The Pure Oil Co.

National Labor Relations Board - Board Decisions

Jun 19, 1944

56 N.L.R.B. 1531 (N.L.R.B. 1944)

In the Matter of THE PURE OIL COMPANY and OIL WORKERS INTER-
NATIONAL UNION (C. I. 0. )
Case No. 8-R-1314.-Decided June 19, 1944
Mr. Russell Packard, for the Board.
Messrs. Allen C. Hutchinson, Jr., and Ben A. Harper, of Chicago,
Ill., for the Company.
Mr. Wilbur Sudbrack, of Cincinnati, Ohio, for the Union.
Mr. C. D. Lindroath, of Newark, Ohio, for the Independent.
Mr: David Findling, of counsel to the Board.
DECISION
AND
ORDER
On October 21, 1943, Oil Workers International Union (C. I. 0.),
herein called the Union, filed with the Regional Director for the
Eighth Region (Cleveland, ' Ohio), herein called the Regional Di-
rector, a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of The Pure Oil
Company, Newark, Ohio, herein called the Company, and requesting
an investigation and certification of representatives pursuant to Sec-
tion 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On October 30, 1943, the Union, the Company, and,
Oil Refinery Employees Independent Association, herein called the
Independent, a labor organization named in the petition as being then
the recognized- bargaining representative of the Company's employ-
ees, entered into, a "Stipulation For Certification Upon Consent
Election."
Pursuant to the stipulation, an election by secret ballot was con-
ducted on November 5, 1943, under the supervision of the Regional
Director. On November 6, 1943, the Regional, Director issued and
duly served upon'the parties an Election Report. As to the balloting
and its results the Regional Director reported as follows :
Approximate number of eligible voters-------; ------------------ 172
Count of ballots :
Total ballots cast --------------------------------------------- 170
Total ballots challenged------------------------------------ 6
Total void ballots -- ------------------------------------------ 1
Total valid votes counted--- -------------------------------- 163,
Votes cast for Oil Workers International Union (C. I. 0 )------ 70
Votes cast for Oil Refinery , Employees Independent Associa-
tion ----------------------------------------------------- 93
Votes cast for neither-------------------------------------- , 0
56 N. L. R. B., No. 276. 1531
1532 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
On November 8, 1943, the Union filed objections to the election, al-
leging in substance that, the Company had engaged in certain conduct
preventing a free choice of representatives. Thereafter, the Regional
Director investigated the objections, and on December 16, 1943, is-
sued and duly served on the-parties a Report on Objections. He found
that the objections raised substantial and material issues with respect
to the election and recommended that the Board set the election aside.
On January 12, 1944, the Board having duly considered the matter
and determined that the objections did raise substantial and material
issues with'respect to the election, issued an order 'directing a hearing
thereon and, referring the case to the Regional Director for the,pur-
pose of conducting the hearing. Such hearing on objections was held
at Newark, Ohio, on February 15 and 16, 1944, before J. J. Fitz-
patrick, Trial Examiner.' The Board, the Company, and the Inde-
pendent appeared and participated by counsel, and the Union by its
representative, and all were afforded. full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence' bear-
ing on' the issues. The: Trial Examiner's rulings made at the hearing
are free from prejudicial error and are hereby affirmed. -
Upon the entire record in the case,2 the Board makes the following :
FINDINGS, OF FACT
Three or four weeks before the election, Assistant Foreman Bryant
Ewing told employee Franklin Moore, who was an outspoken Union
supporter, that it was his understanding that if the Union .got into
the plant, it would demand a 48-hour week, which would necessarily
create a surplus of employees,' and that there would be lay-offs, and,
he implied-, a reduction in severance pay. He also suggested to'Moore,-
while admitting that the latter's work was satisfactory, that it would
be best for him to take advantage of a severance settlement and -leave
the Company's employ. About the same time, another assistant fore-
man, Kenneth Roof, likewise asked Moore during working hours if
the latter. would 'consider accepting a severance settlement and re-
turning to farming. In other conversations with Moore at about this'
time and at other times prior to the election, Ewing and Roof severally
declared in substance that the employees should not join the Union but
should adhere to the Independent, disparaged, the Union as radical
1 In the meantime, by' order dated February 2, 1944, the Board' had consolidated the
representation proceeding with an unfair labor practice proceeding against the Company
(Case No. 8-C-1619), initiated by charges-filed by the Union with the Regional Director on
January 31, 1944 , The hearing was held in the consolidated cases . The Board, having
considered,the matter and deeming it necessary to effectuate-the purposes of the Act, hereby,
orders, pursuant to Article II, Section 36 1(d) and Article III, Section 13 (c) 4 of National
Labor Relations Board Rules and Regulations-Series 3, that the cases be, and they hereby
are, severed
2 The Company and the Independent filed briefs in the unfair labor practice case (see
note 1, supra), which the Board has duly considered in making its findings in the instant
proceeding.
THE PURE OIL COMPANY 1533
and unable to gain additional advantages for the working men, and
stated that the Union had caused trouble at the Company's Toledo
plant, which it had succeeded in or,manizing.3 Ewing warned Moore,
further, that although the Newark plant would continue to operate
for the duration of the war, the Company might close it down there-
after, particularly if any labor trouble developed. Similarly, during
the week before the election, Ewing told employee Charles O. Kurtz-
holz that 'the employees did not need the Union to get -what they
wanted; he asked employee James DeLancey if the latter thought he
was doing the "right" thing by joining the Union; he declared .to
DeLancey that the Company had always treated the employees fairly;
and he advised the-same employee that affiliation with the Union
would cause "hard feelings" among the men. During the period
shortly before the balloting, Superintendent E. E.' McPherson like-
wise engaged several employees in conversations in which he openly
espoused the Independent- opposed to the Union, declared to one of
the men, Wilson Bradford, that if the Union succeeded there might
be "trouble" such as had occurred at Toledo, and asked Bradford if the
latter did not think that if the men did have a union and trouble, the
Company would not be more likely to close the plant after the war
than if there were no such trouble.4
On October 29, 1943, at a dinner party for the employees and their
families which was sponsored and phid for by the Company, Dr. C. A.
Sundberg, a professional speaker who had been hired for the occasion,
referred during the course of his extemporaneous speech, to the coop-
eration between the Company and the employees in the past and the
good things the Company had done for the working men, and told
the employees, near the conclusion of his remarks, that tliey" should
not tear down in a day what it had taken the Company years to build
up.5 In view of the, circumstances and timing of this speech, we find
that the men could reasonably regard Sundberg's remarks as having
reference to the Union's coming into the plant,6 and that the fair
implications of the statements were that the men should adhere to
the Independent and that conditions at the plant might deteriorate
if the Union won the election. Moreover, we find that the employees
might have just cause to believe, in all the circumstances, that Sund-
berg spoke for, and that his statements represented the views of, the
Company. Accordingly, the Company was under a duty at least
to disavow his remarks. It did not do so, however.
8 There had been a strike at this plant
4 The foregoing is based upon the credible testimony of employees Moore, Kurtzholz,
DeLancey, Parker Pheneger, William H Fessler, and Bradford Neither McPherson, Ewing,
nor Roof testified , although McPherson attended the hearing and there was no showing of
the unavailability of Ewing or Roof as witnesses
6 This finding is'based upon uncontroverted and credible testimony of employees Walter
Winters, Fessler , and Kurtzholz , who were piesent Sandberg was not callod as a witness.
" Several employees testified in substance that they so construed the remarks.
587784-45-vol 56-DS
1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 1, 1943, which was 4 ' days before the election, the
Company granted , effective immediately , the previous request of the
Independent to reduce the probationary period of new employees from
90 to 30 , days. 'The effect of the change was- to raise the wages of
eight probationary employees $29.50 per month . The Independent
'immediately posted a notice on its bulletin board in the plant, announc-
ing and. taking credit for the concession . The 90 day probationary
period had apparently been the rule for many years . Moreover, while
the matter of its reduction had been under consideration by the Inde-
pendent's bargaining committee for some time , so far as appears no
formal request was made to the Company to remedy the situation
until October 27, 1943, which was shortly after the Union had peti-
tioned for certification and shortly before the election was agreed
upon. In these circumstances , and in' light of 'the whole course of
the Company 's unneutral conduct and the manner in which the Inde-
pendent ' quickly took credit for the adjustment , we think it reasonable
tc infer , as we do, that the adjustment " as requested by the Inde-
pendent and was granted by the Company , at the time it was, in'order
to assist the Independent as opposed to'the Union in the election.
On November 2, 1943, Superintendent McPherson caused to be
mailed to all- employees eligible to vote in the election , a letter on
company stationery ; as follows:
Because of its importance to each of us at the Heath Refinery
I was prompted to discuss and clarify the reason for the election
November 5 at our party last Friday night . ' I did not for the
reason that I felt it might not be best to call attention to a ques-
tion so seriously affecting each of us on such an occasion , an occa-
sion planned long in advance of the developments prompting the
election. Since time and conditions do not permit my discussing
this matter with each of you individually as I should like to do,
I am writing this same letter to eachof you so that you may know
of the very great importance I attach to this election . I feel that
I would be shirking my-responsibility and obligation- to you not
to do, so.
For a long number of years we have worked together here at
Heath. We have had our problems in connection ' with . wages and
working conditions , as well as our individual and personal prob-
lems both at the plant and as ' they, affected our homes and our
families. We have always - discussed these openly and freely as
individuals who respect one another are bound to do when there
is'a personal interest in the other's well being. We have had a
common interest in our work and in our desire for ou r continued
welfare and security by making our operations at the Heath-
Refinery an efficient link in, the refining industry . Throughout
THE PURE OIL COMPANY 1535
'these years ,by working out these problems among ourselves we
know that we have been able to work together for our common
good and to such an extent,that most of us have enjoyed, through
good times and bad, many continuous years of employment.
These years have been spent under working conditions and with
wages that have not only been the equal to but the envy of many
of our neighbors.
You are now to have'an election on November 5, Friday, to
determine who is'to represent you in the future regarding all these
various things which so vitally affect the welfare of all'of us and
those dependent upon us. Will we in the future be able to work
out our problems among ourselves, or are we to have an outside
party, who has not played a, part in our past or had an interest
in us, represent you? If it is to be an outside "group are you sure
that their interests are the same as yours and mine and that they
will continue to be so? Have they accomplished more elsewhere
than we have here at Heath? Satisfy yourself that you know'the,
leadership of this outside party and .what it stands for as well
as you know what your leadership has stood for in the past.
The election will be held under the direction and supervision of
the National Labor Relations, Board just, as'was the election of
June 17, 1941, at which time you selected the,Oil Refinery Em-
ployees Independent Association as your sole representative to
represent you in matters pertaining to wages and working condi-
tions. The election has been called by the N. L. It. B. at the
request of the Oil' Workers International Union (CIO) and we
have agreed to it as we are required to do in accordance with the
provisions of the National Labor Relations Act.
It is important that you understand tliat' the outcome of this
election will determine who is to be the sole representative of all
of you with the only right to represent you in matters of wages
and working conditions. The decision will be based on a majority
of those voting, which is very different from a majority of those
entitled to vote. For this reason, I urge you to vote and express
your wishes.
It is important that you understand that your vote will be
by secret ballot and no one by any means can know how you vote
other than yourself. It is important that you understand that
you are free to vote as you feel at the time you cast your ballot and
are in no way bound or obligated by any membership you may
hold, application you may have made, or preference or opinion
you may have previously expressed or held.
I wish to assure you that not only as the superintendent, of the
Heath Refinery, but also as one who has grown up with you,
that irrespective of the decision rendered by your voting on Fri-
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day, I will continue as in the past to deal honestly and fairly with
whatever representative may be your choice.
I cannot urge you too strongly to discuss this subject with your
families as all may be affected by your choice and, above all, be
sure to vote on Friday.
Yours very truly,
(signed) E. E. MCPHERSON.
Wliateber might be our views as to the propriety of such a letter if
it stood alone, we, find that the ,letter, when appraised, as it must be,
in connection with the totality of the Company's conduct during the
period in question, and particularly the oral statements of McPherson,
Ewing, and Roof, described above, not only constituted to the em-
ployees an expression of the writer's views, but carried with it an
intimation of economic reprisal should the employees fail to heed
their employer's obvious wishes.
We find that the Company's above-described course of conduct dur-
ing the period preceding the election prevented an expression by the
employees therein of their free and uncoerced wishes as to representa-
tion. We shall therefore set the election aside. We shall direct a
new election at such time as the Regional Director advises us that
circumstances permitting a free choice among the employees have
been,restored.
ORDER
IT IS HEREBY ORDERED that the election held on November 5, 1943,
among the employees of The Pure 'Oil Company, Newark, Ohio, be,
and it hereby is, set aside.