The Ohio Oil Co.

National Labor Relations Board - Board Decisions

Jan 26, 1951

92 N.L.R.B. 1597 (N.L.R.B. 1951)

In the Matter of THE OI{Io OIL COMP ANY and OIL WORKERS
INTERNATIONAL UNION, CIO
Case No. 16-CA-128.-Decided January 26,1951
DECISION AND ORDER
On June 8, 1950, Trial Examiner Henry J. Kent issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, but recommending that the complaint be dismissed for the
procedural reasons set forth in the copy of the Intermediate Report
attached hereto. Thereafter the Congress of Industrial Organiza-
tions filed a Motion for Leave to Intervene and to file brief; this
motion was granted by the Board. The Union filed exceptions to the
Intermediate Report, and the Respondent and the Congress of Indus-
trial Organizations filed exceptions and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case,' and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner, except insofar as they are inconsistent
with the Decision and Order herein.
1. The Respondent moved to dismiss the complaint before, at the
conclusion of, and subsequent to, the hearing on the ground that the
parent body of the Union herein was not in compliance with the
filing requirements of Section 9 of the Act, as amencded. Relying on
the opinion of the Court of Appeals for the Fifth Circuit in the
Postex Cotton Mills case,2 the Trial Examiner recommended that the
complaint be dismissed for the reason urged by the Respondent.
With due respect for the Court of Appeals for the Fifth Circuit, the
Board will adhere to its views in Northern Virginia Broadcasters,
I The Union filed a Motion to Reopen Record for the purpose of showing that the
Congress of Industrial Organizations is in compliance with Section 9 (f), (g), and (h) of
the Act. \we hereby deny that motion. The Board's records, however, do show that the
CIO has filed the documents specified by those sections of the Act and that such filing
was first completed on December 22, 1949.
-N. L. R. B. v. Postex Cotton 'Mills, Inc., 181 F. 2d 919.
92 NLRB No. 236. 1597
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc.,3 until the Supreme Court of the United States has had an oppor-
tunity to pass on. the question 4 Accordingly, we hereby reject the
Trial Examiner's recommendation that the complaint be dismissed.
2. On the merits the Trial Examiner found, and we agree, that the
Respondent did not discharge 'Davidson and Buchanan for cause-"
but, on the contrary, terminated their employment because they
engaged in the presentation of grievances. This presentation of
grievances, in our opinion, constituted concerted activity protected by
the Act. When approached on the job by the Respondent's personnel
manager and supervisor, the 2 dischargees together voiced objections
to the cutback in overtime work, in an effort to restore overtime wages
for all the employees working on the rotary rigs. The record,is clear
that several other employees had indicated their dissatisfaction among
themselves and to the Respondent's supervisors. Thus, the grievances
were not matters of individual- concern but were common, not only
to the 2 dischargees, but also to the other employees in the same cir-_
cumstances. Davidson and Buchanan. undertook to speak, not for
themselves individually, but for each other and for the other rotary
rig employees as well. They received support from each other and
from the fact that the dissatisfaction over the decreased pay resulting
from fewer working hours was felt and expressed by their fellow
workers. Despite its informality we regard this as concerted activity
protected by the Act. In our opinion it is immaterial that the
Respondent itself made the occasion for presentation of this grievance
at the job site, rather than wait for the employees to organize a :dele-
gation or otherwise formalize their collective dissatisfaction, and it
is also immaterial whether the participants be 2 in number, as in this
case, or 10 in the Gullett Gin Company e case.
3 75 NLRB 11.
4 W. T. Carter and Brother, et at ., 90 NLRB 2020.
5 In his concluding findings to this effect the Trial Examiner summarized several factors
which led him to' conclude that the discharges were not for cause. In addition, we find
also significant the fact that at the time they were terminated the dischargees were not
told why-in fact Charles Phillips, Sr., their foreman , testified that he still did not know
the reason for their discharge. Moreover , at no time were Davidson and Buchanan
warned about any deficiencies in their work , despite a general policy of the Respondent
to warn employees of inefficiency before discharge . Related to this is the fact that,
although several of the Respondent 's supervisory employees testified that they saw the
dischargees loafing , with the exception of the incident referred to in footnote 16 of the
Intermediate Report , none of them testified that he even spoke to the dischargees about
the alleged delinquencies . The Respondent has pointed out in its brief that Glen Hale
testified that Buchanan shortly after the cutback in working hours said that the workers
ought to slow down . We are not unmindful of this testimony , but we believe that a
preponderance of the evidence does not show that Buchanan did slow down . In any event,
we are of the opinion that the discharges were not made because the employees were
deficient in their work , but because of their presentation of grievances.
6 Gullett Gin Company v. N. L. R. B., 179 F. 2d 499 , enforcing as modified 83 NLRB 1,
remanded by the Supreme Court for enforcement of the Board 's order on January 15,
1951 . See also N . L. R. B. v. Kennametal, Inc., 182 F . 2d -817 ( C. A. 3), enforcing 80
NLRB 1481.
. THE, OHIO OIL COMPANY 1599
Accordingly we find. that the Respondent,violated Section 8 (a) (1)
and 8 (a) (3) of the Act.'
The Remedy
Having found that the Respondent has-engaged in certain unfair
labor practices within the meaning of Section 8 (a) (1) and (3) of
the Act; we shall order the Respondent to cease and desist therefrom
and from in any other manner interfering with the employees' self-
organizational rights .8 We shall also order the Respondent to take
certain affirmative action in order to effectuate the purposes and
policies of the Act.
We have found that the Respondent discriminated against Jack
L. Davidson and Jessie L. Buchanan in regard to their hire and tenure
of employment because of their concerted activity with and on behalf
of other employees, thereby interfering with, restraining, and coercing
employees in their right to engage in concerted activity for their
mutual aid and protection. These discharges were found to be viola-
tions of both Section 8 (a) (1) and 8 (a) (3) of the Act. However,
whether the discharges be regarded as violations of Section 8 (a)
(1) or of Section 8 (a) (3), we find that it is necessary to order rein-
statement with back pay in order to effectuate the policies of the
Act. In accordance with our usual practice the period from the date
of the Intermediate Report herein to the date of this Decision and
Order will be excluded in computing the amounts of back pay, as the
Trial Examiner did not recommend reinstatement or awards of back
pay.
Consistent with the Board's recent policy 9 we shall order that
the loss of pay be computed on the basis of each separate calendar
quarter or portion thereof during the period from the Respondent's
discriminatory action to the date of a proper offer of reinstatement.
The quarterly periods, hereinafter called "quarters," shall begin with
the first day of January, April, July, and October. Loss of pay shall
be determined by deducting, from a sum equal to that which each of
these employees would normally have earned for each quarter or por-
'' We find that these employees, acting in concert by seeking to restore overtime wages,
constituted themselves a labor organization , Duro Test Corporation, 81 NLRB 976, and
Gullett Gin Company, supra, and that the discrimination against them not only inter-
fered with the employees ' right to engage in concerted activity , but also discouraged
membership in a labor organization in violation of Section 8 (a) (3).
Chairman Herzog disagrees with this finding, for reasons stated in his dissenting
footnote in the Gullett Gin case, and also does not join in all the reasoning contained
in the preceding paragraph.
Gullett Gin Company, supra ; Carolina Mills, Inc., 92 NLRB 1141.
F. W. Woolworth Company, 90 NLRB 289.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion thereof, his net earnings,10 if any, in other employment during
that period. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other quarter.
We shall also order the Respondent to make available to the Board
upon request payroll and other records to facilitate the checking of
the amount of back pay due.1'
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. By discriminating in regard to their hire and tenure of employ-
ment of Jack L. Davidson and Jessie L. Buchanan because they en-
gaged in concerted activities with and on behalf of other employees
for the purposes of collective bargaining and other mutual aid and
protection, Respondent interfered with, coerced, and restrained its
employees in the exercise of rights guaranteed by Section 7 of the
Act, and Respondent has thereby engaged and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
2. By engaging in such discrimination, thereby discouraging
formation of and membership in labor organizations, Respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
-of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The Ohio Oil
Company, Iraan, Texas, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from :
(a) Discouraging membership in a labor organization of its em-
ployees by discharging or otherwise discriminating against any of its
employees because of their membership in a labor organization or
other concerted activities;
"By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working
elsewhere , which would not have been incurred but for this unlawful discrimination, and
the consequent necessity of his seeking employment elsewhere . Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal , State, county , municipal,
or other work -relief projects shall be considered earnings . Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7.
11 F. TV. TV oolworth Company, supra.
THE OHIO OIL COMPANY 1601
(b) In any other manner interfering with, restraining, or coerc-
ing its employees in the exercise of their right to self- organization, to
form or join labor organizations, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act, or to refrain
from any or all of such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds,
will effectuate the policies of the Act :
(a) Offer to Jack L. Davidson and Jessie L. Buchanan immediate
and full reinstatement to their former or to substantially equivalent
positions, without prejudice to their seniority and other rights and
privileges ;
(b) Make whole Jack L. Davidson and Jessie L. Buchanan in the
manner set forth in the section entitled "The Remedy" for any loss
of pay they may have suffered by reason of the Respondent's dis-
crimination against them;
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other
records necessary to analyze the amounts of back pay due and the
right of reinstatement under the terms of this Order;
(d) Post at its office at Iraan, Texas, copies of the notice attached
hereto marked Appendix A'" Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after being
duly signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it
for a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material;
(e) Notify the Regional Director for the Sixteenth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
MEMBER REYNOLDS took no part in the consideration of the above`
Decision and Order.
12In the event this Order is enforced by decree of a United States Court of Appeals,.
there shall be inserted before the words, "A Decision and Order" the words , "A Decree of
the United States Court of Appeals Enforcing."
1602 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the .National Labor
Relations Act, we hereby notify our employees that: ,
WE WILL NOT discourage membership in any labor organization
of our employees by discharging or refusing to reinstate any of
our employees or in any other manner discriminating in regard
to their hire or tenure of employment,. or any term or condition
of their employment.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form, join, or assist any labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any
or all such activities.
WE WILL OFFER to Jack L. Davidson and Jessie L. Buchanan
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to any seniority or other
rights and privileges previously enjoyed, and make them whole,
for any loss of pay suffered as a result of our discrimination
against them.
All our employees are free to form, join, or assist any labor or-
ganization, and to engage in any self-organization and other concerted
activities for the purpose of collective bargaining or other, mutual
aid or protection, or to refrain .from such activities except to the extent
that such right is affected by an agreement made in conformity with
the proviso to Section 8 (a) (3) of the Act.
D
THE OHIO OIL COMPANY,
Employer.
ated -------------------- By -------------------- -------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
E. Don Wilson, Esq., for the General Counsel.
John L. Camp, Esq., and Clayton L. Orn, Esq., of Houston, Tex., and William
J. Tell, Esq., of Findlay, Ohio, for the Respondent.
Mr. F. H'. Mitchell, of Dallas, Tex., for the Union.
THE OHIO OIL COMPANY
"-- STATEMENT 'OF THE CASE
1603
Upon a charge duly filed on December 31, 1948, by Oil Workers International
Union, CIO, herein referred to as the Union, the General Counsel' of the
National Labor Relations Board (hereinafter called the Board) by the Regional
Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated
September 15; 1949, against the Ohio Oil Company, Iraan, Texas, herein called
the Respondent, alleging that the Respondent has engaged in and was-engaging
in unfair labor practices affecting commerce within the meaning of Section 8
(a). (1) and (3) and Section 2 (6) and (7) of the Labor Management Rela-
tions Act, 61 Stat. 136, herein called the Act. Copies of the complaint, the
charge, and notice of hearing were duly served upon the Respondent and the
Union.
With respect to the unfair.labor practices, the complaint alleged in substance
that the Respondent: (1) On August 13 and August 21, 1948, discriminatorily
discharged two employees 2 and thereafter failed and refused to reinstate them
because of their membership in, and activities on behalf of, the Union, or because
they engaged in concerted activities with other employees for the purposes of
collective bargaining and other mutual aid and protection; and (2) by the above
acts the Respondent interfered with,, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act. The complaint
further alleged that by the foregoing conduct, the Respondent engaged in viola-
tion of Section 8 (a) (1) and (3) of the Act.
In its amended answer, the Respondent admits some of the allegations regard-
ing its business operations. It also admits discharging' Davidson and Buchanan
on or.about the dates alleged in the complaint, but denies the commission of any
of the alleged unfair practices. As an affirmative defense it avers that the
6-month period of limitation provided for in Section 10 (b) of the Act is a bar
to the action.
Before the opening of the hearing a written motion for a bill of particulars in
.respect to the concerted activities generally alleged in paragraph VI of the
complaint was denied by Trial Examiner Maurice Al. Miller to whom it had
been referred for ruling.
Thereafter, also before the opening of the hearing, the undersigned denied
a further written motion by Respondent to dismiss the complaint for the following.
reasons: (1) The Congress of Industrial Organizations, at the time the complaint
was filed, was not in compliance with Section 9 (f), (g), and (h) of the Act;
(2) that the Oil Workers International Union was not in compliance with said
Section 9 (f), (g), and (h) of the Act; and (3) Oil Workers International
Union, CIO, had no authority in law to file a charge. Regarding the first
ground urged, the Board, in effect, has held in the case of Northern Virginia
Broadcasters, Inc., 75 NLRB 11, that where it has been administratively deter-
mined that a subordinate charging union has satisfied the requirements of Section
9 (f), (g), and (h) of the Act, the Act does not require formal compliance of
said section by the parent CIO or AFL. In respect to the second ground urged
above, the Board has decided that the compliance status of a union is a matter
of administrative determination by the Board and may not be litigated at a
Board hearing. See General Plywood Corp., 78 NLRB 1458. Regarding the
last ground urged in the above motion, any person may file charges under the
' The designation includes specifically counsel presenting the case on behalf of the
General Counsel at the hearing.
2 Jack L. Davidson on August 13, and Jessie Buchanan on August 21, 1948.
1604 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
amended Act as well as the original Act, as provided in Section 203.9 of the
Board's present rules. . See Wine, Liquor 4 Distillery Workers Un"n , Local 1,
78 NLRB 504, 506. -
Pursuant to notice , a hearing was held on various dates between October 18
to 26, 1949 , at Rankin , Texas,3 and from November 29 to December 1, 1949, at
Midland , Texas, before the undersigned Trial Examiner , duly designated to act
in the place and stead of Trial Examiner Maurice M . Miller, by the Chief Trial
Examiner.
The General Counsel and the Respondent were each represented at the hearing
by counsel and the Union by a representative. Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence bearing on
the issues was afforded to all parties. ,
At the opening of the hearing, the General Counsel moved to exclude all
witnesses from the hearing room until they had given testimony. The motion
was granted over the objection of the Respondent except to the extent that one
of the dischargees and one of Respondent's supervisory officials were permitted
to remain and assist counsel during the presentation of their respective cases.`
Respondent objected to the receipt of the copy of the charge attached to the
complaint in evidence for the reason that it was not a true copy of the charge
filed by the Union on December 31, 1948, and thereafter served by the Union
upon the Respondent. It appears that the charge attached to the complaint was
transcribed on a different form than that used by the charging Union. The only
variance appearing in the two documents in question, concerned printed matter
referring to the status of the Unions involved in respect to compliance with
Section 9 (f), (g), and (h) of the Act. Obviously, the copy of the form filled
out and attached to the complaint was inadvertently used instead of an identical
copy of the form initially used by the charging Union. Copies of each of these
charges were received in evidence. Since the Board has held that the compliance
status of a union is administratively determined by the Board, and may not be
litigated in a hearing,° and that evidence of compliance need not be disclosed at
such hearing or set forth in the record,° the variance appearing in the two charges
although disconcerting is deemed immaterial.
At the close of the General Counsel's case in chief, Respondent moved to dismiss
the complaint for failure of proof to sustain the allegations. The motion was,
denied without prejudice pending consideration of the entire record.
Thereafter, a motion by the General Counsel to conform the pleadings to the
proof in respect to formal matters was granted without objection.
Brief oral argument was presented by the General Counsel and counsel for
the Respondent. All parties were granted 15 days to file briefs. Proposed find-
ings of fact and supporting brief have been duly received from the Respondent.
3 On October 26, the Trial Examiner excluded Mr. Camp . of counsel for the Respondent,
from further participation in the hearing because he struck the General Counsel's repre-
sentative during a heated argument , between counsel , held before the Trial Examiner at
the bench. At the same time, the hearing was adjourned until October 31, 1949, at
Rankin , Texas. Meanwhile , at the joint request of counsel, it was further adjourned
until November 29, 1949, at Midland, Texas.
Respondent 's counsel contended that by reason of the denial of its earlier motion for a
bill of particulars it would be hampered in conducting cross-examination of witnesses.
The undersigned stated that a motion for it continuance would be entertained at the close
of the General Counsel ' s case if cause was shown . Subsequently a continuance from noon
on October 20 until 2 o 'clock on the afternoon of October 24, 1949 , was granted pursuant
to a motion made by Respondent.
5 General Plywood Corp ., 79 NLRB 1458.
6 Veneer Products, Inc., 81 NLRB 492, especially footnote 1, therein.
THE` OHIO OIL COMPANY 1605
On or about February 25, 1950, after the hearing closed, the Respondent filed
a motion with the undersigned to reopen and augment the record for the purpose
of including a certificate from the Board's "Affidavit Compliance Officer" issued
on February 14, 1950.' This certificate in substance states that the Congress
of Industrial Organizations was not in compliance with Section 9 (f), (g), and
(h) on the dates the charges were filed, or the complaint issued, and within the
preceding 12-month period antecedent to either of the said dates.8
Thereafter, on March 13, 1950, the Regional Director for the Sixteenth Region,
in writing, waived objections to the admission of the said certificate.
Subsequently on April 5, 1950, the district director for the Oil Workers, who
signed the underlying charge in the case on behalf of the Union, also signed a
similar waiver of objections to the admission of the said certificate in evidence.
Since there is no outstanding objection to the admission of the certificate in
evidence, the undersigned is of the opinion that it should be received. Conse-
iluently, he has inserted Respondent's motion to augment the record ; the cer-
tificate of the Board's affidavit compliance officer ; the tentative ruling of the
undersigned; the waivers of the Regional Director and the Union to the receipt
of the said certificate in evidence in the formal file of the case and hereby orders
that the certificate of the Board's affidavit compliance officer be received in
evidence.
Upon the entire record, and from his observation of the witnesses, the under-
signed makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Ohio Oil Company, an Ohio corporation, maintaining its principal office
in Findlay, Ohio, is engaged in the production and/or processing of petroleum
products in 28 States of the United States, including its operations at the
so-called Yates field located near Iraan,.Texas, with which this proceeding is
.concerned.-
The Respondent has approximately 90 employees and owns over 300 producing
oil wells at the Yates field operation. These wells annually produce over 3 million
barrels of oil. All of the oil there produced is sold at the wells to large buyers
of crude oil, including, among others, Humble Oil Company, Shell Oil Company,
and The Texas Company. Humble, the largest buyer, purchases over 50 percent
of the oil there produced and ships most of such oil to Humble's refinery at Bays-
town, Texas, for refining and resale by Humble. The balance of such oil pur-
chased by Humble is shipped to Corpus Christie, Texas, from whence it is
thereafter shipped and transported to the State of New Jersey.
II. THE ORGANIZATION INVOLVED
Oil Workers International Union, affiliated with the Congress of Industrial
Organizations, is a labor organization admitting to membership employees of
the Respondent.
' In substance, the undersigned ruled that the said certificate could only be received on a
stipulation of the parties waiving objections to its receipt in evidence or at a reopened
hearing held for the purpose of introducing additional evidence not available. at_ the
original hearing.
8 It is noted that the charge, attached to the complaint among other things, avers "upon
information and belief, the national or international labor organization of which this
organization is an affiliate or constituent unit has also complied with Section 9 (f), (g),
and (h ) of the Act."
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. General background
1. History of labor relations
There is no substantial and convincing evidence in the record showing that
any attempts had been made to organize Respondent's employees at Yates field.
..until after Davidson and Buchanan, the dischargees herein were terminated.
Respondent credibly asserts without denial that up until the time of the,
present hearing it has never been found guilty of committing any unfair labor-
.practices, and that presently it is one of the contracting parties on 10 collective,
.bargaining contracts, 8 of which are with the charging Union herein, and the
other 2 with A. F. of L. unions.°
The record further shows that since the latter part of 1946, Respondent has,
issued to each of its employees at the Yates field a copy of its "Employees Hand-
book" printed in 1946. Among other things the said handbook states that em-
ployees have the right "to join any lawful organizations, including labor unions,.
and it is the policy not^to discriminate against employees because of membership.
in or reasonable activities on behalf of such organizations."
2. The supervisory chain of authority at Yates field and brief outline of events
prior to July 1, 1948, deemed material in connection with a determination of
the issues
For some years prior to 1948 and at all times material hereto, Respondent
has employed from 80 to 90 rank-and-file employees at the Yates field in connec-
tion with the drilling and maintenance of wells producing crude oil. Yates field
is located at and near Iraan, Texas, and is under the jurisdiction of what is'
designated by Respondent as its Houston Division.
The principal executive office of the division is at Houston, Texas, where
R. C. Gwilliam, a vice president of the Respondent and division manager of
the Houston Division, is stationed. Respondent also maintains an office at
Midland, Texas, in charge of. O. E. Sears, district superintendent of its West
Texas and New Mexico District. F. G. Bascom serves under Sears, as superin-
tendent in immediate charge of the Yates field operations. Minor supervisors'
at the Yates' field under Bascom are designated-as form bosses or foremen.10
The record also shows that although field foremen and superintendents may
recommend the discharge of rank-and-file employees at Yates field, final au-
thority to approve and effectuate such discharges is vested in Gwilliam, the
division manager at Houston, Texas.
Buchanan and Davidson, the dischargees involved herein, respectively, began
their employment at Yates field in November 1944 and January 1945. Each
started as roustabouts and were paid at an hourly rate of $1.02. They continued
to work regularly on various jobs until each of them was discharged pursuant
to instructions sent from the Houston office on August 13, 1948.
In the year of 1947, Respondent placed in operation several machines known
as work over rigs (more commonly designated as. rotary rigs in the record).
The machines are used to ream out the shafts or holes on oil wells that have
° These findings are based upon the credited and uhdenied testimony of W. J. Wilson,
Respondent's director of personnel stationed at its main office in Findlay, Ohio.
39 C. P. Phillips, designated as tool foreman, was the supervisor of a crew including
Davidson and Buchanan ; the dischargees herein.
THE OHIO OIL COMPANY . 1607
been in operation for many years, in order to clean out obstructions to the
flow of oil and increase production "
.Each of the three such rigs in operation requires a crew of four men. A gang
-leader, presently called head well puller. No. 1, is in immediate charge of the
crew, working under the tool foreman. The other three men on the crew each
carried the classification of roustabout until June or July 1948, when the classi-
fication was changed to head well puller No. 2.
During the last several months of 1947, Davidson and Buchanan, the dischargees
herein, worked immediately under "Bill" Williams who, at that time, was gang
pusher on one of the rotary rigs. Thereafter in December of 1947 or January
of 1948, Williams was promoted to a fpreman's job. Glen Hale was appointed
to fill Williams' job and Davidson and Buchanan continued to work on the same
rig under Hale until each of them was discharged in August 194812
In February 1948, the Respondent placed in operation spudder machines used
to drill new oil wells. The spudder operates on the principle of a pile driver and
requires two operators, one a cable tool operator and the other a helper, who is
designated as a tool dresser. Each of the jobs pay a higher rate than is received
.by rotary rig operators. At the time the spudders were placed in operation all
employees qualified to work on a spudder, including Davidson and Buchanan
were afforded an opportunity to bid for a job on the spudder, but Davidson and
Buchanan failed to do so 13
Each of them thereafter continued to work as regular members of Hale's crew
until August 1948, when they were each discharged for asserted reasons more
particularly discussed below.
The record shows that they voiced no substantial complaints regarding work-
ing conditions prior to July 2, 1948, but they each asserted (but failed to show by
convincing evidence) that relatives of supervisory employees were accorded pref-
erence on job assignments.
B. The discharges, and interference, restraint, and coercion derivative
therefrom 14
The complaint, alleges that Davidson and Buchanan were discharged in August
1948, because of their memberships in and activities on behalf of the charging
Union, or because they engaged in other concerted activities protected by the Act.
Buchanan was first employed by the Respondent on November 13, 1944, and
Davidson on some date in January 1945. Each of them started to work as
ordinary roustabouts (general oil field laborers) until early in 1947, when they
were transferred to work on the same crew of one of the rotary rigs. Davidson
11 These machines were built by Respondent in its own machine shop and resemble regular
rotary well digging machines, but are'smaller and not adjusted for use to dig wells from the
grass roots to the oil pool below.
12 As later appears below, Williams was filling the position of acting superintendent at
Yates field during the latter part of August 1948. When on this job, he gave Davidson
and Buchanan commendatory letters of recommendation after they were discharged during
this period.
13 Davidson asserts that he failed to bid on a spudder job , because he was mistakenly
led to believe at the time that rotary rigs would continue to operate 6 days a week for
9 hours a day, and that spudder operators would work shorter hours. He further
testified that rotary crews were furnished transportation to and from the well they were
working on , whereas spudder operators were obliged to furnish their own transportation,.
and for this reason Buchanan did not care for a spudder job.
14 It is noted that the complaint contains no independent allegations regarding inter-
ference, restraint, and coercion.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was assigned to operate the tractor on the rotary unit. The tractor motor was
used to furnish the power required to move, lift, and lower heavy equipment used
in connection with the work over operations, and also the power to drive a
rotating shaft which in turn was attached to and rotated the drill used to per-
from the drilling operations. An automobile truck was customarily part of a
rotary unit; it was used to haul miscellaneous tools and equipment to the well
then being worked on, and also to transport the rotary crew members to and from
work each day. Buchanan served as truck driver for the unit and, in addition,
he was also the pump operator on a pump used to circulate cooling water for
the revolving drill in the well hole. The tractor and pump were customarily
located from 75 to 100 feet from the floor of the well derrick and the operators
on those machines spent most of their time during actual drilling operations at
their respective machines. The other two crew members worked for the most
part of their time on and about the derrick floor at the well. Davidson and
Buchanan continued to work regularly on these same jobs from the time they
were assigned to them until they were discharged on orders sent from the division
office at Houston, Texas, on August 13, 1948."
Davidson and Buchanan each started to work at a base rate of $1.02 an hour.
Thereafter, each of them received eight general wage increases granted by the
Respondent to all employees at Yates field. Each of them-received a base rate
of $1.80 per hour at the time they were discharged.
Each of them credibly testified without substantial contradiction that they
had never been reprimanded or disciplined for breaches of duty during the entire
course of their employment. The record generally tends to support their testi-
mony for Phillips, the tool foreman and immediate supervisor over all rotary
rigs and spudder machines, admitted while testifying, that he had never repri-
manded them.10 Significantly, Division Manager Gwilliam testified that up until
July 1948 (when overtime wages paid to rotary operators were cut back by re-
ducing the working hours) he had never received adverse reports concerning
either of the men and said that Sears had told him (Gwilliam) that each of them
had been reasonably satisfactory employees until that time.
. The Respondent asserts without contradiction that shortly before July 1, 1941,
the work-over program on the poorest producing oil wells hadibeen nearly com-
pleted and that, consequently, it decided to cut down the overtime expense on
the work-over program." On Friday afternoon July 2, Foreman Phillips in-
formed all employees engaged in those operations that their Saturday work would
thereafter be discontinued and that from then on they would only work 45 hours
a week, namely, 5 days a week for 9 hours per day instead-of 6 days for 9 hours
a day. At this time, the spudder crews were working 8 hours a day on 6 days -a
16 In view of the fact that the alleged reasons given by the Respondent for their dis-
charges are substantially similar , these two cases will be treated together from this
point on. .
16
Phillips, however, testified that in February or :lurch 1948, Glen Hale, the then
gang pusher on the rig, complained to Phillips that on occasions Davidson and Buchanan
laid down on their work, by failing to help Hale on the derrick floor and that he Phillips,
told I-Iale to "get after them," but admitted that lie, Phillips, did not mention the
complaint to Davidson and Buchanan. Hale testified he only voiced complaints about
them on one occasion. Superintendent Bascom testified that on one occasion, several
months before July 1948, lie found the two men together in the dog house near the
well and. asked them why they were not out working and they told him they had gone
In there to get warm. They left the-dog house without.being further reprimanded by
Bascom. .
" Except for the rotary rig and spudder machine crews , all other employees on the
payroll were only working 40 hours a week.
THEE OHIO OIL COMPANY 1609
week and no change was made in their schedule. Respondent credibly asserts
that it was necessary to keep the spudders working 24 hours a day on three 8=
hour shifts, 6 days a week, in order to protect Respondent's lease holders and
prevent competitors from drawing oft the oil in the shallow oil pool in which
the new wells were being drilled. Phillips, at the time Respondent put the cut-
back into effect, stated no reasons for making the cut-back in time to the rotary
rig operators, but merely told the employees affected that it was done on orders
from the division office at Houston, presumably because no specific reason had
been stated to Phillips.18
As might be expected, many of the rotary rig employees expressed dissatis-
faction.. Glen Hale, called as a witness by the Respondent, among other things,
testified:. after the cut-back in hours, "everyone just seemed to not have the
[same] interest [in the work] as before," and further testified in substance,
that we all complained it was unfair to cut back the hours of the rotary rig
operators to 45 hours a week and permit spudder operators to work 48 hours:
Hale further testified that during one of these discussions among the men in
Hale's crew that Davidson asserted that "Al" Ford, an operator on another rotary
crew, was willing to go to the Respondent's office at Iraan and enter a protest
on behalf of all the rotary operators. Hale, in substance, said he agreed, at
the time, with Davidson: that: something should be done regarding the matter,
especially, -since, the employees were led to believe, at the time the change was
effected, that the spudder crews' were also to be cut back, and that he, Hale,
suggested that rather than send Ford, alone, to voice the protests, all of the
rotary operators should accompany Ford, but that thereafter no further action
was taken regarding the proposal. A few days later, according to Hale, David-
son asserted that he, Davidson, could get a union organizer to come to Iraan
to help the employees organize if they wished to do so.19
Charlie Phillips, the son of foreman C. P. Phillips and a witness called by
the General Counsel, testified in substance that he worked as an extra man
on Glen Hale's rotary crew for a few days during the first half of July 1948;
that after the work hours had been cut back on the rotary operations many
of the operators on these rigs, particularly Davidson and Buchanan, expressed
dissatisfaction regarding the reduction in their overtime wages; that thereafter
Davidson and Buchanan seemed to be laying down on the job; 25 that Davidson
voiced the opinion that the cut-back in hours would not have taken place had
the employees been organized, stating at the time that a union representative
was coming to Iraan to talk with the Respondent's employees, whereupon, ac-
cording to Phillips, the latter remarked to Davidson in substance that if the
18 The undersigned is not. here seeking to imply that Respondent was under a legal
duty to give the employees its reason for effecting the change in hours but, nonetheless,
he is 'of the opinion that an explanation would have been conducive to effectuate better
labor relations with its employees and had it done so the present litigation probably
would have been unnecessary.
to Hale also ,credibly asserted, without contradiction in the record, that Davidson, at
the time, did not specifically name any union, and that thereafter nothing was done in
cionnection with organizing a labor organization. Hale further testified. that since 'a
majority of all the employees had never received overtime pay, he doubted they could
look for much support among the other categories of employees.
20 However, the example Phillips cited to support this conclusion was not convincing.
He testified that on occasion they failed to respond to a summons by Hale to come to
tile, derrick and assist the men on the derrick floor to close the master gate, which cuts
off the flow of oil from the well, but he, Phillips, frankly admitted that there was much"
nose at the derrick on this occasion, and it was entirely conceivable that Davidson and,
Buchanan did not hear Hale call to them. . -1
929979-51-vol. 92-103
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees organized, working conditions might be less favorable, that they
might lose the bonus, and receive only such benefits as were specified in a union
contract.21
Respondent's tool foreman, C. P. Phillips, a witness called by the Respondent
and the supervisor immediately in charge of all rotary and spudder operations,
testified that Davidson and Buchanan were more vociferous in voicing com-
plaints regarding working conditions than any of the other employees. He as-
serted that after the cut-back in hours on the rotary rigs they complained about
the matter to him almost every time he stopped at the-rig they were working
on. He further testified that they neglected their duties after the cut-back in
hours, and that because of each of these asserted delinquencies, he recommended
to Superintendent Bascom that, they be discharged.
Phillips gave the following testimony during cross-examination as an ex-
planation concerning his recommendations for the discharges of Davidson and
Buchanan:
By Mr. Wilson :
Q. Isn't it because of those things which we have just gone over , namely,
one, that they complained so much about their job, and the cut back and
the wages, that you recommended their discharge to Mr. Bascom?
A. It was after the cut back I recommended to Mr. Bascom that these
men be let out because they were, not doing their work and they was com-
plaining to me about the wages and hours and I couldn 't help it.
Q. My question is this: Wasn't it because of their complaints as we have
just been over them, that you recommended their discharge to Mr. Bascom?
A. When I recommended, it was both at once.
Q. What was that?
A. The [information] I told Mr. Bascom . . . they were not doing their
work, and they was also complaining to me, and when. I couldn't help it,
I did not like to be jumped [on] every time I went to the rig.
Q. Well, now, you don't mean that you were jumped [on] when they
expressed their dissatisfaction to you, do you?
A. Well, when I told them one, I would think that would be enough.
Q. Yes, but certainly their manner was not one of jumping on you, was it?
A. Well, the way they talked [is what I mean].
Shortly after Phillips recommended the discharges to Bascom the latter called
District Superintendent Sears, at Midland, Texas, on the telephone. Bascom re-
lated to Sears what Phillips had told Bascom regarding the two men. A day
21 Davidson asserts that one day when Charlie Phillips was working with Hale's crew
he, Davidson, asked Charlie if the latter would join "the union," that Charlie replied
"no" because the latter's father had told Charlie, on the night before, that the employees
would lose their bonus and other benefits if they joined a union, that he, Davidson, again
solicited Charlie to join "the union," a day or two later, and that Charlie again refused,
restating the former reasons given for refusing to join, and, in addition, also said that
Phillips, Sr.,. told Charlie that the employees would "all get hell canned out of them if
they joined a union ." Charlie Phillips categorically denied that Davidson ever solicited
Charlie to join a union or ever specifically named any union ; Charlie further denied
that he had ever stated that his father told him the employees would be prejudiced or
suffer from reprisals if they joined a union ; and that he was merely stating his personal
opinion when talking to Davidson . Because Charlie Phillips was called as a witness by
the General Counsel and his testimony was not convincingly discredited or impeached,
and because from observation, I deemed Charlie Phillips to be a truthful and trustworthy
witness, I credit his version of the incidents related above . Moreover , Davidson was
inclined , at times, to base his testimony upon conclusions rather than fact , and for this
reason was prone to overstate facts.
THE OHIO OIL COMPANY 1611
or two later Sears went to Iraan and met with Bascom and Phillips at, the
Company's office there.
According to Sears, when Phillips came into Bascom's office, the following
conversation between Sears and Phillips took place :
I asked Charlie how he was getting along and how Davidson and Buchanan
were, and he said they just seemed to be sore at him, and everybody else,
and were not doing their work, and if he told them anything they resented
it and acted like they was mad, and I asked him if he thought they ought
to be discharged, and he said he did [that he didn't think they would do us
any good any more] . . . and Bascom agreed with Phillips "
Sears testified that he did not make up his mind to recommend that the two
employees be discharged as a result of this visit to Iraan, Texas, but he said
that after receiving another report concerning them from Wilbur Chalfant, the
personnel supervisor of the Houston Division, on or about July 22, 1948, he
called Division Manager Gwilliam at Houston and recommended their discharges.
On July 21, 1948, Wilbur Chalfant went to Iraan to conduct a safety meeting
with the employees at Yates field. After the meeting was over, Bascom told
Chalfant that Davidson and'Buchanan were always complaining, and requested
Chalfant to drive out to the well where they were working and talk with them.
Chalfant did so and stopped at Hale's rig, where he engaged in a general conver-
sation with Hale, Cox, Davidson, and Buchanan, the four operators on Hale's
crew. According to Chalfant, when he first arrived there in his car, Buchanan
asked Chalfant to step out of the automobile and then remarked "I want to tell
you that the Company's seniority policy is no good" and then complained about
a spudder operator who, according to Buchanan, had less seniority, but was
getting higher wages than Hale, Cox, Davidson, or Buchanan.
According to Hale, who apparently began the general conversation, he, Hale,
told Chalfant :
I did not think it was fair [to cut back our working time], because we
had been doing [much] the same work [as the spudders] and we had even
worked over wells that the spudders could not work over, and they cut us
back and said they were going to cut [the spudders] back, but they did not
do so and we were all dissatisfied.
According to Hale's further credited and undenied testimony , Chalfant in sub-
stance made the following reply :
He [Chalfant ] said he did not know that we had been cut back when he
left Houston , it was news to him, and . . . he said that he did not think it
was fair. He also said that he had worked for the Company . . . twenty or
twenty-five years, and he would not want to work for a company that went
by seniority alone [and that Chalfant then said ] that the local management
was going to run [its business ], that It had run it and would continue to run
it and there was [nothing ] we could do about it. If we did not like the way
it was being run . . . we could just quit.
Thereupon , according to Hale's further credited and undenied testimony,
Davidson spoke up in substance accused the Respondent of giving "Sonny
sz Significantly, according to the record, neither Bascom nor Sears ever Interviewed
Davidson or Buchanan regarding their expressed dissatisfaction or warned them concerning
the alleged delinquencies regarding their work. Gwilliam testified that Sears told Gwilliam_
that each of them had been good employees until after July .1, when they started to com-
plain and neglect their work.
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Schooler a drilling job on the spudder without posting it for bids; and then
asserted that he, Davidson would have bid for that job had he been given an,
opportunity to do so, and that either Davidson or Buchanan then asserted that
if the employees had been organized such incidents as the summary cutting
off of their overtime would not have happened.
Davidson's version of the remark concerning a union was that he, Davidson,
said, "Wilbur, if we had a union, here, this kind of stuff would not go on, and
we are going to organize a union," whereupon, according to Davidson, Chalfant
replied, "You are fixing to get every damn one of us fired, because the Company"
will not tolerate a labor organization. Hale, Cox, and Chalfant categorically
.denied that, on this occasion, Davidson actually threatened to organize a union
but merely asserted that their overtime would not have been cut down without
explanation if they had been organized ; they also categorically denied that
Chalfant stated that the Company would not tolerate a union. Basing my
opinion on my observation of the witnesses, I conclude that the versions of Hale,"
Cox, and Chalfant were the more reliable. Accordingly, I find that Davidson
never expressly threatened to organize a union in Chalfant's presence, and that
Chalfant on this occasion did not assert that the Respondent would not tolerate
labor unions.
According to Hale's further credited and undenied testimony, Davidson and
Buchanan were more voluble regarding voicing other complaints concerning
working conditions than either Cox or Hale.
Chalfant credibly . testified without contradiction that after Davidson re-
quested Chalfant to ascertain exactly why the rotary rigs had been cut.back
to 5 days a week and the spudders continued to operate on a 6-day schedule, he,
Chalfant, told Davidson he would hot do so, because it might result in cutting
the spudder crews back to 5 days a week, and that Chalfant thought the spudder
operators should be permitted to earn the extra overtime because it was only
a temporary proposition, at most.
Chalfant further testified that after he told the four men he, Chalfant, had
worked for the Company for more than 30 years and did know of a better com-
pany to work for, Davidson remarked that he, Davidson, knew of two or three
better companies to work for, whereupon Chalfant replied that if he, Chalfant,
knew a better company to work for, Chalfant would seek to obtain a job with
it, and then left the group.
After he returned to Iraan, Chalfant related what had transpired at the rig
to Bascom and said he told Bascom that he, Chalfant, would interpose no ob-
jections to discharging Davidson and Buchanan.
On the following day, July 22, 1948, Chalfant went to Midland and related to
Sears the substance of conversation he had held with the above four named
employees?'
Following Sears' conversation with Chalfant, Sears, on July 26, 1948, called
Division Manager Gwilliam at Houston, Texas, on the telephone.. Sears, in
substance, testified that he related to Gwilliam that Phillips and Bascom had
23 It is noted that Hale was the son of a foreman, but the record shows that he exhibited
no hesitancy about voicing complaints and on the whole be impressed me as being a
reliable and truthful witness.
24 According to Sears' testimony, Chalfant told Sears that Davidson and* Buchanan
seemed to be sore at everybody including the Company, and that they were the most
unreasonable employees Chalfant had ever talked with. Chalfant specifically mentioned
the complaints voiced by the two employees which are related in Sears' letter to Gwilliam
set forth below. Insofar'as the record shows, Chalfant did not mention the complaints
voiced at the same time by Hale and Cox.
I
THE. OHIO OIL COMPANY 1613
recommended that Davidson and Buchanan be discharged because they were
dissatisfied with their jobs and laying down on their work, and that after talking
with Chalfant , he, Sears, was supporting the discharge recommendations.
Gwilliam requested Sears to send Gwilliam a letter listing the complaints con-
cerning the men and to include Sears ' recommendation in the letter.
Later on this same day Sears sent the following letter to Gwilliam :
Regarding our telephone conversation this morning :-
1st complaint-why was McFadin driving a truck ; McFadin is driving
the truck that looks after cable tool drilling and also helps move material
for the three rotaries . McFadin was put on as truck driver also because
he knew cable tools and knew what to get for the drillers when they sent
him after something ; he is also experienced in tearing down, rigging up
and moving a machine and can handle the truck and handle material without
so much chance of getting someone hurt.
2nd-why were we paying more on the spudder than on rotary. We get
our pay schedules from the Management of our company at Houston and do
not have anything to do with setting pay rates. I still think our rotary
wages are about as high as they are for work on big rigs and we are letting
them work 9 hours a day which gives them one extra hour per day more.
than the roustabouts and the extra hour a day gives them a little more
money and still is of advantage to the company too for when they are
drilling they don't have to shut down for the noon hour.
3rd-why the spudder works 6 days a week and the rotary only 5-
when we started our rotaries up and we were so far behind on work-over
jobs, I recommended working the rotaries 6 days a week and now we have
caught up with the work to where we are just working on wells which are
in the gas cap and I recommended putting the rotaries back on 5 days a
week the first of July, which was done as Mr. Henderson ok'd putting them
-back on 5 days a week , and my recommendation was to work the spudders
6 days a week as we had several offset wells to drill and by working them
6 days a week we could get the wells drilled faster.
4th-why was there a man tool dressing that has only worked 4 months
I do not know who these men were talking about unless it would be James
S. Schooler . I talked to Mr. Bascom this morning and he advised me that
these tool dressing jobs have all been put up for bids when they were open
and at that time Mr. Schooler was the only one that bid for the job. Mr.
Schooler has been dressing tools and drilling since April 1940, except what
time he was in the U. S. Army Air Corps which was 4-22-43 to 10-6-45,
so there was no question but what Mr. Schooler was qualified to handle
the job.
As to these men stating that the working men should have some repre-
sentative in Findlay on job classification-I think our handbook , if read
in the right way, takes care of that as it states that our Company recognizes
seniority as long as the man has the qualifications to fill the job, and I
think the foremen who are working the men should know whether or not a
man was qualified to fill a certain job.
Mr. Bascom and I would recommend letting these two men go the first
of August ; if this meets with your approval, please let us know.
Yours very truly,
(sgd) 0 . E. SEARS.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After receiving the above letter, Gwilliam testified that he discussed discharg-
ing the two employees with some of his subordinate assistants at the Houston,
Texas, office, and reached a decision to discharge the two men on some day
between August 2 and 5, 1948, and thereafter, on August 6, 1948, left Houston,
on his vacation. Although Gwilliam asserts that he expected the terminations
to be made immediately, no further steps regarding the discharges were taken,
insofar as the record shows, until August 13, 1948, when one of Gwilliam's sub-
ordinates telephoned to Respondent's office at Iraan, Texas, and ordered David-
son and Buchanan to be discharged forthwith.
• The message was not received until after the men had quit work for the day.
Buchanan had left on his vacation immediately after work and received no
notice of his discharge until he returned to Iraan, Texas, on August 21. Fore-
man Phillips called at Davidson's home and told the latter that Houston had
ordered his discharge. Davidson asked Phillips why he was being discharged
and Phillips, according to the credited and undenied testimony of Davidson,
replied that he did not know. At the same. time, Phillips told Davidson, Giblin,
the warehouse clerk at Iraan, would write out a check for Davidson's wages.
Customarily, all checks for wages are prepared and signed by a disbursing officer
at Houston, Texas.
Davidson went to Respondent's Iraan office and was handed his termination
check. The check was drawn for an amount including his wages to date,' his
earned vacation pay for the current year, and 1 week's pay in lieu of prior
notice of discharge, notwithstanding the policy set forth in Respondent's "Em-
loyees' Handbook" and supplements thereafter issued, and in force. for many
months before August 13, 1948, which provide, in effect, that an employee dis-
-charged for cause is not entitled to 1 week's pay in lieu of notice or vacation pay.
When Buchanan returned to Iraan after his vacation, Phillips also notified
him that he had been discharged.. Phillips also told Buchanan, that he, Phillips,
did not know the reason for the discharge. On August 23, 1948, when Buchanan
called at the local office he was handed a check for his wages earned up until
August 13, his earned vacation pay, and additional pay.for 1 week in lieu of
notice.
Bascom left Iraan, Texas, to go on his vacation on August 13, 1948. He did
not return to Iraan until some time after August 30, 1948. Meanwhile, on August
16, Davidson called upon W. H. (Bill) Williams, one of Respondent's farm bosses
at the Yates field, then in charge of Yates field matters during Bascom's absence.
Davidson asked Williams for a letter of recommendation. Williams wrote
out, signed, and handed to Davidson the following letter :
To whom it may concern :
Jack L. Davidson has been working for the Ohio Oil Co., under me, and
his work was satisfactory.
W. H. WILLIAMS, Foreman.
At the time, according to Davidson's credited and undenied testimony, Williams
stated "Well, Jack, there's nothing wrong with your or Buchanan's work."
"I started to come up and tell you boys you were going to get it if you didn't
stop that talking, but since you were not working [directly] under me, I con-
sidered it none of my business." ''a
On August 30, 1948, Buchanan also asked Williams for a letter of recommen-
dation and received a letter substantially similar to the one received by Davidson,
ffi Williams was not called to testify and no explanation for his absence appears in the
record.
THE OHIO OIL COMPANY 1615
but no conversation regarding the reason for the discharge was held between
the two men at the time.
Buchanan and his wife were driving by the Respondent's electrical shop at
Iraan, Texas, in Buchanan's automobile sometime in September 1948. On this
occasion, Buchanan observed Chalfant in the shop and stopped the automobile.
He stepped out of the automobile, walked to the door of the electrical shop, and
called to Chalfant to ask him to step outside. Thereupon, according to Buchanan,
he and Chalfant then engaged in a conversation during which Buchanan asserted
that Bascom had told Buchanan that Chalfant had discharged Buchanan and
Davidson," whereupon Chalfant denied it, stating at the time he had no authority
to discharge any employee. According to Buchanan's further testimony, Chalfant
then told Buchanan that Phillips, their foreman, had probably been responsible
for the discharges, and then stated that the Respondent would not allow em-
ployees to run its business by attempting to dictate working conditions, and
that no union would be tolerated by Respondent. Buchanan's wife testified that
she remained sitting in the automobile some distance away during most of the
conversation between Chalfant and her husband, but later moved the car to a
place within a few feet of where the two men were standing. She further testified
that she, in substance, heard Chalfant tell Buchanan that the Company would
not stand for any employee or employees attempting to tell it how to run its
business and that it would tolerate no labor unions.
Chalfant admits effgaging in a conversation with Buchanan, at the time and
place described above. He categorically denied, however, that he made any
reference to labor unions on this occasion. He further asserted that, in the
.main, the conversation was, in substance, limited to an inquiry by Buchanan
regarding Buchanan's chance of getting a job at one of the other divisions of
Respondent's operations, to which inquiry Chalfant asserts he was unable to
give Buchanan any definite information. Chalfant had been personnel super-
visor at the Houston Division since the summer of 1947. He was an intelligent
witness familiar with Respondent's publicly announced policy regarding labor
organizations, and knew at the time that Respondent was presently party to
several contracts with labor unions. Under these circumstances it would seem
incredible that Chalfant would have stated to Buchanan that the latter had been
discharged impliedly because of activities upon behalf of a union. Basing my
conclusion upon the observation of the witnesses and a realistic consideration
of all the evidence, I accept Chalfant's denial regarding the purported antiunion
remark as the more reliable, and deem that Davidson's versions of the incident
were based upon general conclusions rather than upon an actual recollection
,of the remarks uttered by Chalfant.27
Hugh Stephens, a witness called by the General Counsel, testified that soon
after moving to Iraan, Texas, on August 10, 1948, he filed an employment
application with Respondent and a few days later called at Phillips' home and
.engaged in a brief conversation with Phillips regarding the future prospects of
getting a job ; and that thereafter on a Sunday morning about 2 weeks later,
2B Buchanan asserts that he had previously asked Bascom why he bad been discharged
-and the latter replied, "I guess talking 5 days a week and seniority" and then said, "I
-think Wilbur ( Chalfant ) is the man that fired you." Bascom denied ever having such a
-conversation with Buchanan and his denial is credited.
27 It is noted that Davidson and Buchanan had earlier testified regarding a purported
similar antiunion remark by Chalfant on July 21, during a conversation between Chalfant,
Hale, Cox, Davidson, and Buchanan. Hale and Cox supported Chalfant's denial that
Chalfant had made such a statement on this occasion and I credited their denials. Hale,
in my opinion, was the most reliable witness to testify at the hearing.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phillips came into the Coffee Cup Cafe at Iraan, and sat down beside Stephens
while the latter was eating breakfast . According to Stephens , the following
conversation occurred there :
I said, "Mr . Phillips , what about the prospects for a job?"
He said, "Well ,. sir; I don't have anything right now , but I will notify you
if anything happens to show up."
I said, "Well, what about those fellows that the Ohio Oil Company fired
here a few days back ? Didn't they get fired on account of union talk amongst
the men?"
He said, "Yes that was right, . . . the Company laid off several men several
years back on account of that," and he said, "that is one thing the Company
doesn't allow , is that the men try and organize a union."
Thereafter , according to Stephen ' s further testimony , he asked for one of the
jobs, but said Phillips asserted that he, Phillips, was obligated to take care, of
two residents of Iraan who had filed applications before Stephens , and that
Stephens then left the cafe.
On cross-examination , the following questions were put to Stephens, among
others, and he gave the following replies :
Q. You never talked to anyone about your testimony in this case?
A. To people outside?
Q. Just anyone , have you ever talked to anyone about your testimony in
this case?
A. No, sir, I have not.
Farther on, still during cross-examination, Stephens admitted holding a con-
versation with Buchanan and Davidson on or about the first of September 1948,
at the Standard Oil and Gas Company plant near Iraan, Texas, where Stephens
was currently working on a temporary construction job, but thereafter when
Respondent 's counsel again asked Stephens if he had discussed his testimony
with any other persons, in addition to Davidson and Buchanan, he denied having
done so.28
Phillips testified he had never met Stephens until the latter came to Phillips'
home regarding a job, that on this occasion Phillips told Stephens that if a
vacancy occurred, he, Phillips was obligated to give it to prior applicants who
lived in Iraan, that aside from casual meetings, when the two men were passing
on the street and merely greeted one another Phillips never had any further
conversation with Stephens. Phillips categorically denied that he ever held a
conversation with Stephens in the Coffee Cup Cafe and ever made the above
antiunion statement attributed to Phillips by Stephens on any occasion. Basing
my opinion on my observation of the demeanor of the witnesses and a realistic
consideration of the entile record, I am convinced that Phillips' version is the
more reliable and credit his denial that he made the antiunion remarks attributed
to him by Stephens.
By letters dated December 8 and December 13, 1948, and mailed to Superin-
tendent Bascom, Davidson, and Buchanan, respectively, asked for a written
statement concerning the reasons for the discharges.
28 On redirect , in response to a question from the General Counsel 's representative re-
garding when Stephens first met the General Counsel 's representative , Stephens replied,
"about 3 weeks ago," at which time he answered questions put to him by the General
Counsel , concerning his prospective testimony in the case.
THE OHIO OIL COMPANY 1617
By reply letters dated December 24, 1948, each of them was given the following
reason for their discharge : 20
We terminated your employment because you were not rendering the
character of services that our operations require.
C. The issues and conclusions
Upon the basis of the foregoing facts the General Counsel Contends (1) that
Jack Davidson and Jessie Buchanan were discharged on August 13, and August
21, 1948, respectively, because they joined and assisted the Union named herein,
and (2), in the alternative, because they engaged in concerted activities with
other employees for the purposes of collective bargaining and other mutual aid
'and protection, thereby discouraging membership in labor organizations in con-
travention of Section 8 (a) (3) and 8 (a) (1) of the Act 30
Regarding the first contention raised by the General Counsel, Respondent denied
any knowledge of activities at Yates field on behalf of the Union until after the
two employees were discharged. Although a suspicion may be aroused that
'Respondent had reason to believe that the dischargees might seek the assistance
of a union to organize its employees, in view of their voluble complaints regard-
ing the loss of overtime the record fails. to show that they openly engaged in any
substantial activities on behalf of the Union named herein before they were
discharged.
At most, the record shows that Davidson and Buchanan advocated that the
employes seek the aid of some union to assist the employees to organize, but
fails to show that any affirmative steps were actually taken toward bringing the
'union into the plant 31
Furthermore, the Respondent's witnesses, rank-and-file employees as well as
supervisors, all credibly denied, in effect, that Davidson or Buchanan ever men-
tioned the name of any particular union before the two employes were discharged.
The testimony of these witnesses was not convincingly discredited or impeached
at the hearing. Accordingly, their testimony in this respect is credited.32
Upon all the foregoing and the entire record, the undersigned finds that the
.first contention of the General Counsel has not been sustained by the proof.
In respect to the General Counsel's second contention, namely that they were
discharged for engaging in concerted activities, the Respondent asserts: (1) This
contention may not be urged before the Board, because it was not averred in the
charge filed in the case; and (2) the record fails to show that Davidson and
Buchanan engaged in concerted activities protected by the Act before they were
discharged, but that in fact they were validly discharged for cause. The under-
signed is constrained to disagree with each of the defenses raised.
Regarding Respondent's first defense, the Board has recently held in its
decision in Globe Wireless, Ltd., 88 NLRB 1262, that a complaint may lawfully
enlarge upon a charge if additional unfair labor practices alleged in the. complaint
Zo The record . shows that each of the letters was forwarded by Bascom to Houston
where the reply letters were written. They were returned to Bascom for signature, and
thereafter mailed by Bascom to the dischargees.
3o It is noted that the complaint fails to allege independent violations of Section 8
(a) (1).
31 That the Oil Workers International Union, CIO , would seem likely to be the union
selected by the employees to represent them , is hardly sufficient standing alone, to support
a finding that Davidson and Buchanan engaged in activities on behalf of this Union.
32N. L. R. B . v. Te.v - O-Kan Flour Mills, 122 F. 2d 433, 442 (C. A. 5) ; N. L. R. B. V.
Citizen -News Co ., 134 F. 2d 970, 973 (C. A. 9).
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were committed no longer than 6 months prior to the filing of the charge. Since
the charge herein was filed on December 31, 1948, and the discharges and con-
certed activities found below as the basis for the discharges all occurred after
July 1, 1948, the principle announced by the Board in the Globe Wireless case
and other cases is controlling herein.83 Consequently, the complaint herein law-
fully enlarged upon the charge 34
The undersigned has not overlooked Respondent's argument in its brief that
this question has been otherwise decided by a court in Joanna Cotton Mills Co. v.
N. L. R. B., 177 F. 2d 749 (C. A. 4) but his finding above is controlled by the
Globe Wireless, Ltd. case which the Board decided on March 20, 1950, and after
the said court's decision in the Joanna Cotton Mills case.
In respect to the Respondent's second defense the record plainly indicates that
the dischargees were terminated because of their outstanding activities in seek-
ing a restoration of the overtime wages, cut back by the Respondent on. July
2, 1948, and not because of unsatisfactory work performance.
Each of them had been regularly employed for nearly 4 years at Yates field.
During this period they each participated in about 8 general wage increases.
They started to work for $1.02 an hour and were earning $1.80 an hour when
discharged in August 1948. Division Manager Gwilliam admitted that he had
never received any complaints concerning either of them until after July 1, 1948,
and that up to that time each of them was considered to be a reasonably
competent employee.
The record cleary shows that after the reduction in overtime summarily an-
nounced on July 2, 1948, without prior notice or any explanation to the men
affected, all of the employees on the rotary rig crews expressed dissatisfaction
over the loss of overtime wages. Davidson and Buchanan were the most voluble
among the employees in complaining to their foreman regarding the cut-back
in hours and consequent reduction in pay." On July 21, 1948, Chalfant, personnel
supervisor for the Houston Division, went out to their working station at Yates
field to discuss the situation with them, but Chalfant was unable to tell them
why the hours had been reduced. On this occasion, Davidson asserted to Chal-
fant that if the employees had been organized the rotary rig crews would not
have been summarily cut back to a 5-day schedule and the spudder operators
permitted to continue on a 6-day schedule. Thereafter, no explanation was
given by Respondent concerning the reasons for cutting back the hours of
work,-although at the hearing it credibly asserted that the emergency situation
which required the cleaning out of old wells was about over, and that it was
deemed necessary to cut down overtime expense. Had Respondent been more
interested in maintaining good labor relations with its employees and explained
to them why the change was made, at the .time it was made, this litigation prob-
ably would have been avoided.
Complaints of the general nature voiced by Davidson and Buchanan to super-
visors are clearly grievances concerning working conditions. As such they were
entitled to more consideration than they received.
Significantly, Sears' letter of July 26, 1948, to Gwilliam recommending the
discharge of Davidson and Buchanan, made no mention of delinquencies con-
cerning their work performance, but merely stressed the complaints they had
voiced respecting working conditions.
83 Cf. Cat hey Lumber Company, 86 NLRB 157. ,
64 Biggs Antique Company, Inc., 80 NLRB 345, 348.
35 They attempted unsuccessfully to initiate a movement among the rotary operators:
to voice a joint protest to Bascom, the local superintendent.
THEE OHIO OIL COMPANY 1619
Following their summary discharges in August, each of them received a check
for wages earned, earned vacation pay, and a week's wages in lieu of notice
of termination. If they had been discharged for valid cause, as contended at
the hearing, it is inconceivable to the undersigned that Respondent would have
given them vacation pay and an extra week's pay in lieu of notice, for such pay-
ments are contrary to the policies set forth in Respondent's "Employees Hand-
book" and the supplements thereto. Neither is it probable that Acting Super-
intendent Williams, at Yates field, would have given each of them letters of
recommendation stating in substance. that each of them were satisfactory em-
ployees, following their respective discharges, or that Williams would have told
Davidson that they were discharged for talking too much rather for unsatisfactory
performance in connection with their work.
On the record made, I am constrained to find that Davidson and Buchanan
were discharged because they engaged in concerted activities with other em-
ployees, in an effort to restore overtime wages.
Under the Act employees have a right to request employers to restore overtime
wages."B As the court well states in the Hynvie Schwartz case cited above:
Contrary to a rather general conception, the Act was passed for the primary
benefit of employees as distinguished from the primary benefit of unions,
and the prohibition of unfair labor practices designed by an employer to
prevent the free exercise by employees of their wishes in reference to be-
coming members of a union was intended by Congress as a grant of rights
to the employees rather than a grant of power to the unions. Consequently
the right of employees lawfully to engage in concerted activities for the
purpose of mutual aid outside of a union, is specified by the Act.
It is likewise true that by discharging employees for engaging in concerted
activities protected by the Act, an employer is clearly discouraging membership
in labor organizations 87
On all of the foregoing and the entire record, the undersigned concludes and
finds that the activities of Davidson and Buchanan in connection with their
efforts to restore overtime pay constituted protected concerted activities. within
the meaning of the ACt. Accordingly, I further find that the Respondent, by
discharging and refusing to reinstate Davidson and Buchanan because they
engaged in lawful concerted activities with other employees for the purposes of
collective bargaining and other mutual aid and protection, has discriminated in
regard to their hire and tenure of employment within the meaning of Section
8 (a) (3) of the Act, thereby interfering with, restraining, and coercing its
employees in the rights guaranteed in Section 7 of the Act, in violation of Section
8 (a) (1) thereof.
30 N. L. R. B. v. Hymie Schwartz, et al ., 146 F. 2d 773 (C. A. 5).
37 In N. L. R. B. v. Tovrea Packing Company, 111 F. 2d 626 (C. A. 9), enforcing as mod.
12 NLRB 1063, cert. den. 311 U. S. 668, the Court sustained the Board's position that
action of a group of unorganized employees in submitting a concerted wage demand or
other grievances to their employer in itself constituted them a "labor organization" within
the meaning of the Act, and that the discharge of employees for voicing such demands
was in violation of Section 8 (3) and Section 8 (1) of the Act. It follows that by punish-
ing employees who engaged in concerted action, management discouraged its employees
from continuing to act in concert through any labor organization, as defined by Sec-
tioh 2 (5) of the Act. The term "labor organization" is there defined as "any organization
of any kind . . . In which employees participate and which exists for the purpose, in
whole or in part, of dealing with employers concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work." It is noted, that the above
sections have been reenacted in the amended Act.
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent- set forth in Section III, above, occurring in
connection with the operations of the Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes, burdening and ob-
structing commerce and the free flow of commerce.
V. RESPONDENT'S MOTION TO . DISMISS as
As noted above, Respondent moved to dismiss the complaint prior to the
opening of the hearing for the asserted reason that the officers of the parent CIO
had failed to file non-Communist affidavits as provided in Section 9 (h) of the
Act." The undersigned denied the motion, his ruling being based primarily upon
the Board's decision in Northern Virginia Broadcasters, Inc., 75 NLRB 11. In
effect, this case holds, among other matters, that the Board is empowered to
process a complaint case under Section 9 (h) of the Act upon a charge filed by
an international union affiliated with the American Federation of Labor, or the
Congress of Industrial Organizations, if the officers of the international have
filed non-Communist affidavits pursuant to Section 9 (h) of the Act, although the
officers of the parent organization have not.
A full hearing on the allegations in the complaint was thereafter held following
the denial of Respondent's initial motion. At the close of the hearing and in its
brief, Respondent urged the undersigned to reconsider the above ruling and at the
time stated that the question raised by the motion was then pending on an appeal
taken in Postex Cotton Mills, Inc., 80 NLRB 1187, before the United States Court
of Appeals for the Fifth Circuit. Thereafter, on May 8, 1950, counsel for Re-
spondent notified the undersigned by telegram that the court in the Poster Cotton
Mills case, in effect, disagreed with the Board's earlier holding that compliance
with the provisions of Section 9 (h) of the Act was not required of the parent
officers of the' CIO in cases where charges had been filed by an affiliate interna-
tional whose officers had duly filed non-Communist affidavits.
The said court in Postex Cotton Mills discussed the theory of the Board in
Northern Virginia Broadcasters, cited above, and registered its disagreement.
Among other things, the Court stated that under the proper construction of the
congressional language , the Congress of Industrial Organizations is a national
labor organization within the terms of Section 9 (h) of the Act, that "the Board
88 In view of the fact that I am recommending the within motion to dismiss the com-
plaint be granted for reasons set forth below, the inclusion of the foregoing findings no
doubt will seem an unusual arrangement. Since my Intermediate Report, however, had
been completely written before the Poster Cotton Mills case (discussed below) had been
decided, I deemed it advisable to Include the above as alternative findings for the informa-
tion of the Board, in the event that the Board sets aside the within recommendation to
dismiss the complaint.
39 "9 (h). No investigation shall be made by the Board of any question affecting com-
merce concerning the representation of employees, raised by a labor organization under
subsection (c) of this section, no petition under section 9 (e) (1) shall be entertained, and
no complaint shall be issued pursuant to a charge made by a labor organization under
subsection (b) of section 10, unless there is on file with the Board an affidavit executed
contemporaneously or within the preceding twelve-month period by each officer of such labor
organization and the officers of any national or international labor organization of which
It Is an affiliate or constituent unit that he Is not a member of the Communist Party or
affiliated with such party, and that he does not believe in, and is not a member of or
supports any organization that believes in or teaches, the overthrow of the United States
Government by force or by any illegal or unconstitutional methods. The provisions of
section 35A of the Criminal Code shall be applicable in respect to such affidavits."
THE, OHIO OIL COMPANY 1621
was therefore not empowered to issue the complaint against the respondent, and
accordingly, there is no legal basis upon which to predicate the order now sought
to be enforced," in Poster Cotton Mills, Inc.
The records made in Poster Cotton Mills and the instant case show that each
of the international unions involved in the respective cases were affiliated with the
parent CIO, that in each case the international had filed the charges and also the
non-Communist affidavits required under Section 9 (h) of the Act, but that the
parent CIO officers had not. Accordingly, the two cases are substantially'simi-
lar insofar as it becomes necessary to consider the facts relied on by the Re-
spondent as grounds for its motion to dismiss.
On all of the foregoing, and particularly because the hearing in the instant case
was held within the jurisdiction of the United States Court of Appeals for the
Fifth Circuit, the undersigned deems that he is presently constrained to follow
the. decision of the court in the Post ex Cotton Mills, Inc., case. However, because
the theory developed by the Board in Northern Virginia Broadcasters, Inc., (pre-
viously cited above) has been adopted and followed in numerous other cases, and
the Board has seemingly decided as a matter of policy to further litigate the
question decided by the court in the Poster Cotton Mills, Inc., case, the under-
signed at this time will merely recommend that the complaint herein be dis-
missed, rather than grant a peremptory order of dismissa190
Accordingly it is hereby recommended that the complaint herein be dismissed.
As provided in Section 203.46 of the Rules and Regulations of the National Labor-
Relations Board any party may, within twenty (20) days from the date of service
of the order transferring the case to the Board, pursuant to Section 203.45 of
said Rules and Regulations, file with the Board, Washington 25, D. C., an original
and six copies of a statement in writing setting forth such exceptions to the
Intermediate Report and Recommended Order or to any other part of the record
or proceeding (including rulings upon all motions or objections) 'as he relies
upon, together with the original and six copies of a brief in support thereof ; and
any party may, within the same period, file an original and six copies of a brief.
in support of the Intermediate Report and Recommended Order. Immediately
upon the filing of such statement of exceptions and/or briefs, the party filing the.
same shall serve a copy thereof upon each of the other parties. Statements of
exceptions and briefs shall designate by precise citation the portions of the record
relied upon and shall be legibly printed or mimeographed, and if mimeographed
shall be double spaced. Proof of service on the other parties of all papers filed
with the Board shall be promptly made as required by Section 203.85. As further
provided in said Section 203.46 should any party desire permission to argue orally
before the Board, request therefor must be made in writing to the Board within'
ten (10) clays from the date of service of the order transferring the case to the
Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations, the findings, conclusions, recommendations, and recom-
mended order herein contained shall, as provided in Section 203.48 of said Rules
and Regulations, be adopted by the Board and become its findings, conclusions,
and order, and all objections thereto shall be deemed waived for 111 purposes.
40 On May 19, 1950, the Board, in effect, denied a similar motion to dismiss the com-
plaint in Bethlehem Steel Company, Shipbuilding Division, et al., Case No. 4-GA-15,
which case was heard within the jurisdiction of the Fourth Circuit Court of Appeals. The.
said order stated, among other things, that the Board is constrained to adhere to the
Board's original view [as set forth in Northern Virginia Broadcasters, Inc.] until the
Supreme Court of the United States has had an opportunity to pass on the question."