The Louisville Refining Co.

National Labor Relations Board - Board Decisions

Jan 12, 1938

4 N.L.R.B. 844 (N.L.R.B. 1938)

In the Matter of THE LOUISVILLE REFINING COMPANY and INTERNA-
TIGNAL ASSOCIATION , OIL FIELD , GAS WELL AND REFINERY WORKERS
OF AMERICA
Case No. C-177.-Decided January 12, 1938
Oil Reaming Industry-Interference , Restraint , or Coercion : expressed op-
position to labor organization ; questioning employees regarding union affilia-
tion and activity-Discrimination : discharges-Una,t Appropriate for Collec-
tive Bargaining : production employees-Representation : proof of choice, ap-
plications for membership in union-Collective Bargaining : meeting with repre-
sentatives , but with ' no intention of bargaining in good faith ; refusal to ne-
gotiate with representatives ; solicitation of individual employees to return to
work on basis of company policy rejected by union representatives ; change to
eight-hour schedule without consulting union representative who was attempt-
ing to negotiate on that subject-Strike: result of employer 's unfair labor
practices-Employee Status : employees discharged ; strikers-Reinstatement
Ordered: employees discharged ; strikers upon application for reinstatement-
Back Pay: awarded , employees discharged ; strikers , from date of denial of
application for reinstatement.
Mr. Philip G. Phillips for the Board.
Mr. Charles I. Dawson, Mr. Robert B. Hobson, and Mr. Ernest
Woodward, of Louisville, Ky., for the respondent.
Mr. Henry W. Lehmann, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF CASE
Upon charges duly filed by International Association, Oil Field,
Gas Well, and Refinery Workers of America, herein called the Union,
the National Labor Relations Board, herein called the Board, by the
Acting Regional Director for the Ninth Region (Cincinnati, Ohio),
issued its complaint dated March 20, 1937, against The Louisville
Refining Company, Louisville, Kentucky, herein called the respond-
ent, alleging that the respondent had committed unfair labor prac-
tices affecting commerce, within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. Copies of the complaint and
accompanying notice of hearing were duly served upon the parties.
844
DECISIONS AND ORDERS 845
The complaint alleged in substance (1) that the respondent on
or about February 17, 1937, discharged 23 of its employees for join-
ing and assisting the Union; (2) that on January 15, 1937, and there-
after, the Union was designated by a majority of the respondent's
employees as their representative for the purposes of collective bar-
gaining; (3) that on or about January 21 and 22, 1937, and there-
after, the respondent refused to bargain with the Union as the ex-
clusive representative of its employees who constituted a unit appro-
priate for the purposes of collective bargaining; (4) that the result
of the discharges and of such refusal to bargain collectively with the
Union was a strike at the respondent's plant in Louisville, Kentucky,
which began on or about March 1, 1937; (5) and that the respondent
has advised its employees that if they ceased their union activities
their salaries would be raised, has uttered false and malicious state-
ments concerning the Union and its officials, has told its employees to
form a company union, and has employed armed guards to intimi-
date its employees to desert the Union.
The respondent filed an answer to the complaint admitting the
correctness of the description of the general nature of its business
as given in the complaint, and admitting that it buys some of its
raw material from States other than Kentucky, causes such raw
material to be transported to its plant in Louisville, Kentucky, by
barge upon the Ohio River, and continuously sells and causes to be
transported in interstate commerce some of its manufactured prod-
ucts, but denying that such acts constitute a continuous flow of trade,
traffic, or commerce among the several States. The answer also
denies that the respondent has committed the alleged unfair labor
practices.
At the same time, the respondent filed a motion to dismiss the com-
plaint upon the ground that the Board has no jurisdiction over the
respondent or the subject matter of the complaint.
Pursuant to the notice, a hearing was held in Louisville, Kentucky,
on April 1, 2, 5, 6, 7, and 8, 1937, before Emmett P. Delaney, the
Trial Examiner duly designated by the Board. The Board and the
respondent were represented by counsel. At the commencement of,
the hearing, counsel for the respondent again presented the motion
to dismiss the complaint upon the grounds set forth in the written
motion. Ruling on this motion was reserved by the Trial Examiner.
At the close of the Board's case and again at the close of all the testi-
mony, the respondent renewed its motion to dismiss. Rulings on
these motions were also reserved. On motion to counsel for the
Board, the complaint was amended to strike therefrom the name of
James Goss. Counsel for the Board also moved to amend the com-
plaint by including the name of Michael Feeney as one of the re-
846 NATIONAL LABOR RELATIONS BOARD
spondent's employees who had been discharged because of his mem-
bership in the Union. Ruling was reserved on the motion. At the
close of the Board's case, counsel for the Board moved that the plead-
ings be conformed to the evidence. This motion was granted. Dur-
ing the course of the hearing the Trial Examiner made numerous
rulings on other motions and on objections to the admission of evi-
dence. The Board has reviewed these rulings of the Trial Examiner
and finds that no prejudicial errors have been committed. The rul-
ings are hereby affirmed.
Full opportunity to be heard, to examine and cross-examine wit-
nesses, and to produce evidence bearing upon the issues, was afforded
to all parties.
Subsequently the Trial Examiner filed an Intermediate Report
denying the motions of the respondent to dismiss the complaint;
granting the motion of counsel for the Board to amend the complaint
by including Michael Feeney's name as one of the respondent's em-
ployees who had been discharged because of his membership in the
Union ; and dismissing without prejudice the complaint as to M.
Clagett, John Gaskell, Frank Jarrell, and Ray Judy, on the ground
that no testimony was offered in respect to them. The Trial Ex-
aminer found that the respondent had committed unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (3),
and (5) and Section 2 (6) and (7) of the Act and recommended re-
instatement and back pay with respect to the employees of the re-
spondent named in the complaint, other than those employees named
above as to whom the complaint was dismissed. Exceptions to the
Intermediate Report and to the record were thereafter filed by the
respondent. The respondent also filed a brief in support of its ex-
ceptions to which we have given due consideration.
Although certain of the findings of the Trial Examiner in his In-
termediate Report are in error, we find that the evidence supports the
conclusions reached by the Trial Examiner therein that the respond-
ent had engaged in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and
(7) of the Act. However, for reasons set forth below, we find that
the Trial Examiner erred in dismissing the complaint as to M.
Clagett and in finding that Hubert Burns was discharged for union
activities.
On July 22, 1937, a petition, signed by 61 of the 63 employees al-
leged by the petition to be then in the employ of the respondent, was
filed requesting the Board not to order the respondent to recognize the
Union as the bargaining agency of the employees of the respondent.
Although this petition is not a part of the record made at the hearing
it has received consideration.
Upon the entire record in the case, the Board makes the following :
DECISIONS AND ORDERS
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
847
The respondent, The Louisville Refining Company, is a Delaware
corporation, incorporated on November 21, 1927, having its principal
offices aiid its manufacturing plant located in Louisville, Kentucky.
The officers of the respondent are : Eli H. Brown, Jr., president; J.
Fred Miles, vice president and general manager; H. R. Smith, sec-
retary-treasurer; William Waples, assistant secretary-treasurer; and
R. D. Scott, assistant sales manager. The respondent is engaged in
the business of refining crude oil and its products are gasoline, kero-
sene, fuel oil, and gas oil. It also produces some asphalt.
The plant of the respondent is located on a tract of land 44 acres
in extent. The equipment consists of two Dubbs cracking units, a,
tube still, and a boiler plant. Between 12 and 15 tanks used for stor-
age purposes are located on the land. The storage capacity
of these tanks is as follows : Crude oil, three tanks with a
capacity of 55,000 barrels each; gasoline, 65,000 to 70,000 barrels;
kerosene, 3,500 barrels; gas oil, 40,000 barrels; fuel oil, 45,000 barrels.
In addition, the respondent has working tank space amounting to
10,000 barrels. It also owns some tanks in Cincinnati, Ohio, located
on land leased from the Tressler Oil Company. In these it stores
gasoline which has been shipped to Cincinnati by barge. The stor-
age capacity of these tanks is 20,000 barrels.
Prior to the alleged unfair labor practices the respondent employed
between 80 and 85 production employees in Louisville, Kentucky,
exclusive of foremen. At the time of the hearing it employed 61
men, exclusive of foremen. Although employees are occasionally
sent to Cincinnati, Ohio, and elsewhere to do work, they ordinarily
perform their duties in Louisville, Kentucky. Some of the respond-
ent's employees have also made repairs on barges of the Producers'
Pipe Line Company, but witnesses for the respondent testified that
the men, when thus employed, were paid by that company for their
work in repairing the barges, and not by the respondent.
The principal raw product used by the respondent is crude oil.
The capacity of its plant is about 100,000 barrels of crude oil per
month, all of which the respondent purchases from the Producers'
Pipe Line Company. In 1936, its purchases of crude oil amounted
to 1,315,046 barrels. About 92 per cent of this oil originates in the
fields of Western Kentucky. The remaining eight per cent originates
in Indiana. The Producers' Pipe Line Company receives all this
oil at Owensboro, Kentucky, and from there 'loads it on its own
barges or those of the Cosmos Pipe Line Company. It thus trans-
ports the oil to Louisville, Kentucky, where it is unloaded at the
respondent's landing dock by pipe line and pumped into the storage
848 NATIONAL LABOR RELATIONS BOARD
tanks of the respondent. Employees of the respondent are employed
in unloading and pumping the crude oil into the storage tanks where
it rests prior to processings.
The respondent uses other raw materials which are purchased in
smaller amounts. In 1936, it purchased 289,000 gallons of benzol
which were obtained in the Pittsburgh district, and 40,000 barrels of
natural gas which came in part from Winchester, Kentucky, and in
part from West Virginia. The respondent also purchases small
amounts of soda ash, naphtha, caustic soda, litharge, and sulphuric,
acid.
The process of refining crude oil is a continuous one and the
respondent's plant operates on a 24-hour basis. The crude oil is
pumped,from the storage tanks into the tube stills where, as it flows
through, it is heated. It then flows to fractionating towers where
gasoline, kerosene, gas oil, and fuel oil, which are the different prod-
ucts of the crude oil, are separated. These products are then
pumped into run down tanks where they are stored. The different
products subsequently receive further processing. Thus gasoline is
sweetened at the treating plant for the purpose of improving its
odor, and kerosene is pumped to agitators where it is treated with
sulphuric acid. The respondent's sales of gasoline average between
50,000 and 60,000 barrels per month.
The respondent's products are shipped from its plant in tank cars
by railroad and by barges on the Ohio River. Those of its products
which are transported to Cincinnati, Ohio, by barge are hauled on
barges of the Producers' Pipe Line Company at the rate of three-
tenths of one cent per gallon. Approximately one-third of its gaso-
line is shipped to its tanks in Cincinnati to await distribution there.
The respondent has no facilities of its own for the transportation
of its products.
In August 1936, a representative month, the respondent shipped
its products from Louisville, Kentucky, to different States in the
following amounts measured in gallons :
Kentucky Indiana Ohio
Gasoline --------------------- 935,529 525, 287 488, 000
Kerosene_____________________ 88,000 24,000 None
Gas oil_______________________ 48, 000 72,000 32. 000
Fuel oil______________________ 48, 000 24,000 1,104, 000
Occasional small shipments are made to other States but these are
insignificant in amount.
It was testified that the respondent is the largest oil refinery in
Louisville, Kentucky.
II. THE UNION
International Association, Oil Field, Gas Well and Refinery Work-
ers of America, affiliated with the Committee for Industrial Organi-
DECISIONS AND ORDERS 849
zation, is a labor organization which admits to its membership
production employees in oil refineries.
III. THE BACKGROUND OF THE UNFAIR LABOR PRACTICES
The employees of the respondent first began to organize in Decem-
ber 1936. Earlier there appears to have been some dissatisfactiop
among them over their wages. In the spring of 1936, a group of
employees had asked to be permitted to speak about their wages
to J. J. Loudermill, the general superintendent. They were told that
Loudermill would prefer to see them one at a time in the office
rather than as a group. Nothing further appears to have transpired
at this time: During the summer of 1936, the extra rate previously
paid for overtime was eliminated. In November 1936 the question
of wages arose again. One of the employees, who became secretary
treasurer of Local No. 211 of the Union subsequently formed among
the respondent's employees, was told when he requested a wage in-
crease, that a new rate schedule had been drafted which awaited
the approval of Miles, vice president of the respondent. However,
no revision of the wage rates appears to have taken place.
On December 3, 1936, the first application cards of the Union were
signed. Subsequently, those who had signed up and wanted to form
a local union applied to International Association of Oil Field, Gas
Well and Refinery Workers of America for a charter. On about
December 18 or 20, R. H. Stickel, a representative of the Union,
came to Louisville, Kentucky, to install the group as Local No. 211
of the Union, herein called the Local, and to present it with a
charter. At this meeting temporary officers were elected. Sometime
in the middle of January, L. R. Lockard, the secretary-treasurer,
notified officers of the Union that a majority of the respondent's em-
ployees had become members of the Local and that they desired assist-
ance from the Union in the negotiations contemplated with the re-
spondent. On January 18, 1937, Stickel returned to Louisville to
aid the Local in its efforts at collective bargaining.
Stickel advised officers of the Local to call a special meeting for
the purpose of determining what requests should be presented to
the respondent in the negotiations. At the meeting held on Janu-
ary 18, 1937, a committee was selected to draft an agreement. On
January 30, 1937, a second meeting was held at which the proposed
draft of an agreement was presented by the drafting committee to
the Local. The draft was read and discussed and certain changes
were made. Two members were then designated to obtain an ap-
pointment with the officers of the respondent. They telephoned
Eli H. Brown, Jr., president of the respondent, who agreed to meet
with members of the Union the following morning..
850 NATIONAL LABOR RELATIONS BOARD
Officers of the respondent were cognizant of the existence of the
Union among the employees. Sometime in the middle of January,
Brown addressed the employees at two meetings arranged to enable
the men on the different shifts to attend. He reviewed the financial
status of the respondent and then stated that he did not care whether
the men belonged to a union but that he preferred to deal with local
people and thought the men should have a "company union."
At the end of one of these meetings, he called aside W. F. Holz,
president of the Local, and asked him what the grievances of the
men were, and what the purpose of the Union was. According to
the testimony of Holz, Brown said that he would not force any of his
old employees to join a union and reiterated his own preference for
a "company union."
There is evidence to indicate that some of the respondent's super-
visory employees were on occasion outspoken in their animosity to-
ward any union organization of the men. Holz testified that in
December, Green, foreman in charge of the laboratory, told him that
Hanley, another foreman, had declared his intention of discharging
an employee for not telling what he knew about the Union. Green
also told Holz that Loudermill had asked him if he could dispense
with one of his men who, he asserted, had engaged in union activity.
Raymond Williams, a charter member of the Local, testified that at
some time after the men began to organize, Loudermill called him
into the office and questioned him as to whether he belonged to the
Union. Loudermill said that he understood Williams was trying to
organize the men and that "he thought it was the wrong thing to do."
Williams was asked by Loudermill to "go out and talk to the boys,
and see if you can't get them to quit organizing, and forget it."
Sometime later he was also told by Hanley that Miles had ordered
Hanley to discharge Williams but that he had refused to do so on
the ground that Williams was a good man.
So much for the background. We turn to a consideration of the
alleged unfair labor practices themselves.
IV. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively
1. The appropriate unit
The complaint alleges that the refinery employees of the respond-
ent at the Louisville plant constitute a unit appropriate for the pur-
poses of collective bargaining. The respondent did not offer any
evidence showing that any other unit is the proper one. The pro-
duction employees of the Louisville plant are eligible to membership
in the Union. All are engaged in the production of gasoline, kero-
sene, fuel oil, gas oil, and similar refinery products.
DECISIONS AND ORDERS 851
We find that the refinery employees of the respondent in the Louis-
ville plant, except supervisory employees, constitute a unit appro-
priate for the purposes of collective bargaining, and that said unit
will insure to the employees the full benefit of their right to self-
organization and to collective bargaining, and otherwise effectuate
the policies of the Act.
2. The representation by the Union of a majority in the appropriate
unit
As already indicated, the respondent employed between 80 and 85
production employees in January 1937.1 Lockard, the secretary-
creasurer of the Local, offered in evidence 58 signed application
cards. Of these, one was signed by a man not in the employ of
the respondent, and another was dated March 26, 1937, a time subse-
quent to the conferences in January, February, and March, 193'7, at
which the alleged refusals to bargain occurred. All other cards are
dated January 18, 1937, or prior thereto, and signed by men at that
time in the employ of the respondent. These 56 application cards
were classified as follows : 47 cards are those of men who have paid
the complete fee; 2 five are those of men who have only paid the
initiation fee; 3 three are those of men who have not paid any fees
but merely signed the application cards; 4 and a single card is that
of a man employed by the respondent who applied for a transfer
from another union local to Local No. 211.6
It was testified at the hearing that approximately one week prior
thereto, Charles Fannin, an employee of the respondent, had signi-
tied to Lockard his desire to withdraw from the Local. Inasmuch
as this resignation took place several weeks after the period within
which the alleged refusal to bargain collectively took place, it does
not affect the majority had by the Local during that period. Lock-
ard, when questioned, stated that no other members had notified him
of their withdrawal from the Local. Seven members of the Local,
in addition to Fannin, testified on behalf of the respondent, and
several stated that they no longer considered themselves members
of the Union. Inasmuch as even with the exclusion of these seven
employees, 49 of the respondent's employees, or a majority thereof,
appear to have designated Local No. 211 as their representative at
the time of the alleged refusal to bargain collectively, we do not find
1 Lockard testified that he thought the respondent had approximately 82 employees at
that time. Loudermill testified that, exclusive of foremen and other supervisory em-
ployees , the respondent had perhaps between 80 and 85 men on its pay roll in January.
Upon the basis of this testimony, we find that the respondent had not more than 85
employees, exclusive of supervisory employees, on January 15, and thereafter.
2 Board's Exhibit No 4
i Board's Exhibit No. '5.
4 Board's Exhibit No. 0
5 Boaid's Exhibit No 8.
852 NATIONAL LABOR RELATIONS BOARD
• it necessary to determine whether the conduct of these seven men
at any time constituted a revocation of such authority.
In its exceptions to the Intermediate Report and to the record,
the respondent states that while the evidence shows that a majority
of the respondent's employees are members of the Union, it fails to
establish that a majority of its employees or of those of its employees
who are members of the Union had designated the Union as their
representative for the purposes of collective bargaining. It appar-
ently seeks to distinguish between membership in a labor organiza-
tion and the designation of such an organization as bargaining
agent, and to argue that membership in itself does not signify the
desire to be represented by the organization. In reply to an identi-
cal argument advanced in Matter of Campbell Machine Company,
David C. Campbell and George E. Campbell, co-partners, trading as
Campbell Machine Company and International Association of Ma-
chinists, Local No. 389, Shipwrights, Boatbuilders and Caulkers, and
International Brotherhood of Electrical Workers, Local No. 569,5a
the Board stated :
Since the primary and well known function of labor organiza-
tions, including the unions in the present case, is collective bar-
gaining, the Board believes no such distinction can be drawn.
By voluntarily joining a labor organization an employee in effect
designates that labor organization as his representative for the
purposes of collective bargaining.5b
We find that on January 18, 1937, and at all times thereafter the
Union was the duly designated representative of the majority of
the employees in the appropriate unit, and pursuant to Section 9 (a)
of the Act was the exclusive representative of all the employees in
such unit for purposes of collective bargaining in respect to rates
of pay, wages, hours of employment, or other conditions of
employment.
3. The refusal to bargain
On January 21, 1937, at about 9:30 a. in., Stickel and a com-
mittee composed of some six or seven members of the Locals met
Brown and other officials of the respondent,? pursuant to the ap-
pointment made the previous night. Stickel presented to Brown
the proposed agreements which the Local had approved in its
meeting.
68 3 N L R. B. 793.
6b Also see Matter of Star & Crescent Oil Co., a California Corporation, doing business
as San Diego Marine Construction Company and International Association of Machinists,
Local No. 389; Shbpwrights, Boatbuilders and Caulkers ; and International Brotherhood of
Electrical Workers, Local No. 569, 3 N. L R B. 882
Among those present at the meeting representing the Local were the following em-
ployees: Lockard , Newton, Linzay, Johnson , Ray Judy, and H. D. Rankins.
'i Mr. Waples and Loudermill were present with Brown:
8 Board's Exhibit No. 1, Document A.
DECISIONS AND ORDERS 853
As we have stated above, the Union was then entitled to act as
exclusive representative of all the employees. The respondent as-
serts that it was under no duty to bargain collectively with Stickel
and the Union inasmuch as it did not know whom Stickel repre-
sented and whether he and the Union represented a majority of the
employees. Although, according to his testimony, Brown did ask
Stickel at the first three meetings for a list of names of union mem-
bers and how many employees were members of the Union and chal-
lenged Stickel's authority to represent the employees, he failed to
maintain the position that he would refuse to deal with Stickel
in the absence of evidence as to Stickel's authority. On the con-
trary, Brown continued meeting with the Union and discussed other
matters, as set forth hereinafter.
Testimony by W. C. Burrows, Commissioner of Department of In-
dustrial Relations of the Commonwealth of Kentucky, given on cross-
examination, indicates that Brown- questioned Stickel's authority.
However, Burrows' testimony also shows that Brown's questioning
was not for the purpose of determining whether Stickel represented
a majority but rather for the purpose of challenging Stickel's
authority to represent any employees who did not select him as their
representative regardless of whether a majority had selected him.
The precise sequence of the discussion at the conferences does not
clearly appear. However, the proposed agreement was read through
several times and each article thereof was discussed in some detail.
Although no wage schedule was embodied in the agreement, the
question of wages was mentioned. At some time Brown stated that
the respondent was unable to pay higher wages and that it could
give its employees more money only if it lengthened their hours of
Work from.six to eight hours per day. The proposed agreement con-
tained a provision limiting hours of work to six hours per day and
36 hours per week.
In the discussion, Brown raised objections to many provisions of
the proposed contract. His objections, however, seem to. have cen-
tered in large part upon two points. He objected to the heading
which named the International Association of Oil Field, Gas Well
and Refinery Workers of America as a party of the agreement and
to the last article referred to as the "closed shop clause." s
6 This provision reads : "The employer agrees that none but members of the Interna-
tional Association of Oil Field , Gas Well and Refinery Workers of America will be
employed , except where no such men are available . Whenever necessary to employ non-
members such employees shall become members of the above mentioned Association , within
15 days after date of employment . Failure of any new employee to become a member
shall be cause for dismissal , and the employer hereby agrees to dismiss such employee
within 15 days after date of employment "
The respondent and the Union disagreed as to whether to call this a closed-shop
provision . The Union representatives contended that this was not a closed -shop provision
in that it was applicable only to those hired by the respondent after the effective date of
the agreement and not to those already in the employ of the respondent.
854 NATIONAL LABOR RELATIONS BOARD
The respondent takes the position that an impasse was reached with
respect to this clause which resulted in a failure to come to any
agreement at the several conferences which were held between it
and the representatives of the Union; that the respondent insisted on
excluding the closed -shop clause and the Union was adamant on re-
taining it . The testimony indicates , however, that this and subse-
quent meetings were unsuccessful because of the respondent 's oppo-
sition to dealing with the representatives of its employees . Stickel,
on at least one occasion , asked Brown whether he would agree to the
remainder of the contract if the closed -shop provision was eliminated.
Brown replied by voicing his objection to the heading which named
the Union as a party to the contract . When Stickel asked Brown
whether he would suggest a substitute proposal for the closed-shop
clause, Brown advanced none. Although Brown was bitterly opposed
to signing a closed-shop agreement with the Union, he expressed his
willingness to sign such an agreement with an independent union
of his employees . He is quoted by Stickel as telling the committee
that "if they, organized themselves a nice little union, with bylaws
that he could approve of , that he would be very glad to agree to such
a union ," and deduct its dues from the pay checks of his employees:
He assured the committee that if they "had that sort of a union,
he would see that every man in the plant belonged to it."
At the conference , Brown sought to justify his objection to the
heading of the agreement which named the Union as a party on the
grounds that the respondent 's business was a local one; "that he was
a Kentuckian ; and that he did not see any reason for anybody from
Washington 'coming here to meddle in his business at all." When
Stickel, however , at this meeting and the one held with Brown on
the following day, suggested that the contract be in the name of
Local No. 211, Brown replied "that would not make any difference;
it would still be a union , and it would not be the kind of a union that
I think would be best for the boys."
Moreover , Brown objected to Stickel 's presence and accused him
of having secretly agitated his employees . He stated that if Stickel
had not intervened , there would have been no dissatisfaction among
his employees , that there was no need for an agreement , and that
he understood his employees ' need far better than Stickel did. In
his own testimony , Brown admitted having expressed hostility to
Stickel by contrasting Stickel 's intelligence , tact, and education un-
favorably with that of his employees.
The meeting adjourned approximately at 6 p. m. without any
agreement having been reached . Brown consented, however, to
meet with Stickel and the committee on the following day. This
meeting started, at about 2 p. m. At this time the Ohio River was
rising, and the discussion was frequently interrupted as Brown gave
DECISIONS AND ORDERS 855
orders over the telephone in preparation for the flood. Brown com-
plained that the committee members were "not in a friendly frame
of mind," and repeated that "there was no need for any outside inter-
ference" by "foreigners" and that he desired to deal with Kentucky
people. He notified the committee that in any event he was unable
to sign any agreement with the Union at this time since Miles, whose
presence he said was necessary, was away. After about two hours
the committee left, not having achieved any agreement, but with the
understanding that they would meet again with officers of the
respondent after March 1, by which date Miles was expected to
return.
On January 22 the refinery was closed due to a flood, and it re-
mained closed until about February 5, when the flood receded. From
that time until about February 15, the employees were engaged in
cleaning up the plant in preparation for its reopening.
On February 15, 1937, Stickel returned to Louisville, having been
informed by the Local that the plant was about to resume operations
and that Miles had returned. He tried to reach Miles by telephone
but was told that although Miles had returned he was not in the
office at the time. The following morning, when Stickel telephoned
again to the respondent's offices, he was referred to Brown. Brown
refused to see Stickel, saying among other things, "Go on and plant
yourself a garden, or go back to Washington and run the govern-
ment; and after the 1st of March I will talk to you." On the fol-
lowing day, Stickel left Louisville without having succeeded in con-
ferring with the respondent.
On February 17, 1937, which was the respondent's regular pay day,
the employees were notified to go to the office to get their checks. As
they waited outside they were called one by one into the office where
each was met by Brown, Loudermill, and Waples. Gaskell, foreman
of the Dubbs cracking department, and Miles, who appears to have
returned to Louisville, were also in the office during some of the
interviews. For a period of two or three days, Brown and the above-
named officers of the respondent interviewed most of the men indi-
vidually, informing them that the respondent was going to operate
on a new schedule and that the employees were to work eight hours
instead of the six hours per day which they had previously worked.
He told them that in this way they would make more money than
under the previous schedule and asked them if they were willing to
work under these conditions. The evidence indicates that Brown
spoke to some of the men about the Union, questioning them as to
their union membership. He advised at least one of his employees
not to go to a Union meeting which he told the employee he under-
stood was to be held at about this time. Another employee testi-
fied that he was advised by Loudermill not to go to the Union meet-
67573-38-vol. iv-55
856 NATIONAL LABOR RELATIONS BOARD
ing. Under varying circumstances in connection with the change
to an eight-hour day, approximately 20 men, members of the Union,
were discharged on February 17, 1937; and the days immediately
thereafter, and, as hereinafter found, most of these were discharged
because of their membership in the Union.
On February 20, 1937, after having been informed of the dis-
charges, Stickel returned to Louisville. At the request of the Local,
Houston, a conciliator from the United States Department of Labor,
and W. C. Burrows came to Louisville to attempt to effect some
settlement between the respondent and the Union. On February 22,
at a meeting of the Local, it was voted to call a strike in the event
mediation and conciliation failed. On that same day, Houston and
Burrows conferred with Brown and suggested that the committee of
the Local and Brown meet in an effort to settle their differences.
Brown is reported by Burrows to have replied that "he saw no reason
for that, because the problem was solved; that everybody was happy;
that it was true that 23 men were out of a job, but that they had not
come to him in the right way, or in the right frame of mind ; but he
still was not mad at them, and he was going to try to get them
jobs . . . ; in fact, as far as he was concerned, it looked like it was
all settled." However, Brown agreed to meet again with Stickel
and the committee of the Local if the conciliators insisted on another
meeting.
The meeting took place on February 24, 1937.10 At the outset,
Brown manifested cordiality to all the participants, but very shoruiy
thereafter he expressed to the group his inability to see any reason
for the meeting. He reiterated his previous attacks against Stickel,
stating that "he ought to get out of town, to leave town; that he had
already settled his problem, and that they would not have any trouble,
if he had not come into town." When urged to restore the six-hour
schedule in the plant, Brown refused on the ground that the increase
in hours enabled those employees working to earn more money. As
reported by Stickel, Brown stated at the meeting to one of the con-
ciliators, "The trouble is that these fellows have joined the union,
and have gotten themselves into a pickle. They have lost their jobs,
and they are whipped., Now, why don't they be sports, and admit
it? If they will come back to me individually and tell me that they
are sorry, and tell me that they are willing to work, and tell me that
they are willing to drop their nefarious schemes and agitations, I
will consider those that I want to put back to work. I don't need
the men . . . I have plenty of men. All of my men are satisfied,
and all of those who are not satisfied are not my men. They are
to Present on behalf of the Union was Stickel and a committee consisting of Lockard,
Johnson , and Kaelin , employees of the respondent who were among those discharged on
or about February 17. Both conciliators were also present.
DECISIONS AND ORDERS 857
out." Burrows quotes Brown as stating at this meeting that "if his
employees had come to him in the right sort of way, they would all
be working today."
At the request of one of the conciliators, the proposed contract was
again read at this meeting. The closed-shop clause and the heading
of the contract both loomed large in the discussion at this conference
as in the previous conferences. During this discussion, Brown ex-
pressed open hostility against Stickel and reiterated his refusal to
negotiate with the'International Union and his objection to the head-
ing of the contract. There is some evidence that he again suggested
that the employees form their own union at the company. Stickel
suggested that he himself leave the negotiations and that another take
his place. Brown, however, indicated that such a change would not
alleviate the difficulty. When Stickel advised Brown that his men
were taking a strike vote which, depending upon its outcome, might
be proof of their dissatisfaction, Brown replied, "I would like to
attend that meeting (a meeting of the Local to be held the following
night). I would like to debate the matter with you, Mr. Stickel. I
believe I can get these men to run you out of town." As a natural
result of Brown's unconcealed hostility towards Stickel and the
Union, the meeting became increasingly bitter, and finally ended
fruitlessly.
During the remainder of the week, the two conciliators held a
series of conferences with Brown on the one hand and the repre-
sentatives of the Local on the other, in an effort to bring the parties
together and to avoid the probability of 'a strike." On February 27,
1937, Stickel met again with Brown, but this meeting like the others
ended in failure.
On March 2, 1937, the strike was called, and the plant shut down.
There is evidence indicating that in the period immediately prior
to the strike Loudermill spoke to at least two employees expressing
his desire that they not attend a union meeting. As the result of
another conference between Brown and the conciliators after the
strike began, Brown agreed to meet again with Stickel and repre-
sentatives of the Local on March 6.12 The conciliator and Brown
conferred about four hours, and Stickel and his companions were
present for approximately an hour and a half of that time.
At first ' it appeared that some progress might be made. Then,
in the midst of the discussion, Brown attacked the Union for shutting
n In its brief, the respondent raises an objection to a ruling of the Trial Examiner
which excluded from the record testimony of a telephone conversation and conferences
between Brown and Philip G. Phillips, Regional Attorney of the National Labor Rela-
tions Board, with respect to a settlement of the dispute between the respondent and the
union, we find no prejudicial error in the ruling of the Trial Examiner, inasmuch as
negotiations by Brown with intermediaries, such as the conciliators and Phillips, do not
satisfy the respondent's obligation under the Act to bargain collectively with the
representatives of its employees.
12Holz, president of the Local, and Lockard accompanied Stickel to this meeting
858 NATIONAL LABOR RELATIONS BOARD
down his plant and for being lawless. Brown is quoted by Burrows
as saying, "Now, you fellows have closed my plant down, and you
have committed acts of violence. Now, what I think you ought to do
is to call this committee of yours in, and let me run my own affairs.
I am not going to do business with you at all.'? The union men
stated that if any men had committed violence they would not be
returned to work and suggested that if any disagreement arose as to
whether a man had committed violence, the case should be submitted
to arbitration. This Brown refused. The conference ended in fail-
ure, and no subsequent meetings between Brown and representatives of
the Local were held.
Brown's assertions that he saw no reason for the negotiations, his
gratuitous advice at the conferences that his employees did not have
to deal with an "international union," but could form their own
union, and similar statements, all betray his determination not to
bargain with the chosen representatives of his employees.
Under the Act, it is the respondent's duty to bargain collectively
with the representative selected by a majority of its employees for
the purposes of collective bargaining. The respondent cannot legally
refuse to negotiate with the Union because it prefers that another
represent its employees. It cannot legally refuse to negotiate with
the International Association selected by a majority of its employees
to represent them because it prefers to deal with the Local of the
Association. Its duty is to negotiate in good faith with whatever
agent or agency a majority of its employees have selected. That is
precisely what the respondent did not do at these meetings. On the
contrary, Brown openly and repeatedly expressed his refusal to
negotiate with the Union, and instead suggested the desirability of
the employees forming a union of their own, unconnected with any
outside organization. Brown's refusal to agree to the closed-shop
provision with the Union contrasts significantly with his offer to
the committee that such provision would be acceptable if included in
an agreement with a union such as he suggested. Thus Brown re-
vealed that his essential objection was directed not against the closed-
shop clause but against negotiating with the designated representa-
tives of his employees. His opposition to the closed-shop provision
was nothing else than a pretext seized upon, together with objec-
tions to other parts of the agreement, for the purpose of preventing
the successful outcome of the negotiations.
We must, moreover, take Brown's repeated statements that he
saw no reason for the negotiations as expressing his refusal to bar-
gain with Stickel and the committee. That Brown continued to
discuss and that at times he may have come to apparent agreement
on some of the provisions of the contract do not constitute bargaining
in good faith. The obligation under the Act is to make a bona fide
DECISIONS AND ORDERS 859
attempt to come to terms and not merely to meet with employee
representatives, however frequently, to discuss a proposed agreement
without the intention of composing differences. The evidence as
summarized indicates that Brown maintained the same attitude at
all the conferences with Stickel. At all of them he attacked Stickel
and the Union in the manner indicated, and the same conclusions must
be reached with respect to each of the meetings.
We also turn to the respondent's answer for enlightenment, part
of which reads as follows :
The respondent admits that it refused to bargain collectively
with said Stickel'and his associates, or with the said International
Association, or with the said Local No. 211 as the exclusive rep-
resentative of all of the men employed by the respondent in its
manufacturing business but it did not refuse to bargain with
them collectively as the exclusive representative of all of its
employees who were members of said International Associa-
tion, .. .
This admission clearly reveals a misconception by the respondent
as to, its obligation in dealing with the -representatives of its em-
ployees.
Nor do we overlook Brown's refusal to confer with Stickel on
February 16, 1937. The parties had agreed to postpone negotiations
until March 1 because of the absence of Miles without whom, Brown
asserted, he could not sign any agreement. Brown's rebuff of Stickel
occurred at a time, however, when the respondent, according to
Brown's testimony, had determined to go on the eight-hour schedule
and only one day prior to the day upon which this change, resulting
in the discharge of approximately one-fourth of the respondent's
employees, was to take place. In view of Brown's decision to change
the schedule, his rejection of Stickel's request to resume negotiations
at a time when collective bargaining on the contemplated change
would have been a matter of utmost moment to the employees was
clearly an unjustified refusal to meet with the representative of his
employees, regardless of the presence or absence of Miles and regard-
less of Stickel's ignorance of Brown's plans to change the schedule.
Upon the following day, the respondent, in discharging its em-
ployees as the result of the change to the eight-hour schedule, again
violated its duty to bargain collectively with the Union. The ques-
tion of hours of employment was already the subject of attempted
discussion in the conferences between the respondent and the union
representative. The respondent was under a duty to discuss the pro-
posed change and the discharges with the Union in order to give its
representatives an opportunity to offer substitute proposals and to
suggest an equitable basis of making the discharges, if necessary.
860 NATIONAL LABOR RELATIONS BOARD
Instead of this, the respondent, by its officers, first rejected Stickel's
offer to bargain and then approached its men, not through the Union,
which was requesting further negotiations, but individually, and
apprised them of its will. We can think of no more direct method
of destroying the possibility of collective bargaining than this com-
plete disregard of the duly selected representatives of the employees.
In the meetings which had taken place on January 21 and 22, it does
not appear that the question of the eight-hour day was so fully
explored as to warrant Brown in believing that further negotiations
on this issue were futile. Although Stickel and the committee appear
to have rejected the eight-hour proposal when suggested, they also
stated at the conferences on January 21 and 22 that if an eight-hour
day was to be installed, nevertheless, the principles upon which the
resulting lay-offs would be made gave scope for collective bargaining.
Under all the circumstances of this case, the institution of the
eight-hour schedule and the resultant discharges constitute inter-
ference with, coercion, and restraint of the respondent's employees in
the exercise of the rights guaranteed by Section 7 of the Act and also
a refusal to bargain collectively with the representatives of the
respondent's employees.
It is suggested by the respondent that Brown's objections at the
meetings were directed not against negotiating with, the representa-
tives of the employees or with the Union but against contracting with
the Union ; that although Brown was willing to negotiate with the
Union the contract would have to be between the respondent and its
employees. The evidence does not support this contention. As
already indicated, Brown's remarks clearly reveal that during the
meetings he stood upon no such technical grounds, but unequivocally
and repeatedly evidenced his antipathy to dealing with the Union
and with Stickel. In any event, however, the defense rests upon a
misapprehension of the nature of the obligations imposed by the
Act. The final attainment of an understanding and the signing of
the contract embodying the fruits of this understanding are part
and parcel of the process of collective bargaining. The contract or
agreement is part of and the culmination of the successful negotia-
tions, and not a segment separate from the negotiations which,have
preceded it. An employer cannot under the Act refuse to recognize
the duly designated representative of his employees for the purposes
of contracting any more than for the purposes of negotiation. He
must accept his employees' representatives as such throughout the
entire process of collective bargaining.
Nor do we find that the respondent is relieved of its obligation
under the Act to bargain collectively because of the fact that the
proposed contract presented by Stickel stated in its title that the
DECISIONS AND ORDERS 861
Union was acting only on behalf of such employees of the respond-
ent as were members of the Union. Where, as in this case, the Union
in fact has a majority at the time of the conferences, the employer
must bargain collectively with the designated representatives even
though the union does not ask for recognition, in writing, of its right
to act as the exclusive representative of all employees in the appro-
priate unit.
It is clear that the respondent, through its officers, persistently re-
fused to bargain with the Union as the exclusive representative of
its employees. We find, therefore, that on January 21, 1937, and
thereafter, the respondent refused to bargain collectively with the
Union as the representative of its employees in respect to rates of
pay, wages, hours of employment, and other conditions of employ-
ment.
B. The discharges
The respondent contends that the change from the six to the
eight-hour day necessitated the lay-off of the employees named in
the complaint, and that it was made with the approval of a majority
of the employees, enabling those continued in the respondent's
service to earn more money as pay ' for the additional time they
worked. It, further contends that -many factors, such as the capa-
bilities of the men for the particular jobs and their willingness to
work the eight hours required by the new schedule, determined the
selection of those to be retained.
We find, however, that the respondent in its selection of employees
for dismissal was guided by its antiunion bias. The union affiliation
and activity of those who were eliminated from the respondent's
employ as a result of the change to the eight-hour day is the strongest
evidence of the actual basis upon which the respondent made its
selection. It is significant that the 20 men whose employment was
terminated included the president, the vice president, and the secre-
tary-treasurer of the local, a majority of those who served on the
committee which met with Brown on January 21 and 22, and a
majority of the charter members of the Local. Nor does it appear
that any except members of the Local were discharged at this time,
although only 56 of the 85 employees of the respondent were mem-
bers thereof. It must be concluded that the activity in and mem-
bership of these employees in the Local was a definite factor in
determining that they should be dismissed from the respondent's
employ. Moreover, a scrutiny of the employment records of those
dismissed and of the circumstances attendant upon their dismissal
in many instances gives additional proof that the respondent was
guided by its hostility toward the Union in selecting employees
for dismissal.
862 NATIONAL LABOR RELATIONS BOARD
1. Employees in the Dubbs cracking department
Of the 20 men who were discharged, 10 held positions in the Dubbs
cracking department. Gaskell, foreman of the department, re-
ferring to the discharges, testified that his department was "the
hardest hit by the whole thing." Upon being, further , questioned, ,
he stated that most of the union men were in his department and
that he had been informed it was among his men that the Union
had started.
Prior to February 17, 1937, 18 men were employed in the depart-
ment, holding the following positions : Four Dubbs operators, one
shift breaking operator, four firemen, one shift breaking fireman,
four third men, three clean-out men, and one loader. Since the
change to the eight-hour schedule only seven men have been em-
ployed to do the work previously performed by 18.13
Gaskell testified that all alike were satisfactory employees and
there is no claim that any of these men were inefficient. Gaskell
also stated that to his knowledge there had been no change in the
method of operating the plant after February 17, 1937.
L. R. Lockard. Among the regular operators, Lockard alone was
discharged. He had been employed by the respondent for approxi-
mately nine years. At the time of his discharge, he was earning 83
cents per hour. Significant is Gaskell's testimony that in his absence,
Lockard took his place and performed the duties of acting foreman.
Lockard was among the first to joint the Local and his name ap-
pears on its charter. On December 18, 1936, when the charter was
installed, he was, elected secretary-treasurer of the Local. He also
served on the committee which on January 21 and 22 met with
Brown to discuss the proposed agreement.,
On February 17, Gaskell told Lockard that there would probably
be no work until some 10 days had elapsed. In the afternoon Lock-
ard returned for his pay check. Unlike other men he did not have
to go into the office but received his check outside from Gaskell.
When Lockard asked Gaskell about returning to work, Gaskell re-
plied that it would probably be 10 days before the plant would
operate again. That evening Lockard heard that some of the men had
been discharged. When on the following day, February 18, he re-
turned to the plant, Gaskell sent him into the office to see Brown.
Brown told Lockard that the plant was going to operate on an
eight-hour schedule and that his services were no longer required.
When Lockard asked whether he was fired, Brown replied, "You are
1B Included among the seven was one new man , Ray Maniere , hired as a fireman since
February 17. It does not appear whether he was hired before or after the strike of the
respondent 's employees which began on March 2, 1937. Another man, George Mims, was
transferred after the commencement of the strike from the welding department to the
position of fireman under Gaskell.
DECISIONS AND ORDERS 863
not fired. You are just laid off indefinitely." When pressed for
an explanation, Brown stated that he had no complaint with Lock-
ard's work but that since Lockard had been dissatisfied, he should
look for other employment. He then asked if Lockard would care
to Work on an eight-hour shift. Lockard answered that if the other
men did, he likewise would have to work eight hours. Brown re-
plied, "You see what the union does for you. You cannot even speak
for yourself as an individual. You have to rely on the decision of
other men."
Two of the three operators who continued to work, Troutman and
Wilson, appear to have been union men .1-4 Wilson testified at the
hearing that he no longer considered himself a member of the Local.
The third operator, Kearns, did not belong to the Local.
In view of Lockard's long service with the respondent, his position
as acting foreman in Gaskell's absence and the statements made
by Brown, it is difficult to explain his discharge upon any basis other
than his membership in the Union.
Hubert Rankin. Rankins had been in the respondent's service
for approximately four years and at the time of his discharge was
employed as a shift breaking operator at an hourly rate of 75 cents.
He had been advanced about three times by the respondent and
received a raise in salary in the middle of 1936. Rankins was a
charter member of the Local and had participated in the meetings
with Brown on January 21 and 22.
On February 17, 1937, Rankins received his check from another
employee, David Allman, to whom Gaskell had given the check.
Having heard that some of the men were discharged, Rankins re-
turned to the plant on the following day. He asked Loudermill if
he was among those who were discharged. Loudermill told him that
he had been laid off because of the shift to the eight-hour schedule.
When Rankins replied that he did not understand why he was laid
off, Loudermill answered, "Oh, yes, you do." . . . "You have got the
wrong attitude toward things. I am sorry for you, but Mr. Brown
just can't use you." Rankins was told that he could have a recom-
mendation. A few days later when he returned to get the recom-
mendation, he was sent into Brown's office. Brown asked him
whether he "was willing to drop all of this mess," and expressed his
opinion that Rankins, after he received the recommendation, would
use it against him. He then advised Rankins to go home and "cool
off." Rankins left without receiving the recommendation.
Paul Grant and Jesse Johnson. Of the four regular firemen em-
ployed by the respondent, Paul Grant and Jesse Johnson were dis-
14 Both Wilson and Troutman have also been in the respondent ' s service for about nine
years The length of service of the other operator, Kearns, does not appear.
864 NATIONAL LABOR RELATIONS BOARD
charged. Grant had worked four years and Johnson three and
one-half years for the respondent.
Johnson had been promoted and received a wage increase' some
eight or nine months prior to the hearing. Both men were earning
60 cents per hour at the time of their discharge. Both were charter
members of the Local and Johnson had served on the committee
which had met with Brown.
Of the two firemen who were not discharged, one, George Burns,
was a member of the Local and had been in the respondent's employ
for approximately eight or nine years. The other, Earl Brooks,
was not a Union member. The shift-breaking or extra fireman,
Laurence Davis, was also not dismissed. Davis was a charter member
of the Local, but according to his own testimony had never partic-
ipated in any union activity or attended the meetings of the Local.
At the time of the hearing, he worked as a regular fireman.
On February 17, 1937, Grant came to the plant to obtain his
check. Upon telling Gaskell that he would have to go home, he was
paid by Gaskell and told to return in a few days for the purpose
of finding out when he should go to work. On the following day,
Grant returned to the plant and asked Gaskell whether he was
among those discharged. Gaskell replied, "No, we are not calling
them fired; we are just laying them off, but we are not going to call
them back." Gaskell then ordered Grant to take his clothes from
the locker. When Grant returned with his clothes, he met Louder-
mill who expressed his regret at what had happened and said that
Mr. Brown had told the union organizer that he would shut his
plant down and let it rust before he would recognize the Union.
Loudermill then told Grant that he could go and see Brown. Grant,
however, never went.
In a brief submitted by counsel for the respondent, it is argued that
Grant was never discharged. The words of Gaskell, however, clearly
constitute notice of dismissal. Loudermill plainly recognized that
Grant's dismissal had been determined and his subsequent remark
that Grant could see Brown was, at most, a suggestion that Grant
might importune Brown to rehire him. It cannot be construed as an
offer to rehire him. A discharged employee does not lose his rights
under the Act by not applying for the position from which he has
just been dismissed.
On February 17, 1937, Johnson, likewise, received his check from
Gaskell outside of the office. Gaskell informed him that it would
probably be 10 days before work would be resumed at the plant.
A day or two later, Johnson went to the tube still of the respondent's
refinery, where he saw Gaskell and Loudermill. When Johnson asked
Gaskell how he would start when the plant began to operate, Gaskell
DECISIONS AND ORDERS 865
replied that he did not know and that "he didn't have enough men
left to light a fire. When Johnson asked Loudermill if he was
discharged, Loudermill replied, "Well, we will just not need you
any more." He then told Johnson to take from the plant any clothes
he might have left there.
The antiunion bias of the respondent in discharging Grant and
Johnson is manifested by the significant facts, already mentioned,
that only Union members appear to have been singled out for dis-
missal and that among those dismissed were included almost all the
Union officers.
George Lang, Ed Morgan, and David Allman. Lang, Morgan and
Allman were "third men." The duties of the "third men" included
carrying samples, filling lubricators, cleaning up, and watching the
tanks. It was contended by the respondent that even if the six-hour
schedule had been maintained, it would have been necessary to dis-
charge the "third men" employed in, the Dubbs cracking department
because their services were not necessary after February 17. Gaskell
explained this by stating that the still in the department was part
of a unit which the respondent had just built, and the "third men"
were employed "so that the operators and the firemen could have more
time to study it out." 15 Gaskell also stated that no "third men"
were being employed by the respondent at the time of the hearing.
Although we accept as true the respondent's contention that it no
longer needed the "third men," it is significant that the respondent
found that it might dispense with their services at the very time
when, in accordance with the requirements of the newly adopted
schedule; it was selecting employees for dismissal and including
among those thus selected the most important officers of the Local
and a majority of the members of the Local's committee. Under
these circumstances, it is difficult to believe that they were discharged
because no longer needed rather than because of the respondent's
desire to strike at the members of the Local in the Dubbs cracking
department, where it was strongly entrenched and where it included
almost all the employees among its members.
Three of the four "third men" were discharged. It does not ap-
pear what the duties of the fourth were after February 17, 1937.
On that day, both Lang and Morgan received their checks outside of
the office from Gaskell. When Morgan returned to the plant on the
following day, Gaskell ordered him to take his clothes away and
stated that the respondent was laying off the "third men." Lang
returned about a week after he received his check and was told by
Loudermill that it had been decided to lay off the "third men."
15 Gaskell spoke of still helpers in this part of his testimony. From the context, it
appears that by still helpers he meant "third men "
866 NATIONAL LABOR RELATIONS BOARD
Lang had been in the respondent's service about one year and one
month. Both Lang and Morgan received an hourly rate of 45 cents.
Both were members of the Union.
David Allman had been in the respondent's employ for approxi-
mately four years and at the time of his discharge was working as a,
"third man" at an hourly rate of 50 cents. He was a member of the
Local and one of those who had originally applied for a charter.
On February 15, 1937, he was sent home by Gaskell and told to
return the following day to obtain his check. On February 17, he
was sent into Brown's office to receive his check. When Brown told
him of the proposed eight-hour schedule, Allman asked whether
this would not result in a lay-off of some of the men. Brown replied
it would and then stated that Gaskell had decided to employ Allman,
as a fireman at what would be an increased wage. Allman answered
that he had joined the Union and "wanted to stick with them and
do whatever the rest of them did." When Brown pointed out that
his salary as fireman was good for a man of Allman's age, Allman
reiterated his loyalty to the Union. Brown told him "Good day,"
and Allman left. The following day he met Gaskell who told him to
take his clothes from the locker.
Allman's reply to Brown that he had joined the Union and "wanted
to stick with them" must be viewed in the context of the Union's
efforts to bargain with the respondent on working conditions, in-
cluding the question of hours. We have already: found that the
institution by the respondent of the eight-hour schedule was an anti-
union act designed to interfere with the self-organization of the
respondent's employees and with collective bargaining. Allman's
words must be interpreted as signifying his refusal to accept Brown's
method of approaching the men individually and his objection to
Brown's complete disregard of the Union in instituting the change
in schedule and in making the dismissals.
C. P. Hu'zt and A. Woodliff. Gaskell testified that Hunt and
Woodliff were both employed as clean-out men. Hunt, however, de-
scribed his job as that of a car loader helper. Both men received
an hourly rate of 45 cents. Hunt had been employed by the respond-
ent for three years prior to his discharge. Both Hunt and-Woodliff
were members of the Local, and Hunt had the distinction of being
a charter member. On February 18, 1937, he was called into the
office and informed by Brown that the respondent planned to shift to
the eight-hour schedule. To Hunt's reply that he thought that "six
hours is enough for any man to work," Brown stated, "If that is the
way you feel about it, I don't think you will have any trouble in
finding another job." Woodliff's experience was similar. When in-
formed by Brown of the proposed shift, he answered that he could
DECISIONS AND ORDERS 867
not work on an eight-hour schedule. Brown replied, "That is all I
wanted to know," and Woodliff left. As in the case of Allman, it is
clear from the context of the record that the replies of Hunt and
Woodliff are to be interpreted, not as voluntary relinquishments of
employment, but as refusals to accept Brown's technique of announc-
ing the shift to the eight-hour schedule individually to the men instead
of bargaining collectively with the Union. Under the circumstances
we construe the action of Brown in bringing about their separation
from employment in this manner as a discharge.
One of the clean-out men was not discharged. , It does not appear
what his duties have been since February 17, 1937. Significant is
Gaskell's reply at the hearing when questioned whether he was handi-
capped without the clean-out men : "Since I don't have them, I just
have to get along without them." He likewise testified that the
clean-out men performed a necessary operation and that they were
steadily occupied with their duties while at work.
G. V. Sandefur.1' Sandefur was employed as a loader in the
Dubbs cracking department and had been an employee of the re-
spondent for approximately five years. He was a charter member
of the Local and on January 22, 1937, served as a substitute for
another member on the negotiating committee which met with Brown,
On February 17, 1937, Sandefur sent his brother to get his pay
check for him. His brother returned unable to obtain the check.
When Sandefur arrived at the plant, he was called into the office
and there heard of the shift to the eight-hour schedule. He asked
Brown if this would result in the lay-off of some of the men and
then stated that he needed some time to decide what answer he should
give Brown. Miles, who was present, told Sandefur that the re-
spondent wanted him to continue working with it and that if, after
consideration of the matter, he was willing to work eight hours, he
should report to Gaskell or Loudermill.
Three days later he reported to Gaskell that he was ready to ac-
cept the offer. Sandefur was sent in to Brown. Brown told him
that he understood Stickel was in town and asked what Sandefur
would do if Stickel should call the 'men out on strike. Sandefur
answered that he would walk out. Brown then told him that the
respondent could not use Sandefur until he changed his mind.
The discrimination by an employer against those who express their
intention of striking, if called upon, is a rebuke to concerted activity
by members of a labor organization. We find that Brown, by dis-
charging G. V. Sandefur because of his expressed intention of par-
16 In the complaint , the names G V. Sandufer and Joe Sandufer are given However,
in the record and on the application cards the names appear as G. V. Sandefur and Joe
Sandefur.
868 NATIONAL LABOR RELATIONS BOARD
ticipating in such concerted activity, if called upon by the representa-
tive of the Local, discriminated against G. V. Sandefur in regard
to tenure of employment because of his union activity.
2. Men in other departments
W. F. Holz. Holz had been in the respondent's service for about
three and one-half years. At the time of his discharge, he was earn-
ing 60 cents per hour. He was the president of the Local and a
charter member.
On February 15, '1937, when Holz returned from the refinery to his
home, he found a telegram signed by The Louisville Refining Com-
pany which read : "Don't report for work until further notice." 11
The respondent contends that A. R. Green, chief chemist of the re-
spondent, who sent the telegram, had no authority to do so. We
(to not, however, need to rely upon the telegram in determining
whether Holz was discharged for his union activity. On Febru-
ary 17, 1937, Holz returned to the refinery. He was directed into
Brown's' office to receive his check. Brown informed him of the
proposed change in schedule and stated that Holz was laid off inas-
much as the respondent did not require as many men on the eight-
hour schedule. When asked for a recommendation, Brown replied,
"I will give you a recommendation telling just exactly what you
are." Upon being pressed to explain what he meant, Brown stated,
``Well, of course I would not recommend you to an innocent com-
pany, and have you stir up a lot of trouble for them." He agreed,
however, to give Holz a recommendation to a union shop. Then
Loudermill and Holz continued the discussion outside of the office.
When Holz asked whether he should return for the recommendation,
Loudermill replied that Holz should not return and that he should
take his clothes with him. Holz then stated that this seemed to
indicate that he was discharged and Loudermill agreed that this
was the case. Holz then left after being told by Brown that he
would receive a recommendation.
Philip Kaelin, Joe Sandefur,18 W. L. Howlett, and Charles Har-
rison. Kaelin had been employed by the respondent for almost nine
years. At the time of his discharge he worked as a gasoline treater
at an hourly rate of seventy-three cents. He had been elected vice
president of the Local. On February 17, 1937, Griffith told Kaelin
that he could go home.t9 After some days, Kaelin heard that his
name was on a list kept by the gasoline attendant as one of those
37 See Bd. Exh . No. 19.
18 See Footnote No. 16, p. 867.
19 At this time the plant was not operating because no power was available . A number
of the men appear to have been told to go home pending the resumption of operations.
DECISIONS AND ORDERS 869
to whom no more gasoline could be sold.20 On either February 22 or
23, he called Loudermill, who informed him that he was laid off.
He was also told that the respondent would notify him if his services
were needed. He has never been notified to return.
At the time of his discharge, Joe Sandefur, who is a brother of
G. V. Sandefur, was employed as a laboratory assistant at an hourly
rate of 48 cents. He had entered the respondent's employ on or
about December 8, 1935. Since then he had been promoted from
the "gang" on which he worked to his present position in the labora-
tory. Like his brother, he was a member of the Local. On Feb-
ruary 17, 1937, he received his check from Gaskell outside of the
office. On the following day, Joe Sandefur returned with his brother
and while waiting for him to obtain his check, was called into the
office by Gaskell. There Brown informed him that the respondent
was shifting to the eight-hour day and that his services were no
longer required. Sandefur asked whether this meant that he was
"out of the laboratory and back to the gang." Brown replied that
he should look for another job since the respondent did not need
him any longer.
Howlett was employed as a still fireman at an hourly rate of
53 cents. After the flood, however, he worked at the same wage as
a night watchman until February 18, 1937. He had been four years
in the respondent's employ. His name appears upon the charter of
the Local. On the night of February 18, the watchman whom How-
lett relieved told him to wait until 8 a. m. on the following day inas-
much as Loudermill wished to see him. Howlett waited and was
given his check by Loudermill who told him that his services were
no longer required since they were going on the eight-hour schedule.
He was then ordered to take his clothes from the locker.
Charles Harrison had been employed for six years by the respond-
ent. At the time of his discharge, he worked as a laboratory and
relief assistant on'the stills. His hourly rate of pay vcas sixty cents.
He also was a member of the Local. On February 16, 1937, Estes,
foreman of the still, sent Harrison home after he had worked four
hours, telling him to return when the power was again turned on.
The following day, the clerk in the office brought out his check and
gave it to him. Approximately three days later, Harrison returned
to the plant to find out if he should resume work. Loudermill in-
formed him that his services were no longer needed inasmuch as
the respondent was going to operate on an eight-hour schedule, and
ordered him to take his clothes from the locker. Harrison testified
20 The respondent sold gasoline to its employees on credit and then subsequently
deducted the price of the ' gasoline from the wages of its employees at the end of a pay
period.
870 NATIONAL LABOR RELATIONS BOARD
that he had worked longer in the plant than any of the four men
who still remained doing work of the kind which he had performed.
This was not refuted.
As in the cases of all those discharged, the fact that only Union
men appear to have been selected for dismissal, although a substan-
tial number of the respondent's employees never joined the Union,
disclose that the respondent was motivated in discharging these four
employees by its hostility to the Union.
J. W. Linzay. Linzay had been employed by the respondent for,
about eight years with the exception of two periods of four or five
months and approximately one year, respectively. He worked as a
machinists' helper doing maintenance work in the machine shop and
some work on the barges. Linzay was a member of the Local and
participated in the meetings with Brown on January 21 and 22.
On February 17, 1937, Griffith, Linzay's foreman, notified him,
after he had worked for one hour, that Loudermill had ordered
everyone to be sent home except those working on some motors in the
boiler room. Although Linzay was working on these motors, Grif-
fith nevertheless sent him home. Linzay asked Griffith how he would
know when to return to work and whether the respondent was laying
off the men. According to Linzay's testimony, Griffith grinned and
replied that he did not know.
About 3 or 4 p. m., Linzay returned to obtain his check. He was
not among those called to be interviewed by Brown, but he received
his check from Gaskell outside of the office. Nothing appears to
have been said at the time about his returning to work. Approxi-
mately two or three days later when he went by the refinery, the
gates were locked. At this time two members of the Union told
him that they had seen his name on the "list." 21
Linzay reasonably assumed that his services were no longer wanted
from the fact that he was sent home, although one of a class (work-
ing on the motors in the boiler room) which, according to Griffith,
was exempt from the order to go home, and further from Griffith's
apparently evasive response to Linzay's questions with respect to
resuming work and possible. lay-offs.
Hubert Burns. Burns had been working for the respondent for
somewhat more than a year., Until his employment with the respond-
ent was terminated, he worked as a laborer receiving an hourly rate
of 45 cents. On January 18, 1937, he signed his application card for
membership in the Union.
21 It is not clear to which list this testimony refers . The evidence indicates the
existence of at least two lists , one held by the respondent 's gasoline attendant containing
the names of those to whom gasoline might no longer be sold and another 'in the possession
of the watchman at the gate of the refinery containing names of those excluded from the
plant.
DECISIONS AND ORDERS 871
On February 17, 1937, he came to the plant to receive his pay
check. It appears, however, that his brother' 22 also an employee of
the respondent, obtained Hubert Burns' check from Gaskell. When
the brother inquired whether Hubert Burns should return to work,
Gaskell told him that it would be necessary to see Loudermill. After
an absence of three or four days, during which Hubert Burns heard
that the plant was not operating for lack of electrical power, he
returned one morning at 7: 30 a. in., a time at which he had cus-
tomarily arrived to report for the 8 a. in. shift while working for
the respondent. Finding the gate locked, he blew the horn of his
car and since no one answered, he backed out and returned home.
According to his own testimony, he did not wait around but left when
no one opened the gates. It also appears that his brother informed
him that the union men were being discharged and advised him that
there was no need for him to return to the refinery.
While his case is not free from doubt, the evidence does not sub-
stantiate a finding that Hubert Burns was discharged by the
respondent.
Michael Feeney. Feeney had been employed by the respondent
for a year and a half. At the time of his discharge, he worked in the
welding department receiving a daily wage of $2.70 for six hours'
work. His application card shows that he joined the Union on
January 4, 1937.
As a result of his work during the flood, Feeney had injured his
foot and found it necessary to stay away from the plant. His family
being away because of the flood, he stayed at his mother's house while
his foot was healing. Subsequently, he learned that his house had
been damaged by the flood and about February 15, he telephoned
Hanley, a superintendent of the respondent, to ask if he might have
another week's leave to clean his own house and prepare it for the
return of his family. Hanley replied that he "wanted nothing to do
with" Feeney, and told him to call Loudermill. When called, Loud-
ermill told Feeney to come to the plant to see him. At some time
thereafter, probably on about February 16, 1937, Feeney went to the
plant and found the gates locked. He asked the watchman 23 on
duty whether he might see Loudermill and was told that Loudermill
was in the plant with Brown. The watchman refused to let Feeney
into the plant and told him that he was on the "black list." When
Feeney explained that Loudermill had told him to come to the re-
finery for the purpose of seeing him, the watchman replied that
Feeney could not enter. At some subsequent time, Feeney appears
22 This brother would appear to be George Burns, who was not discharged during this
period but continued to work until the strike occurring on March 2, 1937.
23 Feeney identified the watchman as a man named Monroe, although he was not certain
of this.
67573-38-vol ►v-56
872 NATIONAL LABOR RELATIONS BOARD
to have made an effort to reach Brown by telephone but being told
that Brown was somewhere in the plant, he was not able to speak
with him.
One of the normal functions of a watchman is to bar undesirables
from his employer's premises, and it was, therefore, reasonable for
Feeney to believe that the watchman was acting with the respondent's
authority in refusing him admittance. The respondent is bound by
those acts of its agents which reasonably appear to be within the
scope of their authority. The natural interpretation of the watch-
man's refusal to admit Feeney is that Feeney had been dismissed
from his employment.
As in the case of the other discharged employees, we are persuaded
that the respondent was guided by antiunion bias in discharging
Feeney by the significant fact that only union men appear to have
suffered loss of employment as a result of the lay-offs.
M. Clagett. Clagett did not testify at the hearing because he was
ill. However, counsel for the Company orally stipulated at the hear-
ing that Clagett's testimony would be the same as that of Woodliff.
We, therefore, find that Clagett was discharged because of his union
affiliation.
Robert Fuller. At the time of his discharge, Fuller was employed
as a gauger 24 receiving an hourly rate of 60 cents. He had worked
nine years for the respondent. His application card for member-
ship in the Union was dated December 4, 1936.
On February 17, 1937, the treater foreman, Bryner, approached
Fuller, and asked him to sign a paper directed "against the union,"
and added that a refusal would cost him his job. Fuller replied that
he would consider it. Subsequently, Loudermill told Fuller that in-
asmuch as he had worked hard during the flood, he should take a few
days off. Observing a line of men waiting for their checks, he left.
The following day, men were still waiting to obtain their checks.
Finally, Gaskell called Fuller into the office. Brown there asked him
if he was willing "to stick with the company, and work eight hours."
Fuller answered that he had joined the Union. Brown then asked if
Fuller "would be willing to drop that mess, and stick with the com-
pany." Fuller expressed his willingness to work eight hours and
answered, "I would stick with the company, but I couldn't afford
to drop my union." Brown then told him that the respondent could
not employ him, and Loudermill expressed his regret that Fuller did
not "stick with the company."
We find that at the .time of the hearing, L. R. Lockard, Hubert
Rankins, Paul Grant, Jesse Johnson, George Lang, Ed Morgan,
David Allman, C. P. Hunt, A. Woodliff, G. V. Sandefur, W. F.
24 The duties of a gauger are to gauge the amount of oil in the various tanks.
DECISIONS AND ORDERS 873
Holz, Philip Kaelin, Joe Sandefur, W. L. Howlett, Charles Harrison,
J. W. Linzav, Michael Feeney, M. Clagett, and Robert Fuller had
not obtained any other . regular and substantially equivalent
employment.
We find that by discharging the afore-mentioned men on or about
February 17, 1937, the respondent has discriminated against its em-
ployees with respect to hire and tenure of employment and thereby
discouraged membership in a labor organization, and that by such
acts the respondent has interfered with, restrained, and coerced its
employees in the exercise of their rights guaranteed in Section 7
of the Act. Their work having ceased as the result of unfair labor
practices, the afore-mentioned men have at all times thereafter re-
tained their status as employees of the respondent, within the mean-
ing of Section 2 (3) of the Act.
The evidence concerning Hubert Burns does not establish that
he was discharged or discriminated against in regard to hire and
tenure of employment. The complaint with respect to him will
therefore be dismissed.
C. The strike
As already indicated, on March 2, 1937, the respondent's employees
struck as the result of the respondent's refusal to bargain collectively
and its refusal to reinstate the employees discriminatorily discharged.
The evidence clearly shows that the strike was conducted in orderly
fashion and without any violence.25 The respondent contends, how-
ever, that some of the striking employees trespassed on the respond-
ent's property at the beginning of the strike for the purpose of
closing down the plant, and that the men who committed the tres-
pass should therefore not be reinstated.
It is claimed by the Union that inasmuch as it is dangerous to
leave fires burning in an oil refinery when the employees are no
longer working, members of the Local were instructed by Stickel to
shut the plant down with great care so that no damage would be done
to the plant. It was voted by the members of the Local that pending
a possible settlement of the dispute with the respondent, the strike
would begin at 9 p. m. on March 2, 1937.
In the Dubbs cracking unit, Gaskell at about 6 p. m. on that day,
apparently aware of the possibility of a strike, warned Burns, the
fireman then on duty, that it would be a criminal offense to shut the
still down. At 9 p. m. Gaskell took over the still. Shortly after
9 p. m. some employees who were outside the plant saw that the
25 An injunction was issued during the course of the strike. Its provisions do not
appear in the record , but the evidence indicates that no violations of the injunction
occurred.
874 NATIONAL LABOR RELATIONS BOARD
fires were still burning. The gates of the refinery were locked at
the time. Dowell, a member of the Union, testified that he jumped
over the fence and went to the Dubbs cracking unit to tell whoever
might be there to shut down the fires because it was dangerous to
keep them burning when the men were no longer watching them.
He spoke to Burns and then to Gaskell. At first Gaskell refused
to order that the fire be shut down. When two other strikers came
and insisted that the fire be put out, Gaskell gave the necessary
orders to Burns. Dowell and other members of the Union testified
that this operation was performed with care so that no damage
might result. No evidence was adduced to rebut this and Brown
himself testified on cross-examination that there had been no damage
to the property. Dowell and the other men also visited the tube still
and the boiler room. Although Brown in his testimony alleged that
members of the Union had threatened operators with violence
if they did not shut down the plant, no concrete evidence was ad-
vanced to substantiate this allegation. Those striking employees who
entered the plant, at worst, committed a technical trespass. We do
not find in the trespass committed by some of the striking employees
a sufficient reason to deny reinstatement to those committing the
trespass.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section IV above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intimate and substantial
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
VI. THE REMEDY
We have found that 19 of the respondent's employees were dis-
charged because of their union affiliation and activities. Therefore,
in addition to an order requiring the respondent to cease and desist
from its unfair labor practices, we shall also order the respondent
to offer reinstatement to these men. We have also found that the
respondent's employees struck on or about March 2, 1937, as a result
of the respondent's refusal to bargain collectively with the Union,
and the discriminatory discharges of members of the Union. Since
the strike was caused by the respondent's unfair labor practices, the
respondent is under a duty to restore the status quo which existed
prior to the commission of the unlawful acts. The respondent must,
therefore, upon application, offer to its employees who went on strike
on or about March 2, 1937, reinstatement to their former positions,
without prejudice to their seniority and other rights or privileges.
DECISIONS AND ORDERS 875
If after bargaining with the Union in good faith upon its request and
after dismissing employees hired since February 15, 1937, the re-
spondent determines that the services of any of its staff as then con-
stituted are not required, it may reduce its staff, provided that it
does so without discrimination against any employees because of their
union affiliation or activities, following a system of seniority to such
extent as has heretofore been applied in the conduct of the respond-
ent's business, subject to any modification introduced by agreement
with the Union.
Each of the discharged employees except M. Clagett is also en-
titled, for any loss of pay suffered by reason of his discharge, to a
sum equal to the amount which he would normally have earned as
wages from the date when he was discharged to the date of the offer
of employment, less any amounts he may have earned in the mean-
time. Inasmuch as the Trial Examiner recommended the dismissal
of the complaint as to M. Clagett, the respondent shall not be re-
quired to pay back pay from May 17, 1937, when it received the
Intermediate Report to the date of this decision.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Association of Oil Field, Gas Well, and Refinery
Workers of America is a labor organization, within the meaning of
Section 2 (5) of the Act.
2. The strike of the employees commencing March 2, 1937, is a
labor dispute within the meaning of Section 3 (9) of the Act.
3. The respondent, by discriminating in regard to the hire and
tenure of employment of L. R. Lockard, Hubert Rankins, Paul
Grant, Jesse Johnson, George Lang, Ed Morgan, David Allman,
C. P. Hunt, A. Woodliff, G. V. Sandefur, W. F. Holz, Philip Kaelin,
Joe Sandefur, W. L. Howlett, Charles Harrison, J. W. Linzay,
Michael Feeney, M. Clagett, and Robert Fuller, and each of them,
and thereby discouraging membership in a labor organization, has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
4. All the refinery employees of the respondent in its refinery in
Louisville, Kentucky, except supervisory employees, constitute a unit
appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
5. By virtue of Section 9 (a) of the Act, International Association
of Oil Field, Gas Well, and Refinery Workers of America was on
January 18, 1937, and at all times thereafter has been, the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining.
876 NATIONAL LABOR RELATIO NS BOARD
6. The respondent, by refusing to bargain collectively with the
exclusive representative of the employees in such unit on January
21, 1937, and thereafter, has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (5) of the Act.
7. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not engaged in unfair labor practices, within
the meaning of Section 8 (3) of the Act, with respect to Hubert
Burns.
ORDER
Under the basis of the findings of fact and conclusions of law, and
pursuant to Section 10 (c) of the National Labor Relations Act, the
National Labor Relations Board hereby orders that The Louisville
Refining Company and its officers, agents, successors, and assigns.
shall :
1. Cease and desist from interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid and protection, as guaranteed in Section 7 of the Act;
2. Cease and desist from refusing to bargain collectively with In-
ternational Association of Oil Field, Gas Well, and Refinery Workers
of America as the exclusive representative of all its refinery employ-
ees, excepting supervisory employees;
3. Cease and desist from discouraging membership in International
Association of Oil Field, Gas Well, and Refinery Workers of
America or any other labor organization of its employees, by dis-
charging and refusing to reinstate employees, or otherwise discrim-
inating in regard to hire and tenure of employment or any term or
condition of employment, or by threats of such discrimination;
4. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to L. R. Lockard, Hubert Rankins, Paul Grant, Jesse
Johnson, George Lang, Ed Morgan, David Allman, C. P. Hunt, A.
Woodliff, G. V. Sandefur, W. F. Holz, Philip Kaelin, Joe Sandefur,
W. L. Howlett, Charles Harrison, 'J. W. Linzay, Michael Feeney,
M. Clagett and Robert Fuller immediate and full reinstatement,
DECISIONS AND ORDERS 877
respectively, to their former positions without prejudice to their
seniority or other rights and privileges;
(b) Make whole the employees named in paragraph (a) above
for any loss of pay they have suffered by reason of the respondent's
discrimination in regard to their hire and tenure of employment, by
payment to them, respectively, of a sum of money-equal to that which'
each of them, respectively, would normally have earned as wages
during the period from the date of such discrimination to the date
of the offer of reinstatement, pursuant to this order, less any amount
earned by each of them, respectively, during such period; except
that M. Clagett shall not be compensated for the period from May
17, 1937 to the date of this decision ;
(c) Upon application, offer to those employees who went on strike
on or about March 2, 1937, immediate and full reinstatement to their
former positions, without prejudice to their seniority or other rights
or privileges, dismissing, if necessary, all persons hired since March
2, 1937, to perform the work of such employees;
(d) Make whole all employees who went on strike on or about
March 2, 1937, for any losses they may suffer by reason of any re-
fusal of their application for reinstatement in accordance with para-
graph 4 (c) herein, by payment to each of them, respectively, of a
sum equal to that which each of them would normally have earned
as wages during the period from the date of any such refusal of their
application to the date of offer of reinstatement, less the amount, if
any, which each, respectively, earned during said period ;
(e) Upon request, bargain collectively with International Asso-
ciation of Oil Field, Gas Well, and Refinery Workers of America
as the exclusive representative of all its refinery employees in Louis-
ville, Kentucky, excepting supervisory employees, for the purposes
of collective bargaining in respect to rates of pay, wages, hours of
employment and other conditions of employment;
(f) Post immediately notices to its employees in conspicuous places
in its refinery in Louisville, Kentucky, stating : (1) that the respond-
ent will cease and desist in the manner aforesaid; and (2) that said
notices will remain posted for at least thirty (30) consecutive days
from the date of posting;
(g) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this order what steps the
respondent has taken to comply herewith.
And it is further ordered that the complaint be, and is hereby, dis-
missed in so far as it alleges that the respondent has engaged in
unfair labor practices within the meaning of Section 8 (3) of the
Act, with respect to Hubert Burns.