Tonkawa Refining Co.

National Labor Relations Board - Board Decisions

Apr 28, 1969

175 N.L.R.B. 619 (N.L.R.B. 1969)

TONKAWA REFINING CO. 619
Tonkawa Refining Co . and Local 351, International
Union of Operating Engineers , AFL-CIO. Cases
16-CA-3234 and 16-RC-4800
April 28, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 19, 1968, Trial Examiner Sydney
S. Asher, Jr., issued his Decision and Report on
Objections in the above-entitled consolidated
proceedings, finding, in Case 16-CA-3234, that
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint. The Trial
Examiner also found merit in certain of the Union's
objections to the election in Case 16-RC-4800, and
recommended that the election be set aside and a
new election conducted. Thereafter, Respondent
filed exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board had reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board had considered the
Trial Examiner's Decision and Report on
Objections, the exceptions and the brief, and the
entire record in these cases, and hereby adopts the
findings,' conclusions,' and recommendations of the
Trial Examiner, as modified herein.
1. The Trial Examiner found that a remark made
by Assistant Superintendent Campbell to employee
Barton violated Section 8(a)(1) of the Act. In so
concluding, the Trial Examiner thought it
unnecessary to determine which of two
conflicting versions of the conversation should be
considered credible. We need not pass upon the
'The Trial Examiner sustained the Union's second objection to conduct
affecting the results of the election, finding that the "announcement [of
benefits] was made under circumstances reasonably tending to interfere
with the employees' freedom of choice of bargaining representative." The
record evidence reveals, as discussed infra, that a finding is justified that
both the announcement and the subsequent granting of the wage increases
interfered with the employees' freedom of choice, and we so find.
'Our modifications of the Trial Examiner's findings, hereinafter
discussed, require certain changes in the section of his Decision entitled
"Conclusions of Law." The words "By threatening its employees with
reprisal if they supported the Union, and" are hereby deleted from par. 4
of that section.
validity of the Trial Examiner's conclusion. We
therefore do not adopt those portions of the Trial
Examiner's Decision finding that this conversation
violated Section 8(a)(1) and constituted conduct
which interfered with the conduct of a fair election.'
2. The Trial Examiner found that both the
announcement and granting of certain wage
increases prior to the election reasonably tended to
inhibit the free exercise of employee rights, in
violation of Section 8(a)(1) of the Act. We agree.
However, the Trial Examiner, in making his
finding, relied on American Freightways Co., Inc.,'
and concluded that the motive behind a grant of
benefits is neither controlling nor material to the
determination under Section 8(a)(1). He ruled that
an employer's conduct is violative of Section 8(a)(1)
where it "tends to interfere" with the exercise by
employees of their rights under the Act. The Trial
Examiner, therefore, did not reach the issue of the
Respondent's intent or motivation.
The Respondent excepted to the Trial Examiner's
conclusion that the employer's motive was
immaterial, contending that an illegal purpose must
be established before an 8(a)(1) violation could be
found. We find that the proper test under Section
8(a)(1), as expressed by the Supreme Court in
N.L.R.B. v. Exchange Parts Co.,' requires a finding
that the employer's conferral of employee benefits
while a representation election was pending was for
the purpose of inducing employees to vote against
the union.' We also find, however, that the evidence
demonstrates that the Respondent was so motivated
in announcing and granting the increases here
complained of.
The record reveals that construction of the
Respondent's refinery began in November 1966, and
operations commenced in March 1967. A number of
the construction workers were hired as operational
employees of Respondent. On December 8, 1967,
the Union wrote to the Respondent, claiming to
represent a majority of the employees at the Arnett
refinery. On December 11, 1967, the Union filed a
petition for election in Case 16-RC-4800. The
election, which the Union lost, was held on
February 21, 1968.
. On December 15, 1967, Respondent's President
Cahoon addressed an . assembled group of
truckdrivers, at a safety meeting and voiced his
opposition to the union. On January 24, 1968,
Cahoon called a safety meeting of the four
operators at the plant. Cahoon began by stating that
"he didn't want any part of a union" and he did not
think Respondent was "large enough to be . .
union ." Cadell, one of the operators, then asked
'The Trial Examiner found unsupported , and dismissed the 8(a)(1)
allegation of the complaint based on certain remarks made by Frank
Cahoon , President of the Respondent , to the Respondent 's truckdrivers at
a meeting on December 15, 1967. In the absence of exceptions , we adopt
pro forma the Trial Examiner 's finding in this respect.
'124 NLRB 146.
'375 U.S. 405.
'Russell-Newman Mfg. Co., Inc. v. NLRB 370 F.2d 980 (C.A. 5).
'There were 4 truckdrivers in the 22-man unit voting in the election.
175 NLRB No. 102
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cahoon- about previous promises of a wage increase.
In reply, Cahoon announced that wage increases for
some employees would go into effect at the
beginning of the next pay period.
On January 28, 1968, the beginning of the next
pay period, wage increases raging from 10 to 25
cents per hour went into effect for 11 production
and maintenance employees. This was the first wage
increase ever granted by the Respondent. As noted,
the election took place on February 21.
Respondent contends that when the plant was
built, the construction superintendent notified some
of the plant's future employees that the Respondent,
when able, would bring their pay up to parity with
the truckdrivers whenever it was financially feasible
to do so, and that the raises announced on January
24, 1968, and granted a few days later, were in
fulfillment of that pledge. It seems clear from the
evidence, however, that Respondent had exhibited
little urgency about honoring this pledge until the
Union appeared on the scene. Cahoon testified
initially that the Company's ability to give the wage
increases depended upon securing a 6 month jet fuel
contract with the United States Air Force, and that
this contract did not take effect until January 1968,
thus enabling the Respondent, for the first time, to
take steps to implement the increases. However, in
response to the Trial Examiner's question, "When
was the first date, the earliest date, when the
company became financially able to make the wage
increases?", Cahoon replied, "November, 1967."
We have carefully considered other evidence in
the record which tends to indicate that Respondent
had, prior to the advent of the Union, given some
thought to a grant of wage increases. However, in
light of the facts that (1) Cahoon testified that the
Respondent was financially able to grant the wage
increases as early as November 1967; (2) the
announcement and granting of the raises were timed
during the preelection campaign; (3) the
announcement was made in the same speech in
which Cahoon voiced his opposition to the Union;
and (4) these were the only wage increases ever
granted by the Respondent, we find that the
announcement and the granting of wage increases by
Respondent were made prior to the election for the
purpose of inducing employees to vote against the
Union, in violation of Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Tonkawa Refining Company, Arnett, Oklahoma, its
officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Granting or promising to grant wage increases
or other economic benefits to its employees for the
purpose of interfering with their freedom of choice
of bargaining representative. Nothing herein
contained shall, however, be interpreted to force or
require the Respondent to amend or revoke wage
increases already granted.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plant in Arnett, Oklahoma, copies
of the attached notice marked "Appendix A."8
Copies of said notice, on forms provided by the
Regional Director for Region 16, after being duly
signed by an authorized representative of the
Respondent, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily displayed. Reasonable steps shall be
taken by the Respondent to insure that such notices
are not altered, defaced, or covered by any other
material.
(b) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what
steps it has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be
dismissed, insofar as it alleges violations of the Act
not specifically found herein.
IT IS FURTHER ORDERED that the election
conducted on February 21, 1968, be, and it hereby
is, set aside.
[Direction of Second Election' omitted from
publication.]
'In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 16 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director. The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances . Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed Excelsior Underwear Inc., 156 NLRB 1236.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT grant, or promise to grant, wage
increases or other economic benefits to our employees
for the purpose of interfering with their freedom of
TONKAWA REFINING CO. 621
choice of bargaining agent.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of their right to self-organization , to form, join, or
assist the above-named or any other union, to bargain
collectively through representatives of their own
choosing , or to engage in other mutual aid or
protection, or to refrain from such activities, except to
the extent that such rights may be affected by an
agreement requiring union membership as a condition
of employment, as authorized in Section 8(a)(3) of the
Act, as amended.
Our employees are free to become, remain, or refrain
from becoming or remaining , members of any union,
except to the extent that such rights may be affected by an
agreement requiring union membership as a condition of
employment , as authorized in Section 8(a)(3) of the Act,
as amended.
TONKAWA REFINING CO.
(Employer)
Dated By
- (Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board's Regional Office, Federal Office
Building, Room 8A24, 819 Taylor Street, Fort Worth,
Texas 76102, Telephone 817-334-3921.
TRIAL EXAMINER'S DECISION AND
REPORT ON OBJECTIONS
SYDNEY S. ASHER, JR., Trial Examiner: On February
27, 1968, International Union of Operating Engineers,
Local 351, herein called the Union, filed charges in Case
16-CA-3234 against Topkawa Refining Co.,' Arnett,
Oklahoma, herein called the Respondent . On May 6,
1968, the General Counsel of the National Labor
Relations Board issued a complaint . This alleges that the
Respondent, since on or about December 15, 1967, has
interfered with , restrained , and coerced its employees in
the exercise of rights protected by Section 7 of the
National Labor Relations Act (29 U.S.C. Sec. 151, et
seq.), herein called the Act . It is alleged that this conduct
violated Section 8(a)(1) of the Act. The Respondent filed
an answer denying the commission of any unfair labor
practices.
Case 16-RC-4800 arises out of an election conducted by
the Regional Director among the Respondent 's employees
on February 21, 1968, which the Union lost. The Union
filed timely objections to conduct . affecting the results of
the election . On May 22, 1968 (after the issuance of the
complaint in Case 16 -CA-3234), the Regional Director
issued a supplemental decision in Case 16-RC-4800, in
which he overruled some of the Union's objections, but
found that three of the Union 's objections raised material
and substantial issues which could best be resolved on the
basis of a hearing . In view of the identity of issues, the
Regional Director consolidated Case 16-CA-3234 with
Case 16-RC-4800.
'The record shows that in March 1968 the Respondent was acquired by
Texola Oil Company. However, as• no party has moved to amend the
Respondent's name in the caption , I shall leave it as it is.
A consolidated hearing was held before me in
Woodward , Oklahoma , on June 25 , 1968. All parties were
represented and participated fully in the hearing . After the
close of the hearing briefs were filed by the General
Counsel and the Respondent . These have been duly
considered.
Upon the entire record in these cases , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
The complaint alleges, the answer admits, the Regional
Director has found,' and it is hereby found that the
Respondent is, and at all material times has been, an
employer engaged in commerce as defined in the Act, and
its operations meet the Board 's jurisdictional standards;'
and that the Union is, and at all material times has been,
a labor organization within the meaning of the Act.
A. The Setting
In November 1966 construction of the Respondent's
refinery began . Operations actually commenced in March
1967. On December 8, 1967 , the Union wrote to the
Respondent claiming to request a majority of the
employees at the Arnett refinery . On December 11, 1967,
the Union filed a petition in Case 16 -RC-4800.
The appropriate unit , as defined by the Regional
Director in his Decision and Direction of Election,
consists of all production and maintenance employees at
the Arnett refinery , including truckdrivers , with certain
exclusions . At all material times the Respondent employed
at the Arnett refinery approximately ten or eleven
production and maintenance employees and approximately
ten truckdrivers.
B. Interference, Restraint, and Coercion
1. Threats
a. By Cahoon
The complaint alleges that on or about December 15,
1967, Frank Cahoon, president of the Respondent,
"threatened its employees . . . with discharge or other
reprisals if they became or remained members of the
Union or gave any assistance or support to it." The
answer admits that Cahoon was, at that time, president
and a supervisor of the Respondent, but denies that he
threatened any employees.
On December 15, 1967, Cahoon addressed the
assembled truckdrivers at the Circle C Cafe, a restaurant
in Arnett. The topics were safety and insurance. In
addition, the Union was discussed. Jim Creed, a
truckdriver then employed by the Respondent, who was
present, testified as a witness for the General Counsel as
follows:
Mr. Cahoon told us "Gentlemen, about this
Union," he said he thought the plant could operate
'Case 16-RC-4800, Decision and Direction of Election issued by the
Regional Director on February 1, 1968.
'The Respondent is, and at all material times has been , a Texas
corporation operating a refinery in Arnett , Oklahoma, where it is engaged
in refining crude oil and selling it to commercial outlets and to U.S. Air
Force bases . During the 12 months preceding May 6 , 1968, the Respondent
caused materials valued at more than $50,000 to be delivered to its Arnett,
Oklahoma , refinery directly from sources outside the State of Oklahoma.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without the Union, and he said he wasn't only opposed
to the Union, he said he was hysterically opposed to the
Union . . . he said .. . that he would do anything that
he could to keep it [the refinery] from going Union and
keep us [the truckdrivers] from going Union.
Cahoon, a witness for the Respondent, also testified about
this meeting. He described what he told the assembled
truckdrivers as follows:
Q. (By Mr. Snow) While you were at this safety
meeting with the truckdrivers, did you make any
statement about the Union?
A.... I expressed my opinion that I was against the
Union.
Q. What did you say, Mr. Cahoon?
A. My exact words, I believe, were along the lines
of, "I am against the Union and I am not only against
the Union, I am violently against the Union as to our
situation."
Q. Did you make any statements such as, "I will do
anything to keep it out of the plant"?
A. I believe my statement was, "I will do anything
legal to keep it out of the plant," that I can do legally
to keep it out of the plant.
TRIAL EXAMINER: . . . you said you were violently
opposed to the Union?
THE WITNESS: That I would do anything legal to
oppose the Union ....
I deem it unnecessary to determine which version is the
more accurate. Under either Creed's or Cahoon's version,
I am convinced, and find, that no threat was uttered by
Cahoon, and that his statement of opposition to the
Union constituted an exercise of free speech, within the
protection afforded by Section 8(c) of the Act.
b. By Campbell
The complaint alleges that on or about December 15,
1967, Gifford Campbell, the Respondent's assistant plant
superintendent, (described in the complaint as an agent
and supervisor of the Respondent) "threatened its
employees . . . with discharge or other reprisals if they
became or remained members of the Union or gave any
assistance or support to it." The answer denies that
Campbell was assistant plant superintendent, that he "was
acting on Respondent's behalf," or that he engaged in the
alleged conduct.
Cahoon admitted under cross-examination that
Campbell's title was assistant, plant superintendent and that'
he was the only individual in the maintenance department
on salary, all the others being hourly paid. It was
stipulated that his name was not on the eligibility list for
the election. There is undenied testimony that he attended
at least one supervisors' meeting. Campbell himself
testified on direct examination:
Q. Have you ever filled in as plant superintendent?
A. Well, I believe twice while Mr. Birdsall was gone
I helped out there ....
On cross-examination he further explained:
Q. I believe that you said that you had relieved Mr.
Pollard on a couple of occasions -
MR. Cosmic: No, Mr. Birdsall.
Q. (By Mr. Snow) Mr. Birdsall. What is his title?
A. He was superintendent and manager, the same as
Mr. Pollard is now.
Q. Superintendent and manager. You relieved him a
couple of times?
A. Well, he went away and told me to look after the
plant, keep it running while he was gone, yeah.
There is conflicting testimony as to the exact extent of
Campbell's authority to hire, fire, promote, assign,
transfer or responsively direct the men under him, or
effectively to recommend such action. But there is no
dispute, and I find, that at all material times (at least up
to mid-February 1968) a notice was posted on the bulletin
board of the Respondent's plant, a copy of which is
attached hereto, marked "Appendix A." [Omitted from
publication.] This shows Campbell as assistant plant
superintendent, in the line of supervision immediately
below the plant superintendent, and above a number of
rank-and-file workers. It clearly put the employees on
notice that Campbell occupied a supervisory position.
I conclude that, by paying Campbell a salary rather
than an hourly rate, by giving him the title of assistant
plant superintendent, by permitting him to attend a
supervisors' meeting, by allowing him to substitute for the
plant superintendent during the plant superintendent's
absence, and by posting Appendix A in the plant, the
Respondent cloaked Campbell with apparent authority as
its agent and supervisor. Indeed, in the light of these facts,
it is not surprising that at least two employees, witnesses
for the General Counsel, testified that they considered
Campbell a supervisor. I therefore find that the
Respondent is accountable for Campbell's actions within
the scope of his apparent authority.
Robert Barton , an employee of the Respondent and a
witness for the General Counsel, testified that one
afternoon late in December 1967, while he and Campbell
were together:
Mr. Campbell said that if the Union came in, we might
be all out of a job, or he said it 's possible they might
send somebody down and blow the plant up. I said I
wouldn't want to see them do that while I was on the
job...
Campbell gave a different version of this conversation.
According to Campbell's testimony:
Well he [Barton] asked me what I thought about the
Union, and I told him that was his concern and not
mine; if he wanted the Union, well, that was with him,
not me.
He said, "Well, what can they do about it?" I said,
"Well, the only thing they could do, might some day -
there might be a strike and you might be out of a job."
Under either Barton's or Campbell's version of this
talk, I am convinced, and find, that on this occasion
Campbell warned that should the Union win the election
the employees might be "out of a job." I conclude that
this threat of' reprisal, uttered to an employee during a
period of union activity, constituted coercion. As the
remark was made by Campbell within the scope of his
apparent authority, the Respondent thereby violated
Section 8(a)(1) of the Act.
2. Promising and granting wage increases
a. Facts
On the afternoon of January 24, 1968, Cahoon called a
meeting of the four operators at the plant. This began
about 3:00 p.m. and lasted about 45 minutes. Gilbert
Birdsall, then the plant superintendent, was present.
Cahoon began by stating that "he didn't want any part of
TONKAWA REFINING CO. 623
a union" and he did not think the Respondent was "large
enough to be . . . union ." There followed a discussion
concerning safety . Mr. Cadell , one of the operators, then
asked Cahoon about previous promises of a wage
increase . In reply, Cahoon announced that wage increases
for some employees would go into effect at the beginning
of the next pay pefigd .' On January 28, 1968, the
beginning of the next pay period, wage increases ranging
from 10 to 25 cents per hour went into effect for the 11
production and maintenance employees . This was the only
wage increase ever granted by the Respondent. The
truckdrivers did not receive any raises.
b. Contentions of the parties
The complaint alleges that on or about January 24,
1968, the Respondent ."promised to grant a wage increase
to its employees" and on or about January 28, 1968
"granted a wage increase to its employees" and that such
conduct was . "in order to induce them [the employees] to
refrain from becoming and remaining members of the
Union or giving any assistance or support to it." Pointing
out that the raises were announced and made "when the
Union organizational campaign was at its peak," the
General Counsel in his brief maintains that the
announcement and granting constituted an unfair labor
practice because the Respondent's "purpose" was "to
defeat or forestall union organization."
The answer denies these allegations . At the hearing, the
Respondent stipulated that it announced and granted wage
increases on the dates alleged , and conceded that Cahoon
knew of the Union's campaign before he announced the
raises . It maintains , however, that when the plant was
being built, "the construction superintendent notified some
of the plant 's future employees that the Respondent, when
able, would bring their pay up to parity with the
truckdrivers' whenever, it was financially feasible to do
so" and that the raises announced on January 24, 1968,
and granted a few days later , were in fulfillment of that
pledge.
c. Conclusions
Cahoon's explanation for the increases , viewed in the
most favorable light , amount to nothing more than an
attempt to prove that in announcing and granting
economic benefits to some employees during the Union's
organizing campaign , the Respondent was not motivated
by any unlawful considerations . However, the Board
majority opinion in American Freightways Co., Inc.,
states:
It is well settled that the test of interference, restraint,
and coercion under Section 8(a)(1) of the Act does not
turn on the employer' s motive or on whether the
coercion succeeded or failed . The test is whether the
employer engaged in conduct which, it may reasonably
be said , tends to interfere with the free exercise of
employee rights under the Act,'
Thereafter, in Exchange Parts Company, the employer
sought to prove that in granting economic benefits during
'The findings with regard to the meeting of January 24, 1968, are based
upon a synthesis of the testimony of Peter R. Rozzell, an operator who
was present , and that of Cahoon.
124 NLRB 146, 147. On the same day the Board, in Armstrong County
Line Construction, 124 NLRB 132, 139, held that a wage increase during a
union campaign did not violate the Act because the General Counsel failed
to prove that it was illegally motivated.
a union campaign it was not motivated by unlawful
considerations . The Board stated flatly: "However , motive
is neither controlling nor material " and then quoted from
American Freightways , as above.' The United States
Supreme Court affirmed .' A year after this landmark
decision by the Supreme Court, the United States Court
of Appeals for the Second Circuit stated:
There is much in this record to indicate that Welch
acted in good faith . . . but we conclude that, if the
conduct complained of otherwise violated Section
8(a)(1), good faith is no defense . The cases clearly
demonstrate that it is the tendency of an employer's
conduct to interfere with the rights of his employees
protected by Section 8(a)(1), rather than his motives,
that is controlling.'
And as recently as 1966 the Board was still citing
American Freightways for the proposition that "a
company's conduct is violative of Section 8(a)(1) where it
tends to interfere with the exercise by employees of their
rights under the Act."' I accordingly conclude that the
proper test is that set forth in American Freightways.
Let us now apply this to the instant case . Here, the
announcement and granting of the raises was timed during
the Union 's campaign . Moreover , the announcement was
made in the very same speech in which Cahoon voiced his
opposition to the Union . Finally , these were the only wage
increases ever granted by the Respondent . In the light of
these facts, I am convinced , and find, that both the
announcement and the granting of the wage increases
reasonably tended to inhibit the free exercise of employee
rights . 10 This violated Section 8(a)(1) of the Act. In this
posture of the case , I do not reach the issue of the
Respondent's intent or motivation.
3. Interrogation
The complaint alleges that on or about February 15,
1968, Jim Schaff, a supervisor and agent of the
Respondent , "orally interrogated its employees . . .
`Exchange Parts Company, 131 NLRB 806, 812 . After American
Freightways the Board in True Temper Corporation, 127 NLRB 839, in
effect repudiated the test set forth in American Freightways . Later Board
decisions indicate that True Temper was a momentary reversion to pre-
American Freightways tests, followed quickly by a return to the principle
enunciated in American Freightways. See, for example, Fetzer Television,
Inc., 129 NLRB 660, 668 , fn. 32 , enfd . 295 F.2d 244 (C.A. 6), cert. denied
368 U.S. 953 ; Exchange Parts Company, supra The J. S. Dillon & Sons
Stores Co., Inc., 144 NLRB 1235, 1243 , In. 28 , enforcement denied 338
F.2d 395 (C.A. 10); and Reliance Fuel Oil Corp., 129 NLRB 1166, 1175,
In. 27, affil. 371 U.S. 224, enfd . on remand February 26, 1963 (C A. 2).
'N.L.R.B v. Exchange Parts Co., 375 U.S. 405.
The Welch Scientific Co., Inc. v. N.L.R. B., 340 F .2d 199, 203 (C.A. 2).
'Hermann Equipment Manufacturing Company, Inc., 156 NLRB 716,
718, fn. 3. In Dan Howard Mfg. Co., 158 NLRB 805, 813, the Board
stated: "The employer's legal duty is to proceed in these matters [granting
or withholding benefits] as he would have done had the Union not been on
the scene." In another case the Board held that an employer' s granting a
wage increase during a union campaign "raises a strong presumption" of
illegality . Ventre Packing Co., Inc., 163 NLRB No. 47. American
Freightways was not cited in either Dan Howard or Ventre. But contrast
Casey Manufacturing Company, 167 NLRB No. 13. In Corrie
Corporation of Charleston v N.L.R.B., 375 F.2d 149 (C.A. 4), the United
States Court of Appeals for the Fourth Circuit , speaking of violations of
Sec. 8(a)(l) of the Act, stated: "The test is ... whether the conduct in
question had a reasonable tendency in the totality of the circumstances to
intimidate."
"In its brief, the Respondent cites Advance Envelope Manufacturing
Company, Inc, 170 NLRB No. 166; and Oxco Brush Division of Vistron
Corporation, 171 NLRB No. 70. 1 have examined both these cases and
deem them distinguishable from the instant case on their facts.
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
concerning their Union membership, activities and
desires." The answer denies that Schaff was, at any
material time , a supervisor or agent of the Respondent,
and further denies that he engaged in the alleged conduct.
The record shows that , at one time , Schaff was clothed
with supervisory authority. But long before the Union's
advent he became the Respondent's bookkeeper. From
that time on, there is no convincing evidence that he
possessed or exercised the authority to hire, fire, promote,
transfer, reprimand, or assign work to any employee
under his supervision, or effectively to recommend such
actions. Indeed, it appears that the only employee below
him in the Respondent's hierarchy is a young lady who
assists him with the bookkeeping. And the fact that his
name was not included on the list of eligible voters is not
surprising , as office clerical employees were specifically
excluded from, the bargaining unit. I conclude that the
General Counsel has failed to establish by a
preponderance of the evidence that Schaff was, at any
material time, a supervisor or agent of the Respondent.
Accordingly, I need not, and do not, determine whether he
interrogated any employee.
C. Objections to Conduct Affecting the Results of the
Election
The Regional Director, in his Supplemental Decision,
found that the issues raised by the Union's Objections 1, 2
and 3 could "best be resolved on the basis of record
testimony." He directed that, after a "hearing, ruling and
decision by a Trial Examiner," Case 16-RC-4800 be
"transferred to and continued before the Board." In his
brief herein, the General Counsel urges "that the election
held on February 21, 1968, should be set aside."" The
Respondent, in its brief, asks that Objections I, 2, and 3
be overruled and that a certification issue that the Union
failed to receive a majority of the valid votes cast. Let us
turn, then, to the merits of Objections 1, 2 and 3.
Objection I
The Union's first objection reads: "The Employer put
into effect a wage increase on January 29, 1968, without
bargaining with the Union." The record shows, as
discussed above, that the Respondent granted wage
increases to certain employees within the appropriate unit.
Presumably, it did so without prior consultation with the
Union. But the Union did not establish that it then
represented a majority of employees. Nor did it show by
any other evidence that it was the employees' exclusive
bargaining agent entitled to such prior notice and
opportunity to bargain. In the absence of such proof, the
Respondent was under no obligation to bargain and the
It seems to me that Sec. 102.68(c) of the Rules and Regulations of the
National Labor Relations Board - Series 8, as revised January 1, 1965 -
places upon the Regional Director , in the first instance, the responsibility
"on the basis of an administrative investigation , or ... on the basis of a
hearing before a hearing officer" to "issue a report on objections ... or
exercise his authority to decide the case and issue a decision disposing of
the issues and directing appropriate action ." By directing here that the case
be transferred directly to the Board , it may be that the Regional Director
has thereby deprived the Board and the parties of the benefit of his
disposition of the issues. However, as no party has objected to the transfer
of the case directly to the Board, I need not rule on the legality of such a
procedure . I note, in passing, that the Regional Director now has the
complete record before him and could himself, if he so desired, set the
election aside - the very action that he urges that I recommend to the
Board.
objection therefore lacks merit. I recommend that it be
overruled.
Objection 2
The Union's second objection reads: "Promises of
benefits, to destroy the Union's majority." It has already
been found, above, that the Respondent announced certain
wage increases on January 24, 1968, and that the
announcement was made under circumstances reasonably
tending to interfere with the employees' freedom of choice
of bargaining representative. Therefore I recommend that
this objection be sustained."
Objection 3
The Union's third objection reads: "Interrogated and
threatened individual employees with reprisals if they
voted for the Union." It has already been found that late
in December 1967 Campbell warned Barton that should
the Union be victorious his (Barton's) job might be in
jeopardy. In addition Jim Creed, a former employee of
Respondent, testified that on the morning before the
election, while he was still employed by the Respondent,
he had a discussion about the election in the Respondent's
office with John Cosmic, Esq., the Respondent's attorney.
According to Creed's undenied testimony, which I credit,
on that occasion Cosmic warned Creed: "You could come
up tomorrow without a job."" I conclude that these two
incidents reveal coercive threats of reprisal made by the
Respondent to individual employees. Accordingly, in my
opinion , this objection should be sustained.
Conclusion
Since Objections 2 and 3 are meritorious, it is clear,
and I find, that the election did not take place in a
"laboratory" atmosphere free of interference, restraint, or
coercion. The objectionable conduct was, in my view, of
sufficient gravity and extent to vitiate the entire election.
Therefore, I shall recommend, that the election be set
aside and a new election be directed.
Upon the basis of the above findings of fact, and upon
the entire record in these cases, I make the.following:
CONCLUSIONS OF LAW
1. Tonkawa Refining Co. is, and at all material times
has been, an employer within the meaning of Section 2(2)
of the Act, and is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Frank Cahoon and Gifford Campbell are, and at all
material times have been, supervisors and agents of the
Respondent, within the meaning of Section 2(11) and (13)
of the Act.
3. International Union of Operating Engineers, Local
351, is, and at all material times has been, a labor
organization within the meaning of Section 2(5) of the
Act.
4. By threatening its employees with reprisal if they
supported the Union, and by promising to grant and
"In Playskool Manufacturing Company, 140 NLRB 1417, 1419, the
Board stated : "conduct of this nature which is violative of Section 8(a)(l)
is, a fortiori, conduct which interferes with the exercise of a free and
untrammeled choice in an election."
"As this incident is not mentioned in the complaint, no finding is made
as to whether it constituted an additional violation of Sec. 8(a)(1).
TONKAWA REFINING CO.
granting wage increases td its employees under such
circumstances that such conduct reasonably tended to
interfere with their freedom of choice of bargaining
representative , thereby interfering with, restraining, and
coercing the employees in the exercise of rights guaranteed
in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
5. The above-described unfair labor practices tend to
lead to labor disputes burdening and obstructing
commerce and the free flow of commerce and constitute
unfair labor practices affecting commerce within the
meaning of Section 2 (6) and (7) of the Act.
6. The General Counsel has failed to establish by a
625
preponderance of evidence that Jim Schaff is, or at any
material time was a supervisor or agent of the Respondent
within the meaning of Section 2 ( 11) and (13 ) of the Act;
that on December 15, 1967, Frank Cahoon threatened
employees with reprisal; or that the Respondent thereby
interfered with, restrained, or coerced its employees within
the meaning of Section 8(a)(1) of the Act.
7. The Union's Objection 1 to conduct affecting the
results of the election is without merit.
8. The Union's Objections 2 and 3 to conduct affecting
the results of the election are meritorious, and the conduct
alleged therein improperly affected the results of the
election.
[Recommended Order omitted from publication.]