie feared bodily harm if he identified these men as his attackers is un-
believable. The record reveals, and the undersigned finds, that when Dailey told
the police officers that none of the men in the two cars were among his attackers
he, in fact, was telling the truth. Dailey testified, furthermore, that one of the
nine men held at the gate wore a white cap similar to that worn by one of his
attackers. Vaughn, on the other hand, testified that none of the nine men wore
a white hat while at the gate. Moreover, in a sworn statement given to a Board
Field Examiner on December 21,1948, Dailey stated :
n Antaki and Tieger did not testify.
^ STANDARD OIL COMPANY OF CALIFORNIA . 805
STATEMENT OF BOB DAILEY
I, Bob Dailey, being first duly sworn, depose and say :
I reside at 3000 Lowell Avenue, Richmond, California, Telephone : 5559M.
I was present on the morning of October 12, 1948, at about 5: 30 a. in. with
Tieger, Antaki, Vaughen and Pasch when we were attacked near Clark's
Yacht Harbor. I escaped in the car with Teger from the group which was
chasing us with sticks and throwing stones at the car. In the group of pur-
suers I saw one man with light blonde hair. I did not get a close look at his
face at this time. I also noticed two men wearing floppy felt hats among
the group who were chasing us and throwing stones. Also, I noticed a tall
thin man with a white cap. I did not get a close look at any of their faces.
When the police had caught the two cars near the second gate of the Naval
Reservation, I was present with Tieger and attempted to identify the men
in the cars which were apprehended. I did not tell the police that I could
recognize any of the men as the ones who had attacked us earlier. Among
this group of men who were lined up by the police were George Vetter,
B. Vetter, Hiawatha Autry and Coleman. George Vetter has blond wavey
hair. His hair looked to me the same as one of the men whom I saw chasing
us and throwing stones near Clark's Yacht Harbor. His build is also the
same as this man's build who was pursuing us. I cannot swear however, that
this man was George Vetter, other than his hair and build was the same.
Hiawatha Autry was also in the group being lined up. His build and the
floppy hat he was wearing looked similar to that of one of the men who
attacked us earlier that morning. Other than this, I could not swear that
Hiawatha Autry was one of the men who did attack us. Theodore Moczkow-
ski was also present among the group of men who had been stopped by the
police. He had been riding in one of the cars which were stopped. I did not
know Moczkowski prior to this time, but by subsequent identification through
Company pictures, I learned that his name was Moczkowski and I positively
swear that he was among the group which were stopped. I do not know,
however, whether or not Moczkowski was actually one of the group which had
attacked us.
He .was also in the line up. A person previously known to me for six
months as a Company employee, named Al Alcaraz and two other people,
Martinez and Ogden were also there. I cannot say whether they were at the
scene of the attack since I did not recognize them if they were.
I have read the foregoing statement, consisting of two pages, and hereby
certify it to be true and correct to the best of my knowledge and belief.
The undersigned is convinced, and finds, contrary to the Respondent's conten.
tion,, that none of the occupants of Moczkowski's and Coleman's cars committed
the assaults upon Tieger, Dailey, Paasch, Vaughn, and Antaki ; that the occu-
pants of Moczkowski's and Coleman's cars did not go to Clark's Yacht Harbor
early in the morning of October 12, 1948, for the purpose of preventing employees
to enter or leave the Respondent's refinery or for the purpose of assaulting any
of the Respondent's employees ; that none of the occupants of Moczkowski's and
Coleman's cars knew that Tieger, Dailey, Paasch, Vaughn, and Antaki had been
assaulted until they were confronted by Tieger, Dailey, Antaki, and Vaughn at
the Naval Depot gate ; and that none of the occupants of Moczkowski's and
Coleman's cars were in the vicinity of the place of the attack at the time it was
being committed.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned further finds that the Respondent's refusal to reinstate
Alcaraz at the conclusion of the strike and its action in subsequently discharging
him were violative of the Act.
Edward D. Anschutz was discharged according to the Respondent' s Bill of
Particulars, because he, on or about October 5, at or in the vicinity of Respond-
ent's No. 14 parking lot "congregated with others in force and large numbers
calculated to and which did under the circumstances intimidate respondent's
employees attempting to go to work and did at said time and place by mass
picketing, physical obstruction and show of force attempt to bar and barred
said employees from entering respondent's property." .
Anschutz' tour of picket duty was from 7 to 1.1 in the morning. Prior to going
on the picket line, he normally would report at the union hall. On October 5,
he was assigned for the first time to picket the entrance to No. 14 parking lot.
Regarding what transpired on October 5, Anschutz credibly testified that he
and three other picketeers went to the entrance of the parking lot at about
7 o'clock that morning; that the picketeers asked the drivers of some cars, as
the cars drove into the lot, "to cooperate with us in the strike" ; that the drivers
"kind of hee'd and hummed and just went on in"; that none of the cars were
blocked by the picketeers or by anyone else; that no employee or any car was
prevented from entering the lot ; and that all cars were permitted to enter the
lot without molestation to their occupants or damage to the cars.
Whenever the opportunity presented itself, the Respondent had photographs,
including motion pictures, made of certain events and incidents that occurred
during the strike. These photographs and motion pictures were taken by mem-
bers of the Respondent's photographic staff, by its other employees, and by pro-
fessional photographers hired during the strike to augment its photographic staff.
The photographs were posted within the refinery shortly after they had been
taken and exhibited to the persons who were working in the refinery during the
strike, including its managerial personnel, for the sole purpose of ascertaining
whether anyone could identify any employee who appeared in the photographs.
If any employee was identified he was selected for discharge and, with the excep-
tion of two persons, the identified persons were refused reinstatement at the
conclusion of the strike and subsequently discharged allegedly for engaging in
illegal, unprotected activities and conduct.10
General Foreman Trounton, the only person called as a witness with respect to
Anschutz, exclusive of Anschutz himself, testified that shortly after October 5,
he was shown a photograph depicting a certain scene occurring at No. 14 parking
lot on October 5, and that he recognized Anschutz in the said picture and so
reported to the person who showed him the picture.
The photograph in which Trounton recognized Anschutz was received in evi-
dence. It pictures Anschutz on the outer rim of a small group of about 20 persons,
including 1 child of about 3 or 4 years of age, 3 women, and 4 police officers. The
picture depicts Anschutz with his hands in his pockets leisurely walking across
the entrance of the parking lot apparently to ascertain why a police officer was
holding a man by the arms. The photograph also shows that most of the other
persons in the group are likewise watching this particular police officer.
The photograph clearly indicates that Anschutz was not engaging in any
activity which properly could be considered unlawful, unprotected activity or
conduct. In fact, the picture reveals that he was doing nothing more than what
10 Wyman and White admittedly were identified by management in certain photographs
but they were reinstated at the conclusion of the strike allegedly because of their long
service with the Respondent.
STANDARD OIL COMPANY OF CALIFORNIA 807
a reasonable person would do under like circumstances ; namely, to go to a
vantage place from which he could ascertain why the police officer was holding
the man's arms.
In order to prove that Anschutz also had engaged in illegal, unprotected
activities at the parking lot on the morning of October 6, the Respondent's coun-
sel questioned him at great length about his activities that day. Anschutz' cred-
ible testimony clearly demonstrates that nothing he did that morning could be
considered in any respects improper.
The record discloses that on the morning of October 6, he was picketing at No.
16 gate which is located across the street from the parking lot and about 1.00 feet
west thereof ; that at about 7: 30 o'clock a large crowd gathered in the vicinity
of the parking lot; and that Anschutz crossed the street to ascertain what was
'transpiring. At no time did Anschutz come within 50 feet of the entrance to the
parking lot.
The credible evidence unmistakenly reveals that Anschutz engaged in no
activity on October 5 or 6, 1948, or at any time throughout the entire period of
the strike which possibly could be construed to be illegal or unprotected by the
Act and the undersigned so finds.
The undersigned further finds that the Respondent violated the Act by refusing
to reinstate Anschutz at the conclusion of the strike and by thereafter discharging
him.
Charles T. Borreanai was discharged, according to the Respondent's bill of
particulars, because, on October 6, 1948, he "congregated" at the No. 14 parking
lot "with others in force and large numbers calculated to and which did under the
circumstances intimidate respondent's employees attempting to go to work and
did at said time and place by mass picketing, physical obstruction and the show
of force attempt to bar and barred said employees from entering respondent's
property."
Throughout the course of the strike Borreani picketed at various gates of the
refinery usually from 3 to 7 o'clock in the morning.
Under questioning by the Respondent's counsel, Borreani credibly testified
that on October.6, he got off picket duty at No. 1 gate and then, as was his
custom, went to the union hall ; that upon arriving there that day he saw a group
of men and women in front of the hall; that this group started to walk toward
the parking lot, so he decided "to go up and see where they were going" ; that
he went as far as the green shack 11 which is located about 50 feet west of the
entrance to the parking lot; that he saw police officers take "one or two" pickets
away from the entrance to the parking lot; that after those pickets had been
removed by the police he "decided" that he had "better go up there and picket" ;
that he went to the parking lot and walked back and forth across the entrance
thereof ; and that the following then transpired :
Q. The cars were pushing you?
A. It seemed like I couldn't get finished, and they were shoving me ahead,
yes.
Q. What do you mean you couldn't get finished?
A. Like when I was walking, a car would come up to me and hit me and
then, naturally, there I was and I was afraid to go one way.or the other.
Q. And then you stayed right in front of the car?
A. Then I had to look out for, take care of myself, to see I didn't get
under it.
11 This shack is normally used by people waiting for busses.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. I see. Did the cars shove you out of the way?
A. No. I managed to get out of the way in time.
Q. But were you hit by the cars?
A. Well, I was bumped, sure.
Q. The cars came right up until they touched you, is that right?
A. That is right.
Q. And then did they stop?
A. Well, they stopped and they also shoved a little, too.
Q. They shoved a little, too; and then you finally got out of the way?
A. That is right.
Q. Did you see the policemen shoving the pickets out of the way?
A. They pulled me out once or twice.
Q. They pulled you out of the way once or twice. And where were you at
the time they pulled you out? Were you at the entrance to the parking lot,
is that it?
A. I was across the sidewalk, walking back and forth.
Q. On the sidewalk where the cars go into the parking lot, walking back
and forth?
A. That is right.
Q. When the police pulled you out from the entrance there, did they push
you or did they grab your arm or what did they do?
A. Well, once they grabbed me and pulled me out. I don't know if they
had me by the arm or what.
Q. Did you resist that?
A. Well, I won't say that I resisted, no. I decided that I was doing picket
duty and I'think I had a right to go back and forth.
Q. And after they pulled you back, you walked back in the entranceway
again?
A. Sure.
Q. How many times did that happen, did you say?
A. Well, I don't think it happened-two or three times, probably, about.
The credible evidence clearly indicates, and the undersigned finds, that Bor-
reani's activities while on the picket line on October 6, as epitomized above,
exceeded the bounds of lawful strike activities permitted by the Act. The under-
signed finds, therefore, that the Respondent did not violate the Act when it
refused Borreani reinstatement at the conclusion of the strike and thereafter
discharged him. Accordingly, the undersigned will recommend that the com-
plaint as to Charles T. Borreani be dismissed.
Hosea D. Brackin was denied reinstatement at the conclusion of the strike
and thereafter discharged because, according to the Respondent's bill of par-
ticulars, he engaged in certain illegal unprotected activities at the No. 14 parking
lot on or about October 5, 1948.12
Brackin testified that he had read in the October 5 newspapers that there
had been "some trouble at the parking lot" that day, so he decided to go there
on the morning of October 6, to observe what was going on ; that he reached
the lot, accompanied by his adult son, sometime between 7 and 8 o'clock ; that
he remained there about 20 or 30 minutes, during which time about 200 or 300
people had gathered ; that this crowd was composed mostly of clerical employees
going to work ; that while in the vicinity of the green shack, which is about 50
12 The record shows that the complained of activities of Brackin took place on October 6.
STANDARD OIL COMPANY OF CALIFORNIA 809
feet from the entrance of the lot, a rock , as large as a chicken egg, rolled against,
or hit, his foot ; and that he picked up the rock, and as he did so 2 police officers,
to quote Brackin's testimony, "took me and told me to drop the rock, and I did,
and they carried me out to the" squad car and took him to the police station
where he was booked on a charge of inciting a riot and released on bail."
Police Officer Bria testified that while he was directing traffic in the vicinity
of the parking lot on October 6, he saw three other police officers escorting a
man " across the street preparatory to taking him to the police station in a squad
car; that he then saw Brackin with his right arm raised above his shoulder
in such a manner as if he was going to throw the rock, which he had in his
right hand, at the officers who were escorting Bullock to the squad car; that
he grabbed Brackin's right arm thereby preventing the rock from being burled
at the arresting officer ; and that he and Officer Billingsley then placed Brackin
under arrest.
Bria further testified that when he ordered Brackiri to drop the rock, Brackin
said, "If you fellows would throw your clubs down I will throw this rock down"
whereupon Bria and Billingsley "finally had to take the rock away from " Brackin.
In the main, Billingsley's testimony regarding the activities of Brackin on the
morning of October 6, corroborates that of Bria.
Officer Bria and Billingsley were forthright and honest witnesses. On the
other hand, Brackin's testimony is replete with self-contradictory statements.
Under the circumstances, the undersigned is convinced, and finds, that Brie's
'and Billingsley's testimony to be substantially in accord with the facts. The
undersigned also finds that Brackin had picked up the rock for the sole purpose
of throwing it at the officers who were escorting Bullock to the squad car.
It is manifestly clear from the credible evidence in the record that Brackin's
conduct, at or near the parking lot on the morning, of October 6, exceeded the
bounds of strike activities protected by the Act. Therefore, the undersigned
finds that the Respondent did not violate the Act when it refused Brackin rein-
statement at the conclusion of the strike and by discharging him. Accordingly,
the undersigned will recommend that the complaint be dismissed as to Hosea
Brackin.
James A. Bradley was refused reinstatement after the strike and thereafter
discharged because, according to the Itespondent's bill of particulars, he: (1) On
October 2 and 6, 1948, prevented the passage of railroad trains 16 to and from the
refinery by standing on the tracks and refusing to move therefrom and by phys-
ically resisting attempts by police officers to clear said tracks; and (2) congre-
gating with others in force and in large numbers on October 8, 1948, at gates of
the refinery thereby preventing employees from entering the refinery. '
Regarding the incident involving the locomotive, Bradley testified that early
in October, he was on picket duty at gate No. 31, through which gate freight
trains moved into and from the refinery prior to the strike ; that when he was on
picket duty at gate No. 31 he and the other picketeers would maintain the picket
line only when they saw a locomotive or a train approaching the refinery, other-
wise they would sit in automobiles nearby and talk or amuse themselves by other
means; that when an approaching locomotive or train could be seen in the dis-
tance, he and the ocher picketeers would walk back and forth across the tracks
near gate No. 31 until the locomotive or train came within a short distance of the
'3 At the time of the hearing, no disposition had been made of this charge. .
14 Namely, Bullock . Although not an employee of the Respondent , Bullock that morning
smashed the windows of about a dozen cars as they were being driven into the parking lot.
11 A Diesel locomotive was involved in these incidents and not a train.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
highway crossing 's and then the picketeers would walk back and forth parallel to
the tracks so as not to prevent the locomotive or train from proceeding into the
refinery ; that on October 6, a Santa Fe Railroad locomotive approached the high-
way intersection and he ceased walking across the tracks and walked parallel to
the track upon which the locomotive was; that the locomotive came within 3
or 4 feet of the pieketeers and- stopped, remained there 3 or 4 minutes, and
then backed away ; that the reason the locomotive backed away instead of pro-
ceeding into the refinery was because, as the Santa Fe Railroad yardmaster, who
was aboard the locomotive, stated, the crew of the locomotive had refused to pass
through the picket line."
Bradley further testified that at approximately 3: 30 o'clpck in the afternoon
of October 7 or 8, as a locomotive, not owned by the Santa Fe Railroad,18
approached, he began walking back and forth across the tracks and as the loco-
motive neared the highway crossing, he walked back and forth parallel to the
track upon which the locomotive was; that as the locomotive was crossing the
highway, the then. acting chief of Richmond Police Department, who was there
with about 12 police officers ," came up to him and said "She is coming through
here this time" and then shoved him, with the aid of other police officers, off the
tracks ; and that the locomotive then proceeded into the refinery.
Phipps', the then acting police chief, version of what transpired on October 6,
and on October 7 or 8, is in substantial accord with that of Bradley. Phipps,
however, testified that Bradley did not walk parallel to the tracks as the loco-
motive crossed the highway, but continued to walk back and forth across the
tracks.
J. L. Creighton, the Respondent's chief special agent, whose primary duty is to
protect the Respondent's property, also. testified about the events that occurred
on October 6, and as to those that occurred on October 7 or 8. His testimony is
to the effect that when the locomotive approached the picket line the picketeers
"more or less" continued to walk back and forth across the track until the police
officers shoved the picketeers off the tracks.
Whether Bradley on October 6, walked back and forth across the tracks or
walked back and forth parallel to the tracks as the locomotive approached the
picket line, is of no great moment and that conflict in the testimony need not be
resolved for no locomotive or train could have entered the refinery prior to
October 7 or 8, the date when the locomotive manned by the Respondent's em-
ployees entered the refinery, for the reason that the barricade placed at gate No.
31 at the very inception of the strike by the Respondent, so that no vehicle could
enter or leave through that gate, was not removed by the Respondent until the
day the locomotive went into the refinery.
Upon the entire record in this case, the undersigned is of the opinion, and finds,
that Bradley's activities and conduct at gate No. 31 on October 6, and on October
7 or 8, were not repugnate to the Act.
Elbert O. Sherwood testified that on the evening of October 8, while he and some
14 or 15 other employees were entering the refinery to go to work, the automo-
'e Before a locomotive or a train could pass through gate No. 31, it had to cross a 50-
or 75-foot public highway.
11 At about 8 o'clock in the morning of October 2, at a time when Bradley was not on
picket duty at gate No. 31, a Santa Fe Railroad locomotive approached, stopped near the
picket line , and after remaining a few minutes backed away because, as the yardmaster
stated, the locomotive's crew refused to pass through the picket line.
1s This locomotive was manned by employees of the Respondent.
19 The acting chief of police, Ernest F. Phipps, also was present with police officers when
the Santa Fe Locomotive refused to pass through the picket lines on October 2 ald 6.
STANDARD OIL COMPANY OF CALIFORNIA 811
biles in which they were riding were stoned and otherwise damaged by a group
of pickets stationed at gate No. 16 and that Bradley was among the picketeers 20
Bradley denied that he was at gate No. 16 that night. He further denied
throwing stones or damaging automobiles at gate No. 16, or at any place, through-
out the entire period of the strike.
Bradley was a forthright and honest witness and the undersigned credits his
denials. Sherwood did not impress the undersigned as a credible witness. In
fact, Sherwoods' demeanor while on the witness stand clearly indicated to the
undersigned that he was testifying falsely.
Upon the credible evidence, as found above, the undersigned finds that Bradley's
refusal of reinstatement at the end of the strike and his subsequent discharge
were violative of the Act.
Glenn H. Brock was refused reinstatement at the conclusion of the strike and
thereafter discharged because, according to the Respondents' bill of particulars,
he, on October 2 and 6, prevented, on each of said dates, a locomotive from enter-
ing the refinery.
The only evidence in the record with respect to Brock deals with the locomotive
incidents that occurred on October 6 and on October 7 or 8.
With respect to the October 6 incident, the credible evidence reveals that Brock
was not within 75 or 100 feet of the locomotive when it approached the picket
line before backing away therefrom. The credible evidence also reveals that at
no time while the locomotive was proceeding toward the refinery, after reaching
the highway, was Brock upon the railroad tracks.
Regarding the incident when the locomotive manned by the employees of the
Respondent proceeded, on October 7 or 8, into the refinery, the credible evidence
clearly shows that Brock was not on the railroad tracks at any time after the
said locomotive reached the highway intersection. Likewise, the credible evi-
dence shows that at no time (lid Brock prevent any locomotive or train from
entering or leaving the refinery. As found above, at no time prior to the time
when the locomotive manned by Respondent's employees could any locomotive
or train enter or leave the refinery because of the barricade placed at gate No. 31
by the Respondent.
Upon the entire record in the case, the undersigned finds that at no time
during the strike (lid Brock engage in any illegal, unprotected activities or
-conduct. The undersigned further finds that the actions of the Respondent in
refusing to reinstate Brock at the conclusion of the strike and his subsequent
discharge were violative of the Act.
William J. Brakke was refused reinstatement and subsequently discharged, ac-
cording to the Respondent's bill of particulars, because: (1) He with others, be-
tween the end of September up to and including October 26, engaged in a cam-
paign of terrorizing the Respondent's employees then working in the refinery by
pursuing them, as they attempted to enter or.leave the refinery, by patrolling
the refinery, particularly at night, armed with clubs, rocks, and other weapons
in order to intimidate the Respondent's employees; (2) he was apprehended on
October 21, for throwing missiles at cars in the vicinity of the Shell Oil Company
at Martinez, California; (3) he, with others were apprehended on October 24,
in the city of Richmond in possession of numerous weapons; and (4) he, with
others, on October 25, in the vicinity of the Respondent's refinery damaged a
taxicab and attempted to prevent it from proceeding.
20 This incident will be fully discussed below with respect to the cases of Lods and
Lewis D. MacDonald.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There is absolutely no evidence whatsoever that Brakke, at any time, either
singularly or in concert with others, "engaged in a campaign of terrorizing"
Respondent 's employees or that he, at any time, either singularly or in concert
with others, patroled the area surrounding the refinery, or at any other place,
armed with clubs, rocks, and other weapons, in order to intimidate the Re-
spondent's employees.
With respect to the incident at Martinez, California, Brakke testified that he
had visited Martinez two or three times during the course of the strike ; that
the.Shell Company maintains a refinery in Martinez, the employees of which
struck at the same time the Respondent's employees did; that he went to
Martinez solely to ascertain how the local there was handling the picketing
assignments because he was then in charge of arranging picket schedules for
the strikers at the Respondent's refinery ; that on October 21, while in Martinez,
in company with some members of that local, he went around the Shell refinery
to see how the gates were being picketed ; and that while so engaged he was
arrested.
As far as this record shows regarding Brakke's October 21 visit to Martinez
is that he was there engaged in concerted activities protected by the Act. There
is no evidence that Brakke violated any law or ordinance while he was in
Martinez on the day in question. In fact, the credible evidence clearly indicates
that his actions while in Martinez were entirely lawful.
. The record does not disclose why Brakke was arrested nor does it show what
charge was lodged against him. Furthermore, at the time of the hearing, Brakke
was not brought to trial on the arrest charge.
With respect to the October 24 incident, the credible evidence shows that
Brakke remained at the union hall until about 1 o'clock that morning and
thereby missed the last bus leaving Richmond for San Francisco that night,
operated by the line which he normally takes ; that John Gayanich volunteered
to drive him to the Greyhound bus station; that shortly thereafter he, Gayanich,
and four other strikers left the union hall for the bus station ; that after pro-
ceeding for several miles, Gayanich stopped at the intersection of two main
business streets in Richmond, a city of approximately 100,000 population ; that
within a few minutes after stopping , a police squad car pulled alongside of
Gayanich's car and one of the police officers inquired why Gayanich and his
companions were parked there at that hour of the morning ; that the police offi-
cers, upon receiving no satisfactory answer to their inquiry, ordered the six
men in Gayanich's car to alight ; that the police officers, after receiving permis-
sion to do so from Gayanich, searched the car; that the police officers found in the
car, an empty beer bottle, bricks, rocks, wrench, and a large knot of rope ; that
the police officers then took all six occupants of Gayanich's car to the Police
Station; that the officer in charge of the Police Station then called the District
Attorney, who, after hearing the details of the incident, advised the said officer
against arresting any of the men; that all were then released from custody.
The record, however, shows that Gayanich was given a traffic summons because
the rear license plate of his car was smeared so that the license number thereon
was indiscernible.
The foregoing facts clearly show, and the undersigned finds, that Brakke's
actions and those of the other persons in Gayanich's car, including those of
Gayanich, were not such as to legally warrant the Respondent in refusing to
reinstate Brakke, or any of the other occupants of the car, after the strike or
to warrant his, or their, . discharge. In fact, although fully cognizant of the
STANDARD OIL COMPANY OF CALIFORNIA 813
names of the other four occupants of Gayanich 's car, the Respondent prior to,
or at the conclusion of, the strike reinstated the said four men.
The undersigned further finds that the articles found in Gayanich 's car by
the police officers were not such as to warrant any disciplinary action by the
Respondent against Brakke and Gayanich.
With respect to the October 25 incident , the credible evidence reveals that some-
timeshortly after 1 o 'clock in the morning, Roy W. Haglund , a taxicab driver,
while proceeding en route to Point Molate , 21 with two sailors as passengers,
stopped at gate No. 16 and asked the picketeers there whether it was all right
for him to proceed to Point Molate with the sailors ; that the picketeers assured
him that it was all right since the dome light inside the cab was lighted;. that
after he had driven some distance passed the refinery proper and was on the public
highway , Haglund heard a cry to "Hold it" and simultaneously with the cry,
heard some object hit the cab ; that he stopped the cab immediately and, accord-
ing to Haglund , "a couple of fellows come up to the cab , seen I had sailors,
said , ` It's 0. K. to go on through '"; that after taking the sailors to their
destination , Haglund returned along the road which he had ' traversed en route
to Point Molate , and when he reached the place where his cab had been hit,
some one "flashed" him down, "apologized for throwing the stuff at" the cab
by saying " the boys were a little hasty."
Haglund then proceeded to gate No . 16, told the picketeers there what had
happened , and they stated, according to Haglund , "we are not supposed to have
pickets out any further than the Long Wharf," 22 advised Haglund to take the
matter up with the union officials , who will see that he was reimbursed for the
damage done to the cab, and then one of the picketeers said , "I think its oil goons
out there trying to make trouble for our Union ," adding that Haglund should
report the incident to the police.
Haglund then told the officers , who were in the police car parked near gate
No. 16 , what had happened . They asked Haglund to get into their car, called
over their radio system for assistance , proceeded to the place where Haglund's
cab had been hit, and there encountered three automobiles containing 14 men.
After the police concluded searching the 14 amen and the three cars, the occupants
thereof were arrested and brought to the Police Station.
Brakke , and 10 other complainants herein , 23 were among the 14 men arrested
that morning . Each of the 11 persons denied 24 that they yelled at Haglund
to-stop, or threw anything at his cab, or heard or saw anything hit his cab. Most
of them testified that they saw a taxicab momentarily stop, but added that the,
place where it had stopped was at least 200 or 300 yards from where they were
parked.
Each of them admitted, however , being in the vicinity of the place where
Haglund testified his cab had been hit . Each testified how they happened to
be there and their individual , and collective , testimony reveals that their pres-
ences on the Point Molate road was not for any unlawful purpose or for any
purpose that might be construed as being repugnate to the Act.
Haglund testified that he recognized two of the men who approached his cab
immediately after it had been hit. He further testified that these two men
11 Located in the vicinity of the Naval Depot.
22 The place where Haglund ' s cab was hit is a mile or two beyond the Long Wharf gate
of the refinery.
23 Namely, Antone Gayanich , William T . Collinsworth , Leonard E . Dausy, Doris G.
Snead. Archie G. Wyrick, William J. Dodson , Harvey G . Bushong. Herman W. Langensand,
Wilburn Pittman , Jr., and Thomas B. Ogden.
21 The other 3 persons did not testify , nor are they complainants herein.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were among those arrested. Police Lieutenant Fray, the officer in charge of the
approximately 14 police officers who made the aforesaid arrests, testified that
the main reason he took Haglund to the scene of the incident was for him to
identify the person, or persons who had engaged in the actions about which
Haglund complained and that Haglund stated that he could not identify any
cif the 1.4 men. The undersigned was very favorably impressed with the straight-
forward manner in which Fray testified and finds that Haglund did not testify
truthfully when he stated that two of the men who approached his cab after it
had been hit were among the 14 men arrested.
The undersigned further finds that the Respondent violated the Act by refus-
ing to reinstate Brakke and subsequently discharging him for the reasons set
forth in its Bill of Particulars for neither Brakke nor the 13 other men arrested
with him on the morning of October 25, were involved in the Haglund incident '
Moreover, the credible evidence clearly shows that Brakke at no time during the
strike engaged in any illegal, unprotected activity or conduct. The undersigned
also finds that none of the articles found by the police officers in any of the
aforesaid 3 cars were of such a nature as to warrant the Respondent in refusing
to reinstate Brakke or anyone of the 13 men at the end of the strike or to warrant
their discharge.
Harvey G. Bushony was refused reinstatement at the end of the strike and
thereafter discharged, according to the Respondent's Bill of Particulars, for
engaging in, during the strike, a campaign of terrorizing the Respondent's em-
ployees who then were working in the refinery, for patrolling the area surround-
ing the refinery armed with clubs, rocks, and other weapons for the purpose of
intimidating the said employees, and for being arrested in connection with the
Haglund taxicab incident.
The only evidence of any consequence introduced with respect to Bushong's
strike activities deals with the Haglund taxicab incident. It would serve no
useful purpose to again set forth at length the facts regarding that incident for
they are fully discussed above in connection with the case of William J. Brakke.
As found with respect to Brakke, the 14 men arrested were not involved with
the activities complained of by Haglund and the credible evidence shows that
none of the said 14 men had been engaged in any illegal unprotected strike
activities on the day in question.
The credible evidence also clearly shows, and the undersigned finds, that Bus-
hong (lid not engage in any illegal, unprotected activities or conduct during the
strike. The undersigned further finds that the Respondent's refusal to reinstate
Bushong at the end of the strike and his subsequent discharge were violative of
the Act.
William T. Collinsworth was refused reinstatement at the conclusion of the
strike and subsequently discharged, according to the Respondent's Bill of Par-
ticulars, for engaging in, during the strike, a campaign of terrorizing the Re-
spondent's employees who then were working in the refinery, for patrolling the
area surrounding the refinery armed with clubs, rocks, and other weapons for
the purpose of intimidating the said employees, and for being involved in the
Haglund taxicab incident.
The only evidence in the record of any consequence with respect to Collins-
worth's alleged improper strike activities deals with the Haglund taxicab incident
of October 25. It would serve no useful purpose to set forth here at length the
facts concerning that incident for they are fully discussed in connection with
the case of William J. Brakke.
2 At the time of the hearing none of the 14 men had been brought to trial.
STANDARID OIL COMPANY OF C'ALIFORNSA 815
As found with respect to Brakke, the 14 men arrested on October 25, allegedly,
among other things, for damaging Haglund's cab were not involved with the
activities complained of by Haglund and the credible evidence clearly shows
that none of the said 14 men had been engaged in any illegal, unprotected activi-
ties or conduct on the day in question.
The credible evidence also reveals, and the undersigned finds, that Collins-
worth did not engage in any illegal, unprotected activities or conduct during the
strike. The undersigned further finds that the Respondent's refusal to reinstate
Collinsworth at the end of the strike and his subsequent discharge were violative
of the Act.
William J. Dodson was refused reinstatement at the conclusion of the strike
and subsequently discharged, according to the Respondent's Bill of Particulars,
for engaging in, during the strike, a campaign of terrorizing the Respondent's °
employees, who then were working in the refinery, for patrolling the area sur-
rounding the refinery with clubs, rocks, and other weapons for the purpose of
intimidating the said employees, and for being involved in the Haglund incident.
The record is barren of any evidence of any consequence with respect to Dod-
son's alleged improper strike activities except the evidence involving the Haglund
taxicab incident of October 25. It would serve no useful purpose to set forth here
at length the facts concerning that incident for they are fully discussed in con-
nection with the case of William J. Brakke.
As found with respect to Brakke, the 14 men arrested on October 25, allegedly,
among other things, for damaging Haglund's taxicab were not involved with the
activities complained of by Haglund and the credible evidence clearly shows
that none of the said 14 men had been engaged in any illegal, unprotected strike
activities or conduct on-tbe day in question.
The credible evidence also reveals, and the undersigned finds, that Dodson did
not engage in any illegal, unprotected activities or conduct during the strike.
The undersigned further finds that the Respondent's refusal to reinstate Dodson
at the end of the strike and his subsequent discharge were violative of the Act.
An tone Gayanich was refused reinstatement and thereafter discharged, accord-
ing to the Respondent's Bill of Particulars, for engaging in, during the strike,
a campaign of terrorizing the Respondent's employees who were working in the
refinery, for patrolling the area surrounding the refinery with clubs, rocks, and
other weapons for the purpose of intimidating the said employees, and for being
involved in the Haglund taxicab incident.
The only evidence in the record of any consequence with respect to Antone
Gayanich's alleged improper strike activities deals with the Haglund taxicab
incident of October 25 . It would serve no useful purpose to set forth here at
length the facts concerning that incident for they are fully discussed in con-
nection with the case of William J. Brakke.
As found with respect to Brakke, the 14 men arrested on October 25, allegedly,
among other things, for damaging Haglund's taxicab were not involved with the
activities complained of by Haglund and the credible evidence clearly shows that
none of the said 14 men had been engaged in any illegal,- unprotected strike activi-
ties or conduct on the day in question.
The credible evidence also reveals, and the undersigned finds that Antone
Gayanich did not engage in any illegal, unprotected activities or conduct during
the strike. The undersigned further finds that the Respondent's refusal to rein-
state Antone Gayanich at the conclusion of the strike and his subsequent dis-
charge were violative of the Act.
81.6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Herman W. Langersand was refused reinstatement at the conclusion of the
strike and subsequently discharged, according to the Respondent's Bill of Par-
ticulars, for engaging in, during the strike, a campaign of terrorizing the Re-
spondent's employees who then were working in the refinery, for patrolling the
area surrounding the refinery with clubs, rocks, and other weapons for the pur-
pose of intimidating the said employees, and for being involved in the Haglund
taxicab incident.
The only evidence in the record of any consequence with respect to Langer-
sand's alleged improper strike activities deals with the Haglund taxicab incident
of October 25. It would serve no useful purpose to set forth here at length the
facts concerning that incident for they are fully discussed in connection with the
case of William J. Brakke.
As found with respect to Brakke, the 14 men arrested on October 25, allegedly,
among other things, for damaging Haglund's taxicab were not involved with the
activities complained of by Haglund and the credible evidence clearly indicates
that none of the said 14 men had been engaged in any illegal, unprotected activi-
ties or conduct on the day in question.
The credible evidence also reveals, and the undersigned finds, that Langersand
did not engage in any illegal, unprotected activities or conduct during the strike.
The undersigned further finds that the Respondent's refusal to' reinstate Lan-
gersand at the conclusion of the strike and his subsequent discharge were viola-
tive of the Act.
Aaron H. Bright was refused reinstatement and subsequently discharged, ac-
cording to the Respondent's Bill of Particulars, for engaging in, with others a
campaign, from the end of September 1948 to October 26, 1948, of terrorizing the
Respondent's employees who were working in the refinery by patrolling the
refinery, particularly at night, armed with clubs, rocks, and other weapons and
for being apprehended by the police on October 24, when he had in his posses-
sion numerous weapons, including a so-called smoke grenade or bomb.
The record reveals only one incident in which Bright was involved. That
occurred on October 24, when he was on the Union's strike detail of making
coffee and bringing the coffee to the persons on the picket line. That evening,
about 7 o'clock, while waiting for the coffee to brew, Bright went outside of the
Union Hall and sat talking to Curtis Page, an employee of the Union Oil Com-
pany,28 in the latter's car. About _15 minutes later Leon Hall, Vernon L. Mor-
gan, and Edwin L. Vanek came out of the Union Hall and got into Page's car.
While the five men were talking among themselves, two employees who were
working in the refinery came out of the refinery gate, and one of the men in
Page's car suggested that they go over and talk to the two men who had just
left the refinery -iii order to see if they could induce them to leave their jobs and
join the strike. Thereupon, Page drove his car in the same direction that the
men were walking and followed them for several blocks without anyone in the
car speaking to the men.
The police officers in the squad car parked in the vicinity of the refinery noticed
Page following the men so the police officers followed the latter's car, Page
and his companions were aware, of the fact that the police squad car was following
them.
When the two men reached the bus loading platform, about 4 or 5 blocks from
the refinery, the police officers drove over to the platform, called the two nien to
their car, and spoke to them until the bus arrived, at which time the two men
boarded it.
26 The Union Oil Company 's refinery employees were also on strike at that time.
STANDARD OIL COMPANY OF CALIFORNIA 817
In the interim, Page, after stopping for a few minutes, drove to the bus platform
but parked across the street therefrom. While the police officers were talking to
the two men, Bright and Vanek got out of Page's car, crossed over to the bus
platform for the purpose of speaking to the two men as soon as the police officers,
had finished their conversation.
After the two men boarded the bus, Bright and Vanek got into Page's car and
.Page drove in the same direction as the bus was going. Page remained behind
the bus for a block or two and when both vehicles reached a railroad crossing,
the bus stopped and Page drove onwards for several blocks and then the officers
in the police squad car ordered Page to stop.
The police officers then ordered the five men to alight from the car. The
officers searched the men and then searched the car. In the car the officers found
.a so-called smoke bomb, two rocks, an ice pick, two hammers, and a 4-foot length
of cord.
The five men were arrested, locked up and held for investigation. At the time
of the hearing, no action had been taken by the police department with respect to
this case.
The above recital of the credible evidence clearly demonstrates that neither
Bright nor any of the other four men had engaged in any activities that were
not lawful, within the meaning of the Act.
The fact that Bright, Vanek, Hall, Morgan, and Page were desirous of speaking
to the two men who they had followed for the purpose of attempting, by peaceful
means, to induce the said men to respect the picket line by not working in the
refinery during the strike can not be construed to be an activity proscribed by
the Act. The motives of Bright, Hall, Morgan, Vanek, and Page were not im-
proper nor did their actions exceed the bounds of lawful conduct.
The fact that a canister, similar to one found near the Respondent's butane
tanks several weeks previous, was discovered in Page's car by the police cannot
per se be chargeable to Bright, Morgan, Hall, or Vanek. The four of them
denied knowing that it was in the car. The undersigned credits their denials.
Page did not testify.
For aught this record reveals, the bomb could have been placed in Page's
car by some person in nowise connected with the Union. That question, how-
ever, need not, and is not, here resolved. The question that must be resolved
is whether Bright, Morgan, Hall, or Vanek knew that it was in Page's car and if
so to what use was the bomb to be put. Since all four men were honest and forth-
right witnesses, the undersigned finds that none of the four men knew that the
bomb was in Page's car and that Bright, Hall, Morgan, and Vanek did not know
to what use, if any, the bomb was to be put. The undersigned also finds that
the actions of Bright, Hall, Morgan, and Vanek by following the two employees,
as described above, were not engaged in illegal, unprotected activities.
Upon the entire record in the case, the undersigned is convinced, and finds,
that by refusing to reinstate Bright at the conclusion of the strike and by subse-
quently discharging him, the Respondent violated the Act.
Leon Hall was refused reinstatement at the conclusion of the strike and there-
after discharged, according to the Respondent's Bill of Particulars, for engaging
in, during the strike, a campaign of terrorizing the employees of the Respondent
who then were working in the refinery, for patrolling the 'area surrounding the
refinery with rocks, clubs, and other weapons for the purpose of intimidating the
said employees, and for being apprehended on October 24, while in possession
of numerous weapons, including a so-called smoke bomb.
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The only evidence in the record of any consequence with respect to Hall per-
tains to the incident of following the two employees as they left the refinery
on October 24 and Hall's subsequent arrest that night. It would serve no useful
purpose to set forth here at length the facts concerning that incident for they are
fully discussed in connection with the case of Aaron H. Bright.
As found with respect to Bright, the actions of Hall; Bright, Morgan, and
Vanek on the night in question were not unlawful and certainly their actions
were not such as are proscribed by the Act.
The undersigned is convinced, and finds, that the articles found by the police
officers in Page's car on October 24, can not be considered sufficient evidence of
misconduct on the part of Hall, Bright, Morgan, and Vanek as to warrant a
finding that because the articles were in the car Hall, Bright, Morgan, and V anek
were engaging in illegal, unprotected activities despite the fact that the four
named persons had no knowledge that the said articles were in the car.
The credible evidence reveals, and the undersigned finds, that Hall did not
engage in any illegal, unprotective activities or conduct during the strike. The
undersigned further finds that the Respondent's refusal to reinstate Hall at the
conclusion of the strike and his subsequent discharge were violative of the Act.
Vernon L. Morgan was refused reinstatement at the conclusion of the strike
and subsequently discharged, according to the Respondent's Bill of Particulars,
for engaging in, during the strike, a campaign of terrorizing the employees of the
Respondent who then were working in the refinery, for patrolling the area sur-
rounding the refinery with clubs, rocks, and other weapons for the purpose of
intimidating the said employees, and for being apprehended on October 24, while
in possession of numerous weapons, including a so-called smoke bomb.
The only evidence in the record of any consequence with respect to Morgan
pertains to the incident of following the two employees as, they left the refinery
on October 24 and Morgan's subsequent arrest that night. It would serve no
useful purpose to set forth here at length the facts concerning that incident for
they are fully discussed in connection with the case of Aaron H. Bright.
As found with respect to Bright, the actions of Morgan, Bright, Hall, and
Vanek on the night in question were not unlawful and certainly their actions were
not such as are proscribed by the Act.
The undersigned is convinced, and finds, that the articles found by the police
officers in Page's car on October 24 can not be considered sufficient evidence of
misconduct on the part of Hall, Bright, Morgan, and Vanek as to warrant a finding
that because the articles were in the car, Morgan, Hall, Bright, and Vanek were
engaging in illegal, unprotected activities despite the fact that the four named
persons had no knowledge that the said articles were in the car.
The credible evidence shows, and the undersigned finds, that Morgan did
not engage in any illegal, unprotected activities or conduct during the strike.
The undersigned further finds that the Respondent's refusal to reinstate Morgan
at the conclusion of the strike and his. subsequent discharge were violative
of the Act.
Edwin L. Vanek was refused reinstatement at the conclusion of the strike
and subsequently discharged, according to the Respondent's Bill of Particulars,
for engaging in, during the strike, a campaign of terrorizing the Respondent's
employees who were working in the refinery , for patrolling the area surrounding
the refinery with clubs, rocks, and other weapons for the purpose of intimidating
the said employees, and for being apprehended on October 24, while in the
possession of numerous weapons, including a so-called smoke bomb.
STANDARD OIL COMPANY OF CALIFORNIA 819
The only evidence in the record of any consequence with respect to Vanek
pertains. to the incident of following the two employees as they left the refinery
on October 24 and Vanek's subsequent arrest that night. It would serve no
useful purpose to set forth here at length the facts concerning that incident for'
they are fully discussed in connection with the case of Aaron H. Bright.
As found with respect to Bright, the actions of Vanek, Morgan, Hall, and Bright
on the night in question were not unlawful and certainly their actions were not
such as are proscribed by the Act.
The undersigned is convinced, and finds, that the articles found by the police.
officers in Page's car on October 24 cannot be considered sufficient evidence of
misconduct on the part of Vanek, Hall, Bright, and Morgan as to' warrant a'
finding that because the articles were in the car, Vanek, Morgan, Hall, and Bright
were engaging in illegal, unprotected activities despite the fact that the four
named persons had no knowledge that the said articles were in the car.
The credible evidence shows, and the undersigned finds, that Vanek did not
engage in any illegal, unprotected activities or conduct during the strike. The
undersigned further finds that the Respondent's refusal to reinstate Vanek at
the conclusion of the strike and his subsequent discharge are violative of
the Act.
Harry A. Coleman was refused reinstatement at the conclusion of the strike and
thereafter discharged, according to the Respondent's Bill of Particulars, for,
during the strike, engaging in a campaign of terrorizing the Respondent's em-
ployees working in the. plant by pursuing in force the said employees as they
attempted to enter or leave the refinery, for patrolling the area surrounding the
refinery armed with clubs, rocks, and other weapons for the purpose of intimidat-
ing the said employees, and for assaulting certain of the said employees at or
near Clark's Yacht Harbor on October 12, 1948.
The only evidence introduced in the record of any consequence that deals with
any alleged improper strike activities on the part of Coleman pertains to the
incident that occurred on October 12 at the Yacht Harbor. It would serve no
useful purpose to set forth here at length the facts concerning that incident for
it is fully and amply discussed in connection with the case of Albert Alcaraz.
As found with respect to Alcaraz, the nine strikers " who were held for ques-
tioning by the police and for scrutiny by the four of the five employees of the
Respondent who were assaulted on the railroad tracks leading from the Yacht
Harbor to the refinery were in nowise involved in the assault.
The credible evidence clearly shows, and the undersigned finds, that Coleman
did not engage in any illegal, unprotected activities or conduct during the strike.
The undersigned further finds that the Respondent's refusal to reinstate Coleman
at the conclusion of the strike and his subsequent discharge were violative of
the Act.
Leonard Dausy was refused reinstatement at the conclusion of the strike and
subsequently discharged, according to the Respondent's Bill of Particulars, for
engaging.in a campaign, during the strike, of terrorizing the Respondent's em-
ployees working in the refinery as the said employees attempted to enter or
leave the refinery, for patrolling the area surrounding the refinery armed with
clubs, rocks, and other weapons for the purpose of intimidating the said em-
ployees, for pursuing, on October 4, a car that had taken certain employees of
the Respondent to their jobs and as a result of the said pursuit the car was
T' Namely, Alcaraz, Autry, George Vetter, Buford Vetter, Martinez, Coleman, .. Ogden,
Patrick A . MacDonald , and Moczkowski.
917572-51-vol. 91-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrecked. and the occupants thereof terrified and injured, and for being involved
in the Haglund taxicab incident of October 25.
'For a number of days prior to October 4, Dausey was on the Union's coffee
detail, one of the duties of which was to take coffee, at certain specified hours.
to the persons on the picket lines.
Shortly after 2 o'clock on the morning of October 4, in company with Frank
Gayanich, who also was ' on the coffee detail, Dausy left the union hall in his
station wagon with coffee for the pickets.
While on their rounds to the picket lines that morning, an accident occurred '
in which Dausy's station wagon and an automobile owned and operated by
Myles James, a person not in the Respondent's employ, were involved.
According to Dausey's testimony, while he was driving his station wagon and
going at a rate of speed of about 50 or 60 miles an hour, he saw a car directly
ahead of him, going in the same direction, at a speed of about 35 or 40 miles
per hour, and he tried to pass that car but was unable to do so. Regarding what
then transpired, Dausy testified as follows :
Q. Did he change the course of his automobile?
A: Well, you mean when I started.to go by?
Q. Any time when you were behind him.
A. Well, I was right behind him. I started to go by him, and he pulled
out in front of me, so I pulled back on the side of the road, and he pulled
back, and I started to go by, and that is the last thing I remember.
Q. Did you follow him on the right hand side of the road for some time
before you tried to go by him?
A. No, not for a very long time.
Q. Did you slow down as you came up to him?
A. I had to to keep from running into his rear.
Q. You put on your brakes at that time?
A. Yes.
Q. At the time. you came up to him. he was on the right hand side of the
road?
A. Yes.
Q. Did you come up to him while you were on the right hand side of the
road, or did you come up to him on the left hand side?
A. I came up to him on the right hand side, and I started to pull out to
go by.
Q. How far ahead of you was he when you started to pull out to the left
to go by? V
A. I don't know, a safe distance.
Trial Examiner MYERS. A car length or a car and a half length?
The WITNESS. I would say maybe two car lengths. I didn' t come right
up on his tail so I was liable to hit him. I had to put on my brakes when
I pulled out in front because he was traveling slower than I was.
Q. (By Mr. PRAEL.) You went to the left hand side of the road and started
to go ahead of him?
A. Yes.
Q. Did you get up even with him or did any part of your car get up to
where he was?
A. No.
Q. Then he came over to the left hand side of the road, is that it?
A. Yes.
STANDARD OIL. COMPANY OF CALIFORNIA '-' 821 ,
Q. How far ahead of your car was the other car' when he came over to
the left hand side?
A. When he came to the left hand side?
Q. Yes.
A.. I.would say about half a car length or so. That is what made me apply
on my brakes fast.
Q. Then you put on your brakes and both cars went back on the right
hand side?
A. I went back to the right hand side and he pulled back.
Q. Then after that you were both on the right hand side of the road, is
that right?
A. Yes.
Q. Did you follow him for some time like that?
A. No. As soon as he pulled back-I thought maybe it was somebody out
there necking-I started to go by again.
Q. Which side did you start to go by on?
A. The left.
Q. On the left hand side again?
A. Yes.
Q. Did you speed up at that time?
A. Yes.
Q. How far did you get that time?
A. How far-I don't remember.
Trial Examiner MYERS. Were you knocked unconscious?
The WITNESS. Yes. I started-to go by and the next thing I knew I woke
up in the hospital. That is all I know.
Frank Gayanich's testimony with respect to what transpired immediately prior
to the accident, in the main, is substantially in accord with that of Dausy.
Myles James testified that between midnight and about 1 o'clock on October
4, he drove Raleigh Andrews and Andrew Bracesco in his 1937 Plymouth sedan
to a prearranged spot near the refinery, and when they arrived there, Andrews
and Bracesco got out of the car "and went over the fence into the refinery" ;
that Janet Taylor (who subsequently married Andrews) and Walter Hohstadt
were also in the car ; that after Andrews and Bracesco alighted, he proceeded
for about a quarter of a mile, when Hohstadt told him that "a picket's car took
out after us" and it "was following us," whereupon he proceeded at a higher
rate of speed ; that he continued at this increased speed and finally reached "the
straightaway where the road widens out" ; that he then noticed that there were
three other cars behind him going in the same direction that he was going; that
he increased the speed of his car ; and that the following then transpired :
A. We proceeded on down and during that time one car kept flashing a
spotlight in my, rear view mirror and caused driving to become quite diffi-
cult. We were down on the straightaway and we noticed the vehicle driven
by Dausy come out around the right side.
Q. What kind of a vehicle was it? '
A. 1941 Plymouth station wagon.
Q. You saw the station wagon?,;
A. Yes.
Q. What did you see next? Where did you.see the station wagon?
A. Over to my right and behind me.
Q. Then tell us what happened, what you saw.
822 DECISIONS OF NATIONAL • LABOR . RELATIONS. BOARD
A. The other car was directly behind me, the one that was shining the
spotlight.
Q. Yes?
A. And at that time the station wagon came around and we could feel
the impact of him hitting us in the right rear fender , and that is when we
went off the road.
Mrs. Andrews ' and Hohstadt's testimony regarding the events leading up to the
accident , in the main , are substantially in accord with James ' version of what
transpired.
On cross -examination , James admitted that he was quite apprehensive about
the possibility of danger to him or to his car because he had brought Andrews
and Bracesco to the refinery and therefore he was suspicious of any car that he
saw behind his and going in the same direction he was going . He further tes-
tified on cross -examination as follows:
Q. Well, did the -car with which you had the collision appear to be over-
taking you before it collided with you?
A. I would say it was attempting to, yes.
Q. It was going faster than you were, is that right?
A. At about the same rate of speed. He was coming up from the ,rear,
attempting to overtake me.
Q. Now, as it came up from the rear, did you drive over to the right hand
side of the road to let it pass?
A. No. I was on about the center of the road.
Q. And you held that position , didn't you?
A. Yes.
Q. You held a position in the center of the road , because you thought that
the car was after you , didn't you?
A. True.
Q. All right. And then did the car try to pass you on the left to get round
in front?
A. Not that I recall.
Q. All you know is that you saw it behind and you held to the center of
the road?
A. Right.
Q. And then the collision?
A. I saw the station wagon attempting to pass several times on the right.
Q. On the right?
A. On the right , which it finally succeeded in doing.
Q. Well , you say a station wagon attempted to pass on the right. What
would it do? Come up on the right and then fall back again?
A. Yes.
Q. When it come up on the right, did you swing to the right- a little
yourself?
A. Yes.
Q. Trying. to keep ahead of it?
A. Right.
Q. And then there was the collision?
A. Yes.
Dausy and Frank Gayanich were forthright and honest witnesses and the
undersigned finds that their versions regarding the events that transpired im-
mediately prior to the accident to be substantially in accord with the facts. The
STANDARD OIL" COMPANY OF 'CALIFORNIA 823
undersigned further finds, that . James, Mrs. Andrews , and Hohstadt , each being
quite young, were, as James admitted , very suspicious of the occupants of any
and all cars they saw that night in the vicinity of the refinery. James also ad-
mitted that he was quite scared that night because of the newspaper accounts
he had read regarding certain misconduct that had transpired during the strike
plus the fact that he had just let Andrews and Bracesco out of his car.
Dausy and Gayanich maintained that they were not following or chasing
James' car . They maintained that they wanted to pass James' car because as
Dausy said he thought the occupants thereof "were necking" and hence he did
not care to risk an accident by remaining behind the car.
Police Lieutenant Bacon, the first police officer who arrived at the scene of
the accident, testified that upon his arrival there he found Dausy unconscious
and that Gayanich was only semiconscious ; that he made the necessary arrange-
ments for removing Dausy and Gayanich .to,a hospital ; that several hours after
the accident he went to the hospital to interview Dausy and Gayanich ; that he
was unable to interview the former because he still was unconscious ; that he
asked Gayanich how the accident occurred ; that Gayanich replied, "We were
chasing a car."
On cross-examination, Davis was asked for Gayanich's exact words about
"chasing a car." About them, Davis testified as follows: _ '
Q. (By Mr. LAW.) With respect to this conversation at the hospital with
Mr. Gayanich , can you remember Mr. Gayanich 's precise words?
A. Could I refresh my memory from this [indicating] report? I think it
is on here ; I am not sure.
Q. First, I would like you to give your best recollection.
A. I can't remember the exact words.
Q. All right. Now, would you refresh your memory from the report?
A. (Examining report. ) It isn't on here. I didn 't tabulate that. I don't
remember the exact conversation.
Q. You can't then remember his precise words?
A. No.
Q. When was the report made?
A. The same day of the accident.
Q. Did you attempt in the report to state as precisely as you could what
happened at that time , as you remember it?
A. Yes. The only story I could get as to what took place was from the
occupants of the Plymouth sedan. I was unable to get any story or state-
ment definitely stating what happened from the occupants of the station
wagon.
Q. Well, now, in investigating a report of that sort , as an experienced
officer, where there is any suspicion of a chase you would consider it im-
portant, would you not?
A. That is right.
Q. If one of the parties accued of chasing had in fact stated after the
accident that he was chasing?
A. That is right.
Q. Now, after referring to your report, and in view of the fact that you
now state that you cannot remember Mr. Gayanich's exact words, would it
be your sworn testimony that Mr. Gayanich told-you that he was chasing
another car when the accident happened? _
A. Yes, that is right.
Q. That is your testimony?
':824 DECISIONS . 'OF 'NATIONAL" "LABOR ' RELATIONS BOARD
A. That is right.
Mr. PRAEL . He answered , that question , I,think , Mr. Law.
Q: (By. Mr . LAw.) Isn't it 'a fact that you can ' t remember the precise
words?
A. Well, I remember I asked him about the speed , such questions as that,
and-he couldn 't remember the exact speed , other'than that he was traveling
•at'a-high rate of speed . I asked him why, .and that was what the conversa-
tion was, that he was chasing another car. .
Q. Did he say "chasing" or did he say "following"?
A. He could have said "following", but I don't remember whether he said
"chasing" or "following".
Q. It is very important to the participants and that 'is why we want It
- 'exact.
A: He could have said "following".
Q. And your report doesn't show he said "chasing"?
A: No. I didn't put that down . I think the reason for it was the fact
that the story I received was all from one side, as I say. It was a biased
report. • .
'Gayanich , while on the'witness stand as a rebuttal witness, denied telling any-
one, including Davis, that he and Dausy were chasing an automobile just prior to
,the accident . Regarding his interview with Davis at . the hospital , Gayanich
testified as follows :
A. He came to me and he asked me • if 'I knew how the accident happened
and I told him, "I don't remember anything ," and then he said, "If you don't
talk now it will be too bad," and I told him again , "I don't remember any-
thing of how it happened."
Upon the foregoing facts, and upon , the entire record in the case, the under-
signed is of the opinion, and finds, that Dausy and Gayanich were.not "chasing"
or "following" James' car but were just proceeding in a lawful manner and that
their actions that night, in no way, can be construed as being such as to warrant
a• finding that they were engaged in illegal, unprotected activities or conduct. '
With respect to Dausy's connection with the Haglund incident, the credible
evidence clearly indicates, and the undersigned finds, that Dausy, like the 13 other
men arrested on October 25, allegedly for damaging Haglund 's taxicab, had no
,connection with or did he participate in, the incidents complained of by Haglund.
It would serve no useful purpose to set forth here at length the facts concerning
the Haglund incident for they are fully and amply discussed in connection with
the case of William J. Brakke.
As found with respect to Brakke, the 14, men arrested on October 25, had no
connection whatsoever with the Haglund incident.
The credible evidence reveals, and the undersigned finds, that Dausy did not
engage in any illegal, unprotected activities during the strike. The undersigned
further finds that the Respondent's refusal to reinstate Dausy at the conclusion
of the strike and his subsequent discharge were violative of the Act.
Frank Gayanich was refused reinstatement at the conclusion of the strike and
subsequently discharged, according to the Respondent's Bill of Particulars, for
participating in the events that lead to the accident involving Dausy's and James'
car.
It would serve no useful purpose to,set forth here at length the facts concern-
ing the Dausy-James accident for they are fully and amply , discussed in connec-
tion with the case of Leonard Dausy.
STANDARD OIL COMPANT OF CALIFORNIA 825
As found with respect to Dausy, the credible evidence clearly indicates, and the
undersigned finds, that the accident did not occur because Gayanich and Dausy
were engaging in,any illegal, unprotected strike activities or conduct, but that it
happened for reasons: entirely unconnected with the strike and the activities of
Dausy and Gayanich'in support thereof. The undersigned further finds that the
Respondent's refusal to reinstate Frank Gayanich at the conclusion of the strike
and his subsequent discharge were violative of the Act.
Daniel H. Donaldson, Jr., was refused reinstatement at the conclusion of the
strike and subsequently discharged , according to the Respondent 's Bill of Par-
ticulars, for engaging in, during the strike, a campaign of terrorizing the Respond-
ent's employees working in the refinery by pursuing the said employees as they
attempted to enter or leave the refinery, for patrolling the area surrounding the
refinery armed with clubs, rocks, and other `weapons for the purpose of intimi-
dating the said employees, and for, on October 18, congregating with others at
gate No. 1 and threatening and intimidating employees as they were entering the
refinery.
Donaldson was first assigned to picket duty at No. 1 gate, then to No. 31 gate,
and then, from about the middle of September until the end of the strike, on
November 8, he picketed at No. 16 gate.,
pmoao aqj Sqm .fiuiulsiaaass 3o esodand aill aoj neq uolun aql llal aq 4rgl `• T ON
on October 18, Donaldson testified at about 7 o'clock that morning while he
'ivas at the union hall he noticed that a large crowd had gathered at the inter-
section of Standard Avenue and Castro, which is about 200 yards'from gate
No: '1; that he left the union hail for the purpose of ascertaining why the crowd
bad gathered ; that when 'he got near the aforesaid intersection; staying in
the ' vicinity of which for about 45 minutes, he saw people on the outside of the
fence that encloses the refinery throwing stones and rocks at the people inside
'the refinery 'and people inside the refinery throwing rocks, stones, and other
missiles at the people on the outside of the refinery, that people on the inside
were calling the people on the outside names and vice versa ; and that he did
not participate in the melee or did he yell, or throw any stones, rocks, or other
missiles, at or toward anyone on the inside of the refinery.
The record is manifestly clear that on the day in question, October 18, there
was extensive rock throwing by the people on the outside of the fence at the
people on the inside; that the people on the inside' were throwing rocks and
shooting, by means of some mechanical devices, metallic objects at the people
on the outside ; that the police arrived about 7: 30 o'clock, but order was not
restored for about an hour after the start of the melee.
The Respondent contended at the hearing, and in its brief, that the rock
'throwing and missile shooting by the people on the inside of the refinery was
precipitated by the picketeers throwing rocks at a car entering the gate. This
contention is not supported by the record.
.The credible evidence clearly shows, and the undersigned finds that around
7 o'clock''in the morning of October 18 a crowd of about 150 to 200 persons
gathered at the intersection of Standard Avenue and Castro Street, which is
about 200 yards from gate No. 1; that by 7 o'clock about 200 employees, including
at : least '1 foreman, gathered outside the boilerhouse, located about 350 feet
from the fence enclosing the refinery and directly in front of gate No. 1; that
the employees who had gathered in front of the boilerhouse commenced the
disturbance by throwing rocks and shooting, through some mechanical . devices;
bolts, and other metallic missiles at the pickets ; that the people on the outside
then retaliated ; and that the rock throwing and missile shooting was finally
826 DECISIONS OF NATIONAL LABOR RELATIONS .OARD
stopped by the police, some of whose cars were hit by the missiles coming from
within the refinery.
The Respondent also contended at the hearing, and in its brief, that it had
the legal right to discipline any striker it could identify as being in the crowd
on the outside of the fence by refusing to reinstate that striker after the con-
elusion of the strike while not taking any disciplinary action against any
employee inside the fence even though. the Respondent had knowledge of the
identity of those employees who engaged in rock throwing or missile shooting,
on the ground that those on the inside were protecting themselves from bodily
harm and their property from damage. Based solely upon the facts in this
case, the undersigned can not concur with that contention.
Even if it were found that the rock throwing was started by the people on
the outside, the credible evidence shows that the 200 employees had gathered
at the boilerhouse by arrangements made the previous evening. One employee
who was in the crowd in front of the boilerhouse credibly testified that he left
the place where he worked, located about 100 yards from the boilerhouse, and
went to the boilerhouse because he had anticipated that "something" would
happen that morning from certain remarks he heard the previous evening ; that-
he saw his supervisor in front of the boilerhouse ; that his supervisor did
,nothing to stop the men from throwing rocks at the people on the outside. of
,the fence nor did his superior ask anyone to return to his job; and that he
recognized several other persons among that crowd who worked in the same
.department in which he worked. It is thus clear that the Respondent was
anxious only to discipline the strikers and to take no disciplinary action against
nonstrikers. This finding is buttressed by the fact that throughout most of the
disturbance that morning, the Respondent placed a motion picture camera on
top of the boiler shop and had one of its newly hired professional photographers
take motion pictures of the activities of the people on the outside of the fence
but did not have any pictures taken of any of the activities of the employees
who had gathered around the boilerhouse. The activities of the latter group
easily could have been secured by the photographer because a great number of
them went within 10 or 15 feet of the fence in their anxiety to stone the people
gathered outside the fence.28 The above finding is also supported by the fact
that on another occasion the picketeers at gate No. 1 were stoned by persons
working inside the plant. On that occasion the police were called by the
picketeers and a police officer entered the refinery and arrested 2 men. These
men, however, were released after being taken to the police station, because the
picketeers refused to swear out a warrant against the said 2 men. Admittedly,
immediate knowledge of the arrest of these 2 men for rock throwing came to
the. attention of the Respondent's General Manager Richard K. Rowell and to
the Respondent's Chief Special Agent Creighton, but the Respondent did not
discipline them.
. The only person working in the plant who was discharged by the Respondent
during the strike for activities with respect thereto was James Wesson. Rowell
testified that Wesson was discharged because Wesson "came in and started to
criticize people that had come in before the strike was over, called them names
and so forth. We felt that he didn't belong in an organization of -our kind,
particularly under the circumstances that existed in there at that period."
28 Admittedly, the Respondent took no pictures of any rock or missile thrown by anyone
inside the' iefinery.
STANDARD OIL COMPANY OF CALIFORNIA 827
The undersigned is convinced, and finds, that the credible evidence con-
clusively shows that Donaldson took no part in the rock throwing at gate No. 1
on October 18, that he did not join any group of people who engaged in rock
throwing, and that he only went near the scene of the rock throwing melee out
of pure curiosity. Under the circumstances, especially since there is no credible
evidence in the record that during the strike Donaldson engaged in any illegal,
unprotected activities or conduct, the undersigned finds that the Respondent's
refusal to reinstate Donaldson at the conclusion of the strike and his subsequent
discharge were violative of the Act.
Salvatore Emmanuele was refused reinstatement at the conclusion of the strike
and subsequently discharged, according to the Respondent's Bill of Particulars,
for blocking the streets in the vicinity of the refinery on September 14, and for
attempting to prevent employees of the Respondent from entering the parking
lot No. 14 on October 5.
Regarding the September 14 incident, referred to above, Emmanuele testified
credibly that at about 7 o'clock that morning while en route to the union hall,29
he saw a large crowd gathered upon a street about 4 or 5 blocks from the refinery
proper and police officers shooting tear gas bombs into the crowd in order to
disperse it; and that he drove directly to the union hall, parked his car in the
parking area, and walked back to where the crowd was in order to ascertain why
it had gathered and why the police officers were firing tear gas bombs.
It is the contention of the Respondent that the Union had placed a barricade
across the street where the crowd had gathered in order to prevent the three
trucks carrying the members of the various AFL craft unions who had decided
to return to work that day from entering the plant and that because Emmanuele
was identified in that crowd, his discharge was lawful. Since there is ab-
solutely no credible evidence in the record that the Union established the barri-
cade, that the crowd that gathered on the street where the police fired the
tear gas was, instigated by, or composed mostly of union members or strikers,
or that the Union or the strikers had instigated the placing of the barricade, or
that Emmanuele had participated in the erection of the barricade, or had any
knowledge of it before it was erected, the undersigned finds that Emmanuele
did not engage in any illegal or unprotected activities or conduct on September
14.
Regarding the October 5 incident, Emmanuele credibly testified that he had
been at the parking lot during the morning of October 4, and went there again
the following day because "I was curious as to what had happened" on the
previous day and that while he was at, near, or in the vicinity of the parking
lot on that day, he did nothing that was violative of the Act or which properly
could be construed as being illegal, unprotected activities. He admitted, how-
ever, that on October 4, he was in the driveway of the parking lot, walking back
and forth, and that on one occasion a police officer "shoved" him aside to permit
an automobile to enter.
'The only witness called by the Respondent with respect to Emmanuele, be-
sides Emmanuele, himself, was Foreman Healy. He identified Emmanuele in
two photographs allegedly taken on October 5, and depicting scenes that al-
legedly happened on that day. However, the evidence, established by the
Respondent itself, clearly discloses that those photographs were of scenes that
ensued on October 4. Nonetheless the person whom Healy testified was Em-
'0 His duty was then from 8 a. m. to 12 noon.
828 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
manuele, -that.person in each picture is evidently calmly standing at the edge
of the entrance to the parking lot watching an automobile enter.
The undersigned is convinced, and finds, that Emmanuele, throughout. the
entire strike, did not engage in. any illegal, unprotected activities or conduct.
The undersigned further finds that the Respondent's refusal to reinstate Em-
manuele at the conclusion of the strike and his subsequent discharge was
violative of the Act.
Louis Ferreira was refused reinstatement at the conclusion of the strike and
subsequently discharged, according to the Respondent's Bill of Particulars, for
.engaging in, during the strike, a campaign of terrorizing the Respondent's em-
ployees by pursuing the said employees as they 'attempted to enter or leave
the refinery, for patrolling the,area surrounding the refinery with clubs, rocks,
and other weapons for the purpose of intimidating the said employees; for
damaging an automobile, on or about September 27, as it was entering gate 16,
and for having in.his possession, on being apprehended, on October 26, numerous
weapons.
Regarding the September 27 incident, referred to above, Roy J. Hanson, desk
sergeant of the Respondent's guards, testified as follows :
Q. Now, on or about the 27th of September, or the end of September, did
you have occasion to look out those windows? -
A. I did.
Q. About what time of day was that?
A. Around about 3: 50 p. in. .
Q. Will you tell us what you saw, if anything.
A. I seen a car come up Standard Avenue, proceeding at about ten miles
per hour, a coupe, black. It made a right hand turn to enter the 16 Gate.
In the entrance of this gate, the 16 Gate, there was a man who stepped onto
the running board of this particular car, hit three distinctive blows on
the right hand windshield with a piece of pipe or.metal.
Q. I see. Mr. Hanson, how many pickets were there at that gate at
that time?
A. There were four pickets at the gate at that time.
Q. As this car turned into the gate did it stop?
A. He hesitated momentarily to prevent from hitting the man standing. in
his way.
Q. I see. After you saw one man strike the windshield, what did he dot
A. He hit three blows on the windshield, and as the car passed him he
hit a right hand swing this way [indicating] on the side window of the car.
Mr. PRAEL. Let the record show this witness has indicated a backhand
movement with his right hand.
Isn't that right?
Mr. LAW. Yes.
The WrrNESS. This way [indicating]. .
Mr. LAW. Yes. The witness has so indicated.
Q. (By Mr. MACLAURY.). Now, did you see where this man that struck
the windshield got the object from? •
A. No, I did not see where he produced the object from.
Q. After you say he hit the side window with a backhand blow, what
• happened?
A. The man dropped the instrument on the ground , he,picked it.up,•- put
it in his rear back pocket. • • .. • .... . •
STANDARD OIL COMPANtY ' OF '.CALIFORNIA . -, 829:,
Q. I See. And what did•the car d.o.then?..
A. The car.proceeded .on through 16 Gate.
Q. Did you recognize this man?
A. I did. :
Q. Do you know his name?
A. His name is Ferreira.
Q. Is that spelled F-e-r-r-e- i-r-a?
A. That's right.
Q, Is that Louis Ferreira?
A. That's right.
Oh. direct examination by Respondent's counsel, Ferreira denied ever throwing
missiles at any cars going into a refinery gate and denied smashing or damaging
any cars going into a refinery gate. On examination by the General Counsel,
Ferreira testified as follows :
Q. Mr. Prael asked you if you were present at any time on the picket
line when any missile was thrown. Do you understand what a missile is?
A. Well, could be anything, could be a rock-or could that be right?
Q. Was anything thrown at you at any time during the strike?
A, Yes, I think there was. I was standing at 16 Gate, I recall it now.
There was a guy come in there, it was a sedan, what kind of car it was I
don't know, but there was a 12 inch crescent thrown out, and it just missed
me by inches.
Trial Examiner MYERS. 12 inch what?
The WITNESS. 12 inch crescent.
Trial Examiner MYERS. What is that?
The WITNESS. Regular wrench they use for taking nuts and bolts. It's
a machinist's wrench, is what it is.
Q. (By Mr. LAW.) Did it hit you?
A, It come awful close.
Q. What •did the car do?
A. Well, the wrench come out, I picked it up and threw it back, and they
went up to the gate, they didn't even stop, they went up to the gate, opened
the gate, and in they went. That is the last I have seen of them.
Q. Did you see whether or not the wrench hit the car?
A. No, I don't remember whether it hit the car or not. Might have ; might
have not.
Q. Do you remember about when this occurred?
A. I haven't the least idea when this occurred. I couldn't give you any
specific date on it, Mr. Law. Of course, that has been so darn long ago.
Q. It was at Gate 16, was it?
A. It was at Gate 16, yes.
Q. Do you recall what kind of car it was?
A. The only thing I can tell you, only description of the car I can give
you, it was a sedan. I know it was full. What the men looked like I
didn't get a chance to see. I don't know who they were, what they were
like, I couldn't tell you who was in the car. I do know it was a sedan.
Q: Where were you at the time?
A. I was on this side of the gate, I would say the north side, 16 Gate.
Q. Is that the side toward the Union Hall or away from the Union Hall?
A. Away from the- Union Hall.
Q. Did the car stop as- it came-to the gate entrance?•
. 830 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
A. He didn't make a full stop, he just slowed .up and just stepped on the
gas. That is the way they usually do. At the same time this wrench
come flying out.
Q. What did you do at the time the car went through?
A. What did I do? I had to get out of the way.
Hanson was a forthright and honest witness. On the other hand, Ferreira's
demeanor while on the witness stand, coupled with his self-contradictory testi-
mony, leads the undersigned to the conclusion, and he finds, that Ferreira's
testimony cannot be given any credence at all. The undersigned further finds
that Hanson's testimony regarding the incident of September 27 is substantially
in accord with the facts and that Ferreira did smash the windshield of the
car in the manner described by Hanson. The undersigned also finds that by
damaging the aforesaid car, in the manner described by Hanson, Ferreira engaged
in an illegal, unprotected activity.
Since it has been found that Ferreira engaged in an illegal, unprotected
activity warranting the Respondent to refuse to reinstate him at the conclusion
of the strike, it will serve no useful purpose to make any findings with respect
to the other incidents upon which the Respondent claimed it relied when it
refused to reinstate Ferreira.
Upon the entire record in the case, the undersigned finds that the Respondent
did not violate the Act when it refused to reinstate Ferreira at the conclusion
of the strike and when it subsequently discharged him. Accordingly, the under-
signed will recommend that the complaint as to Louis Ferreira be dismissed.
John D. Gayanich was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Particu-
lars, engaging in, during the strike, a campaign of terrorizing the Respondent's
employees by pursuing them as they attempted to enter or leave the refinery,
for patrolling the area surrounding the refinery with clubs, rocks, and other
weapons for the purpose of intimidating the said employees, for, on or about
October 4, threatening and molesting employees attempting to go to work, for
interfering, on October 5 and 6, with employees going to work, for having, on
October 24, in his possession numerous weapons, and for threatening certain
managerial employees, on October 25, with bodily harm.
Regarding the October 4 incident, referred to above, Alice Woods testified
that she arrived in her car at the No. 14 parking lot about 7:25 that morning;
that she could not enter the lot through that driveway because there were about
20 people including women, blocking the entrance ; S0 that she then turned her
car around and decided to drive into the lot through the "exit" entrance
because she had seen John Gayanich picketing there whom she had known for
many years and believing that, to quote words, "he would allow me to enter that
parking lot" ; that when she reached the exit, she noticed that the three pickets
with Gayanich each had rocks (the size of chicken eggs) in their hands and
that Gayanich had a long object up his sleeve which object protruded into his
hand, and he was swinging his arm back and forth in a manner which indicated
to her that Gayanich wanted her to notice the article he had up his sleeve ; and
that the following conversation between her and Gayanich then ensued :
Q. Did you have any conversation with Mr. Gayanich as you attempted
to drive in the exit?
A. Yes. I said, "Can't come in, John?"
"This was the first day that the parking lot was picketed.
STANDARD OIL-COMPANY OF CALIFORNIA. 831
Q. You tell us what you said and what he said.
A. He told me I couldn't enter there to park.
Q: What did you say?
A. I said, "Oh, John, come on. You know you have no jurisdiction
over us."
He said, "If I am going to starve you are going to starve with me."
I said, "I am not going to starve."
This other kid said, one of the other boys said, "You must think the
sunrises and sets on Standard Oil."
I said, "I have been around here for 30 years."
The young boy said, "Why don't you join up with us then?"
I said, "I have never been allowed to."
John said, "She is not going in there to park."
Q. Did Mr. Gayanich invite you to come in?
A. No. He told me to stay out.
Q. Did Mr. Gayanich say to you, "Come on in, Alice, don't be afraid?"
A. He said nothing like that. He said, "You are not coming in."
Q. He didn't say, "Come on in, Alice"?
A. No.
Woods further testified that after waiting a few minutes she then realized that
neither Gayanieh nor the other pickets would allow her to enter the parking
lot, so she left and parked her car elsewhere.
Virginia Humphrey testified that on October 4, she arrived at the Respondent's
hospital about 7 o'clock in the morning; that she had been home ill the
previous work day and therefore she went to the hospital in order to obtain the
necessary clearance so that she could report for work; that after receiving the
clearance, the following transpired :
I walked up to the Main Office. I walked on the right hand side of the
street until I reached Gate 16 and I saw the pickets and I crossed the street.
When I reached the parking lot, the exit to the parking lot, I was stopped
there.
* * * * * * *
Q. And then what happened as you approached the exit, if anything?
A. I approached the exit and I saw John Gayanich, who I knew, and three
other men, and I tried to go through.
Q. Tell us just where were these men?
A. They were on the sidewalk. They weren't barring the exit. They
were barring the sidewalk. In other words, I couldn't get through them
to the main office.
Q. Did they form a bunch or a line?
A. They formed a regular line.
Q. Extending
A. From the parking lot to the curb.
Q. And in this line in what position was Mr. Gayanich?
A. He was on the left hand side.
Q. On your left?
A. As I approached, yes.
Q. Now, will you tell us just what happened, if anything?
A. I tried to' go through-•the line of men and I said, "Pardon me, John."
He said, "You dirty little bitch, you are not going to work", and he
832 DECISIONS OF NATIONAL'-LABOR RELATIONS BOARD
wheeled around and pushed me from the sidewalk out over the curb into
the street.
Q. Well , I am not quite clear on this . Did. you speak to him before he
pushed you, or. after he pushed you? .•
A. Before. I said "Pardon me, John ." Then I went to go through and
be spoke to me:and pushed me.
Q. He spoke to you after you recognized him?
.'A. Yes.
Q. And then what did you do?
A. I stood there for a moment and 'I looked and saw these women in front
of the main office so I turned around and I walked down back Standard
Avenue past the hospital and on.down. I crossed the street when I got in
front of the Union Hall. I walked
-After the above incident , Humphrey returned -home and did not report for
work for an entire week.
Regarding the Wood's incident, Gayanich testified as follows:'
Well, I wasn't walking back and forth where she (Woods) couldn't enter.
There was one occasion there when I was talking to Jim Stanley, and she
could have entered through then. I wasn't on the picket line then. I
wasn't doing picket duty. I was off to the side, talking to Jim Stanley.
Q. Was Jim Stanley there all this time?
A. He arrived on the scene.
Q. Did he arrive before or after Miss Woods arrived in her car?
A. He arrived while she was there , standing away from the ramp.
Q. Did she get out of her car?
A. No, she didn't.
Q. You say she was standing?
A. I meant she was in the car parked there.
Q. The car was standing there. How long had her car been standing there
when Tim Stanley came along?
A. She was standing there all the time I was talking to him.
Q. Well, how long was Miss Woods ' car standing near the ramp that
you were picketing before Jim Stanley came along?
A. Oh, I would estimate about a couple of minutes.
Q. During that couple of minutes you and Mr. Rothacher and Mr. Hollis
were walking' back and forth across .this ramp that leads to or from the
parking lot? -
A. Yes.
Q. And you talked to Miss Woods on that occasion?
A. Yes. .
Q. What did she say and what did you say?
A. I spoke to her first. I says, "Come on in . Nobody is going to
hurt you."
Then she said , after I spoke and invited her in, said , "Come on in , 'nobody
is going to hurt you," she said, "I will remember you for this. I didn't put
in 30 years with the Standard Oil Company for nothing."
,,She made that remark, "I will remember you for this."
I invited her in. .
Q. How close were you to. Miss. Woods when you said, "Come on in.
Nobody is going to hurt you"?
STAN1DARD OIL COMPANY OF CALIFORNIA 833
A:' I was slightly on an-angle, away from the, ramp.
Q. And then. her reply to that, "I will remember you for ' this"; you
remember that?
A: That is right. She mentioned my name. I knew her and she- knew me.
Q. Is that all you said to Miss Woods? Tell us everything you said to
Miss Woods and everything she said to you as nearly as you can recall it.
A. That wasn't all I said. I said, "We are out on strike and we are out
'to get a 'decent wage increase, and whatever we get out of it you will
benefit by it also."
Those were, the only two statements' I mentioned to her.. I did ask her
to come in first before I made the first statement. I invited her in.
Q. Had she said anything to you before you said "Come on in. Nobody
is going to hurt you", had she said-anything to you before that?
A. I don't remember. -
Q Were those the first words spoken between you two?
A. All I remember 'is asking her to come in, that nobody was going to
hurt her.
. Q. Why 'did you tell her, "Nobody is going to hurt you", was there some
reason that you thought she was apprehensive or afraid, did you think
she was afraid?
A. I don't know whether she was afraid or not.
Q. Why. did you assure her that nobody would hurt her?
A. I wasn't going to hurt her. She was a friend of mine. I worked with
her in the Administration Building. I had done work for her.
Gayanich denied having anything up his sleeve while talking to Woods. He
also denied that he carried any stick or object at that time.
Regarding the Humphrey incident, Gayanich testified as follows :
Q. Do you know Virginia Humphrey?
A., No, I don't.
Q. Virginia Humphrey, as a matter of information for you, works in the
Administration Building on the first floor. She is a small girl, dark. You
don't recall seeing her that morning?
A. No, I don't recall seeing her.
Q. Did you talk to any girl who tried to walk through the exit to the
parking lot which you were picketing that morning?
A. I talked to Miss Alice Woods.
Q. About what time was that?
A. Oh, it was some time after 7: 30.
Q. Well, was Miss Alice Woods walking or riding when you first saw her?
A. She was in an automobile.
Q.•Shortly before Miss Woods arrived on the scene did you have any
i conversation with any young lady who, started to go into the parking
lot on foot?
A. I don't,recall.
Q. Do you recall following any young lady away from the parking lot
on Standard Avenue toward Castro Street? -
A. No.
Q. And talking to her?
A. No, I don't.
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner MYExs. Did you follow any female, whether a young
lady, or.otherwise?
The WrrNESS. No, I didn't. - I don't remember following any female.
Q. (By. Mr.. PRAEL.) Do you recall leaving the parking lot to follow
:anyone that morning?
A. No, I.don't recall.
Q. .Did you tell anyone that morning while you were at the parking lot, .
or in the vicinity of the parking lot, that "You are not going to work"?
A. No, I didn't.
Q. Did you give anyone who was walking into the parking lot a push into
the street that morning?
A. No, I didn't.
Q. You are sure you don't know Virginia Humphrey?
A. I don't recall her.
Q. Do you remember seeing anyone else that morning, other than Alice
Woods,;whe works in the Administration Building?
A. No.
The undersigned was very favorably impressed with the honesty and straight-
forwardness in which Woods and Humphrey testified. On the other hand, John
Gayanich did not so impress the undersigned. A careful reading of his entire
testimony, covering over 100 pages of the stenographic report of the hearing,
leads the undersigned to believe, and he finds, that Woods' and Humphrey's
versions" of what transpired at the parking lot on the morning of October 4
are substantially in accord with the facts. Gayanich's entire testimony is
unconvincing when considered in the light of the entire record. Accordingly,
the undersigned finds that John Gayanich, on October 4, 1948, engaged in such
illegal, unprotected activities as to warrant the Respondent'to decide to refuse
reinstatement to him after the strike.
Since it has been found that Gayanich had engaged in illegal, unprotected
activities on October 4, the undersigned is of the opinion that it would serve
no useful purpose to resolve the conflicts in the testimony with respect to the
other incidents upon which the Respondent claimed it relied when it refused
reinstatement to Gayanich and thereafter discharged him.
Upon the entire record in the case, the undersigned finds that by refusing
to reinstate Gayanich at the conclusion of the strike and by subsequently dis-
charging him, the Respondent did not violate the Act. The undersigned will,
accordingly, recommend that the complaint as to John Gayanich be dismissed.
Kenneth H. Gillespie was refused reinstatement at the conclusion of the
strike and subsequently discharged for, according to the Respondent's Bill of
Particulars, engaging in certain improper activities at the No. 14 parking lot
on October 5.
Regarding the parking lot incident of October 5, Supervisor Gillian identified.
Gillespie in a photograph depicting a certain scene near the parking lot. Gillespie
denied being there that day. He admitted he was at the parking lot on
October 6, however.
With respect to the photograph in which Gillian testified that he recognized
Gillespie, the latter testified as follows :
Q. Do you see this figure here right under my'pencil?
A. Yes sir. -
Q. Does that look like you? .
Mr. ROST. Just a minute. I will object.
STANDARD OIL COMPANY OF CALIFORNIA
A. I don't believe it does.
Mr. RosT. I will withdraw it.
Q, (By Mr. PaAFi.) You were not at that location at that time?
A. That is right.
Q. Does it at all look like you?
A. No sir. It don't even look like me.
Q. -You are sure that that isn't your picture?
A. I am positive of it.
835 ,
*
Q. You were not, as I understand it, down at the parking lot, No. 14
parking lot, or near the green shack which is some little distance from
the entrance to the parking lot, on any morning during the strike, is that it?
A. That is right. I wasn't even out of bed on the 4th and 5th.
Q. Excuse me?
A. I wasn't even out of bed on the 4th and 5th that morning.
Q. How do you recall that you weren't out of bed on the 4th and 5th?
A. I never got up that early. I didn't have to work.
Q. Except on this one occasion, is that right?
A. Except on that Monday-well, that Wednesday morning.
Q. That Wednesday morning?
A. Yes.
Gillespie was an honest and straightforward witness and the undersigned
was very favorably impressed by the manner in which he testified and he
therefore credits Gillespie's testimony and finds that Gillespie was not at the
parking lot on October 5, 1948. Even if it were found that Gillespie was at the
parking lot on October 5, the person whom Gillian identified as being Gillespie
is entirely by himself, leaning against the little green shack, which is used by
people waiting for a bus, and located about 50 feet from the parking lot. There
is absolutely no evidence, moreover, that Gillespie engaged in any improper
conduct on October 5.
While, as Gillespie admitted, he was at the parking lot on October 6, there
is no evidence that on that day he engaged in any conduct or activity proscribed
by the Act.
Since it has been found that Gillespie did not engage in any illegal, unpro-
tected activity or conduct during the strike, the undersigned finds that the
Respondent's refusal to reinstate Gillespie at the conclusion of the strike and
his subsequent discharge were violative of the Act.
Carl Grotheus was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent's Bill of Particulars,
engaging in certain improper conduct at the No. 14 parking lot on October 5 and 6.
Grotheus, a chemist, was in the Respondent's employ for over 11 years prior
to the strike. During the strike Grotheus did no picket duty. He was, how-
ever, on the Union's coffee detail and a member of the strike committee. He
normally worked at the union hall from 3 to 9 or 10 in the morning.
The only time during the strike that Grotheus was in the vicinity of No. 14
parking lot was on October 6, except on two or three other occasions when he had
to pass the parking lot to reach the Administration Building when he went
there to pay his dues into the mortuary fund.
Grotheus testified credibly that he went to the parking lot on October 6, at
about 7: 15 o'clock that morning because "I had heard rumors to the effect that
917572-51-voi. 91-54
836• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some girls were injured the previous day, and we al wanted ' to make sure , wanted
to check up on it, because I knew that there were ladies present that morning."
Upon reaching the entrance of the parking lot,32 Grotheus immediately walked
across the street and leaned against the fence that encloses the refinery. This
fence is about 100 feet from the parking lot. While there, Grotheus saw
Bullock 33 smash the windows of about five cars as the cars were entering the
lot. Grotheus remained leaning against the fence , except when , on one or
two occasions, he wanted to get a very good view of what was going on near the
spot where Bullock was smashing the windows, he then moved away from
the fence a distance of about 5 or 10 feet.
At about 7: 45, after the employees had gone to work, the-police officers and
photographers had departed; Grotheus returned to the union hall.
The credible ; evidence ,. as summarized above, clearly , shows that Grotheus
engaged in no illegal , unprotected activity or conduct on October 6, or. at any
time during the strike . Therefore , the undersigned finds that the Respondent's
refusal to reinstate Grotheus at the end of the strike and his subsequent dis-
charge were violative of the Act.
Elmer K. Gunter was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent 's Bill of Par-
ticulars, preventing a locomotive to enter the refinery on October 2 and 6,'and
for engaging in certain improper conduct at the No. 14 parking lot on October 6.
. With respect to the October 2 and 6 incidents involving a locomotive or loco-
motives of the Sante Fe railroad, the undersigned found above that the pick-
eteers in nowise interfered with the locomotives and that the locomotive on each
occasion did not enter the refinery because ( 1) the crew of the locomotive re-
fused to pass through the picket line and ( 2) the barricade erected by the Re-
spondent prevented any vehicle from entering gate No. 31 . It was also found
that the locomotive manned by employees of the Respondent entered the refin-
ery after 'the removal of the aforesaid barricade.
The record is barren of any evidence that Gunter was in the vicinity of No.
14 parking lot on October 5 or 6, or at any time during the strike.
Since the credible evidence clearly indicates that Gunter did in nowise engage
in any illegal , unprotected activity or conduct during the strike the undersigned.
finds that the Respondent 's refusal to reinstate Gunter at the conclusion of the
strike and his subsequent discharge were violative of the Act.
Max R . Hammon was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent 's Bill of Particulars,
engaging in certain improper conduct in the vicinity of No. 14 parking lot on
October 5 and 6.
With respect to being in the vicinity of the parking lot on October 5, Hammon
credibly testified that on that day he was visiting his father whose home over-
looks the parking lot ; that about 7: 45 that morning he saw that a crowd had
gathered near the lot and he went there to see why the crowd had gathered;
that when he reached the parking lot he saw about 50 people standing in the
vicinity thereof; and that after remaining at the lot for about 20 minutes he
returned to his father ' s home 94 ,
The photograph introduced by the Respondent shows Hammon, a chap of about
20 years of age, standing at the edge of the parking lot, with his hands in his'
31 Meaning members of the strike committee.
az There were only four pickets at the lot when Grotheus arrived.
sa Not an employee of the Respondent.
94 The credible evidence clearly shows that most of the crowd had dispersed at 7 : 45.
STANDARD OIL OOMPANT OF CALIFORNIA 837 ,
pockets, looking out into blank space. Directly behind Hammon is a child about
3 or 4 years of age. -
Hammon further credibly testified that on October 6 , while again visiting
his father ,96 he noticed that a crowd had again gathered at the parking lot ; and
that he went to the parking lot for the sole purpose of seeing what was trans-
piring there.
There is absolutely no evidence that Hammon engaged in any strike activities
on October 5 or 6. He merely went to the parking lot out of pure curiosity and
for no other reason. ' He did nothing while at the-parking lot except to see what
the crowd was doing. His mere presence in the vicinity of the parking lot, under
the circumstances hereinabove described , can not, and is not, sufficient to war,
rant a finding that Hammon engaged in illegal, unprotected activities . Admit-
tedly, Hammon did nothing in furtherance of any disorder.,
The undersigned concludes , and finds, that at no time during the strike did
Hammon engage in 'any illegal , unprotected activities or conduct . The under-
signed further finds that the Respondent 's refusal to reinstate Hammon at the
conclusion of the strike and his subsequent discharge were violative of the Act.
Carroll F . Hardin was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent 's Bill of Par-
ticulars, engaging in, during the strike , a campaign of terrorizing the Respond-
ent's employees by pursuing them as the said employees attempted to enter or
leave the refinery, for - patrolling the area surrounding the refinery armed with
clubs, rocks , and other weapons for the purpose of intimidating the said em-
ployees, and for molesting and intimidating a taxicab driver on October 25,
while in the possession of numerous weapons.
The only evidence introduced with respect to any purported improper conduct
on Hardin 's part pertains to the incident that occurred on October 25, involving
a taxicab driver.
On the aforesaid date Hardin was on coffee detail. About 3 o'clock in the
morning; after he had finished delivering coffee to the men on the picket line,
Hardin returned to the union hall. He was about to leave the hall to ascertain
whether there were sufficient pickets on a certain. 'gate, when James Kelley,
another striker, asked Hardin whether he would drive him home. Hardin
said that he would as soon as he made an inspection of a certain gate. There-
upon, Kelley got into Hardin's car.
While -en route to the gate Hardin wanted to inspect, a taxicab pulled along-
side his car and the driver asked whether it was safe for him to proceed.
Kelley replied that it was , adding that the dome lights inside the cab should
be lighted . The 'cab driver then stopped at the curb and asked more questions.
While Hardin and Kelley were talking to the driver of the cab , several police
cars arrived. The police officers searched Hardin and Kelley and then searched
Hardin's car . Hardin and Kelley were placed under arrest and' taken to the
police station. •
When Hardin was searched , a police officer found a ball bearing tied in
the corner of Hardin 's handkerchief . The police officers found a flashlight, a
tire iron , ' a piece of cable , an ice pick , and three rocks in Hardin's car.
Hardin and Kelley were charged with vagrancy and held for investigation.
Hardin and Kelley have not been tried upon ' the said charges.
Police Sergeant Warner who made the arrest and one of the persons who
filed the complaint against Hardin and Kelly testified at great length about
Hammon was at this time employed and lived in San Pablo , California , and occasionally
visited his father.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
following Hardin, about overhearing the conversation between Hardin, Kelley,
and the cab driver, and about hearing Hardin and Kelley make certain ad-
missions to the other police officers immediately after Hardin and Kelley had
been apprehended. Warner was far from a credible witness. The undersigned
does not credit his testimony.
Warner testified that while Hardin and Kelley were being searched and
Hardin's car was being searched by the police officers who accompanied. him,
he was busily engaged in getting a statement from the cab driver and his pas-
senger. Despite this activity, Warner testified in minute detail where the
flashlight was found and where the other articles were found. Asked why the
flashlight was seized and included in the photograph of the articles found in
Hardin's car, together with Hardin's handkerchief and the ball bearing that
was contained therein, Warner said, in effect, because the flashlight could have
been used as a blackjack'6
Neither the taxicab driver, whose name and address appear upon the complaint
filed with the police department, nor his passenger, whose name and address
Warner testified he obtained at the time of Hardin's and Kelley's arrests, did not
testify.
. Under the circumstances, the undersigned credits the testimony of Hardin
and Kelley and finds their versions of what transpired between them and the
taxicab driver to be substantially in accord with the facts. The undersigned
also finds that in their conversation with the said cab driver, nothing was said
by either Hardin or Kelley that evidenced any illegal., unprotected conduct on
their part.
Hardin credibly testified that the ball bearing found knotted in his handker-
chief was one that was thrown or shot from within the refinery the previous
morning; that he picked it up near gate No. 1 intending to keep it for a souvenir;
and that it had fallen out of his pocket several times and therefore he tied it
in his handkerchief so that he would not lose it.
The credible evidence, as epitomized above, clearly indicates, and the under-
signed finds, that Hardin did not engage in any illegal, unprotected activities
or conduct during the strike. The undersigned further finds that the Respond-
ent's refusal to reinstate Hardin at the conclusion of the strike and his subse-
quent discharge were violative of the Act. The undersigned also finds that the
articles found in Hardin's car and on his person do not warrant a finding that
by their possession thereof Hardin or Kelley were engaging in illegal, unpro-
tected activities.
_ James W. Kelley was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Partic-
ulars, engaging in, during the strike, a campaign of terrorizing the Respondent's
employees by pursuing them as the said employees attempted to enter or leave
the refinery, for patrolling the area surrounding the refinery armed with clubs,
rocks, and other weapons for the purpose of intimidating the said employees,
and for being involved with Hardin in the taxicab incident of October 25.
The only evidence of any consequence pertaining to any purported improper
conduct on Kelley's part involves the incident with the taxicab driver on the
morning of October 25. The facts of this incident are fully and amply discussed
with respect to the case concerning Carroll F. Hardin. Kelley was with Hardin
when the incident occurred.
As found with respect to Hardin, there was nothing improper in the activities
or conduct -of either. Hardin .or Kelley on the morning of October 25. Neither
a6 He called it a "sap."
STANDARD OIL COMPANY OF CALIFORNIA ' ' 839
'Kelley - nor Hardin engaged in any illegal , unprotected activities or conduct
that day. Nor could the articles found in Hardin 's car or on his person war-
rant a finding that by Hardin's possession thereof Hardin or Kelley were engag-
ing in any illegal, unprotected activities.
Upon the entire record in the case , the undersigned concludes , and finds, that
at no time during the strike did Kelley engage in any activity or conduct
proscribed by the Act. The undersigned further finds that the Respondent's
refusal to reinstate Kelley and his subsequent discharge were violative of the
Act.
Martin Harwayne was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Par-
ticulars , engaging in certain improper activities on October 16 at No. 14 parking
lot.
Harwayne testified that he left the union hall for the parking lot at about
7: 30 in the morning on October 6, to see what was happening there, because he
had heard that on the previous day some women had been hurt and that he was
going to "see to it that " no women would be injured again; that he remained
at the parking lot for about 30 or 45 minutes ; that while he was there he saw
only one person struggle with a police officer ; that he moved with the crowd,
almost "pushed with the crowd" ; and that he saw the window of only one car
smashed . Harwayne denied that any of his actions at the parking lot that
morning were improper.
Several police officers testified at great length regarding the activities of
Harwayne at the parking lot on the morning of October 6. Their descriptions
of his activities , coupled with the photographs received in evidence of certain
scenes depicting Harwayne struggling with the police officers and interfering
with their efforts to do their duties, clearly indicates to the undersigned, and
he finds that Harwayne did, in fact, engage•in activities proscribed by the Act.
It would serve no useful purpose to set forth here at length the credible testi-
mony of the police officers who testified regarding Harwayne 's activities at the
parking lot on October 6. Suffice it to say, the record is replete with credible
evidence of his illegal , unprotected activities . Furthermore , Harwayne was
not an honest and forthright witness. In fact, he was just the opposite. He
even denied that he appeared in Respondent's Exhibit #30. The likeness be-
tween him and the person identified as being him in that photograph is sufficient,
without more , to warrant the finding that Harwayne was not a truthful witness.
Upon the entire record in the case, the undersigned is convinced, and finds, that
by refusing to reinstate Harwayne at the conclusion of the strike and by subse-
quently discharging him, the Respondent did not violate the Act.
Carlos Higginbotham was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent 's Bill of Particu-
lars, engaging in improper conduct at the No. 14 parking lot on October 5.
Higginbotham credibly testified that on the morning of October 5, as he was
coming from his home to the union hall, he noticed some police squad cars
going toward the parking lot so he decided to ascertain what was transpiring
there ; that he reached the parking lot shortly after 7 o'clock ; that he did not
go as far as the entrance of the lot, but remained about 10 to 50 feet therefrom
most of the 10 or 15 minutes he remained in the vicinity of the lot; and that
most of the time he was near the little green bus shack.
The photograph introduced in evidence by the Respondent corroborates Hig-
ginbotham's testimony regarding his whereabouts while in the vicinity of the
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
parking lot . According to the photograph , Higginbotham is standing about 30
.feet from the entrance to. the parking lot looking at the persons near the lot.
Upon the entire record in the. case, the undersigned finds; as the credible evi-
dence clearly shows, that at no time during the strike did Higginbotham engage
in any illegal , unprotected activities or conduct . The undersigned further finds
that the Respondent 's refusal to reinstate Higginbotham 'at the conclusion of the
strike and his subsequent discharge were violative of the Act.
J. D. Hollis was refused reinstatement at the conclusion of the strike and sub-
sequently discharged for, according to the Respondent 's Bill of Particulars,
engaging in improper conduct 'at the No. 14 parking lot on October 5.
Hollis picketed at the entrance to the parking lot on October 5. Regarding
.what he did and what he saw at the parking lot that morning , Hollis credibly
testified as follows :
Q. Tell us what happened on that morning.
A. Well , we were just picketing and cars came up, and they stopped, and
we got out of the way and they went in. When they got in the people would
get out and walk back down to the sidewalk where we; were.
Q: People would getout of the cars and would walk back and stand in the
entrance to the parking lot?
A. Well, I don 't know that they were standing in the entrance , but they
were standing around with the rest of them,.
Q. Did you see the cars stop in the driveway that-'you were picketing that
morning?
A. Some stopped.
Q. Did the police come along that morning?
A. Yes, there were police there.
Q. Did they shove the pickets , people out of the way , out of the driveway.
A. Right at the start they were shoving around . Then they held anybody
back and the cars went on in.
Trial Examiner MYERS . When you say "held everybody back" what do you
mean?
The WITNESS . With their clubs in their hands and their hands stretched
out like this ' ( indicating).
Trial Examiner MYERS. In parallel lines to the entrance of the parking lot,
the entrance to the driveway , going in?
The WITNESS . Stood there and held everybody back.
Trial Examiner MYERS. At right angles to the curb , is that right?
The WITNESS. Yes.
Q. (By Mr. PR&EL .) Did you see anybody lean up against cars when they
stopped at the entrance to the parking lot?
A. No.
Q. Did you see anybody grab ahold of those cars?
A.
Q.
A.
Q.
A.
Q:
A.
Q.
A.
Q.
No, sir.
Did you see anybody try to hit those cars with a stick?
No, I didn't.
Did you see anybody try to hit those cars with a picket sign?
No sir.
Did you see any windows smashed that day?
No, I didn't.
Did you see the policemen take anyone away that morning?
'They took some of them away, but I - don't remember who it was.
Did you see them take more than one person away?
STANDARD OIL COMPANY OF CALIFORNIA 841
A. I think there was two, two or three taken away. I am not sure:
Q. Did you see anybody make any threats to drivers as they drove into the
parking lot that morning?
A. No, I didn't.
The Respondent introduced in evidence two photographs each of which shows
Hollis peacefully watching what is taking place. They clearly indicate that he
was not engaged in any illegal, unprotected activities.
The record is barren of any credible evidence that Hollis engaged in illegal,
unprotected activities or conduct on October 5, or at any other time during the
strike. The undersigned therefore finds that the Respondent violated the Act by
refusing to reinstate Hollis at the conclusion of the strike and by subsequently
discharging him.
Owen D. Keenan was refused reinstatement' at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of. Particu-
lars, obstructing the entrance of the refinery on September 28, for threatening,
on October 2, the family of an employee of the Respondent, and for damaging an
?automobile entering the plant on October 19.
Regarding the incident that took place on October 19, J. L. Creighton, the Re-
••spondent's chief special agent, testified that while he was standing about 30 or
40 feet inside gate No. 10, about .3 o'clock in the afternoon of that day, -he saw
two automobiles enter that gate, one behind the other, each traveling at about
10 or 15 miles per hour, and as the second car went through the gate he saw
Keenan throw a rock at it and saw the rock break the window of the car. He
further testified as follows :
Q. Then_ tell us what happened.
A. Well, the occupants of this. car that was damaged, and the car that
was in front, which had- also stopped, got out and started back toward the
gate. I intercepted the group and told them to stop right there, that we
would take care of the matter. They were quite enraged over what had
occurred, and I asked the driver of the car that was damaged if he saw who
threw the rock. He said no, that he didn't, that he was looking straight
ahead driving his car.
Q. Who was the driver, do you know?
A. I did not know him at that time, but he was later identified as a fellow
by the name of Golding.
s s s s s s s
A. I had one of the guards call the police, and asked for a police car to come
out to the No. 10 Gate. I did nothing until the police car arrived. At about
that time additional pickets arrived on the gate.
The police car came in and I identified the man who threw the rock. The
police. examined the car that was damaged. They took Mr. Keenan-he
was later identified as Keenan.
i t i Q O t
Q. (By Mr. PRAEL.) Where did you meet the police car?
A. Inside the Refinery, inside No. 10 Gate.
Q. How far inside the No. 10 gate?
A. Oh, fifty feet.
Q. And then did you walk out to the Gate with the police-what happened?
You tell us.
`A.' They turned their car around, and went back, to the entrance.
Q. Did you go with them?
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I went with them and pointed out the man who threw the rock, and
they took him into custody after some. difficulty.
Q. Did he resist?
A. He resisted.
Q. What happened? Describe what happened at that time.
A. Well, he professed his innocence and said he hadn't done anything, and
the cars entered the Refinery in a reckless manner. However, he was taken
into custody and the police advised him of his rights.
Q. Did the police use force in taking him into custody?
A. They had to bodily push him into the car; yes.
Trial Examiner MYERS. How many policemen were there?
The WITNESS. The Chief of Police and a Captain of Police.
Q. (By Mr. PRAEL.) Did you go to the police station after that?
A. I did.
Q. Did you again see this man?
A. I did.
Q. Was that when he was identified as Keenan, or said he was Mr. Keenan?
A. That is right.
Q. Do you know whether or not a complaint was filed against Mr. Keenan?
A. There was.
Q. Did you have any part in that?
A. I signed the complaint.
Regarding this incident, Keenan testified as follows :
A. I was standing at the gate and the car came through. I didn't see
any windows being smashed then until they stopped about two blocks away
from the gate up the street inside the Refinery. The fellows that went
through the gate in the car got out of the car and started pointing down at
us at the gate, and said one of us broke the window.
Q. Were you arrested that day?
A. I was arrested for breaking a window, yes.
Q. You heard and saw nothing regarding the window as they went through
the gate?
A. I never seen the window broke at all.
Creighton was a forthright and honest witness. Keenan did not so impress
the undersigned. From Keenan's demeanor while on the witness stand, the
undersigned got the impression that Keenan was not telling the entire truth,
not only regarding the October 19 incident, but also with regard to the other
matters about which he was questioned. Under the circumstances, the under-
signed finds Creighton's version of what transpired at gate No. 10 on October
19, to be substantially in accord with the facts.
Since the above activities of Keenan are clearly illegal, unprotected activities
and as such are proscribed by the Act, it would serve no useful purpose to set
forth here at length the other incidents upon which the Respondent claimed
it lawfully refused to reinstate Keenan and for which it subsequently discharged
him.
The undersigned further finds that by refusing to reinstate Keenan at the
end of the strike and by subsequently discharging him the Respondent did not
'violate the Act.
Elroy H. Leighty was refused reinstatement and subsequently discharged for,
according to the Respondent's Bill-of Particulars, engaging in a campaign, dur-
ing the strike, of terrorizing the employees of the Respondent by pursuing them
as they attempted to enter or leave the plant, for patrolling the area surrounding
STANDARD OIL COMPANY OF CALIFORNIA 843
the refinery armed with clubs, rocks, and other weapons for the purpose of
intimidating the said employees, and for, on November 3, threatening and abusing
an employee then working in the refinery.
The only evidence of any consequence relating to the purported claim of im-
proper conduct on the part of Leighty during the strike relates to a purported
telephone conversation.
Sometime during the strike some person or persons turned off certain valves
thereby cutting off the flow of illuminating gas to the refinery. The Respon-
dent has offered a $5,000 reward for the apprehension and conviction of culprit
or culprits who committed the act. At the time of the hearing, the Respondent
had been unsuccessful in its attempts to apprehend the guilty party or parties.
Leighty was questioned by the Respondent's counsel about this valve incident.
He denied having any knowledge of the guilty party. The undersigned credits
his denial.
Charles Camren who worked in the refinery with Leighty prior to the strike
and went out on strike at the inception thereof but returned before its end,
testified that sometime in the early part of November, about 4 or 4: 30 in the
morning, he was called to the telephone, and -the-.party calling' said, to quote
Camren "if you don't get out of there I am going to tell what I know about
the gas valve," and he replied "to go ahead and tell everything he knew about
the gas valve, that it was all right with me." Camren added that, although he
-tried to obtain the name of the man who was calling, he could not learn his
identity, but that he thought it was Leighty calling.
Camren also testified - that, at his request, the operator tried, but was
unsuccessful, in tracing the call.
Camren further testified that he asked a coworker to call the union hall and
ask that Leighty be called to the telephone and that the following then ensued :
Q. (By Mr. PRAm..) Did you say that Wes Barley made a telephone call
to the Union Hall?
A. Yes.
Q. Did you listen to the conversation?
A. We were both in the telephone booth.
Q. Were you on a telephone and was he on a telephone?
A. We were both in the same telephone booth.
Q. Did you hear what Barley said?
A. Right.
Q. Could you hear what was said over the telephone?
A. You mean from the other end? I couldn't hear what was said over
the telephone by the other end, except when I took the phone.
Q. I see.. First you heard Barley call?
A. I heard Barley call the Union Hall and ask for Leighty.
Q. Then what is the next thing you heard?
A. The next thing I heard was Barley saying it was his brother , and then
Barley handed me the telephone.
Q. Then you heard a voice on the telephone?
A. That is right.
Q. And then did you recognize that voice?
A. Yes, I thought I did.
Q. And who did it sound like to you?
A. Homer Leighty.
Q. And did' that voice, on the telephone_ sound the , same as the voice that
had called you shortly before?
A. It sounded similar to it, yes.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Have you talked to Leighty on the telephone before this?
A. Yes.
Q. On more than one occasion?
A. Yes.
Q. You are satisfied that it was Leighty that made the first call?
A. I thought it was.
* a * s * * *
Q. (By -Mr. PRAEL.) And would you tell us why you think that was
Leighty that called you?
A. Well, for one thing, it sounded like him, and the main thing that gave
me the idea that it was Leighty was that I had bad my shift changed on
the day shift that day, the schedule had just come out, andI went home,
got something to eat, and came right back to work. The only people that
knew that I was in that Refinery at that particular time was my wife and the
people I work with at work, and the people that saw me on the gate.
Q. One of these people that saw you at the gate was Leighty?
A. That is right.
Regarding the above, Leighty testified as follows:
'Q. I see. Did you talk to him (Camren)' after he went to work?
A. Yes, he called the Union Hall one night and asked for me.
Q. And before that did you talk to him, before that night that he called
you at the Union Hall?
A. After he went to work?
Q. After he went to work.
A. No. I don't recall talking to him at all.
Q. Did you call anyone in the refinery during the strike?
A. I did not call anyone in the refinery during the strike at all.
Q. Didn't you, in fact, call Camren after he had gone back to work in the
refinery?
A. I did not call Camren, or anyone else. I just told you I didn't call the
refinery at all during the strike.
Leighty impressed the undersigned as an honest and forthright witness. Cam-
ren did not. The undersigned' credits Leighty's testimony and finds that he did
not telephone Camren at the refinery on November 3, or at any time during the
strike.
Since the record is void of any credible evidence to the effect that Leighty en-
.gaged ' in any illegal, unprotected activities or conduct during the strike, the
undersigned finds the Respondent's refusal to reinstate Leighty at the conclusion
of the strike and his subsequent discharge to be violative of the Act.
Bert F. Lods. was' refused reinstatement at the conclusion of the strike and
was subsequently discharged for, according to the Respondent's Bill of Particu-
Jars, 'engaging in certain improper conduct at gate No. 16 on October 8.
On the aforesaid date, Lods was on the coffee detail. He had finished his
rounds about 10 o'clock that night and had returned to the union hall. About
30 minutes later, he again left the union hall for the purpose of picking up the
empty coffee cups at the various gates, because of the shortage of cups. He
reached gate No. 16 about 11: 30, where he had, gone solely to pick up the
empty cups. What then transpired, Lods testified as follows :
Q..,What was the .first, thing that you saw. and what happehe'd?
A. ' We11, just about the time that I was about two-,thirds of the- way
across the street, there were three cars entered the gate at a pretty high
rate of speed.
STANDARD OIL COMPANY OF CALIFORNIA 845
Q. Did you see these' cars coming' down Standard Avenue at the time
that you were parking your car along' Standard Avenue across from
Gate 16?
A. I didn't notice them until they were almost- at the Gate.
Q. Did the cars have their lights on?
A. I think they did.
Q. And you were in the middle of the street when you first saw them,
is'that- it?
A. Perhaps a little past the middle.
Q. And where were you in relation to the gate, were you directly opposite
the gate in the middle of the street, Gate 16?
A. Perhaps to the left hand side of the gate.
Q. That would be slightly west of the gate?
A. Yes.
Q. The three cars you mentioned came from the east, is that right?
A. That is right.
Q. And they turned in the gate?
A. Yes sir.
Q. All three of them?
A. Yes.
Q. What happened when they turned in the gate?
A. Well, I remember the pickets trying to get out of the way so they
wouldn't get run over in the deal:.
Q. They jumped aside?
A. They did.
Q. And the cars went in?
A. They went inside. I imagine the last car was about, oh, 30 or 40
feet inside. "
Q. Are you talking about the first car in or the last car was 30 or 40
feet inside? -
A. After they stopped, the last car in was probably about that far from
the gate.
Q. Did you continue on toward the gate after the cars went in?
A. Well, about that time I had only to step a couple of steps and I was
approximately even with the gate, about the sidewalk.
Q. Now, after the cars went in, as I "understand it, after the cars went in
you didn't hear any windows breaking on the cars, or see any windows
broken on the cars, is that right?
A. I didn't hear or see any broken windows, no.
Q. After the cars went in the gate and stopped, did you see any car
windows broken, or hear any car windows broken?
A. I don't recall any.
Q. Now, what happened after that?
A. It happened very quickly. The minute these cars stopped, and they
stopped just as suddenly as they went through the gate, and from what
I could see every car was loaded with men.
Q. Did you see that as they'went in the gate, that they were full-of men?
A. I recall the men more when they burst out of the cars, after they
slammed to a stop:
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. I am not interested in your opinion. I want to know what you saw,.
what you heard, or what you did.
A. All right.
Q. Please tell us that.
A. The men got out of the cars and ran toward the gate. They were
armed to the teeth.
Q. What did you see, or what did they have?
A. Well, I saw one man in particular that was swinging a length of
cable, or hose , something round, black and long.
I saw others with similar objects-I couldn't actually describe them-
and the air suddenly became full of rocks.
Q. Which way were the rocks going?
A. They were coming toward the pickets.
Q. Were any of them coming toward the cars that had gone in the gate?
A. No., That would be toward my back again.
Q. Did you step in through the gate at any time, Mr. Loris?
A. I might have fallen through.
Q. Well, as a matter of fact, when you fell , you were inside the gate,
weren't you?
A. I don't recall just exactly where I fell. I wasn 't seeing very clearly
then.
Q. How were you hit, do you know?
A. I don't know actually.
Q. You just felt a bang on your head and then you went out?
Trial Examiner MYERS. Somebody hit you or was something thrown at
you? , Do you know?
The WITNESS . Well , I have never been able to make up my own mind
clearly as to what actually did hit me, because that one man in particular
that I saw was swinging something long, like a length of cable, and he was
close enough to me to hit me with that cable, and yet it happened so suddenly
that I didn't know whether I had been hit on the head with a rock or whether
he had hit me with that cable.
Q. (By Mr. PRAEL .) I see. Where did that fellow with the cable come
from, do you know?
A. Out of one of the cars.
Q..You don't know which one?
A. No.
Q. Did you see what the pickets did after the cars went through the
gate?
A. They were just about as foolish as I was. They were watching.
Q. Did they charge in the gate after the cars went in and stopped?
A. No, sir.
Q. They didn 't. Did they go in the gate after the cars at any time?
A. I couldn't say, because, as a repeat, the thing happened so quickly
and being hit on the head right at the first, why I wouldn't recall that.
Q. Were you knocked out completely or just hazy?
A. I was on the ground and I could feel the ground and-
Q. You couldn 't tell what was going on around you very well , is that it?
A. No, not very well.
STANDARD OIL COMPANY OF CALIFORNIA 847
Lods further testified that prior to the time he was bit, there were only four
picketeers at the gate and he saw no other persons in the immediate vicinity
on the outside of the gate.
Several of the occupants of the three cars testified in great detail to the fact
that earlier in the evening they had left the refinery to attend a meeting of, one
of the AFL craft unions; that upon their return the 3 cars in which the 18
or 20 men were in, proceeded very slowly through the gate ; that as the last car
went through, the persons on the picket line threw rocks and other missiles at
that car and damaged it considerably ; and that all but 1 or 2 of the occupants
of the three cars got out and picked up the rocks that the picketeers had pre-
viously thrown,.and threw them at the picketeers. All of the occupants of the
three cars who testified, stated that the rock and missile throwing was started
by the persons on the picket lines and by•other persons who came to their aid.
Orman Kelley, a guard hired by the Respondent during the strike, testified
as a General Counsel's witness, as follows :
Q. All right. Now, as the cars went through, did you notice anything
special about them or about the people in them?
A. Yes sir, I did.
Q. What did you notice?
A. One car in particular-I wouldn't say which one it was, first, second
or third-there was one man sticking out the window with his head and
shoulders, and had a long slingshot pulled out this way [indicating] aiming
directly back toward the.entrance from which he had just come through.
Q. All right. Now, the cars went through and stopped and then what
happened?
A. They stopped and a bunch of men got out of those three cars and came
directly back toward the gate where the pickets were stationed.
Q. Now, about how many men got out of the three cars?
A. I would say about twenty.
Q. Did any of them have any type of weapon other than the slingshot
that you have already testified about?
A. The slingshot I saw personally and I saw one club in the hands of some
man that got out in one of those cars.
Q. All right. Now, the men got out of the cars and then what did they do?
A. Walked back toward the gate where the pickets were stationed and
immediately there was a fight started.
Q. Now, at the time-you have testified that there were four pickets. At
that time were there any more pickets?
A. At that particular--
Q. As of'the time the men got out of the cars and went back?
A. No sir, I don't think so.
Q. All right. Now, you testified that you saw one man with a club. Did
you see him do anything with it?
'A. Yes sir; I saw the club come down in this motion [indicating] and I did
not see the-if it hit anybody or who it hit, but I saw it come down in the air
like this [indicating].
Q. And where was that?
A. That was on the north side of the gate.
a a a a s s s
Q. You couldn't see who he hit?
A. No sir.
848 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
Q. I see.
A. If they were-if the pickets and the men on the inside of the fence were
all congregated there in one spot, and it's pretty hard to see from the opposite
side of the gate where I was stationed what would be happening directly at
that particular point.
Q. Yes.
Trial Examiner MYERS. How far was he from the pickets, the man with the
club?
The WITNESS. Well, he wasn't-he was just-the picket line was here, for
instance, and he was just inside here [indicating]. In other words, as close.
as you and I are, if not closer.
Trial Examiner MYERS. Two or three feet?
The WITNESS. Not any more than that, sir.
Q. (By Mr. LAW.) Now, did you see anyone injured during this scuffle?
A. I did.
Q. What did he do?
A. I was watching this fracas at the north side of the gate when I turned
around and saw a man stagger out in the middle of the street with his hands
up to his face like that [indicating], and then he collapsed in the street.
Q. Now, did you continue to watch that man to see what happened to him?
A. I did not, sir.
Q. Now, were the four pickets armed before these three cars came in?
A. Not to my knowledge.
Q. Now, as the cars went in the gate, did you hear anything?
A. Yes Sir, I did.
Q. What did you hear?
A. I heard the sound of broken glass.
Q. Did you see what caused it?
A. I did not.
Q. Did you see the pickets throw anything?
A. No Sir.
Q. Did you see them hit the cars with a club?
A. No sir.
Q. Or with their fists or anything?
A. No, I,did not.
Q. But you did hear the sound of broken glass?
A. I did. That happened before the cars had come to a complete stop on
the inside of the gate.
s s e s • s •
Q. All right, and did both sides then throw some rocks back and forth?
A. Yes sir.
Q. How long did they continue throwing?
A. Oh, not very long, possibly a minute or two,minutes.
Q. Now, you testified that one of the men in the cars had a drawn sling-
shot. Did you see him with the slingshot drawn before or after that first
crash of glass about which you have testified?
A. I would say it would be before.
Elbert O. Sherwood, one of the occupants of the first of the three cars, testi-
fied that as his car, with all the windows down, came to -"the gate it stopped,
and then proceeded slowly through the gate; that as his car was going through
STANDARD OIL COMPANY OF CALIFORNIA 849
the gate, he noticed that 1 of the 12 or 14 men standing around the outside of
the gate had a rock in his hand ; that he leaned out of the window of the car.
with a drawn , slingshot in his hands and said to the man with the rock, "You
let go and I let go"; and that "we went on through the gate and never got
anything , anything never happened to us."
Lewis MacDonald , a picketeer at gate No . 16 that night and a person who
was injured by one or more of the occupants of the three cars, testified that no
one on the outside of the gate threw any rocks at the automobiles , or at the
occupants thereof, until the picketeers had been assaulted.
The undersigned is of the opinion that the melee at gate No . 16 on October
8, was started by the occupants of the three cars led by Sherwood . The under-
signed is convinced that instead of threatening the picketeers with using the
slingshot on them, as he testified , he actually used the slingshot and hit one
of the picketeers with whatever he used as shot and that started the melee.
Sherwood impressed the undersigned as a person who would take advantage
of a. helpless undefended person, like the picketeers were. on that occasion. The
occupants of all three cars who testified did not impress the undersigned as
credible witnesses.
Even if the persons on the outside of the gate did start the melee, Lods
can not be chargeable for that. He had nothing to do with the rock and
missile throwing . He went to gate No. 16 , solely for the purpose of collecting
coffee cups and while there got hit and had to be hospitalized . There is no
credible evidence to the contrary . There is absolutely no evidence that he
participated , or intended to participate , in any disorder . The record is barren
of. any illegal , unprotected activities on the part of Lods.
.
Although a complete report of the incident was made by Orman Kelly and
others to the Respondent almost immediately after it had taken place, the
Respondent did not discipline any of the occupants of the three cars who
admittedly engaged in rock and missile throwing . The Respondent depends on
the theory that these persons were only protecting themselves from bodily
harm and their property from damage . Surely, the persons in the first two
cars, at least , were not stoned prior to their getting out of their respective
cars. While forgiving the nonstrikers for participating in the melee, the
Respondent discharged all strikers known to it to have been in the-vicinity of
gate No. 16 at the time of the melee . Lods and Lewis were taken to the hos-
pital for treatment . Their names therefore became known to the Respondent.
They and others were discharged without being afforded an opportunity to
prove that they were not guilty of any violation of the Act.
Upon the entire record in the case, the undersigned concludes , and finds,
that the refusal of the Respondent to reinstate Lods at the conclusion of the
strike and his subsequent discharge were violative of the Act.
Lewis D. MacDonald was refused reinstatement at the conclusion of the
strike and subsequently discharged for, according to the Respondent 's Bill of
Particulars , engaging in improper conduct at gate No. 16 on October 8.
The incident referred to above is the one which has been fully and amply
discussed with respect to the case of Bert F. Lods . The undersigned is of the
opinion that it would serve no useful purpose to set forth here at length the
facts concerning that incident. Suffice it to say, the credible evidence in the
record clearly discloses that MacDonald did not engage in any illegal , unpro-
tected activity or conduct on October 8 or at any other time during the strike.
The findings made in the case of Lods support this finding.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if it were found that someone on the picket line started the melee that'
night, the record does not disclose that that person was MacDonald. In fact,'
the contrary is disclosed. Moreover, while the Respondent condones the
actions of the nonstrikers for their part in the melee, it discharged MacDonald,
Lods, and others without first ascertaining what part, in fact, they, or either
of them, had in the affair.
Upon the entire record in the case, the undersigned concludes, and finds,
that the refusal of the Respondent to reinstate Lewis D. MacDonald at the
conclusion of the strike and his subsequent discharge were violative of the
Act.
Patrick A. MacDonald was refused reinstatement at the conclusion of the
strike and subsequently discharged for, according to the Respondent's Bill of
Particulars, engaging in a campaign, during the strike, of terrorizing the Re-'
spondent's employees by pursuing them as they attempted to enter or leave the
refinery, for patrolling the area surrounding the refinery armed with clubs, rocks,
and other weapons for the purpose of intimidating the said employees, for mo-
lesting and assaulting certain employees of the Respondent on September 20,
for engaging in certain improper conduct at No. 14 parking lot on October 5, and
for assaulting certain employees of the Respondent on October 12, at Clarks'
yacht harbor.
With respect to the September 20 incident, MacDonald testified that about 4
o'clock that morning, shortly after getting off picket duty, he was en route to a
restaurant when he heard some loud shouting coming from the direction of a
parking lot near the refinery and then saw about 10 or 12 men running from the
parking lot; that the majority of the men were chasing the others; that the men,
after leaving the parking lot, ran in various directions ; that he saw 2 or 3 men
pursuing 1 span, so he joined in the chase ; that after chasing the man for ap-
proximately 1 or 2 blocks, be caught him and discovered that it was Wallace Pat-
terson ; that he asked Patterson "What he was doing, trying to scab" ; that Pat-
terson replied that he was broke ; that the other 2 or 3 men who had been chas-
ing Patterson arrived and 1 of them "started to beat up" Patterson by hitting him
in the face 2 or 3 times with his fists ; that after the man had been hitting Patter-
son for several minutes, he told the man that Patterson had been hit enough and
should be allowed to leave ; that the man then stopped hitting Patterson and the
latter left ; and that at no time did he strike Patterson.
Patterson testified that about 5 o'clock in the morning of September 20, he and
three other men a were on their way to their jobs; that they were about to enter
the refinery by crawling under, or by climbing over, or by going through a hole
in the fence that encloses the refinery ; that when the four of them reached the
fence, three or four men set upon them ; that one of his companions was knocked
down and he and the two others ran for safety ; and that the following then
ensued :
Q. You ran back towards Standard Avenue, is that right?
A. Yes, sir, across Standard Avenue, and ran towards the Ship's Cafe.
Approximately in front of the Ship's Cafe Harry Meyer tripped and fell, and,
in turn tripped me. I fell to one knee and was getting up,.and Evans fell.
I started to get up, and there was a bunch of men gathered around us tak-
ing swings at us. I saw Harry Meyer in the entranceway to the Ship's Cafe
and I tried to get back to him to help him. They were swinging at him and.
kicking at him. They didn't let me get to him, they were kicking at me with
a Namely, McLaughlin, Meyer, and Evans.
STANDARD OIL COMPANY OF CALIFORNIA 851-
sticks. I was trying to protect myself. I backed up against the wall so they
couldn't get in behind me. I was protecting myself the best I could.
Q. This wall that you were backed up against, was that the Ship's Cafe?
A. Part of the Ship's Cafe and the bar.
Q. Where were you struck?
A. I was struck in the face, on the head, shoulder, they broke a stick
over my arm, several bruises on the arm, my elbow was swelled 'up con-;
siderably. Also, they cut my face with sticks.
Q. What happened to your mouth and your face?
A. I had. some of my teeth cracked, and the bone in my upper lip, jaw,
cracked, which caused an infection in my mouth which caused me to lose;
.my teeth.
I was struck on the body several places.
Q. What were you struck with?
A. They had sticks, pick handles and fists.
Q. And sticks?
A. Yes, sir.
Q. Did you eventually get away?
A. No, sir.
Q. What happened?
A. They kept me cornered there.
i Q. How long did they keep you cornered there? This is against the build-
ing you are talking about.
A. I couldn't say the exact time. Several minutes, five or ten minutes.
Q. Then what happened?
A. Then they kept swinging at me all the time. Finally Pat MacDonald,
said, "That's enough. Send him on home."
I looked up, and I said, "Hi, Pat. What the hell are you doing? And
he did not answer me.
So they told me to get the hell out of there.
I said, "How about my buddy", meaning Harry Meyer.
They said, "Never mind him. We will take care of the son of a bitch."
I said, "Well, how about me getting him?"
They said, "You get the hell out of here or we'll kill you."
So they kicked me a few times, sent me up the street which I walked very
slow, waiting for Harry. A few minutes later Harry comes around the
corner. They were kicking him and hitting him with sticks. Harry got
up to me about that time we heard a siren, and that was about the last
we saw of the mob.
Patterson testified that he first saw MacDonald when he was set upon by the
group near the fence.
Evans' testimony regarding the above incident is in substantial accord with
the testimony of Patterson.
The undersigned was impressed with the honest and forthright manner in
which Patterson and Evans testified. MacDonald did not.
The undersigned finds Patterson's and Evans' version of the events of the
morning of September 20 to be in substantial accord with the facts. The under-
signed also finds that by the said acts; as shown by the testimony of Patter-
son and Evans, MacDonald engaged in certain illegal, unprotected activities
and conduct.
Since it has been found that MacDonald engaged in certain illegal, unprotected'
acts, it is further found that the Respondent did not violate the Act when.it
917572-51-vol. 91 55
852. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to reinstate MacDonald at the conclusion of the strike and when it
subsequently discharged him.
It is the opinion of the undersigned, since it. has been found that he had
engaged in illegal, unprotected activity with respect to the September 20 incident,
that it would not serve any useful purpose to set forth here at length the facts
relating to, or to resolve the conflicts of, testimony respecting the other incident
upon which the Respondent claimed it relied when it refused to reinstate Mac-
Donald at the conclusion of the strike and when it subsequently discharged him.
Chaverlo Martinez was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Particu-
lars, engaging in a campaign, during the strike, of terrorizing the Respondent's
employees by pursuing them as they attempted to enter or leave the. refinery,.for
patrolling the area surrounding the refinery armed with clubs, rocks, and other
weapons for the purpose of intimidating the said employees, for certain improper
and unlawful conduct at the No. 14 parking lot on October 6, and for assaulting
certain employees of the Respondent on October 12, at the Yacht Harbor..,
With respect to the October 6 incident at the No. 14 parking lot, Martinez
credibly testified that he normally did picket duty from 7 to 11 at night and
would then remain at the union hall for another 4 hours as a "standby picket" ;
that on October 5, he did not do picket duty, so he reported at the union hall
shortly after 7 o'clock in the morning on October 6; that about 15 or 20 minutes
after arriving there, he noticed a group of people walking, toward the parking lot
so he decided."to tag along"; that he went as far as the little green bus shack,
which is about 50 feet from the parking lot, arriving there at about 7 : 30; that
he saw a large crowd of people in the vicinity of the lot but did not recognize
anyone he personally knew;-that most of the people were between the entrance
of the parking lot and the shack ; that he remained until. about 8 o'clock remain-
ing near the shack all the time he was there; .that he could not see much of what
was happening because "the people in front of me were too tall for my height n
and I couldn't see over or about them"; that there was'so much noise and loud
talking that he was not sure if he heard any car windows being smashed; that
he moved about a good deal because he "tried to get out of the way of the people
when they got in front too close" to him ; that at no time was nearer than 15 or
20 feet of the entrance to the parking lot, although he tried to get closer in order
to see what was happening at the lot ; and that on his way back to the union hall
he saw an automobile that had been overturned.
The photograph that the Respondent introduced in evidence shows Martinez
in the background near the shack. In the foreground of the picture, police
officers can be seen struggling with Bullock.
The only other evidence of any consequence relating to any purported improper
conduct on Martinez' part pertains to the October 12 incident at the Yacht
Harbor. It would serve no useful purpose to set forth here at length the facts
relating to that incident for they already have been fully discussed in connection
with the case of Albert Alcaraz.
As was found with respect to Alcaraz, the nine people held at the Naval Depot
gate on the morning of October 12, and questioned by the police officers and
scrutinized by four of the five men assaulted near the Yacht Harbor was not
implicated in,any way with the assaults. The same finding is now made with
respect to Martinez.
Since the credible evidence clearly indicates that Martinez did not engage in..
any illegal, unprotected activity or conduct during the strike, the undersigned
u Martinez 'is about 5 feet tall.
STANDARD oIL' COMPANT OF CALIFORNIA
finds that the Respondent's refusal to reinstate Martinez at the conclusion of
the strike and his subsequent discharge were violative of the Act.
William E. McLaughlin was refused reinstatement and was subsequently dis-
charged for, according to the Respondent's Bill of Particulars, engaging in cer-
tain improper conduct at the No. 14 parking lot on October 5.
- With respect to the above-stated incident, McLaughlin testified that on Octo-
ber 5, after he had finished picket duty at gate No. 16 shortly before 8 o'clock
that morning, he crossed the street to the green bus shack ; a' that, from time to
time, the police officers pushed people aside in order to open a lane so that the
cars could go into the parking lot; that when he noticed that there were but
three picketeers on duty at the entrance to the parking lot, he "went over and
filled in for the fourth one" and "the cops came over and started pushing us
around, and tore my [picket] armband off so I got [out] of the picket line" ;
and the following then transpired :
Q. (By Mr. PRAEL.) The cops pushed you out of the way of the cars,
that were trying to go through the picket line, isn't that right?
A. We were walking the picket line. The cars pulled down and stoppe(t
in the street. They didn't come up toward the driveway. The cops gave
us the bull rush and told them to come on in.
Q. I see. The cars stopped before they got to the picket line?
A. Right.
Q. And the picket line continued to shuffle back and forth across the en-
trance, isn't that right?
A. The cops didn't wait to give them a chance to get out of the way.
Q. I see. They just pushed you out of the way and let the cars go in?
A. They formed a line on each side of the driveway and told the cars to
come on through.
Q. After one car went in did you go back and walk across the entrance?
A. No.
Q. You stayed quietly on the side, out of the way, is that right?
A. Yes. -
McLaughlin further testified that the police officers "were pushing the crowd
around quite a bit" in fact "all the time I seen the police they were pushing
people'around. I don't know what the object of it was."
Several police officers, including Ernest Phipps, the then acting chief, testified
in great detail regarding the events that took place at No. 14 parking lot on
October 5. It is quite apparent from the reading of their testimony and the
testimony of other witnesses that a great deal of rowdiness went on at the parking
lot that day. Several men were arrested and several cars were damaged.
McLaughlin testified, in effect, that he did nothing that could properly be construed
as being proscribed by the Act. The undersigned is of the contrary opinion.
Two photographs were received in evidence in which McLaughlin appears.
In one of these photographs, McLaughlin is seen with outstretched hands appar-
ently moving toward a group of police officers, including Chief Phipps, who are
attempting to subdue a person'whom they have in their custody. The forward
motion of McLaughlin's body, as shown on this picture, clearly indicates, and the
undersigned finds, that McLaughlin is about to go to the aid of the person with
whom the police officers are struggling.
Moreover, McLaughlin's admissions about being "shoved" and "pushed" by
the police officer while on, and after being on, the picket line, certainly indicates,
ae Gate No. 16 Is almost directly across from the bus shack.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the undersigned finds, that McLaughlin was engaged in certain illegal, un-
protected activities and conduct otherwise the police officers would not have
"pushed" him around.
Upon the entire record in the case, the undersigned finds that McLaughlin
engaged in certain illegal, unprotected activities and conduct. Therefore, the
undersigned further finds that the Respondent did not violate the Act when it
refused to reinstate McLaughlin after the strike and when it discharged him.
Edward A. Meindersee was refused reinstatement and was subsequently dis-
charged for, according to the Respondent's Bill of Particulars, engaging in a
campaign, during the strike, of terrorizing the Respondent's employees by pur-
suing them as the said employees attempted to enter or leave the refinery, for
patrolling the area surrounding the refinery with clubs, rocks, and other weapons
for the purpose of intimidating the said employees; for molesting certain of the
Respondent's employees on September 6, for,his improper conduct at parking lot
No. 14 on September 12 and October 5, and for molesting certain employees on
October 18 as they were entering the refinery.
With respect to the October 5 incident at the parking lot, Meindersee testified
that he was on picket duty at gate No. 16 until shortly after 7 o'clock that morning
and then he walked toward the parking lot ; that while near the green bus shack
talking to a friend someone came along , bumped into him, and "then the cops
picked me up and I was in jail." Regarding this incident, Meindersee testified
further as follows :
Q. (By Mr. PRAEL.) Did you see him when you came down the sidewalk-
when did you first see him?
A. When I turned around.
Q. After he bumped into you?
A. Yes.
Q. Where was he going, in which direction was he going at the time?
A. Well, I don't know *here he was going. I don't know whether he was
a Union man or what he was. He must have been running down the side-
walk, straight down the sidewalk, because I was standing in the middle of
the sidewalk.
Trial Examiner MYERS. Was he running?
The WITNESS. He must have been. He almost knocked me down.
Q. (By Mr. PRAEL.) Did you touch him?
A. We collided.
Q. Then did you grab his arm or anything like that?
A. I don't remember whether I grabbed his arm or my buddy's arm. I had
my back toward him because he hit me in the back when he bumped into me
and I reached out to keep myself from falling.
Q. You grabbed somebody's arm?
A. Somebody's arm, yes, or shoulder, or neck, or whatever it was.
Q. You don't know whether it was Mr. Keating's neck, or somebody else's
neck?
A. I didn't say "neck." I say, whatever it was.
Q. You grabbed somebody' s something?
A. Right.
Police Officer Dissmeyer testified that he arrested Meindersee because Mein-
dersee "was trying to pull one of the employees off of the Standard Oil property,
who was walking to work. He was trying to pull him back to the sidewalk."
Dissmeyer testified further regarding Meindersee's actions as follows:
STANDARD OIL COMPANY OF CALIFORNIA 855
Q. Just tell us what you saw Meindersee do at that time, and, this other
man. You say this other man was . going to work . How did you know. that?
A. Well, the man was walking toward the Administration Building, and
he had his lunch in his hand. He was trying to pull away from Meindersee,
and Meindersee had ahold of his coat sleeve and his right arm trying to pull
him back out to the sidewalk when I ran over there and broke it up and took
Mr. Meindersee into custody.
Q. Meindersee was hauling and pulling one way, and the other man was
hauling and pulling the other way , is that it?
A. That is correct.
Q. Do you know who the other man was?
A. Mr. Keating.
Q. Did you make a report of this arrest?
A. Yes sir, I made an arrest report.
Dissmeyer also testified that when Meindersee was searched at the police sta-
tion a rock, about 2 inches by 4 inches , was found in the pocket of the coat he
was wearing . With respect to the, rock, Meindersee said that the previous
evening another picket loaned him a coat which he wore the entire night, and
the first time he knew that a rock was in one of the pockets of the coat was when
he took the coat off at the police station because "it was too hot in jail with that
coat on, and they [police officers ] took the coat . . . I guess they found the
rock...." %
Regarding the Keating-Meindersee incident , Police Captain Charles Brown
testified as follows :
Q. What was he (Meindersee) doing there?
A. I saw two men there . One, well, I can't recall whether it was, I know
it was a lunch , but I can't recall whether it was in a regular tin pail or a
paper bag . Anyway, he was going back and forth from left to right trying
to get past another gentleman presumably , I imagine , to go in to work.
Q. He was going to the parking lot?
A. In the direction of the parking lot ; yes, sir.
Q. I see.
A. They kept going back and forth there for two or three times, and then
he started to go right straight through, and then-
Q. The man with the lunch pail?
A. Yes. And when he did that the other fellow grabbed his arm and
they started shoving each other around , and that is when we went over and
placed one under arrest.
Q. Did you see this man, Meindersee , grab the other man by the arm?
A. Yes. As the other man started to go through-I guess he decided,
"Darn it, I am going to go through" and-
Q. Well, just tell us what you saw.
A. All right. He started walking, he went back and forth a couple of
times, trying to get by , and the other man stepped in front of him each time.
On one of these zags to the side why he started going around and on through,
and the other man, Meindersee , grabbed ahold of his arm to keep him from
going by, and they started pulling.
Q. They were pulling back and forth?
A. Pulling back and forth.
Q. Arms swinging and. so forth?
A. Yes ; flailing -the-air with arms , and pulling each other -around as any
two men would.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. Brown and Dissmeyer were honest and forthright witnesses . Meindersee was
not. His testimony that he did not know that the rock was in the pocket of the
coat he was wearing when arrested until the police found it is not true. For
example, two photographs were introduced in which Meindersee appears. The
photographs were taken on October 5, and are scenes in the vicinity of the No. 14
parking lot . In each picture Meindersee is wearing the same coat. One picture
was taken prior to his arrest and the other !while in the custody of Dissmeyer
and another police officer . In the former picture, Meindersee has his hands in
the pockets of the coat he was wearing.
The undersigned finds that Brown 's and Dissmeyer 's versions of the Keating-
Meindersee incident are substantially in accord with the facts . The undersigned
also finds that on October 5 , 1948, in the vicinity of the No. 14 parking lot,
Meindersee engaged in illegal, unprotected activities , as testified to by Brown
and Dissmeyer . Under the circumstances , the undersigned concludes , and finds,
that the Respondent did not violate the Act when it refused to reinstate Mein-
dersee at the conclusion of the strike and when it thereafter discharged him.
It is the opinion of the undersigned that, since it has been found that Mein-
dersee had engaged in illegal, unprotected activity with respect to the October 5
incident , it would serve no useful purpose to set out here at length the facts
relating to, or to resolve the conflicts respecting , the other incidents upon which
the Respondent claimed it relied when it refused to reinstate Meindersee at the
conclusion of the strike and when it subsequently discharged him.
Theodore Moczkowski was refused reinstatement at the conclusion' of the
strike and subsequently discharged for, according to the Respondent 's Bill of
Particulars, engaging in a campaign , during the strike, of terrorizing the
Respondent 's employees by pursuing them as they attempted to enter or leave
the refinery , for patrolling the area surrounding the refinery armed with clubs,
rocks, and other weapons for the purpose of intimidating the said employees,
for his improper conduct at the gates of the refinery on October 8, and for
assaulting certain employees on October 12, at Clark's Yacht Harbor.
The only evidence of any consequence relating to any purported improper
conduct on the part of Moczkowski is in connection with the assaults upon the
five men on the railroad tracks leading from the Yacht Harbor to the refinery.
It would serve no useful purpose to set forth here at length the facts con-
cerning that incident for they are fully and amply discussed in connection with
the case of Albert Alcaraz.
As was found with respect to Alcaraz, none of the nine held at the Naval
Depot gate , questioned by the police officers there , and scrutinized by four of
the five men assaulted , were in anywise connected with the assaults. That
finding is made here again.
Under the entire record in the case , the undersigned finds that the credible
evidence clearly indicates that Moczkowski did not engage in any illegal, un-
protected activity or conduct during the strike. The undersigned further finds
that the refusal of the Respondent to reinstate Moczkowski at the conclusion of
the strike and his subsequent discharge were violative of the Act.
'George D. Moore was refused reinstatement at the conclusion of the strike
and subsequently was discharged for, according to the Respondent 's Bill of
Particulars , on November 1, molesting certain persons having business with the
Respondent.
On November 1, Nix Webb and his son , Robert, employees of the Betchel
Corporation , had been notified by their employer to report for work in the
refinery. The Webbs had been performing construction work for their employer
STANDARD OIL O0MPANY. OF :CA'LIFORNIA 857
in the refinery prior to the strike, but had done no work therein until the
aforesaid date.
Within' a block or- two of the refinery, the Webbs, who were carrying their
lunch. boxes, were asked by a group of men gathered there, where they were
going: When Webb replied that they were going to work in the refinery, he and
his son were struck by some of the men in the group.
Moore testified that he just happened to pass the group of men that was
hitting Webb and his son and that he saw a very tall man and Robert Webb
fighting; that the tall man finally knocked Robert Webb to the ground, fell on
him, and continued to hit him ; that he tried to pull the very tall man off
Robert Webb; and that while trying to do so police officers arrived and arrested
him a nd the very tall man. Moore denied striking Robert Webb.
Police Inspector Davis and Officers Foster, and Sullivan- testified that they
were parked in police squad cars near the group when they noticed -a fight by
persons in the group and rushed there in order to quell the fight ; and that they
saw Robert Webb on the ground, the tall man on top of him hitting Robert Webb,
i and Moore kneeling on the ground and also hitting Robert Webb ; and that they
arrested Moore and the tall man.
Davis, Foster, and Sullivan were honest and forthright witnesses.40 Moore
did not so impress 'the undersigned. Therefore, the 'undersigned finds the
.testimony of Davis, Foster, and Sullivan to be substantially in accord with the
facts. The undersigned also finds that Moore struck :Robert Webb in the
manner testified to by Davis, Foster; and Sullivan.
.. The undersigned further finds that by refusing to reinstate Moore at the
conclusion of the strike and by subsequently discharging him, the. Respondent
did not violate the Act..
Rudolph P. Nelson was refused reinstatement *at the conclusion of the strike
and subsequently discharged for, according to, the, Respondent's Bill of Par-
ticulars, engaging in certain improper activities at No. 14 parking lot on October
5 and 6.
Nelson testified that he did no picket duty after October 1, at about which
time he became a member of the Union's strike welfare committee ; that about
7: 45 on the morning of October 5 he went to the parking lot with Fred Durgin
and Bob Hamilton, two other members of the welfare committee ; that he
never got nearer than about 8 or 10 feet of the entrance to the parking lot; that
he saw some jostling by the crowd gathered there; that he saw some persons
arrested ; that he left and returned about 8 o'clock ; that on October 6, he and
Durgin left the union hall together and arrived there about 7: 40 but did not,
get any nearer to the entrance of the lot than about 8 or 10 feet ; that he saw
photographers taking pictures and police officers keeping the crowd on the
sidewalk ; that he saw one person arrested and windows of about 10 cars
smashed ; he did not walk across the parking lot entrance ; that he left the
parking lot about 7: 50 and on his way to the union hall he saw a car in a lot
near the Industrial Relations Building being turned over on its side, but did not
recognize anyone who was turning it over.
Nelson further testified that his only purpose in going to the No. 14 parking
lot on October 5 and 6 was as a member of the welfare committee and, as such,
10 The undersigned is not unmindful of the fact that Foster, in a certain affidavit given to a
,Board Field Examiner, had Moore and the tall man confused and -that the confusion was not
corrected until sometime later. Irrespective of the confusion in the affidavit, Foster testi-
fied credibly at the hearing and his - testimonywas corroborated -by- the credible testimony
of Davis and Sullivan.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,his duty was to ascertain whether any injured person needed to be cared for
by the Union."
The undersigned was very favorably impressed with the sincerity ands frank-
Hess with which Nelson testified. He was an extremely honest witness.
No one testified to any improper activities on the part of Nelson on October
5 or 6 or at any time during the strike.
Since the credible evidence discloses no illegal, unprotected activity or con-
duct on the part of Nelson the undersigned finds that the Respondent's refusal
to reinstate Nelson at the conclusion of the strike and his subsequent dis-
charge were violative of the Act.
Thomas B. Ogden was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Par-
ticulars, engaging in a campaign , during the strike, of terrorizing the Respond-
ent's employees by pursuing them as they attempted to enter the refinery, for
patrolling the area surrounding the refinery armed with clubs, rocks, and other
weapons for the purpose of intimidating the said employees, for, on September
10, threatening with bodily harm members of a family of an employee then
working in the refinery, for engaging in, on October 6, certain improper conduct'
at No. 14 parking lot, for assaulting certain employees on October 12, at the
. Yacht Harbor, and for engaging in the Haglund taxicab incident on October 25.
Ogden testified that he went to the parking lot on October 6 between 7 and
7: 30 in the morning ; that when he arrived he 'saw no one except police officers ;
that when the employees arrived in their cars the police officers pushed the
people so that the cars could enter the parking lot; that the police officers
pushed him back almost continuously ; that he did not walk back and forth in
the entrance of the driveway, but spent most of his time "trying to stay on" his
- feet ; that two, three, or four policemen surrounded him all the time he was
.at the parking lot ; that there might have been people at the lot besides police
officers, but if so, he did not see them ; that he remained at the parking lot
15 or 20 minutes during which time, to quote Ogden, "I was very busy trying
to keep on my feet. I'm a cripple and it's very easy for me to get pushed
down" ; that he did not know if any cars went into the parking lot because he
had "his back turned" and was facing the other way; and that he did not see
.anyone at the parking lot because, to again quote Ogden, "I was entirely sur-
rounded by policemen for all the time I was there. I didn't have a chance to see
,anybody."
Ogden was shown several photographs that were taken at the parking lot on
October 6. He was questioned whether a certain person depicted on the picture
,was he. He denied that it was a picture of him. The undersigned considered
the photographs while Ogden was on the witness stand and came to the inescap-
able conclusion that Ogden was not telling the truth when he testified that the
designated person was not he. One picture shows Ogden surrounded by a group
of men and only one policeman is shown in the picture.42 Another picture
shows. Ogden walking across the entrance of the parking lot unassisted, and
only 2 police officers are shown on that picture while about 50 civilians are
shown thereon..
Ogden's testimony is worthy of no credence whatsoever and the undersigned
so finds. The undersigned also finds that while Ogden was at the parking lot
41 On October 4, several women were injured while at the parking lot and had to be
hospitalized.
4Y.Naturally, Ogden was standing without the aid of any support.
STANDARD OIL COMPANY OF CALIFORNIA 859
on October 6, he engaged in illegal, unprotected activities and conduct by
attempting to prevent employees desiring to enter the refinery from so doing.
Upon the entire record in the case, the undersigned finds that the Respondent
did not violate the Act when it refused to reinstate Ogden at the conclusion
of the strike and when it subsequently discharged him.
The undersigned is of the opinion that it would serve no useful purpose to
resolve the conflicts in the testimony with respect to the other incidents upon
which the Respondent claimed it relied when it discharged Ogden, for, as the
credible evidence reveals, he engaged in illegal , unprotected activities at the
No. 14 parking lot on October 6, 1948, and those activities were sufficient legal
justification to discharge him.
Rovick Ottino was refused reinstatement at the conclusion of the strike and
was thereafter discharged for, according to the Respondent's Bill of Particulars,
engaging in a campaign, during the strike, of terrorizing the Respondent's em-
ployees by pursuing them as they attempted to enter or leave the refinery, for
patrolling the area surrounding the refinery armed with clubs, rocks, and other
weapons for the purpose of intimidating the said employees, for engaging in
certain improper action at gate No. 1 on October 18.
Ottino testified that while he was at the union hall on the morning of Octo-
ber 18, he heard a commotion outside and he and several other men -ran out
to ascertain what the trouble was ; that he went as far as a tree which was
about a block from the union hall. and about 50 or 60 yards from gate No. 1;
that he then saw a large number of people in the vicinity of gate No. 1 throwing
rocks and other missiles at the people near the boilerhouse and a large number
of employees around the boilerhouse throwing rocks and shooting metallic ob-
jects, by means of some mechanical device, at the people outside the gate ; and
that during the 20 minutes he was there he threw two stones ; that he has a
"crooked arm" and "can not throw very far" on account of it; and that he
doubted whether the stones he threw went over the fence because of his
inability to have full use of his arm.
Nello Canali testified that he was one of the approximately "roughly a couple
of hundred" nonstriking employees gathered at the boilerhouse that morning ;
that he went to the boilershop that morning, although he worked in another
part of the refinery, because, to quote Canali, "I read in the papers the day
before and it said something was going to take place, so I went down to look
things over" and while there he saw Foreman Jewett there ; that Jewett did not
request the employees around the boilerhouse to desist from throwing rocks or
missiles at the people outside ; that he did not throw anything at the people out-
side ; and that he saw Ottino "stoop down" inside the driveway and "it looked like*
he picked up a couple of rocks and heaved them over the fence."
Admittedly Ottino threw two stones in the direction of the people at the
boilerhouse . However, they did not reach their destination because of Ot-
tino's inability to throw very far or very high 43 Under ordinary circumstances,
the undersigned would find that the Respondent's action with respect to Ottino's
discharge was lawful. However, the credible evidence clearly shows that the
Respondent did not discipline nonstrikers for throwing rocks and missiles at
the strikers and picketeers. It condoned their actions." While the.undersigned
93 The undersigned noticed that Ottino's right arm was far from normal and- that It was,
as Ottino stated, "crooked."
"The record Is replete with credible evidence which clearly shows that the Respondent
did not discipline nonstrikers for rock throwing from within its refinery, while it disciplined
the strikers for throwing rocks at employees working . In the plant..
860 DECISIONS. OF NATIONAL LABOR RELATIONS BOARD
",does not condone Ottino's action in throwing stones or rocks into the refinery, he
does find, upon the facts here presented, that the Respondent's" treatment, with
respect to Ottino, was discriminatory.
The undersigned does not credit Canali's testimony. It is self-contradictory
with respect to many material matters. On the other hand, the undersigned
credits Ottino's testimony.: . , ..
Upon the entire record in the case; the undersigned finds that the Respondent,
by refusing to reinstate Ottino at the conclusion of the strike and by. subsequently
'discharging him, violated the Act.
William A. Peterson was refused, reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Par-
ticulars, engaging in certain improper conduct at the No. 14 parking lot on
.October 5.
Peterson testified that at about 7 o'clock on the morning of October 5, he with
strikers Skinner and Tipton went to the parking lot; that most of the approxi-
mately, 15 minutes he, was there, he remained in the vicinity of the green. bus
shack ; and that he also walked to within 10 or 15 feet of the entrance of.the
parking lot on one occasion.
The record is absolutely void of any evidence of any illegal, unprotected activ-
ity or conduct on the part of Peterson and the undersigned so finds.
The undersigned further finds that the Respondent's refusal to reinstate
Peterson. at the conclusion of the strike and his subsequent discharge were
violative of the Act.
Wilburn Pittman was refused reinstatement. at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Particu-
lars, engaging in a campaign, during the strike, of terrorizing the Respondent's
.employees by pursuing them as they attempted to enter or leave the refinery,
for patrolling the area surrounding the refinery armed with clubs, rocks, and
other weapons for the purpose of intimidating the said employees, for engaging
in certain improper conduct at the No. 14 parking lot on October 6, for'being
involved in the Haglund incident on October 25, and for threatening with bodily
harm certain managerial employees.
Pittman testified, R ithout contradiction, and the undersigned finds, that he
was not at No. 14 parking lot on October 5 and 6.
With respect to the Haglund taxicab incident, the undersigned is of the
opinion that it would serve no useful purpose to set forth here at length the.facts
pertaining to that incident for they are fully and amply discussed with respect
to the case concerning William J. Brakke.
As was found with. respect to Brakke, the 14 men there involved: were not
then engaged in any illegal, 'unprotected activities or conduct. That finding is
here 'restated with respect to Pittman. The undersigned also finds that the
articles found-in the 3 automobiles searched by the police officers. involved in the
Haglund incident can not properly be construed as sufficient evidence to prove
that Pittman was then engaged in illegal, unprotected activities or conduct be-
cause the said articles were found in the cars and the undersigned so finds.,
. Foreman Gair testified that he drove to work on October 25, arriving at: the
refinery between 8 and 8: 30 that morning ; that in his car were three other
named employees; that as he approached within a block or two someone threw
stones at his car ; that he was also followed for a block or so prior to his entry
into the refinery, by an automobile driven by some . undisclosed person that
after reaching ..his. office , Pittman, Floyd Selle, and John Gayanich drove. acar.
close to his open window, and "they" • talked to: him and employee Earl Hook.,-
STAN'DAR 'D OIL COMPANY OF CALIFORNIA 861
and that "they" said that "we were a bunch of scabs, and particularly Selle
invited Earl Hook to come outside, and such things as that."
As it clearly appears from above recital of the facts there is no evidence
that Pittman participated in following Gair 's car , or of stoning it, or that he
spoke to either Gair or Hook. Moreover , the credible evidence clearly shows
that at the time of the alleged conversation Pittman was in jail having been
arrested earlier that morning in connection with the Haglund taxicab incident.
The undersigned is of the opinion , and finds, that Gair's testimony regarding the
above incident is not credible.
Roy J . Hanson, desk sergeant of the Respondent 's guards, testified that some-
time in October 1948, he saw a group of men pick up some rocks "off the side
of the hill" and pile them "along the sidewalk on the curb " near gate No.
16. He further testified , that he recognized one of the men in that group whose
name he "believed " is Pittman.
Pittman denied that he ever picked up any rocks during the strike and piled
them along Standard Avenue" or at any other place. The undersigned credits
1?ittman's denials.
The undersigned finds that at no time during the strike did Pittman engage
in any illegal, unprotected activity • or conduct . The undersigned further finds
that the Respondent's refusal to reinstate Pittman at the conclusion of the
strike and his subsequent discharge were violative of the Act.
P. A: Poison was refused reinstatement at the conclusion of the strike and
thereafter discharged for, according the Respondent's Bill of • Particulars, en=
gaging in certain improper activity and conduct at the No. 14 parking lot on
October 5.
Poison testified without contradiction, and the undersigned finds, that he
was not in the vicinity of the parking lot, or even in the vicinity of the refinery,
on October 4, 5, or 6, 1948. In fact, there is no evidence that Poison was in
the vicinity of the parking lot at any time during the strike.
Upon the entire record in the case, the undersigned finds that the refusal
of the Respondent to reinstate Poison at the conclusion of the strike and his
subsequent discharge were violative of the Act.
George Rothacker was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Par-
ticulars, engaging in certain improper activities and conduct at the No. 14
parking lot on October 5 and 6.
Police Inspector Roy Middleton testified that on October 6 be saw Rothacker
"walking to the side of a gray colored Pontiac coupe as it was entering the
parking area." He walked alongside the coupe for a short distance and then
struck the driver in the face."
Burton Wilson, the driver of the car, testified that as he was driving his car
Into the parking lot on. the morning of October 6, he had to momentarily pause
so that the police officers could. clear the driveway and that while his car was
stopped he was struck in the face by Rothacker.
Rothacker'denied that he struck Wilson, or anyone else, as Wilson was driv-
ing into, or momentarily halted at, the parking lot. Middleton and Wilson were
honest and forthright witnesses . Rothacker was not. Rothacker refused to
Identify himself in a photograph received in evidence despite the fact that the
person indicated - was unmistakingly Rothacker...
4" Gate No...l6, faces . Standard , Avenue. , .^
16 No. 14 parking Iot. . _, .
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the opinion of the undersigned it would serve no useful purpose to resolve
the conflicts in the testimony with respect to the other incidents relied upon
by. the Respondent in support of its claim that Rothacker was refused rein-
statement at the conclusion. of the strike and therefore the discharge was in
all respects lawful, for the credible testimony of Middleton and Wilson clearly
shows, and the undersigned finds, that Rothacker had engaged in certain illegal,
unprotected activities at No. 14 parking lot on October 6, 1948. Accordingly,
the undersigned finds that by refusing to reinstate Rothacker at the conclusion
of the strike and by thereafter discharging him the Respondent did not vio-
late the Act.
Floyd C. Selle was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent's Bill of Particulars,
engaging in certain improper conduct and activities at the No. 14 parking lot
on October 5 and 6, for overturning and damaging a car of an employee of
Respondent on October 6, and for threatening certain managerial employees
with bodily injury on October 25.
Selle was arrested at the parking lot on October 5, and charged with inciting
a riot under the following circumstances : Selle's wife was picketing at the
parking lot on October 5, and while he was talking to a friend, to quote Selle,
"I heard a commotion around behind me and I turned around and looked and
one of the police officers from Richmond had ahold of my wife, and I told him
to knock it off, let go, that she wasn't doing anything wrong, and he insisted
on pushing her . . . he refused to let go of my wife, I more or less back-
handed him ; I guess, at the same time I told him to lay off, not to misuse my
wife, that she wasn't doing anything wrong. About that time, three or four
of the other officers came in and grabbed me. When I saw that they were giving
my wife a pretty bad time, I tried to fight them off. I thought that it was only
my duty I should."
The police officers who arrested Selle testified that when they wanted to
remove Mrs. Selle from the entrance to the parking lot so that the cars could
enter, Selle "made a lunge for the back of an officer (who was removing Mrs.
Selle), at the same time stating "that's my wife, you son of a b . . .
Police Captain Fitch testified that on October 5 he saw Selle "standing in
front of the cars;" refusing to move at the commands of the police officers at
the scene, shouting in loud terms `scabs,' and on trying to be removed from the
front of these automobiles, pushing back at the police officers."
Edward Brockelsby testified that when he wanted to go to work on the morning
of October 5, Selle, who had three rocks in each hand, and another man, stopped
him near the green bus shack, and Selle then said, "We will let you go through
this time, but don't come back tomorrow or we will tear you apart."
The undersigned credits the testimony of Captain Fitch, the other police officers
who testified regarding Selle's October 5 activities, and the testimony of Brock-
elsby and find their testimony to be substantially in accord with the facts. The
undersigned also finds that the activities of Selle, as testified to by the aforesaid
witnesses, are illegal, unprotected activities.
The undersigned further finds that by refusing to reinstate Selle at the conclu-
sion of the strike and thereafter discharging him, the Respondent did not violate
the Act.
Doris G. Snead was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent's Bill of Particulars,
engaging in a campaign, during the strike,-of terrorizing the Respondent's employ-
41 In the vicinity of the parking lot.
STANDARD OIL COMPANY OF CALIFORNIA 863
ees by pursuing them as they attempted to enter or leave the refinery, for patrol-
ling, armed with clubs, rocks, and other weapons, the area surrounding the re-
finery for the purpose of intimidating the said employees, for engaging in certain
improper activities on October 6, and for being involved in the Haglund taxicab
incident of October 25 .
The only evidence of any consequence relating to any purported improper activ-
ity or conduct on the part of Snead is that dealing with the Haglund taxicab
incident of October 25.
The undersigned is of the opinion that it would serve no useful purpose to set
forth here at length the facts pertaining to that incident for they are fully and
amply discussed in connection with the case of William J. Brakke.
As was found with respect to Brakke, none of the 14 men arrested in connection
with the Haglund taxicab incident were in any way connected with the activities
complained of by Haglund. That finding is made here with respect to Snead. It
is also found that Snead was not engaged in any illegal, unlawful activities or
conduct on October 25, or at any time during the strike.
The undersigned finds that at no time during the strike did Snead engage in any
illegal, unprotected activity or conduct. The undersigned further finds that the
Respondent's refusal to reinstate Snead at the conclusion of the strike and his
subsequent discharge were violative of the Act.
Thomas R. Vandergrift was refused reinstatement at the conclusion of the
strike and subsequently discharged for, according to the Respondent's Bill of
Particulars, harassing and threatening Respondent's employees attempting to go
to work, and for, on October 5 and 6, engaging in certain improper activities and
conduct at the No. 14 parking lot.
Regarding Vandergrift's activities and conduct at the parking lot on October 5,
William O. Footte, Jr., testified without contradiction, and the undersigned finds,
that as he approached the parking lot in his car at about 7: 35 on the morning of
October 5, he drove slowly over the driveway because the picketeers "were closing
in" front of his car ; that Vandergrift stepped up to his car and "took a swing" at
him; that he put up his hand and warded off the blow; that some police officers
pulled Vandergrift away from the car and then Vandergrift ran in front of the car
and stood there ; that an unidentified man took "another swing" but "missed" him;
that Vandergrift then rushed to the side of the car and "took two swings" at him
with a gloved fist, the second one landing near his eye just as he was driving into
the parking lot ; and that a police officer then arrested Vandergrift.
Police Officer Rudy testified without contradiction, and the undersigned finds,
that on October 5 he saw Vandergrift standing in front of the driveway of the
parking lot thereby keeping the cars from entering the parking lot and that he and
three or four other police officers picked Vandergrift up "and bodily carried him
out of the way several times." Vandergrift was arrested at the parking lot on
October 5, and charged with inciting a riot.
It is manifestly clear from the above credible testimony, and the undersigned
finds, that Vandergrift's activities and conduct, as testified to by Footte and Rudy,
were illegal, unprotected activities and conduct. The undersigned further finds
that by refusing to reinstate Vandergrift at the conclusion of the strike and by
subsequently discharging him, the Respondent did not violate the Act.
The undersigned is of the opinion that in view of the above findings it is not
necessary, or desirable "to detail in full, or to make any specific findings,. with
respect to the other incidents upon which the Respondent claimed it relied when
it refused to reinstate Vandergrift after the strike and when it discharged him.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Buford Vetter was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent 's Bill of Particulars,
engaging in a campaign , during the strike, of terrorizing the Respondent 's employ-
ees attempting to enter or leave the refinery, for patrolling the area surrounding
the refinery armed with clubs, rocks, and other weapons for the purpose of intimi-
dating the Respondent 's employees , for.engaging in certain improper conduct at
the No. 14 parking lot on October 5, and for assaulting certain employees at the
Yacht Harbor on October 12.
Regarding the incident at the parking lot Vetter testified that on either
October 4, 5, or 6, he went to the parking lot because he knew his wife would
be there ; that he "caught up" with his wife near the Industrial Relations
Building , located several hundred yards from the parking lot, and walked with
her as far as the green bus shack ; that he and his wife were there until they
were . separated ; that when he located her about 10 minutes later she had been
injured ; and that he took his wife to the hospital for treatment . Vetter further
testified that the only time he left the vicinity of the shack was when he went
looking for his wife and that he located her across the street from the parking lot
lying near the fence that encloses the refinery and at no time did he go near
the entrance of the parking lot.
It would serve no useful purpose to again set forth the facts pertaining to the
Yacht Harbor incident of October 12, for it has been found above that the nine
men held at the Naval Depot gate on that morning were not involved in any
sway with the assaults upon the five men on the railroad tracks near the Yacht
Harbor. Vetter did not have any connection with the assaults.
Upon the entire record in the case, the undersigned concludes , and finds, that
the credible evidence clearly shows that Buford Vetter did not engage in any
illegal, unprotected activities or conduct during the strike.
The undersigned further finds that the Respondent 's refusal to reinstate
Buford Vetter at the conclusion of the strike and his subsequent discharge were
violative of the Act.
'07. L. Vetter 48 was refused reinstatement at the conclusion of the strike and
subsequently discharged for, according to the Respondent 's Bill of Particulars,
engaging in certain improper activities and conduct at the No. 14 parking lot
on October 5.
Alexander Dawson testified that as he approached the entrance of the parking
lot in his automobile on October 5, there was another "car parked parallel to
the curb across the driveway ," so he proceeded to the exit driveway of the lot
and there he saw W. L. Vetter, another man, and a woman standing at the
driveway ; that Vetter and the other man ran in front of his car and stepped
on the front bumper thereof and shouted that he could not enter the lot ; that
he, and the other occupants of the car , shouted to Vetter and the other man that
they intended to enter the lot and that Vetter and his companion should get out
of the way ; that he thereupon started forward slowly and then the men "jumped
off the front of the car and ran around on the driver 's side, and [Vetter] swung
at the window on the door and broke it with his fist," and that after he parked
his car and reported for work, he returned to the vicinity of the lot and had Vetter
arrested.
Police Officer Baroni testified credibly that he saw Vetter break the window
of Dawson 's car as it was entering the parking lot and that he arrested Vetter
for, doing so.
11 Also referred to in the record as Lee Vetter.
' STANDARD OIL _ COMPANY OF CALIFORNIA 865 ,
:Vetter denied that he broke the window of Dawson's car or that he; engaged'
in any illegal, unprotected activities or conduct at the parking lot on October 5.
The undersigned does not credit his denial. The undersigned finds that Vetter
engaged' in the illegal, unprotected activities as testified to by Dawson and
Baroni.
'The undersigned further finds that by refusing to reinstate W. L. Vetter at
the conclusion of the strike and by subsequently discharging him, the Respondent'
did not violate the Act.
Daniel T. Wyatt was refused reinstatement at the conclusion of the strike
and thereafter: discharged for, according to the Respondent's Bill of Particulars,'
engaging in.certain improper activities at the No. 14 parking lot on October 5,
and at the No. 16 gate on .October 8.
. With respect to the parking lot incident of October 5;' Wyatt testified credibly
that about 8 o'clock that morning he went to the parking lot and saw cars going
into the lot and employees entering the Administration Building ; that he also
saw a crowd of about 300 people, including police officers, in the vicinity of the
lot; that during ,most of the 15 or 20 minutes he was there be stayed about
100. feet from the parking lot, except on one occasion when he went as close as
10 feet,of the entrance of the lot ; and that he did not pass beyond the entrance
of,the lot. There is no evidence that successfully refutes Wyatt's testimony
regarding the above.
With respect to the incident at gate No. 16 on the night of October 8, the,
undersigned found with reference to the cases of Lods and Lewis MacDonald that
the picketeers'g did not engage in any illegal, unprotected activities or conduct
on that occasion. The undersigned makes the same finding with respect to
Wyatt for the reasons expressed in the Lods and Lewis MacDonald cases.
The undersigned also finds that Wyatt did not engage in any illegal, un-
protected activities or conduct at the parking lot on October 5, or at gate No. 16
on October 8, or at any other time during the strike. The undersigned further
finds that the Respondent's refusal to reinstate Wyatt at the conclusion of the
strike and his subsequent discharge were violative of the Act.
' Archie G. Wyrick was refused reinstatement at the conclusion of the strike
and subsequently discharged for, according to the Respondent's Bill of Particu-
lars, engaging in a campaign, during the strike, of terrorizing the Respondent's
employees by pursuing them as they attempted to enter or leave the refinery,
patrolling the area surrounding the refinery armed with rocks, clubs, and other
weapons for the purpose of intimidating the said employees, for engaging in
certain improper activities and conduct at the No. 14 parking lot on October 5
and 6, and for being involved in the Haglund taxicab incident on October 25.
Foreman Frank Dolezal testified without contradiction, and the undersigned
finds, that one morning toward the end of the strike between 7 and 8 o'clock,
he was standing near the guard shack, located about 150 or 200 feet directly
inside gate No. 16, and saw a Ford business coupe approach the said gate,
turn as if to enter the refinery, stop momentarily at the picket line, and then
proceed into the refinery ; that as the car was moving into the refinery he saw
Wyrick' smash the right front window of the car: Dolezal further testified
credibly that he was well acquainted with Wyrick because the latter was under
his supervision for about 2 years prior to the strike.
Upon. the entire record in the case the undersigned finds that at gate No. 16
Wyrick engaged in illegal, unprotected activities and conduct, as testified to
41 Wyatt was on picket duty at the time of the above incident.
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Dolezal. The undersigned further finds that by refusing to reinstate Wyrick
at the conclusion of the strike and by subsequently discharging him, the
Respondent did not violate the Act.
In view of the above findings the undersigned is of the opinion that it would
serve no useful purpose to resolve the conflicts in the testimony with respect to
the other incidents upon which the Respondent claimed it relied when it refused
to reinstate Wyrick after the strike and subsequently discharged him.
Upon the entire record in the case, the undersigned concludes and finds that,
by discharging the 40 persons whose names appear upon Appendix A attached
hereto, because'of their union activities, the Respondent has discriminated with
regard to the hire, and tenure of their employment, thereby discouraging mem-
bership in a labor organization, and interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of the Act,
in violation of Section 8 (a) (1) and (3) thereof.
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 such of them as has been found to be unfair
labor practices, tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has.engaged in unfair labor practices
violating Section 8 (a) (1) and (3) of the Act, the undersigned will recommend
that it 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 the persons whose names appear upon Appendix
A hereto annexed, the undersigned will recommend that the Respondent offer to
each of them immediate and full reinstatement to their former or substantially
equivalent positions,5° without prejudice to their seniority and other rights and
privileges. The undersigned also will recommend that the Respondent make the
persons whose names appear on Appendix A hereto annexed, whole for any
loss of pay they may have suffered by reason of the Respodent's discrimination
against them, by payment to each of them of a sum of money equal to the amount
they would have normally earned as wages from the date of their discharges to
the date of the Respondent's offer of reinstatement, less their net earnings
during such period 6'
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. Such conduct, which is specifically viola-
tive of Section 8 (a) (1) and (3) of the Act, reflects a determination generally
to interfere with, restrain, and coerce its employees in the exercise of the right
to self-organization, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
60 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position wher-
ever possible and if such position is no longer in existence then to a substantially equivalent
position ." See The Chase National Bank of the City of New York, an Juan, Puerto Rico,
Branch, 65 NLRB 827.
51 See Crossett Lumber Co., 8 NLRB 440.
STANDARD OIL COMPANT OF CALIFORNIA 867
certed , activities for the purposes of collective bargaining or other mutual aid
or protection, and presents a ready and effective means of destroying self-organi-
zation among its employees. Because of the Respondent's unlawful conduct and
since there appears to be an underlying attitude of opposition on the part of
the Respondent to the purposes of the Act to protect the rights of employees
genera11y,52 the undersigned is convinced that if the Respondent is not restrained
from committing such conduct, the danger of their commission in the future is
to be anticipated from the Respondent's conduct in the past, and the policies
of the Act will be defeated. In order, therefore, to make effective the inter-
dependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair
labor practices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, the undersigned
will recommend that the Respondent cease and desist from in any manner in-
fringing upon the rights guaranteed in Section 7 of the Act.
Since it has been found that the evidence does not support the allegations of
the complaint that the 16 persons whose names appear upon Appendix B hereto
annexed were not discharged by the Respondent in violation of the Act, the
undersigned will recommend that the allegations of the complaint with respect
to these 16 persons be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, affiliated with the Congress of Industrial
Organizations , is a labor organization , within the meaning of Section 2 ( 5) of the
Act.
2. 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 (a) (1)
of the Act.
3. By discharging and discriminating in regard to the hire and tenure of employ-
ment of the 40 persons whose names appear upon Appendix A hereto annexed,
thereby discouraging membership in Oil Workers International Union, affiliated
with the Congress of Industrial Organizations , the Respondent has engaged in,
and is engaging in, unfair labor practices , within the meaning of Section 8 (a) (3)
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. By discharging the 16 persons whose names appear upon Appendix B hereto
annexed, the Respondent did not violate the Act as alleged in the complaint.
[Recommended Order omitted from publication in this volume.]
32 See May Department Stores Company, etc. v. N. L. R. B., 326 U. S. 376.
917572-51-vol. 91-56