Continental Oil Co.

National Labor Relations Board - Board Decisions

Sep 11, 1944

58 N.L.R.B. 169 (N.L.R.B. 1944)

In the Matter Of CONTINENTAL OIL COMPANY and OIL WORKERS INTER-
NATIONAL UNION-CIO
Case No. 16-R-818
DECISION
AND
ORDER SETTING ASIDE RUN-OFF ELECTION
September 11, 1944
On May 2 and 3,,1944, pursuant to the Decision,and Direction of
Election issued by the Board herein on April 10, 1944,1 an election by
secret ballot was conducted under the direction and supervision of the
Regional Director for the Sixteenth Region (Fort Worth, Texas).
Upon the conclusion of the election, a Tally of Ballots was furnished
the parties in accordance with the Rules and Regulations of the Board.
As to the balloting and its results, the tally showed as follows :
Approximate number of eligible voters______________________ 1121
Valid votes counted________________________________________ 883
Votes cast for Oil Workers International Union-CIO ---------- 423
Votes cast for Independent Oil Workers Union of Ponca
City, Oklahoma----------------------------------------- 391
Votes cast for Ponca City Metal Trades Council-------------- 59
Votes cast for none________________________________________ 10
Pursuant to the Rules and Regulations of the Board, a run-off elec-
tion by secret ballot was conducted on May 9 and 10, 1944, under the
direction and supervision of the Regional Director. Upon the con-
clusion of the run-off election, a Tally of Ballots was again furnished
the parties in accordance with the above-mentioned Rules and Regu-
lations.
As to the balloting in the run-off election and its results, the tally
showed as follows :
Approximate number of eligible voters______________________, 1119
Valid votes counted________________________________________ 970
Votes cast for Oil Workers International Union-CIO -- - ----- 482
Votes cast for Independent Oil Workers Union of Ponca
City, Oklahoma----------------------------------------`- 488
Challenged ballots__________________________________---------------------------------- ------- 2
1 55 N. L. R. B. 1157.
58 N. L. R. B , No. 33.
169
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 12, 1944, Oil Workers International Union-CIO, herein
called the C. I. 0., filed'Objections to the run-off election. On June 13,
1944, following an investigation, the Regional Director issued a Report
on the Objections to the run-off election, in which he found that the
Objections raised no substantial and material issues and recommended
that they be dismissed. Thereafter, the C. I. O. filed Exceptions to
the Report, and Continental Oil Company, herein called the Company,
filed a Response to the C. I. O.'s Objections. On July 11, 1944, pur-
suant to the Board's direction, the Regional Director issued a Supple-
mental Report on the Objections to the run-off election. None of the
parties has taken exception to this report.
Upon the entire record in the case, including the Objections filed by
the C. I. O., the Report on Objections, the Exceptions of the C. I. O.
thereto, the Company's Response to the Objections, the Supplemental
Report on Objections, and the record previously made, the Board
makes the following :
FINDINGS OF FACT
The C. I. O.'s Objections to the run-off election alleged in substance
(1) that the Company interfered with, restrained, and coerced its em-
ployees in the exercise of their free choice to select a collective bargain-
ing representative by directing and encouraging them to vote; conduct-
ing them to the polls; posting notices in the plant indicating that the
Company favored Independent Oil Workers Union of Ponca City,
Oklahoma, herein called the Independent; making disparaging re-
marks about the C. I. 0.; and instructing certain employees to vote
on company tune while denying this privilege to other employees, and
(2), that the Company and the Independent submitted an application
for a wage increase to the Regional Office of the National War Labor
Board, herein called the W. L. B., about 1 month prior to the election,
and that the day before the run off election, the W. L. B., in contra-
vention of its rules, gave notice that the increase had been approved,
which notice was conveyed by the Company and the Independent to
all the employees prior to the run-off election.
We need not pass upon the C. I. O.'s first objection to the run-off
election, since we are of the opinion that the second objection, stand-
ing alone, provides ample ground for setting aside that election. The
essential facts forming the basis for the C. I. O.'s second objection are
not in dispute.
On March 25, 1944, the Company and the Independent made joint
application to the W. L. B. seeking its approval of a wage increase for
employees in four departments of the Company's plant. On May 4,
1944, the W. L. B. mailed a letter of ruling to the Company and the
Independent,- approving the increase. Notice of the ruling was re-
CONTINENTAL OIL COMPANY 171
ceived by the Company and the Independent on or before May 8, 1944,
the day before the run-off election. A single copy of the ruling,was
posted by the Independent on May 8, between the hours of 11 a. m. and
12 noon, on a bulletin board inside the main gate of the plant provided
for the Independent by the Company.
Since the Company's three shifts begin at 7 a. in., 3 p. m., and 11
p. m., it is likely that employees on all three shifts learned of the
W. L. B.'s approval of the wage increase for employees in the four de-
partments prior to the run-oft election. The likelihood that a great
(lumber of employees acquired this knowledge prior to the run-off elec-
tion is indicated by the fact that the Independent caused to be printed
in the May S edition of a Ponca City daily newspaper, which is cir-
culated after 4 p. in., a notice concerning the W. L. B. action. This
notice was not limited in its appeal to employees entitled to the wage
increase, but proclaimed that additional applications for wage in-
creases for employees in all other departments of the Company were,
pending before the W. L. B., and stated "You should vote for the In-
dependent Union in tomorrow's election to insure that, you will get
these wage increases as the Board acts upon our applications."
On May 8, the 11r. L. B. sent a telegram to the Company and the
Independent which: read us follows :
LETTER OF RULING DATED MAY 4, 1944, ON JOINT
VOLUNTARY APPLICATION FOR APPROVAL WAGE-
ADJUSTMENTS FILED BY CONTINENTAL OIL COM-
PANY and INDEPENDENT OIL WORKERS UNION OF
OKLAHOMA, PONCA CITY, OKLAHOMA, CASE NUM-
BER 8-13,055 RELEASED IN ERROR. THEREFORE
RULING IS HEREBY STAYED AND OF NO FORCE OR
EFFECT UNTIL FURTHER NOTICE. FINAL RULING
WILL BE ISSUED WHEN CERTIFIED COLLECTIVE
BARGAINING AGENT TO REPRESENT EMPLOYEES
HAS BEEN DETERMINED THROUGH ELECTION.
The telegram was posted on the bulletin board by the Independent
between 7:30 and 8:30 p. M. in the evening of May 8, immediately
below the copy of the W. L. B. ruling approving the wage increase.
The above posting of the telegram was clearly too late to come to
the direct attention of first shift employees prior to the run-off elec-
tion. The first shift had finished work at 3 p. in., and, inasmuch as
balloting was commenced at 6 a. rn. the next day at a polling place
not on con-ipany property, many employees on that shift who were-
cognizant of the W. L. B. ruling could have voted prior to going to
work completely unaware of the contents of the May 8 telegram.
Moreover, it is doubtful whether knowledge of the telegram dissi-
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pated the effects of the premature release of the W. L. B. ruling, since
the telegram may be interpreted as implying ,that final approval of
the wage increase was merely being stayed until the conclusion of the
run-off election.
It is virtually impossible to ascertain the full effects upon the em-
ployees' free exercise of the right to select a collective bargaining rep-
resentative of the W. L. B.'s announcement just prior to the run-off
election that it had approved the wage increase. In the present period
of fixed wage ceilings, with resultant limitations imposed upon one of
the most effective appeals which a labor organization can make to
employees during an organizing campaign, namely, the promise of
better wages, we conclude that the announcement indicating the ap-
proval of the joint wage increase application of the Independent and
the Company, prevented a free choice by the employees.2
We shall, therefore, sustain the C. I. O.'s Objection as to the pre-
mature release and posting of the W. L. B. ruling approving the wage
increase, and we shall set aside the run-off election held on May 9 and
10, 1944. When the Regional Director shall advise us that the time
is appropriate, we shall direct that a new election be held among the
Company's employees.
ORDER
Upon the basis of the foregoing findings of fact, the National Labor
Relations Board hereby vacates and sets aside the run-off election
held in this proceeding on May 9, and 10, 1944, and the results thereof.
MR. GERARD D. REILLY, concurring specially :
I am inclined to agree that-the announcement of a wage increase ort
almost the eve of the election may very likely have affected the result,
and hence the proper remedy is to set it aside. I am, however, some-
what disturbed by the text of the majority opinion, as I believe it may
tend to confuse the body of law relating to circumstances under which
elections may be invalidated.
It is not a novel thing to set aside elections when employers give
wage increases just prior to the polling, since a reasonable inference
may be drawn that an increase in compensation under those circum-
stances is a broad hint to the employees that they can get along as
well or better without the petitioning union as their representative.
8 We note that the concurring opinion herein construes our decision as establishing "the
proposition that unions, whose success in all election is attributable in whole or in part to
campaign arguments which this Board deems to run counter to public policy , will hence-
forth lie deprived of the fruits of their misdeeds " We do not so view the decision. Where
we are asked to invalidate elections held under the auspices of this Board our only consider-
ation derives from the Act which calls for freedom of choice by employees of their collective
bargaining representatives. Elements, regardless of their source or of their truth or
falsity, which , in the experienced judgment of the Board , make impossible an impartial
test, are grounds for the invalidation of an election.
CONTINENTAL OIL COMPANY 173
The granting of a wage increase at such a time has been deemed to
be the kind of interference with self-organization which is prohibited
by Section 8 (1) of the Act,1 and, consequently, such interference is a
,ground for setting aside an election.
In the instant case, however, no contention is made by any of the
parties with regard to the propriety of a tentative wage increase
granted by.the Company in March which was subsequently the subject
of a joint application for approval by the Company and the Inde-
pendent. In other words, so far as this record shows, the Company
here did nothing in derogation of the National Labor Relations Act;
it was the mere accident of a delay incidental to National War Labor
Board proceedings which caused the news of approval of the wage
increase to be known at a time when it might have affected the result
of the election. It would appear, therefore, that the rationale of the
majority opinion is that any administrative action taken by the
National War Labor Board which tends to defeat the policies of the
National Labor Relations Act should not be given effect.
I have no objection to this Board embarking on such a course, but
it would seem to be incumbent upon us then to vindicate the Act from
even more serious impairment by the line of authority which the
National War Labor Board developed in the Chicago Transformer
case under which the whole principle of majority rule embodied in
the National Labor Relations Act has been jeopardized by allowing
unions which fail to retain majorities at the end of collective bar-
gaining contracts to retain their status as exclusive bargaining agents?
I find some difficulty, however, in believing that this is the theory
upon which the majority decision rests. It will be noted that the
announcement of the wage increase Which was presumed to have
influenced the result of the election was made to the employees, not
by the National War Labor Board nor by the employer, but by the
competing union. If we are to set- aside this election because the
statement made by the competing union, though true, was sharp
practice, inasmuch as it was circulated to discredit the opposing union,
it would seem, a fortiori, that the election should have been set aside
if the announcement were false. To view the case otherwise would
mean that we are penalizing unions whose campaign literature, though
contrary to our views of public policy, is, nevertheless, true, and yet
ignoring campaign literature which does violence not only to public
policy but the truth. Since I cannot impute such an untenable doctrine
to the reasoning of the majority of the Board, I must therefore con-
1 See, e g, Matter of Bear Brand Hosiery Co ., 40 N L . R. B. 323, 334 , enf'd, 131 F. (2d)
731 (C C. A. 7) ; Matter of American Oit Co, 41 N L R B 1105
' See Matter of Chicago Transformer Corp., 14 War Labor Rep. 666, and 15 L R. R.
(dissent of W. L. B. Industry Members) ; Matter of J. S. Bache Co., 15 War Labor Rep.
5S1 ; Matter of Pston,eter Log Corp., 16 War Labor Rep. 137.
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elude that this case stands for the proposition that unions, whose
success in an election is attributable in whole or in part to campaign
arguments which this Board deems to run counter to public policy,
will henceforth be deprived of the fruits of their misdeeds. If this
is indeed the case, then I think the majority opinion in Curtiss-Wright
Corporation 3 should be overruled.
In that case, the successful union in its publications appealed for
votes on ground which would have frustrated the orders, rules and
policies established by the President of the United States in the fur-
therance of the prosecution of the war. While the Board deplored
such conduct, a majority of the membership nevertheless refused to
set aside the election, stating :
"... The difficulty we perceive in refusing to declare by cer-
tificate the results of the uncoerced balloting in these proceeding's
is that the employees who have freely selected a representative
would be disfranchised under the guise of penalizing the officials
of a labor organization for their own reprehensible conduct."
Clearly, the instant case represents a radical departure from that
theory and would seem to be in line with the view expressed in the
dissenting opinion that this Board possesses a power during the
pendency of a representation case to prevent the parties thereto from
creating an atmosphere which tends, to bring the proceedings into
contempt and ridicule, even, though no unfair tabor practice has been
committed.
3 Matter of Curtiss-Wright Corporation, et al ., 43 N. L R. B. 795.
[See infra, 58 N. L. R. B. 333 for Supplemental Decision and Direc-
tion of Second Run-Off Election.]