The Texas Co.

National Labor Relations Board - Board Decisions

Apr 16, 1951

93 N.L.R.B. 1358 (N.L.R.B. 1951)

1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE TEXAS COMPANY and ROBERT RISSMAN
THE TEXAS COMPANY and GEORGE CODY . Cases Nos . 21-CA-295 and
11-CA-375. April 16, 1951
Decision and Order
On June 16, 1950, Trial Examiner William F. Scharnikow issued
his Intermediate Report in this consolidated proceeding, finding that,
in Case No. 21-CA-295, the Respondent had engaged in and .was en-
gaging in certain unfair labor practices in violation of Section 8 (a)
(1) and (3) of the Act, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
also found that, in Case No. 21-CA-375, the Respondent had not en-
gaged in certain alleged unfair labor practices and recommended the
dismissal of the complaint relating to that case in its entirety. There-
after; the Respondent and the General Counsel filed exceptions to the
Intermediate Report and supporting briefs. Statements in the nature
of exceptions were also filed by the charging party in Case No. 21-
CA-375, and by two employees of the Respondent, Nickerson and
Miller.' The Respondent's request for oral argument is denied be-
cause the record and the briefs, in our opinion, adequately present the
issues and positions of the parties.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudical error was committed.
The rulings are hereby affirmed.2 The Board has considered the In-
termediate Report, the briefs and exceptions, and the entire record
in the case, and hereby adopts only those findings and conclusions of
the Trial Examiner that are consistent with this Decision and Order.
. Case No. 21-CA-295
The issues before the Board in this case arise out of a strike which
the Union a called in September 1948 for the purpose of enforcing
wage demands, -involving-so far as this case is concerned-three
bargaining units of the Respondent's Pacific Coast Division.
i These two employees contended that their names were inadvertently omitted from the
amended complaint in Case No. 21-CA-295 As we are dismissing the complaint in that
case, we find it unnecessary to pass upon this contention.
2 We find no basis for the Respondent's contention that the charges in Case No.
21-CA-295 were filed by Rissman "fronting" for a noncomplying union. The asserted
noncompliance of the Oil Workers Unions is based solely on the ground that the Interna-
tional was affiliated with the then noncomplying parent CIO, a fact which, in our opinion,
does not impair the compliance status of the International. See J. H. Rutter-Rex Manu-
facturing Co , Inc, 90 NLRB 130. In any event, the CIO is now in compliance and has
been since 1949
8 "Union" refers to Oil Workers International Union and Its Locals 120 and 128,
interchangeably.
93 NLRB No. 239.
THE TEXAS COMPANY 1359
The Trial Examiner found that, by the letter which the Respond-
ent sent its striking employees on September 28 and by a number
of related statements made by supervisors of the Respondent to a
few strikers,4 the Respondent interfered with the rights of its em-
ployees to engage in concerted activities, in that it sought to under-
mine the authority of the statutory bargaining representative by
dealing with the employees individually, in violation of Section
8 (a) (1). He further found that this conduct by the Respondent
converted the economic strike into an unfair labor practice strike,
and that, as a consequence, the Respondent's refusal to reinstate the
strikers, on the ground that they had been permanently replaced
by the time they requested reinstatement, discriminated against the
strikers in violation of Section 8 (a) (3). For the reasons stated
below, we do not agree that the Respondent's letter, or any other
conduct by the Respondent during the strike, violated the Act.
The September 28 letter which was signed by Division Manager
James T. Wood, Jr., and addressed, without consultation with the
Union, to all of the strikers, except two who had been discharged,
read as follows:
There is no indication at present when the strike called by
the Oil Workers International Union (CIO) will end.
It has therefore been decided to resume normal Producing
Department Operations in the Los Angeles Basin and Ventura
Districts as promptly as possible.
Employees who return to work on or before October 4, 1948,
will find*jobs available for them. After October 4, 1948, full
measure will be taken to fill all remaining vacancies from every
available source. As to those employes who do not return to
work on or before October 4, 1948, the Company will take what-
ever action may be deemed to be proper at the time.
You may have been told that if you come back to work before
the strike is ended, the Union will compel the Company to dis-
charge or otherwise discriminate against you. I assure you no
employee returning to work before the strike is ended will be
discriminated against or penalized now or in the future because
of that fact.
If you want to return to work, you should communicate with
your Foreman or Superintendent for instructions.
The Trial Examiner suggested that this letter was proper insofar
as it advised the strikers that the Respondent intended to avail itself
of its privilege under the Act to resume operations,5 and merely
reported that strikers would not be replaced before October 4.
4The 14 episode which the Trial Examiner found violative are set forth in detail in
the Intermediate Report.
6 N L R. B. v. Mackay Radio & Telegraph Co , 304 U. S. 333.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, he found that the letter illegally sought to induce the
employees to return to work by threatening to condition the return
to work after October 4 upon the loss of seniority.
We are, however, unable to read, either in the September 28 letter
or in any later conduct by the Respondent, any threat that the strikers
would lose their seniority unless they return to work by the date
specified in the letter for the beginning of replacements. The letter
speaks of "taking whatever action may be deemed to be proper at
the time." No reference is made to seniority, and we find no reason
in the record to believe that by "proper" action, the Respondent
contemplated, or could reasonably have been believed by the strikers
to be contemplating, anything other than action which the statute
permits 6 The oral statements later made by supervisors to indi-
vidual employees were all in the same general vein as the September
28 letter and likewise contained no specific threats with regard to
seniority or any other matter. It is true that the Respondent failed
to clarify its policy with respect to relative seniority until some-
time after the September 28 letter, but we find nothing in this fact
which would warrant our reading a threat into the Respondent's
earlier statements.'
Absent a threat or a promise of benefit designed to coerce the
strikers into returning by the deadline date, the legality of the
Respondent's individual solicitation of the strikers must be deter-
mined against the background in which such solicitation was done.s
For, although the Board has, in the past, found individual solicita-
G In fact, the Respondent , in acting as it " deemed to be proper ," hired no replacements
until October 5, the day after the so -called deadline ; promoted none of the nonstrikers
or earlier returned strikers betueon September 28 and October 4 ; gave every striker
who returned his old job unless it had been filled by the time he returned either by
promotion or new employment , gave every replaced striker the job nearest to his old job ;
told strikers who applied after all available jobs had been filled that they would be given
preferential consideration for employment in the first vacagcies which occurred, for which
they were qualified ; restored all pension , past service , and other rights, and kept
"permanent" replacements in their positions Cf N. L R B v Mackay Radio cC Telegraph
Co , supra.
7 In reaching a contrary conclusion , the Trial Examiner relies upon Superintendent
Loomis' statement that seniority status for strikers was undecided at the time of the
October 8 conference, the intramanagement memorandum of October 6 which stated that
the applicability of "former" seniority to "promotions, demotions, and lay-offs" was to
be deferred , and the intramanagenient memorandum of November 17 advising the superin-
tendents not to discriminate in considering the applications of any " former employees,"
i. e , the replaced strikers "Former seniority " was a composite of five separate , different,
and distinct types of seniority recognized in the contracts' length of service with the
Company, operations seniority, district seniority, and seniority credit "spiked" on
June 16, 1938, collectively described by the General Counsel and the Trial Examiner as
"accumulated" seniority.
Unlike the Trial Examiner , we find that the Respondent 's difficulty in determining the
relative status of returning strikers and nonstrikers , earlier returning strikers, and
replacements was warranted by the complexity of the problem.
8 United Welding Company, 72 NLRB 954; see N L R B v The Sands Manufacturing
Company, 306 U. S 332, 342, and Colgate Manufacturing Corporation, 85 NLRB 864.
Cf The Cincinnati Steel Castings Company, 86 NLRB 592, and Kansas Milling Company,
86 NLRB 925 (reversed and remanded in 185 F. 2d 413 (C A. 10), where there was
coercion inherent in the solicitation itself.
THE TEXAS COMPANY 1361
tion of strikers violative of the Act, in all such cases one or both
of the following two factors has been present: (1) The solicitation
has constituted an integral part of a pattern of illegal opposition
to the purposes of the Act as evidenced by the Respondent's entire
course of conduct," or (2) the solicitation has been conducted under
circumstances, and in a manner, reasonably calculated to undermine
the strikers' collective bargaining representative and to demonstrate
that the Respondent sought individual rather than collective
bargaining.10 Neither factor is present here.
The record before us contains no evidence of any other unfair labor
practices, indicative of an antiunion animus on the part of the Re-
spondent, now 11 or in the past. 12 It is clear, as the Trial Examiner
found, that the Respondent's decision to resume operations was moti-
vated by bona fide business considerations. 11 It sought to implement
this decision by an individual appeal to the strikers which, as we have
found, contained no threat or promise of benefit. And there is no basis
in the record for inferring that by resorting to the individual solicita-
tion the Respondent was seeking to undermine the representative status
of the Union. On the contrary, at no point did the Respondent dis-
parage the Union; there is no contention that the Respondent did not
bargain in good faith during its meetings with the Union, some of
which took place during the strike; 14 and the likelihood that the in-
dividual solicitation of the strikers would demonstrate a propensity
to resort to individual rather than collective bargaining is greatly
diminished by the fact that the Respondent had earlier made abun-
'Cathy/ Lumber Company, 86 NLRB 157, enfd 1S5 F 2d 1021 (C A 5) where the
Board also found a refusal to bargain, a refusal to reinstate strikers although vacancies
existed, and independent coercive statements ; see The W. T Rawleigh Company, 90
NLRB 1924, The Cincinnati, Steel Castings Company, supra; Kansas Msllting Company,
supra
10 In Sain ' l Bingham's Son Mfg Co , SO NLRB 1612, the Board noted that Bingham told
the solicited pickets "that he would not invite a conference with the Union 'until Hell
freezes over' " ; see Hart Cotton Mills, Inc , 91 NLRB 728, cf J I Case v N L R B
321 U S 342 , Medo Photo Supply Corp v N L R B , 321 U. S 678
11 It is ti ue in Case No 21-CA-375 we are finding, below, that the Respondent violated
the Act in refusing to reemploy Cody However, as stated there, the cncuiustances
surrounding that unfair labor practice are of a special and unusual chaiactei , which,
standing alone, we do not consider as indicative of general union animus on the part
of the Respondent.
12 The Union and the Respondent first entered contractual relations in the Gasoline
Operations in 1938, in the L A Producing Operations in 1941, and in the Ventura
Operations in 1947 At all times after these respective dates the Union and the Respondent
had contractual relations with one another There had been no earlier unfair labor
practices charged
13 After a month of the strike, the Respondent was suffering from drainage of oil from
its idle properties by adjoining producers who were operating and had been threatened
with lawsuits by lessors if such drainage were permitted to continue because of
nonoperation
14 Such meetings were held on April 8, June 7, June 10, October 25, and October 27.
The Union ended negotiations on June 7 and did not renew its request for negotiations
until October 22.
943732-51--87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dantly clear its intention of continuing to recognize and deal with
the Union.15
Under the particular circumstances here disclosed , we are unani-
mously of the opinion that the Respondent took no action which the
employees might reasonably interpret as a disparagement of the col-
lective bargaining process or which amounted to a withdrawal of rec-
ognition of the Union 's representative status or to an undermining of
its authority . 16 As the Board observed in comparable circumstances,
"to penalize this employer for proffering the jobs once again to eco-
nomic strikers on the same terms to be offered replacements, would
penalize open dealing and invite silent displacement of striking em-
ployees, a result which seems to us more likely to be productive rather
than preventive of industrial strife and thus not to effectuate the pur-
poses of the Act." 17 Accordingly, we conclude that the Respondent
engaged in no conduct during the strike of September 1948 which con-
verted that economic strike to an unfair labor practice strike. 18
Thus the strike remained economic in nature, and as the record
establishes that the Respondent refused to reinstate the strikers on
the sole ground that they had been permanently replaced , we find that
such refusal did not violate Section 8 ( a) (3) or 8 ( a) (1) of the Act.
We are satisfied that the replacements were assured that if they
desired, their jobs might be permanent , 19 and we therefore do not
regard it as material that under the then existing contract provisions
employees could not acquire "permanent" status until after 120 days of
employment. Like the Trial Examiner, and for the reasons stated in
the Intermediate Report, we find no merit in the General Counsel's
contention that the Respondent discriminated against the replaced
strikers by filling some later vacancies by making interdivisional trans-
15 Thus, on September 9. 194S . an advertisement signed by the six major struck oil
companies-Standard , Tidewatei Shell . Richfield , Union , and the Respondent-was
published in the Los Angeles Times under the heading "who wants an Oil Strike."
The advertisement stated that it was in the public interest to keep the refineries operating
and that the companies , the public , and many employees did not want the strike. It
further stated that the companies were at all times ready to meet with the Union "at any
time " On September 23, the Respondent mailed a letter to all employees who were
striking stating its position on its offer of 121/ cents per hour wage increase , which the
Union had accepted elsewhere , and certain other matters including the clarification of
certain current rumors This letter recognized and reaffirmed the bargaining relationship.
In addition, although the contracts had expned by their terms on May 15, May 25, and
August 20, 1948, respectively, the Respondent continued to operate its business under
the terms of the contracts and checked off union dues until the outbreak of the strike.
1a The Board thus summarized the criteiia for finding interference with the right to
engage in collective bargaining in Central Metallic Casket Co ., 91 NLRB 572.
17 Times Publishing Company/, 72 NLRB 676 , 684; see also United Welding Company,
supra, and Roanoke Public Warehouse, 72 NLRB 1281, 1283.
1s It is, theiefoie , unnecessary foi us to pass upon the Respondent 's contention that,
in any event , the conduct found violative by the Trial Examiner was not such as would,
under the circumstances , convert the strike into an unfair labor practice strike.
11 The only strikers who returned befoie all available jobs were filled who were not
employed wei e those who conditioned their request upon the reinstatement of more
strikers than there were jobs available ( see Oklahoma Rendering Company, 75 NLRB
1112), or who refused proffers of the available jobs.
THE TEXAS COMPANY 1363
fers rather than by recalling the strikers. 20 Finally, we are satisfied
that the record discloses no instance in which returning strikers were
discriminated against because of their strike activity in regard to
seniority 21 or any other term or condition of employment.
Accordingly, the Board unanimously dismisses the complaint relat-
ing to Case No. 21-CA-295 in its entirety.22
Case No. 21-CA-375
The issues in this case arise out of the following facts : George Cody,
who after working for the Respondent for 20 years had been recently
promoted to supervisor, was discharged on September 28, 1948, for
refusing, because of his past participation in union activities, to per-
form rank-and-file production work assigned him during the strike.
Immediately upon his discharge, Cody reinstated his union member-
ship and actively participated in the strike campaign and picketing.
From November 4, when the strike was settled in his department, to
November 15, Cody applied for reinstatement as a supervisor. On
November 8, Dreyer, the superintendent who had discharged him,
asked him if he would accept a job which required him to cross re-
maining picket lines. Cody said he had refused to do that on the 28th
and would again. Dreyer then told Cody that his decision, too, was
the same as it had been on the 28th. On November 15, O'Connor, the
manager of the refining department and Dreyer's superior, asked
Cody whether he really wanted to work for the Company, suggesting
that maybe Cody should make his career in organized labor.
On November 16, Cody apologized to Dreyer for the mistakes he had
made when a foreman and asked for his job or any job. Dreyer de-
layed decision, and on the 19th told Cody that his decision was still
the same as it had been on September 28 and wished Cody luck in
finding another job. Thereafter, Cody reapplied, but was only told
by Dreyer that Dreyer's reason for refusing to hire him had been
fully discussed. O'Connor, who had left the matter to Dreyer, in-
20 Cf. The Firth Carpet Company v. N. L. R. B , 129 F. 2d 633, 636 (C . A. 2), enfg. 33
NLRB 191, where transfers were found to be "makeshift" because no new individuals
were hired as initial replacements.
21 In reaching this conclusion, we do not, however , adopt the Trial Examiner 's apparent
assumption that the right of the strikers not to be discriminated against with respect to
seniority depended upon whether the contracts containing the seniority provisions con-
tinued in existence after the strike. See General Electric Company, 80 NLRB 510.
Accordingly, we find it unnecessary to pass upon , and do not adopt, the Trial Examiner's
conclusion that the contracts which had expired by their terms were unilaterally extended
required under Section 8 (d) of the Act.
22 As we are dismissing the complaint relating to Case No. 21-CA-295 in its entirety,
we find it unnecessary to adopt, or pass upon, the Trial- Examiner's reasons for finding
no policy bar to this proceeding because of (1) the strike settlement agreement between
the Oil Workers International and the Respondent, (2) the withdrawal "with prejudice"
by the Oil Workers of that portion of the charges in Case No . 21-CA-239, relating to
the Respondent 's Pacific Division and including allegations arising out of the 1948 strike,
or (3) the Acting Regional Director's approval of this request for withdrawal of the charge.
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dicated dissatisfaction with Drover's approach, but did nothing to
secure Cody a job. It is clear, and we find, that on and after November
16, Cody requested employment in a rank-and-file job and the Respond-
ent recognized the request as such.
The Trial Examiner found that the Respondent did not violate
Section 8 (a) (3) of the Act by refusing to hire Cody as a rank-and-
file employee for the sole reason that lie had been discharged as a
supervisor for refusing to do production work during the strike, be-
cause the refusal to hire, being based "neither upon the membership of
the former supervisor in a union nor any protected activities on his
part," did not discourage membership in the striking union. A
majority of the Board does not agree with this conclusion.2`
Like the General Counsel, we believe that the Trial Examiner has
misconceived the effect of the 1947 amendments which removed super-
visors from the protection which. the Act accords to "employees." 24
As we read these amendments, they were not intended to change the
character of union or other concerted activity engaged in by super-
visors. Concerned with the problem of divided loyalties, Congress,
in these amendments, absolved from li ability under the Act employers
who discharge or otherwise discriminate against supervisors for such
activity, or who refuse to recognize the collective bargaining repre-
sentatives of supervisors.'' But to say that such activities are no
longer accorded affirmative protection, is not to say that they are also
tainted with illegality. The refusal by Cody as a supervisor to per-
form rank-and-file work of strikers was concerted activity of a type
which was protected under the Wagner Act .21 The first clause of Sec-
22 Dtcmbers Reynolds and Murdock dissent from this portion of the decision (in Case No.
21-CA-375), for the reasons set forth in their separate opinion attached hereto.
24 The relevant amendments are contained in Section 2 (3), which provides that the
twin "employee" shall include "any employee, and shall not be limited to the employees
of any particular employer . . . but shall not include . . any individual employed as
a supervisor . , Section 2 (11) which defines "supervisor" ; Section 14 (a) which
provides , "(a) Nothing herein shall prohibit any individual employed as a supervisor from
becoming or remaining a member of a labor organization, but no employei subject to
this Act shall be compelled to deem individuals defined herein as supervisois as employees
foi the purpose of any law, either national of local, relating to collective baigainuig "
21 See N L R B v Edward G Budd Manafactrring Company, 169 F. 2d 571 (C. A 6).
26 The Board and the courts consistently held that Section 2 (3) of that eat leer Act,
protecting "any employee," included "supervisors" as "employees " See Packard Motor
Car Co v N L R B, 330 U S. 455, 493, citing with approval Soso iltam,ufacturing
Company, 56 NLRB 343. The latter case noted that the rights under the Act of supei visors
to protection in their organization activities were qualified by the need of the employer
to maintain his neutrality toward the organizational activities of other employees As
an "employee" a supervisor rias protected in (1) joining a rank-and-file union (Golden
Turkey Mining Company, 34 NLRB 760, 776-779, Freuluauf Trailer Company, 1 NLRB 68,
76, curd 301 U. S 49, 55) ; (2) joining in a rank-and-file strike on behalf of the rank-
and-file union to which he belonged (Mackay Radio d Telegraph Company, 1 NLRB 201,
222-225, enfd 304 U S. 333, 346-347) ; (3) joining with other members of it loiciuen's
union to assure rank-and-file strikei s that the foremen, belonging to another union, would
not take their jobs (American Steel Foundries v N L. R. B , 158 F 2d 896 (C A 7), enfg.
67 NLRB 27, 68 NLRB 514; (4) joining other foremen in a, strike, primarily for their
mutual aid, against performing rank-and-file work during a rank-and-file strike (B. A.
Laboratories, Inc, 87 NLRB 233) ; and (5) assisting a rank-and-file strike by refusing
to perform struck work, whether or not a member of the striking union (Pinaud, Incor-
porated. 51 NLRB 235).
THE TEXAS COMPANY 1365
tion 1 (a) of the 1947 amendments made it crystal clear that Congress
did not convert this conduct into activity akin to picket line violence,
wilful destruction of the Respondent's property, a sitdown strike-
conduct which would be "unprotected concerted activity" constituting
"cause" for the discharge of any employee. Although the amendments
privilege the present discharge, they did not redefine the nature of the
activity.
When Cody applied for employment in a nonsnpervisory job on No-
vember 16, 1948, he was no longer "employed as a supervisor" and was
then within the protection of the Act. He stood in the position of an
"employee," whether or not he had ever worked for the Respondent 27
and the only form of "unprotected" concerted activity which could
privilege the Respondent's refusal to hire him was such as would
justify the refusal to reinstate any "employee." 28 The Respondent
gave as its only reason for refusing to hire Cody the fact that he had
been discharged "for cause" as a supervisor, but the "cause" which
led to Cody's discharge was concerted activity which, had Cody been
,in "employee," would have rendered the refusal to employ him url-
lawful. 20 Thus, to say that the refusal to hire Cody was based on
unprotected concerted activity, ignores completely the special charac-
ter of the limitations on union activity by supervisors, and the fact
that even such limitations were inapplicable to Cody when he applied
for employment.
Moreover, unlike our dissenting colleagues, we do not regard as
controlling the fact that in refusing Cody employment the Respondent
may not have been motivated by a specific purpose to interfere with
and discourage rank-and-file union activity. The situation before
us is not unlike those cases in which employees join sympathetically
in protected concerted activity initiated by a union in which they are
not, and perhaps even could not become, members. This Board and
the courts have held 30 that reprisal against such employees neces-
sarily discourages not only their participation in concerted activities,
but also active union membership on the part of the employees on
whose behalf they acted. So here, we think that membership in the
rank-and-file union was palpably discouraged when Cody, entitled
to the protection of the Act, was refused employment solely because
he had, in the past, made common cause, in a manner which was not
unlawful, with protected concerted activity by the rank-and-file union.
27 See Phelps Dodge Corp. v AT L R. B , 313 U. S. 177; Briggs Manufacturing Company,
75 NLRB 569, John Hancock Mutual Life Insurance Company, 92 NLRB 122
"This rule is consistent with the Board's holding in United Elastic Corporation, 84
NLRB 768, relied upon by the Respondent. In that case, the Board held that "unpro-
tected concerted activity" by employees justified the employer in discharging and refusing
to reinstate those involved
29 Even though the refusal to do the work assigned might have privileged the company
permantly to replace him See Gardner-Denver Company, 58 NLRB 81
30 E g N L R B v Btiles-Coleman Lumber Co , 98 F 2d 18 (C A 9) , see American
Steel Foundries v N L R B, 158 F 2d 896 (C A 7)
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
And in reaching that conclusion we, unlike our dissenting colleagues,
see no conflict with the decision of the Board in the Panaderia case. 31
In that case the alleged discriminatee was discharged for having
engaged in conduct on his own in aid of agricultural laborers who,
like supervisors, are excluded from the protection of the Act. The
Board found no "concerted activity" protected by the Act, and re-
jected the contention that such a discharge was violative of the Act
because it may have had the incidental effect of discouraging union or
other concerted activity by the nonagricultural employees protected
by the Act. But the discharge in that case was one which was clearly
aimed at the activities of agricultural employees, and of the single
nonagricultural employee who joined with them. The effect it may
have had upon the activities of nonagricultural employees was, in
those circumstances, regarded as "incidental." 32 In the present case,
however, the conduct upon which the Respondent's refusal to hire
Cody was ultimately based was his activity in aid-not of other super-
visors-but of the very rank-and-file employees whose number he was
later prevented from joining by that refusal. To conclude that this
did not discourage activity by the rank-and-file employees would
totally ignore the realities of the situation.
In sum, we do not believe that Congress intended the employer's
privilege to discriminate against supervisors for what would other-
wise be protected concerted activity likewise to privilege an employer
to refuse to hire an individual for a rank-and-file job, because of
his former -concerted activity as a supervisor. 33 On the evidence
before us, we are satisfied that the refusal to hire Cody was predicated
on his concerted activity in the interest of the rank-and-file strike.
Such a refusal necessarily discouraged membership in, and concerted
activity on behalf of, the labor organization involved, not only by
Cody but by all his fellow employees, thereby violating Section 8
(a) (3) and 8 (a) (1) of the Act.
The Remedy
Having found that the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) and (3) of the Act,
31 Panaderux Sucesion Alonso et al, 87 NLRB 877. (Chairman Herzog and Member
Houston dissented on this point.)
sz Although agreeing with the distinction between the instant case and the Panaderia
case stated above, and in therefore concluding that Panaderia is not controlling here,
Member Styles , who did not participate in that case , does not thereby wish to be deemed
as having passed on the issues in that case.
33 Clearly , the Board may not order the employer to employ an applicant who is rejected
"on account of some permissible criterion ." N. L. R B. v. Waumbec Mills, 114 F. 2d 226,
234 (C. A. 1). Thus , the Board has recognized that an employer may promulgate a
nondiscriminatory rule against "down grading" and thereby justify refusing rank -and-file
employment to a former supervisor discharged for continuing union membership. Lily-
Tulip Cup Corporation ., 88 NLRB 892 . In the present case, however , the Respondent
made a practice of down grading to their former positions those who were unsatisfactory
as supervisors.
THE TEXAS COMPANY 1367
we shall order the Respondent to offer Cody immediate employment
as a rank-and-file employee in its pipeline division of the refining
department, Pacific Coast Division, Los Angeles, California, with
back pay from the date, after November 16, 1948, when the Respond-
ent first employed any individual in any job for which Cody was
qualified to the date on which the Intermediate Report issued and
from the date on which this Decision and Order issues to the date
of its offer to Cody. We shall order that the loss of pay be computed
on the basis of each separate calendar quarter or portion thereof dur-
ing the period from the Respondent's discriminatory action to the
date of a proper offer of employment. The quarterly periods, here-
inafter called "quarters," shall begin with the first day of January,
April, July, and October. Loss of pay shall be determined by de-
ducting from a sum equal to that which the employee would nor-
mally have earned for each quarter or portion thereof, his net
earnings '34 if any, in other employment during that period. Earn-
ings 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.35
The Board ordinarily regards a violation of Section 8 (a) (3)
of the Act as sufficiently indicative of a propensity to commit other
unfair labor practices to warrant an order to cease and desist from
in any manner interfering with the rights of employees under the
Act. In this particular case, however, because of the novel circum-
stances involved we do not find that the Respondent's conduct dem-
onstrates a general opposition to the purposes and policies of the Act.
Accordingly we shall confine the cease and desist provisions of our
order to the specific conduct found and any like or related conduct.
Order
Upon the entire record of 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 Texas Com-
pany, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discriminating with regard to the hire and tenure of employ-
ment of George Cody.
84 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 . Republio Steel Corporation
V. N. L. R. B., 311 U. S. 7.
11 F. W. Woolworth Company, 90 NLRB 289.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist Oil Workers Inter-
national Union, affiliated with the Congress of Industrial Organiza-
tions, or Locals 120 or 128 thereof, or any other labor organization,
to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act, and 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 em-
ployment, 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 George Cody immediate employment as an employee in
its pipeline division of the refining department, Pacific Coast Divi-
sion, Los Angeles, California.
(b) Make whole George Cody in the manner set forth in the section
entitled "`The Remedy," for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him.
(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 employment under the terms of this Order.
(d) Post at its office for the pipeline division of the refining de-
partment, Pacific Coast Division, Los Angeles, California, copies of
the notice attached hereto.36 Copies of said notice shall be furnished
to the Respondent by the Regional Director for the Twenty-first
Region, and shall, after being duly signed by a representative of said
Respondent, be posted by it immediately upon receipt thereof, and
maintained by it for a period of sixty (60) consecutive days there-
after in conspicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
the said Respondent to insure that said notice is not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for the Twenty-first Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations charged in Case No. 21-CA-295.
36 In the event that this Order is enforced by a 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."
THE TEXAS COMPANY 1369
MEMBERS REYNOLDS and MURDOCK, dissenting in part only :
We do not agree with the majority in Case 21-CA-375 that the
Respondent's refusal to hire Cody as a rank-and-file employee con-
stituted unlawful discrimination, within the meaning of the Act.
Admittedly, Cody was discharged as a supervisor for his insub-
ordinate conduct in refusing to do production work during the strike
of the nonsupervisory employees, and later was denied employment
as a rank-and-file employee for the same reason. The Board is unani-
mous in holding that because Cody was a supervisor his concerted
activity was not protected by the present Act 37 and therefore his
discharge was not unlawful. We also agree with the majority that
nevertheless when Cody thereafter sought employment with the Re-
spondent in a nonsupervisory position, he stood in the position of
an "employee" and was therefore entitled to the full protection of
the Act, just like any other applicant. But, unlike the majority, we
are unable to find that the Respondent's treatment of Cody as an ap-
plicant was violative of the Act.
For the purpose of defining the correlative rights and obligations
of the parties herein, we see no materiality to the distinction which
the majority seeks to draw between unprotected supervisory activity
under the present Act and the other types of activity previously
found unprotected under the Wagner Act, for the basic issue in cases
of this kind is, and always has been, whether the employer interfered
with employee concerted activity which Congress immunized against
reprisal. Under the Act the Respondent was privileged to refuse
to reemploy Cody in a nonsupervisory position for any reason what-
soever, provided only that it was not motivated by a purpose to in-
terfere with and discourage rank-and-file activity.38 As the Trial
Examiner found and the majority apparently concedes, there is no
evidence that the Respondent was so unlawfully motivated in re-
fusing to reemploy Cody.- Indeed, it is clear, as the majority finds,
that the Respondent's reprisal action was based solely on Cody's un-
protected and insubordinate conduct as a supervisor and not on any
actual or anticipated activity by him as an employee on behalf of
the Union. Consequently, we are satisfied that the denial of em-
ployment to Cody was not violative of the Respondent's obligation
not to discriminate or of Cody's right as an employee to engage in
concerted activity.
In the circumstances of this case, we are unable to accept the ma-
jority's basic conclusion that because the refusal to rehire Cody, for
his unprotected activity as a supervisor , "necessarily discouraged"
37 In our opinion , it is immaterial whether Cody's conduct as a supervisor in making
common cause with nonsupervisory employees would have been protected concerted activity
under the Wagner Act, as found by the majority
se Pepsi-Cola Bottling Co , 72 NLRB 601.
0
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rank-and-file concerted activity and membership, the Respondent
thereby violated the Act. A somewhat similar legal argument was
rejected in Panaderia Sucesion,39 where a majority of the Board
stated :
The fact that the discharge [of the complainant] may have
had the incidental effect of discouraging [employee concerted
activity] does not cause the Respondent's essentially privileged
conduct to assume the character of an unfair labor practice.
Whenever an unfair labor practice is filed with the Board based
upon an employer's discharge of active union members, it can
be argued that such discharges restrain and discourage other
employees from engaging in union activity. Nevertheless, if the
Board finds that such employees were discharged because they
had engaged in activities unprotected by the Act or were dis-
charged for cause, the Board invariably refuses to find that the
employer committed an unfair labor practice, notwithstanding
the incidental effect upon other employees.
In our opinion, the reprisal actions against Cody as a supervisor
and as an applicant both sprang from the same unprotected super-
visory activity; they had the same incidental discouraging impact
on rank-and-file union activity and therefore should be measured by
the same standard of liability. Since the discharge of Cody was
admittedly privileged notwithstanding any discouraging effect on
rank-and-file concerted activity '40 we are satisfied that the respondent
was privileged in its effort to discourage supervisory concerted ac-
tivity to penalize Cody for his unprotected insubordination as fore-
man by denying him nonsupervisory employment.
Accordingly, we would also dismiss the complaint as to Cody.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National
Labor Relations Act, we hereby notify our employees that :
WE WILL offer to GEORGE CODY immediate employment as an
employee, and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT in any like or related manner interfere with, re-
strain or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist OIL
WORKERS INTERNATIONAL UNION, affiliated with the CONGRESS
se 87 NLRB 877.
In removing supervisors from the protection of the Act, Congress recognized that
rank-and-file concerted activity might thereby be incidentally discouraged.
THE TEXAS COMPANY 1371
OF INDUSTRIAL ORGANIZATIONS or LOCALS 120 or 128 thereof, or
any other labor organization , to bargain collectively through
representatives of their own choosing , to engage in other con-
certed 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 mem-
bership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act.
THE TEXAS COMPANY,
Employer.
By --------------------------
(Representative ) ( Title)
Dated ---- ------------------
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
Messrs. Charles K. Hackler and Eugene M. Purver, for the General Counsel.
Messrs. Charles M. Brooks, Wallace E. Avery, and J. A. McNair, of Los An-
geles, Calif., for the Respondents
STATEMENT OF THE CASE
Upon a second, amended charge filed in Case No. 21-CA-295 by Robert Rissman
on February 3, 1949, on behalf of 50 individuals claiming to be employees of The
Texas Company (herein called the Respondent),' and upon a first amended charge
filed in Case No. 21-CA-375 by George Cody on March 17, 1949,1 the Regional
Director for the Twenty-first Region (Los Angeles, California), acting for the
General Counsel of the National Labor Relations Board,' on April 13, 1949, issued
an order consolidating the two cases, a notice of hearing, and a consolidated com-
plaint against the Respondent, alleging that the Respondent had 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 National
Labor Relations Act,' herein called the Act. Copies of the consolidated com-
plaint, the basic charges, and the notice of hearing were duly served upon the
Respondent and the charging parties.
On October 18, 1949, the Regional Director, pursuant to Section 203.15 of the
Board's Rules and Regulations, Series 5 as amended, issued an amended con-
solidated complaint alleging that the Respondent had engaged in, and was en-
gaging in, unfair labor practices within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the Act. Copies of the amended consolidated
I The original charge in Case No. 21-CA-295 was filed on December 9, 1948, and served
upon the Respondent on December 13, 1948. The second amended charge was served upon
the Respondent on February 7, 1949.
2 The original charge in Case No. 21-CA-375 was filed on February 18, 1949, and
served upon the Respondent on February 23, 1949 . The first amended charge was served
upon the Respondent on March 21, 1949.
'The General Counsel and the staff attorneys appearing for him at the hearing are
herein referred to as the General Counsel ; the National Labor Relations Board is referred
to as the Board.
4 61 Stat 136.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD o
complaint, an order of the Regional Director resetting the hearing date, and a
notice of further adjournment of the hearing, were set ved upon the Respondent
and the charging parties.`
With respect to the unfair labor practices, the consolidated amended com-
plaint, alleges in substance: (1) that a substantial number of the Respondent's
employees went on strike; (2) that on or about October 6, 1948, and thereafter,
the claimants, who were striking employees and whose names are set forth in
Appendices A, B, and C, unconditionally offered to return to work and abandon
the strike but the Respondent refused to reinstate them because of their activi-
ties in support of the strike; (3) that the Respondent interfered with, restrained,
and coerced its employees by soliciting and urging their to abandon the strike,
and conditioning their return on the loss of their accumulated seniority; (4)
that by these activities the strike was prolonged and converted from an economic
strike into an unfair labor practice strike; (5) that on or about November 16,
and thereafter, George Cody was, on his application, refused employment by the
Respondent because of his concerted activities on behalf of the Oil Workers
International Union, affiliated with the Congiess of Industrial Organizations,
hereinafter called the Oil Workers.
In its answer to the amended consolidated complaint, the Respondent denied
that it had interfered with, restrained, or coerced its employees or discrimi-
nated against them in regard to hire, tenure, or conditions of employment It
alleged that George Cody, then a supervisor, was discharged for cause on Sep-
tember 28, 1948, and for that reason was subsequently refused reemployment.
It further alleged that the matters in dispute were settled by agreement with
the Oil Workers, and that the matters charged in the present cases were the
same as were contained in a charge previously hied by the Oil Workers which
was withdrawn on November 19, 1948, "with prejudice" and with the approval
of the Board's Acting Regional Director.
Pursuant to notice, a hearing was held in Los Angeles, California, on various
dates from October 26, 1949, to November 23, 1949, inclusive, before the under-
signed Trial Examiner duly designated by the Chief Trial Examiner. The
General Counsel and the Respondent participated in the hearing and were af-
forded full opportunity to be heard, to examine and cross-examine witnesses;
and to introduce evidence bearing upon the issues.
At the beginning of the hearing, the undersigned granted an unopposed motion
by the General Counsel further to amend the consolidated complaint to correct
the misspelling of the name of one of the claimants. Thereafter, the undersigned
denied motions by the Respondent's counsel to dismiss the complaint because
(1) the Oil Workers' settlement of the strike and withdrawal of its previous
charges "with prejudice" and with the approval of the Acting Regional Director
should, as a matter of policy and law, bar continuation of the present proceeding; \
and (2) George Cody was a supervisor and, therefore, not an employee within
the meaning of the Act.
At the conclusion of the General Counsel's case, the undersigned denied (1)
a motion by the General Counsel further to amend the complaint by adding
allegations to the effect that the Respondent committed unfair labor practices
within the meaning of Section 8 (a) (1) of the Act by refusing and failing to
continue in full force and effect, after their expiration dates, the provisions of
contracts covering employees of the Respondent and executed by the Respond-
ent with Locals 120 and 128 of the Oil Workers; and (2) motions by the Re-
5 At the hearing, counsel for the Respondent waived objection to the hearing being held
less than 10 days after the amendment of the consolidated complaint upon condition
that a 2-day recess be granted to him at the close of the Geneial Counsel's case The
hearing proceeded and the requested recess was given.
THE TEXAS COMPANY 1373
spondent to dismiss the complaint on the grounds previously urged and also
upon the additional ground that the proof thus far submitted did not support
the allegations of the complaint.
At the conclusion of the hearing, the Respondent moved for the dismissal of
the complaint on the grounds previously urged. The undersigned reserved de-
cision on this motion It is now disposed of in accordance with the considera-
tions hereinafter set forth. Both the General Counsel and the Respondent
waived oral argument befoie the undersigned at the hearing.
On January 31, 1950, the undersigned received briefs both from the General
Counsel and from counsel for the Respondent. Since then, by telegram dated
May 15, 1950, counsel for the Respondent moved for a dismissal of the amended
consolidated complaint so far as it is based upon the charge in Case No. 21-CA-
295, on the giound that the evidence shows that the charge in that case "was filed
under the auspices of, and appeals in connection therewith were filed by" the
Oil Workers, a labor organization affiliated with the Congress of Industrial
Organizations, which was not in compliance with Section 9 (h) of the Act at
the time the complaint was issued. In support of the motion, the Respondent
cites the recent decision of the Fifth Circuit Court of Appeals in N. L. R. B. v.
Postecc Cotton Mills, 181 F. 2d 919. The General Counsel, in turn, filed his oppo-
sition to this motion. The undersigned believes that neither the decision cited
nor its reasoning is applicable to the charges in the present case for the follow-
ing reasons. (1) The instant charges were filed by individuals and not by a labor
organization; (2) they do not seek, and cannot result in, a bargaining order
which would benefit a noncomplying labor organization; (3) whether a non-
complying labor organization prompted, assisted, or effected their filing and
processing is therefore immaterial, the problem being rather whether the evi-
dence adduced at the hearing justifies a finding that the Respondent interfered
with the rights of its employees, and an order protecting these rights and rem-
edying the interference The undersigned therefore denies the Respondent's
motion.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Texas Company is a Delaware corporation with its headquarters in New
York City It is engaged in the production, manufacture, and distribution
of petroleum products in various parts of the United States, including field and
refining operations at and near Los Angeles and Ventura, California. During
the year preceding the hearing. the Respondent produced and refined petroleum
and petroleum products in its operations at and near Los Angeles and Ven-
tura, of a value exceeding $1,000,000 During. the same year, more than 50
percent of these products was transported by the Respondent, or others on its
behalf, to points outside the State of California. The undersigned finds that
the Respondent has been engaged in, and is engaged in, operations at and near
Los Angeles and Ventura, California, which affect commerce within the mean-
ing of Section 2 (6) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
Oil Workers International Union and Locals 120 and 128 thereof, which are
affiliated with the Congress of Industrial Organizations, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES IN CASE NO. 21-CA-295
A. Preliminary statement and analysis of issues
In Case No. 21-CA-295, the General Counsel contends that, during the course
of a strike of the Respondent's employees which was called on September 4,
1948,8 by the Oil Workers and its Locals, (1) the Respondent solicited and urged
the strikers to abandon the strike, conditioned their return to work upon the
loss of their accumulated seniority, and thereby prolonged the strike and con-
verted it from an economic strike into an unfair labor practice strike; and (2)
that, in spite of unconditional offers to return to work made by the 49 strikers
whose names are set forth in Appendices A, B, and C, and who are herein re-
ferred to as the claimants, the Respondent refused to reinstate them because of
their activities in support of the strike.
The Respondent, in its answer, denies (1) that it solicited the return of
strikers, (2) that it conditioned their return upon loss of seniority rights, or
(3) that, by any unfair labor practice, it prolonged the strike and converted
It into an unfair labor practice strike. Admitting, however, that the claimants
made applications for reinstatement, the Respondent further asserts in its
answer that six of the claimants z "have been employed by the Respondent in
permanent positions and are now employed" ; that applications made by two
other claimants e were accepted by the Respondent but they failed to return
to work until the jobs were no longer available ; that "various [other claimants]
. . . from time to time have been offered and some have accepted employment
in Respondent's operations" ; and at the time the other applications of the
claimants were made, "all available jobs had been filled." The Respondent
finally asserts in its answer that the Oil Workers' settlement of unfair labor
practice charges previously filed by it, and its withdrawal of these charges
"with prejudice" and with the approval of the Acting Regional Director, bar
any finding of unfair labor practices by the Board upon the claimants' charges
in the present case.
When analyzed in the light of the evidence and the cross-arguments made in
the General Counsel's and the Respondent's briefs, the broad issues are :
(1) Assuming that the Respondent committed no other unfair labor prac-
tices related to the strike, did its refusal and continued failure to reinstate any
or all of the claimants constitute discrimination against them within the meaning
of Section 8 (a) (3) of the Act?
(2) Did the Respondent solicit the strikers to abandon the strike, or con-
dition their return to work upon their loss of any existing right to "accumu-
lated seniority," and, if so, did the Respondent thereby convert the strike into
an unfair labor practice strike so that its subsequent refusal and failure to
reinstate any or all of the claimants constituted discrimination within the
meaning of Section 8 (a) (3) of the,Act?
(3) Is any finding of any unfair labor practice by the Board in the present
case upon the charges filed on behalf of the claimants, barred by the Oil
Workers' settlement of its previous charges and their withdrawal of these
charges "with prejudice" and with the approval of the Acting Regional Director?
For convenience and intelligible treatment, the first and third of these broad
issues will be considered together in Section III B and the second issue will
6 Unless otherwise specifically noted , all events discussed in this Report occurred in 1948.
'H. E Buckmaster ( since November 16, 1948 ), L. H. Ladd ( since November 16, 1948),
T. F. Melville (since November 23, 1948), J. L. Roberts (since April 30, 1949), L. B.
Thompson ( since March`14, 1949 ), and R. G. Wren ( since November 19, 1948).
8 John B . Summerfelt and C . O. Moore.
THE TEXAS COMPANY 1375
be considered in Section III, C, of this Report. Furthermore, in the course
of thus dealing with these three main questions, consideration will necessarily
be given not only to the general factual setting, but also to important underly-
ing problems such as (a) the nature of the strikers' "accumulated seniority";
{b) the continuing employee-status of the strikers under the Act; (c) the extent
to which the Respondent permanently replaced strikers during the strike; (d)
the continuing strikers' unsuccessful applications for reinstatement.
B. The Respondent's refusal and failure to reinstate claimants, considered
independently of the other alleged unfair labor practices
1. The employees affected and the contracts covering them
The employees of the Respondent alleged to be directly affected by the Re-
spondent's unfair labor practices worked in its Los Angeles Basin District and
its Ventura District, two of the six districts composing its Pacific Coast Division.
More specifically, they were employed in three employee-units, each of which
had for some time been recognized by the Respondent as appropriate for the
purposes of collective bargaining: (1) the production employees in the Los
Angeles Basin District, which will be referred to as the Los Angeles production
unit ; (2) the gas and gasoline plant employees in the Los Angeles Basin District,
which will be referred to as the gasoline unit ; and (3) the production, drilling,
and gasoline employees in the Ventura District, which will be referred to as the
Ventura unit.
The Respondent had executed a series of contracts with Local 128 as the
collective bargaining representative of the employees in the gasoline unit, the
first in 1938 and the last on May 12, 1947. The Respondent had also executed
another series of contracts with the same Local as the representative of the
employees in the Los Angeles production unit, the first of these being executed
in 1942 and the last on May 12, 1947. And on August 20, 1947, the Respondent
excuted its first and only contract with Local 120 as the collective bargaining
representative of the employees in the Ventura unit.
By their terms, the 1947 contracts for the gasoline unit, the Los Angeles pro-
duction unit, and the Ventura unit were to expire respectively on May 15, May
25, and August 20, 1948. Each of them contained detailed provisions concerning
seniority, layoffs, union security, checkoff, hours of work, shift differentials, over-
time, holidays, vacations, employee-benefits, leaves of absence, safety, separa-
tions, and procedures for grievances arising under the contract.
No provisions were made in any of these contracts for a wage scale ; on the
contrary, each of the contracts left the matter of wage rates open for negotiation
outside the contract as it had been in the past.
The seniority and layoff provisions of each of the contracts were elaborate and
substantially the same. So far as they are of importance to the present case,
they provided that:
(1) Neither operations seniority' nor job seniority was effective until an em-
ployee had worked in the unit 120 days, after which it was computed from the
beginning of his service ;
(2) "Where ability of the [competing] employe . . . is determined to be rela-
tively equal for the job under consideration, [operations] seniority [should]
govern";
(3) In filling a vacancy, the employee in the next lower job with the greatest
operations seniority "will be eligible for promotion to such vacancy," provided he
has had at least six consecutive months' preparatory service in the next lower job,
9 I e , the employee's period of service in the unit as distinguished from his service
in a particular job in the unit.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but "if the eligible employe is not capable of satisfactorily performing the duties
of the particular job . . . then the next in order and capable of doing the work,
will be given the job . . . ."
(4) "In filling vacancies or in the ease of reduction of working forces, the
Company may at its option, and, when practicable, in accordance with seniority,
transfer any employe within [the same type of operation in the] Pacific Coast
Division, from one district to another; and such employe shall outrank in
seniority in the district to which transferred, any other employe of less . . .
operations seniority in the same or lower classification in which such employe so
transferred was working at the time of transfer . . ." [Emphasis supplied.]
(5) Laid-off employees would be notified by the Respondent of vacancies and
given preference in filling them, for 180 days from layoff in the cases of employees
with less than a year's service, and for 365 days from layoff in the cases of men
with a year or more of service.
(6) On recall, all laid-off employees would be required to take a physical
examination If employees with less than 180 days of layoff took an optional
physical examination before layoff their return to work would be conditioned on
it showing merely that they were in substantially the same physical condition as
they were before their layoff. In all other cases, the return of laid-off employees
would depend upon their meeting the Respondent's minimum physical require-
ments
It should be noted that, in setting forth the provisions outlined in Item 1, above,
the contracts for the Los Angeles unit and the Ventura unit, but not the contract
for the gasoline unit, contained the italicized language in the following quotation :
. . . seniority shall become effective only after an employe has actually
been in the employ of the Company for a period of 120 consecutive days
(during which period he shall be considered a temporary employe)
As to strikes, Article XVIII of each of the 1947 contracts provided that :
There shall be no strike . . . (1) for any cause which may be made the
subject of a grievance under . . . this Agreement during the period of
this Agreement; or (2) for any other cause, except upon written notice
from the Union of its intention to strike, provided (a) that the Company
within thirty days from the receipt of such notice will meet with the
Committee of the Union and endeavor to reach an agreement of the matter
in dispute, and (b) in the event an agreement is not reached within sixty
clays after the beginning of such meeting, the Union upon the expiration of
such 60-day period, may immediately exercise its right to strike
2. The strike
On March 26, Local 128 and the Oil Workers mailed letters to the Respondent,
asking the Respondent to set a (late for bargaining on their request for a 30 cent
per hour increase in the wage rates of the employees in the gasoline unit and the
Los Angeles production unit. On the same date, Local 120 and the Oil Workers
mailed a letter to the Respondent, containing a similar request on behalf of
the employees in the Ventura unit In each of the letters thus mailed to the
Respondent on March 26, the Respondent was advised that
If no agreement is reached with respect to an appropriate wage increase
for the above employees, please consider this notice as a notice of inten-
tion of the Union to strike as provided in Article XVIII of the . agree-
ment
THE TEXAS COMPANY 1377
In a letter mailed to the Oil Workers on March 31, the Respondent acknowl-
edged receipt of these letters and set Thursday, April 8, as the date for the
meeting with the union representatives.
On April 24, 1948, the Oil Workers sent telegrams to the Director of the
Federal Mediation and Conciliation Service and to the Director of the De-
partment of Industrial Relations of the State of California, notifying them of
a "dispute existing between the Oil Workers International Union-CIO and
the Texas Company . . which could cause cessation of operations "
On April 8 and also on June 7, representatives of the Respondent met with
representatives of the Oil Workers and also with representatives of Locals 120
and 128 from each of the three bargaining units. At both meetings, the con-
ferees discussed not only the Oil Workers' request for a 30 cent per hour wage
increase, but also the existing union-security provision and several proposals
made by the Oil Workers' International representative for changes in, or addi-
tions to, provisions in the three contracts dealing with seniority, vacation plans,
employees' benefits, leaves of absence, and pensions. As to seniority, the Unions
proposed merely the elimination of the existing provision making 6 months'
service in a job classification a condition of promotion to the next higher classi-
fication and, in the case of the Los Angeles production contract, also the change,
of the seniority chart by consolidating two jobs (resident pumpers nos 1 and 2)
and by placing another job (gauger) in two lines of promotion rather than
in one line. These changes (which obviously would not have disturbed the
general existing seniority system), and also several proposals of the Oil Workers
on other matters were tentatively accepted by the Respondent at the meeting
of June 7, but no agreement was reached on the wage increase or the union-.
security provision
Between April 20 and June 10, representatives of the Respondent met also,
with the Oil Workers' representatives and representatives of Local 128 from the
refinery bargaining unit on whose behalf the 30-cent wage increase had also been
asked The result was the same: a number of matters were agreed upon but
there was disagreement concerning the wage increase and the union-security
provision
There were no meetings between the Unions and any representatives of the
Respondent between June 10 and September 2 At, or by that time, the Respond-
ent offered a 121/!-cent increase
In the meantime, notwithstanding the passage of the expiration dates in the
contracts, the Respondent had continued to observe the seniority rules with
respect to layoffs.
At 12:01 a. in on September 4, after strike votes and upon instructions from
the Oil Workers and Locals 120 and 128, work was stopped and a strike thus
begun in support of the Unions' request for the wage increases, not only by the
employees in the gasoline unit, the Los Angeles production unit, and the Ventura
unit, but also by the Respondent's employees in other bargaining units who were
represented by Local 128. Eighty-eight of the one hundred and eleven employees
in the Los Angeles production unit, 73 of the 76 employees in the gasoline unit,
and 106 of the 113 employees in the Ventura unit joined in the strike at the be-
ginning. Asa result, the gasoline plants in the Los Angeles Basin District shut
down almost immediately, as did producing operations in the Ventura District.
Producing operations in the Los Angeles Basin District (i. e., the pumping of
wells) also ceased except in the cases of some wells in outlying fields
943732-51-88
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The letter of September 28 and the Respondent's replacement of strikers
On September 28, Division Manager James T. Wood, Jr., of the Producing De-
partment of the Respondent's Pacific Coast Division sent the following letter to
all the strikers in the Los Angeles producing unit, the gasoline unit, and the
Ventura unit:
There is no indication at present when the strike called by the Oil Workers
International Union (CIO) will end.
It has therefore been decided to resume normal Producing Department
Operations in the Los Angeles Basin and Ventura Districts as promptly as
possible.
Employes who return to work on or before October 4, 1948, will find jobs
available for them. After October 4, 1948, full measures will be taken to
fil all remaining vacancies from every available source. As to those employes
who do not return to work on or before October 4, 1948, the Company will
take whatever action may be deemed to be proper at the time.
You may have been told that if you come back to work before the strike is
ended, the Union will compel the Company to discharge or otherwise discrim-
inate against you. I assure you no employee returning to work before the
strike is ended will be discriminated against or penalized now or in the
future because of that fact.
If you want to return to work, you should communicate with your Fore-
man or Superintendent for instructions.10
Before September 29, none of the gasoline unit strikers, and only 4 of the Los
Angeles production unit strikers and 11 of the Ventura strikers, had returned
to work. From September 29 to October 4, inclusive, 19 of the gasoline unit
strikers, 20 of the Los Angeles production unit strikers, and 70 of the Ventura
unit strikers returned to work. Thereafter, as strikers continued to return,
the Respondent also began hiring new employees, as it said it would.
In most cases, the returning strikers came back to their prestrike jobs; how-
ever, some of them, and also some of the employees who had not struck, were
upgraded to fill jobs previously held by continuing strikers. By October 13,
October 16, and October 22, respectively, the Respondent had full, although
10 Earlier statements concerning the strike were made by the Respondent on September
9, in a newspaper advertisement over the names of the Respondent and five other major
oil companies whose employees were also on strike , and also in letters sent by the
Respondent to each of its striking employees on September 23.
The body of the advertisement stated that it was in the public interest to keep the
refineries running; that "this strike is wasteful and costly to both our employees and
our companies" ; that the companies and the public did not want the strike , nor did
"many of our employees . . . They've told us so"; that "wage increases boost [the]
inflationary spiral" ; that the companies ' offer of a 12 % cent per hour wage increase
was rejected by the Union , although it represented an 83 percent increase over 1941
-wage rates , whereas the cost-of-living increase for the same period was only 72 percent;
that "at all times 've stand ready to meet with the Union . . . [with whom we] have
always worked conscientiously and bargained in good faith " ; and that "the oil strike
can [thus] be settled quickly and fairly."
In the letter of September 23, the Respondent deplored the strike; argued the fairness
of its 12%-cent offer ; stated its willingness to grant this increase and to bargain con-
cerning a greater increase ; denied reports that returning strikers would be "blackballed"
at the Unions ' request or be required to take physical examinations before reinstatement ;
.and concluded with the statement , "the Company is mindful of the harm that this strike
is causing to employes and their families, and to the country at large and to the Company.
We deeply regret what has happened. The strike is not our choice "
The undersigned finds that the advertisement and the letter of September 23 constituted
.expressions of opinion and argument concerning the strike, and that, being devoid of
,threat or promise of benefit, they were protected by the provisions of Section 8 (c) of
-the Act.
THE TEXAS COMPANY 1379
slightly reduced, complements" of 103 workers in the Los Angeles production
unit ; " 101 workers in the Ventura unit ; 13 and 73 in the gasoline unit."
On the afternoon of October 6, when the return of strikers was well underway,
Vice-President James Tanham and Division Manager James T. Wood, Jr., met
with the latter's assistant and Respondent's legal counsel to consider specific
questions concerning the seniority rights of the returning strikers which had been
raised in a management meeting held that morning in the office of W. H. Loomis,
Los Angeles District superintendent of production. It was decided (1) that, if
the number of strikers applying for reinstatement should exceed the number of
jobs available, the applying strikers would be given the available jobs in order
of their "former seniority"; (2) that "seniority," however, would not permit re-
turning strikers to displace incumbents of their prestrike jobs, whether the in-
cumbents were newly hired employees or upgraded prestrike employees ; and (3)
that, so far as the future was concerned, "the question of seniority as applied to
promotions, demotions, and layoffs should be left in abeyance for the time being,"
such cases to be referred to Assistant Division Manager W. S. Rogers, as they
arose.
A memorandum setting forth these decisions was prepared and copies were
distributed to the persons who attended the meeting and also to Loomis, the
Los Angeles District superintendent of production ; to T. R. Beauchamp, Los
Angeles District superintendent of gasoline operation ; and to R. L. Jackson,
Ventura District superintendent.
The Respondent's failure to formulate any policy as to whether returning
strikers would retain their prestrike seniority continued until December 15"
11 The Respondent 's witnesses satisfactorily explained that the reduction in the sizes
of the units had been planned before the strike and accorded in fact with the Respondent's
reduced needs for workers . The General Counsel makes no contention that the reductions
were motivated by a desire on the part of the Respondent to discriminate against the
strikers.
11 Thus, on October 13, the composition of the staff at work in the Los Angeles production
unit was the following :
Nonstriking employees ----------------------------------------------- 23
Returned strikers---------------------------------------------------- 76
New hires during the strike--- ---------------------------------------- 4
Total complement------------------------------------------------- 103
13 On October 16, the men at work in the Ventura unit consisted of :
Nonstriking employees----------------------------------------------- 7
Returned strikers---------------------------------------------------- 93
New hire during the strike-------------------------------------------- 1
Total complement------------------------------------------------- 101
14 On October 22, the men at work in the gasoline unit consisted of :
Nonstriking employees----------------------------------------------- 3
Returned strikers---------------------------------------------------- 37
New hires during the strike------------------------------------------- 33
Total complement------------------------------------------------- 73
15 In explaining this delay , Division Manager Wood testified that, until the Respondent
filled all the jobs in the three bargaining units on October 22, "we couldn 't . . . decide
or formulate what the exact status, seniority status, of the old men would be, and therefore,
we left it open" ; that, in November , the Respondent , having filed a petition for the
certification of representatives under Section 9 (c) of the Act , made no decision as to
the seniority rights of the strikers, because of its uncertainty as to whether the Oil
Workers and its locals were still the representatives of the employees, and because, even
if a Board -conducted election proved that this was so, "any prior decisions [of the
Respondent ] as to seniority . . . might [later ] have been modified" In bargaining with
the Oil Workers ; and that this uncertainty was further prolonged on December 9 by the
Sling of the unfair labor practice charges in the present case which "precluded the
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when its counsel advised Division Manager Wood . in view of the Board's then
recent decision in the General Electric Company case ," to inform all employees
and strikers that "consideration " would be given "to the length of service
or striking employes who return to our service , when making promotions and
demotions , but that we would not be required to `bump ' new employes out of
their present jobs by promoting old employes."
As a result , on December 30, 1948 , notices to all employees were posted by the
Respondent , stating that
(1) New hires would not be laid off or demoted because of the return of
striking employees.
(2) Promotion would be based on ability and length of service
(3) There would be no break in length of service for striking employees who,
were : ( a) then working, ( b) had less than 1 year ' s service and were reinstated
within 180 days from November 1, or (c) had more than 1 year 's service and
were reinstated within 365 days from November 1
(4) Striking employees who returned to work within 180 days from November
I would be considered on temporary layoff in applying the provisions of the
various employee -benefit plans
On December 31, the Respondent also sent letters to all the strikers who had
not returned to work , advising them of the substance of Items 3 and 4, above.
Following the provisions of the contracts , these letters also informed the men
that they would be notified of vacancies and given preference in filling them, for
180 days from November 1 in the cases of men with less than a year's service, and
for 365 days from November 1 in the cases of men with a year or more of service.
There has been no further communication of policy by the Respondent since that
elate and it is still in effect.
4 The applications of the claimants for reinstatement and the treatment
accorded them by the Respondent
The 49 claimants whose names are set forth in Appendices A, B, and C, were
strikers in these 3 bargaining units who had not returned to work by the dates
the Respondent had filled-its complements of workers in their respective bar-
gaining units. All of them, except John E Swift, Hannibal L Williams, and
John A Williams, mailed requests, which the Respondent received on or about
November 3, that they be reinstated to their prestrike jobs with the same status
they had on September 3, and in return, received letters from the Respondent,
dated November 4, to the effect that all jobs had been filled. Swift made a
written application for reinstatement on November 23, and Hannibal Williams,
and John A. Williams made all applications on November 5 and November 16,
1948.
There were also undisputed, additional, individual applications for reinstate-
ment by some of the claimants In only one of these cases (that of R G Wren
on November 19, 7948), did any of these applications result in reinstatement to
the same permanent job classification held by the applicant before the strike.
In four other cases, the applicants received permanent jobs at lower classifica-
tions Thus, L T Thompson. a meterman, went back to work as a roustabout
in the Fellowes District And plant operators H E Buckmaster and L H Ladd
went back to work as roustabouts on November 16, 1948, as did plant operator
Thomas Melville on November 23, 1948 When Buckmaster, Ladd, and Melville
were thus rehired as roustabouts, however, their original duties included the in-
struction of new men who had been hired to replace them as plant operators
I
possibility of a representation election and therefore, of bargaining with the union in the
event the union prevailed."
11 80 NLRB 510, decided on November 22, 1948.
THE TEXAS COMPANY 1381
None of the other 49 claimants has received permanent work from the Re-
spondent although 13 job vacancies in the 3 bargaining units have been filled
by transfers from other distucts of employees having less seniority than some
of the claimants, in spite of the Respondent's intervening announcement that
strikers would be recalled as "laid-off" employees In this connection, Personnel
Man K. C. Smith testified credibly that these transfers were made in order to
avoid layoffs of these men who were transferred from the other districts and
that the Respondent did not regard itself as being obligated to observe the
greater seniority of laid-off employees in the district to which the transfers
were made, but only to observe the superior seniority of men actually on the
job in lower classifications in the district to which the transfers were made.
Temporary employment has been given by the Respondent to some of the
claimants
5. The settlement and withdrawal of the oil Workers' previous charges
"with prejudice"
On September 23, the Respondent filed a complaint in the Superior Court of
the State of California in an action for injunction and damages based upon
alleged illegal conduct on the picket line. The defendants were the Oil Workers,
Locals 120 and 128, and the members of their respective Workmen's committees,
including those in the Los Angeles production unit, the gasoline unit, the Ventura
unit, and the refinery unit On the same day, the Court issued a temporary
restraining order and an order to show cause, the return day of which was
from time to time continued until November 22
In the meantime, on October 22, the Oil Workers filed unfair labor practice
charges in Case No. 21-CA-239, against eight oil companies, including the Re-
spondent, alleging that they had committed unfair labor practices within the
meaning of Section 8 (a) (1), (3), and (5) of the Act. The charge, so far as
the Respondent was concerned, alleged that it had refused to bargain with
the Oil Workers Locals as exclusive bargaining representatives in certain appro-
priate bargaining units, including the Los Angeles production unit, the gasoline
unit, the Ventura unit, and the refinery unit. As specific violations of Section
8 (a) (1), (3), and (5), it also alleged that.
(E) Said companies, by their officers, agents and employees, have further
threatened employees that unless they ceased their participation in the
strike and returned to work immediately, that they would be discharged.
(F) Said companies, by their officers, agents and employees, have further
threatened all employees with the loss of their insurance, pension and other
rights and benefits unless they cease their participation in the strike
(II) Said companies, by their officers, agents and employees, have refused
and are now refusing to bargain with the [Oil \Vorker`S] on the return to
work of strikers.
* * * * * * *
(J) Said companies, by their officers, agents and employees, have dis-
charged supervisors who have refused to cross picket lines, or who have
expressed sympathy with and given support to the strike now being conducted
by the [Oil Workers].
On October 25, and again on October 27, Division Manager Wood and other
representatives of the Respondent met with District Director Mattern of the Oil
`Workers and union representatives from the Los Angeles production unit, the
gasoline unit, and the Ventura unit to attempt a settlement of the strike in these
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
units. Both efforts were unsuccessful . At each of these meetings , Mattern asked
Wood to take back all the strikers , to bargain toward a new contract on changes
proposed by Mattern ( none of which would have changed the seniority structure),
and to withdraw the injunction suit in return for the Oil Workers' withdrawal
of its unfair labor practice charges. Wood answered that the strikers ' jobs had
been filled with permanent replacements but that, as vacancies occurred, the
strikers would be given the opportunity of returning to work. With reference
to Mattern 's proposal of bargaining on a new contract , Wood said there was
substantial evidence that the Oil Workers no longer represented a majority of
the employees in the bargaining units. Wood also said that the Respondent was
not prepared to withdraw the injunction suit because valves had recently been
opened in the Respondent 's line. At the meeting on October 27 , Mattern argued
that the men newly hired to replace the strikers were "temporary employees" since
they had not worked 4 months for the Respondent . And Wood replied that the
4 months' trial period provided by the contracts was for the purpose of permitting
the Respondent to determine ability and that the newly hired replacements had
not been notified that they were on trial.
On or about October 30 , Wood again met with Mattern at Mattern 's request.
On this occasion , Mattern again asked whether something could be done to return
the strikers to their jobs . Wood expressed regret, but said that , although he
would prefer to have the old men back, economic considerations had forced the
Respondent to replace them.
On November 1, the Respondent filed representation petitions alleging that there
was doubt as to whether the Unions still represented a majority of the strikers
in the Los Angeles production unit , the gasoline unit, and the Ventura unit.
On November 3, in the course of negotiating a settlement of the strike in the
refinery department, Wallace E . Avery, one of the Respondent 's attorneys, met
with Mattern and Lindsay Walden, counsel for the Oil Workers The conferees
orally agreed upon the terms of a settlement of the strike in the refinery, which
included the return of the refinery strikers at a 121/ -cent per hour increase, the
withdrawal of the pickets at the refinery , the withdrawal by the "Refining
Department" of its suit against the Oil Workers , and the Oil Workers' agreement
that it would "not prosecute its pending unfair labor practice charges or in-
stitute any new unfair labor practice charges against the Refining Department
or its employes arising out of the current strike." This strike settlement agree-
ment covering the refinery was executed in writing on November 4 The stipula-
tion partially settling the damage and injunction suit was, however , not drafted
at that time.
At the conference on November 3, Walden suggested to Avery that if the "Pro-
ducing Department" of the Respondent would also agree to a dismissal of the
damage portion of the lawsuit against the Oil Workers , the Oil Workers would
agree to the withdrawal of its unfair labor practice charges in their entirety.
In substance , this would have resulted in the dismissal of the suit except so far
as it sought an injunction for the protection of the Respondent 's producing depart-
ment. Avery thereupon telephoned Attorney Daniel Harrington in the Board's
Regional Office who informed him that forms of withdrawals of charges "with
prejudice" were being used.
Avery drafted a stipulation for the partial settlement of the lawsuit in accord-
ance with Walden's suggestion and submitted it to Walden on November 5.
Walden suggested some changes in the draft but said that he would see Avery
later.
On November 16, District Director J. Elroy Brown of the Oil Workers asked
Avery if tha, Respondent would not dismiss the lawsuit entirely, take all the
strikers back, and begin negotiations on new contracts.
THE TEXAS COMPANY 1383
Although Avery then rejected these suggestions, stating that the Respondent
believed elections should be held in the representation cases before further bar-
gaining with the Unions, Brown repeated his requests on November 17. Avery
asked Brown "how I could assure my people that the Union would not turn
around and file another unfair labor practice charge?" Brown replied, accord-
ing to Avery's credible testimony "that he could see no reason why the Union
would do such a thing, . . . that certainly the Union would not do it."
After speaking by telephone with Division Manager Wood, Avery informed
either Brown or Walden on Nevember 18 that he would see them for the purpose
of agreeing upon the necessary papers to dismiss the lawsuit and to withdraw
the unfair labor practice charge. At a meeting later that day between Brown,
Walden, Avery, and George Whitney, another attorney for the Respondent, the
Respondent's attorneys presented a draft of stipulation dismissing the lawsuit
in its entirety and also the Board's printed form of request for withdrawal of
charge with the printed phrase changed from "without prejudice" to "with
prejudice."
Avery told Brown that he feared that the Union would "turn around and not
keep their word and file new charges." According to Avery's credible testimony,
"Brown stated ... that he could not prevent an individual striker from filing
a charge, and I agreed that he could not, but he did say that ... I could depend
on the Union not encouraging or filing a new charge ... that Mr. Cody might file
a charge ... but the Union would have nothing to do with it."
Thereupon, on November 18, Whitney and Walden executed a stipulation for
the complete dismissal of the lawsuit and Brown executed the request for with-
drawal of the Oil Workers' charges "with prejudice." The stipulation dismissing
the lawsuit was approved by the Court on November 19. No written settlement
of the strike in the Los Angeles production unit, the gasoline unit, or the Ventura
unit was executed other than might be evidenced by the request for withdrawal
of the Oil Workers' charges.
On November 19, Avery visited the Board's, Regional Office and presented to
Acting Regional Director Charles K. Hackler the form of withdrawal of charges
"with prejudice" which had been executed by Brown for the Oil Workers. Ac-
cording to Avery's credible testimony, "Mr. Hackler asked if we had entered into
a strike settlement agreement, if everything had been taken care of, and I told
him'that we had a formal strike settlement agreement in the refining depart-
ment but none in the producing department." Although Hackler had first said
that the Board would investigate the matter, he then telephoned to Brown at
Avery's request, and asked, "is this supposed to apply to all the Texas Company's
properties and all departments?" " Hackler then subscribed his signature as
"Acting Regional Director" to the withdrawal request under the printed state-
ment, "withdrawal request approved," and, in answer to Avery's question, said
that the Board would proceed with the processing of the Respondent's represen-
tation petitions.
On December 9, however, Robert Rissman, an attorney, filed the charges in
the present case, No. 21-CA-295, on behalf of all the claimants except George
Cody. Upon investigation, the Regional Director thereafter "dismissed" some
of the allegations of the charge and, on April 13, 1949, issued a complaint based
upon the balance of the allegations. On April 29, 1949, the Oil Workers, through
International Representative Charles F. Armin, filed with the General Counsel
at Washington, an appeal from the Regional Director's partial dismissal of the
charges. (In the meantime, Rissman had withdrawn from active participation
"The record does not disclose Brown's answer to Hackler's question. Avery was the
only witness as to these events and did not overhear Brown's answer.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the case.) On October 10, 1949, the General Counsel at Washington notified
International Representative Armin that he had sustained the Regional Direc-
tor's partial "dismissal" of the charges. But on October 8, 1949, the Regional
Director informed Rissman by letter that, in view of the Board's recent de-
cision in the Cathey Lumber case," he. was revoking his partial dismissal of the
charges. Accordingly on the same day, the Respondent issued the amended
-consolidated complaint which was presented to the undersigned at the hearing.
6. Conclusions
a. The effect of the Oil Workers' settlement and withdrawal of its charges "with
prejudice"
The Respondent contends that policy considerations should persuade the Board
to dismiss the present complaint so far as it is based upon the charge in Case No.
21-CA-295 It asserts that the matters raised by this charge were all fairly
settled and laid to rest by the Oil Workers' and the Respondent's agreement set-
tling the strike, the Oil Workers' withdrawal "with prejudice" of substantially
the same charge in Case No. 21-CA-239, and the Acting Regional Director's ap-
proval of the withdrawal of that charge "with prejudice " It argues that the
policy of fostering collective bargaining, which underlies the Act, requires the
Board to recognize the finality of such a settlement with a Regional Director's
approval, in order thereby to encourage expeditious, fair settlement of industrial
disputes without litigation, and an early resumption of amicable collective bar-
gaining, with confidence that controversies which have been settled may not be
revived.
The General Counsel takes issue with some of the factual assumptions made
by the Respondent and also urges upon the Board certain counter-arguments
of policy. He attacks the fairness of the strike settlement because of its dis-
regard of the claims of individual strikers in the present case that the Re-
spondent committed an unfair labor practice by refusing to reinstate them.
Arguing from the evidence, he denies the Respondent's conclusion that the
settlement as it was outlined to the Acting Regional Director, embraced or
purported to settle any of these individual claims of discrimination. He there-
fore denies that any approval by the Acting Regional Director of the settlement
which might be inferred from his acceptance of the Oil Workers' withdrawal
request, included approval of the settlement of the individual claims of discrimi-
nation. Finally, he argues that the Board's duty under the Act requires it to
disregard a settlement made by the parties even when it has been fully approved
by agents of the Board or of the General Counsel, if as he contends in the present
case, the settlement does not remove the effects of unfair labor practices or
does not prevent their recurrence.
As the General Counsel and the Respondent agree, the problem is one of policy
rather than of power. For the Board clearly has the power under the Act to
try charges of unfair labor practice against an employer, and to issue orders
remedying them, even though the employer and the union representatives have
settled their differences and have expressly agreed that no charges of unfair
labor practice should be filed, or that existing charges be withdrawn and not
refiled. The power exists even when agents of the Board or of the General
Counsel have participated in or approved the settlement.'9
But, as the General Counsel and the Respondent also agree, the Board as a
matter of policy will not ordinarily exercise this power when it appears from its
is Cathey Lumber Co, 86 NLRB 157.
19 See generally, The Wallace Corp. v N. L R. B , 323 U. S. 248, and authorities
therein cited.
THE TEXAS COMPANY 1385
Regional Director's approval of a settlement that the effect of an employer's
unfair labor practices upon his employees has been remedied and recurrence-
of the unfair labor practices has been prevented-i. e, that the policies and
purposes of the Act have been accomplished by the approved settlement and
that a resort to the procedures of Section 10 is unnecessary In such cases, the-
Board recognizes a policy-bar to formal proceedings under Section 10, in order
to encourage effective, time-saving settlements between parties with the approval
of a Regional Director.
Based as it is upon the Regional Director's presumably fully informed ap-
proval of the settlement as an acceptable substitute for a Board order, this
policy-bar is logically limited to the extent of the approval actually given in this
respect by the Regional Director, and is, furthermore, conditioned upon there
having been a complete, accurate disclosure to the Regional Director of all
known, material facts by the party who sought and procured his approval for-
the purpose of avoiding future proceedings under Section 10. Thus, a Regional
Director's approval of an agreement purporting to settle certain unfair labor
practices cannot be set up as a bar to the processing of charges of other pre-
existing unfair labor practices Nor can an employer-party to a settlement with,
a union properly urge the Regional Director's approval of the settlement as a
bar to later charges by individual employees which the employer anticipated
at the time of the settlement but nevertheless failed to disclose to the Regional
Director.
In the present case, the settlement between the Oil Workers and the Respondent
of the strike in the Los Angeles production unit, the gasoline unit, and the
Ventura unit consisted merely of an oral agreement that the lawsuit against the
Oil Workers and its agents should be dismissed, and that the Oil Workers should,
in return, withdraw its charges "with prejudice," and not in the future the, or
encourage, assist, or support the filing by anyone else of the same charges or
any other charges arising out of the strike But at this point, the Oil Workers
issued a caveat: they could not guarantee that individual strikers would not
file such charges. .
In presenting the Oil Workers' withdrawal request "with prejudice," Avery,
the Respondent's attorney, did not inform Acting Regional Director Hackler of
this reservation or warning by the Oil Workers, nor, so far as the record shows,
did Bi own of the Oil Workers, when Hackler spoke to him on the telephone.
Nor was Hackler informed that some of the strikers in the three bargaining units
had not been reinstated or that they might, as the Respondent feared, later file
unfair labor practice charges to secure their reinstatement. And, of course,
since Avery informed him that the settlement of the strike in these bargaining
units was not in writing, Hackler had only Avery's and Brown's statements and
the pending charges of the Oil Workers from which he could ascertain the sub-
stance of the alleged unfair labor practices which the Oil Workers' withdrawall,
request purported permanently to set to rest.
When these charges were read in conjunction with the withdrawal request,
they disclosed merely that the Oil Workers agreed that, on the basis of past
events, they would not file new unfair labor practice charges alleging :
(1) That the Respondent had violated Section 8 (a) (5) of the Act by refusing
to bargain ;
(2) That the Respondent had violated Section 8 (a) (5) by "refusing to bar-
gain with the [Oil Workers] in the return to work of strikers" ;
(3) That the Resopndent had violated Section 8 (a) (3) by discharging super-
visors ; or
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) That the Respondent had violated Section 8 (a) (1) by threatening em-
ployees that unless they ceased their participation in the strike, they would be
discharged or would lose their insurance, pension, and other rights and benefits.
Under the circumstances of the case, the substance of none of these items
was sufficient to indicate to the Acting Regional Director the claims which devel-
oped in the present case that the Respondent, in violation of Section 8 (a) (3)
of the Act, was refusing to reinstate the strikers on their individual, uncondi-
tional applications. Items Nos. 1, 3, and 4 were obviously of no significance
in this respect. And Item No. 2 was merely an accusation that the Respondent
was refusing to bargain for the return of the strikers en masse, without indica-
tion of what accompanying terms or conditions the Oil Workers might be insist-
ing upon in furtherance of its economic, strike objectives. Its general language
certainly can not reasonably be regarded as having informed the Acting Regional
Director that the Respondent had refused and was still refusing to reinstate
strikers on their individual, unconditional applications, particularly since the
Respondent assured the Acting Regional Director that all disputes arising from
the strike had been settled and at the same time failed to disclose to him its
fear that individual strikers might still file charges of discrimination. Under
the circumstances, the Acting Regional Director was entitled to assume, and
not later be challenged by the Respondent, that provision had been made in the
settlement and after the filing of the Oil Workers' charge, for the strikers' return
to work.
It is true, however, as the Respondent argues, that those of the Oil Workers'
charges summarized in Item 4, immediately above, are substantially the same
as the alleged violations of Section 8 (a) (1) of the Act charged by the claimants
in the present case. It is also true, as the Respondent contends, that had the
Regional Director then investigated these particular charges, he would probably
have learned of the basis of the present claimants' charges and would have been
justified not only in refusing to approve the withdrawal of the Oil Workers'
charge but also in issuing a complaint in which the alleged violations of Section
8 (a) (3) were also included.
But the undersigned cannot believe that the Board expects the Regional Direc-
tors, when withdrawal requests are presented to them for approval on the basis
of settlements between employers and unions, to make the same sort of inquiry
and investigation as they do in determining whether a complaint should issue.
Common sense dictates that they rely upon the information given them by the
the charging party and the Respondent; that they supplement or check this
information only to the extent that the information on its face seems unreliable ;
and that they then determine only whether the settlement and withdrawal of
the charges made as approved as in the public interest, or disapproved as not
being in the public interest. Where, therefore, as in the present case neither
the language of the charges sought to be withdrawn, nor the information volun-
teered by the charging union and the Respondent, disclosed that there were
possible claims of discrimination against employees, the Regional Director's
approval of the withdrawal request even "with prejudice," must be regarded as
limited to the substance of the existing charges and as not precluding the filing
of future charges by the employees based upon the undisclosed discrimination.
Furthermore, when, as in the present case, the undisclosed possible employee-
claims of discrimination may depend upon a finding that Section 8 (a) (1) viola-
tions recited in the pending union's charge converted a strike into an unfair
labor practice strike, the Regional Director's approval of the withdrawal of the
pending charge should not, as a matter of policy, preclude the resurrection of
the Section 8 (a) (1) violations in support of subsequent charges by employees
in discrimination in violation of Section 8 (a) (3).
THE TEXAS COMPANY 1387
During the hearing, the Respondent argued in substance that, in violation of
its agreement with the Respondent, the Oil Workers had instigated the filing,
and thereafter had pressed the prosecution, of the charge in Case 21-CA-295,
and that, because of the breach of agreement and the fact that the Oil Workers
is in effect the charging party, the Board should dismiss the complaint so far
as it is based upon this charge.20 The undersigned rejects this argument. It is
immaterial whether the Oil Workers broke its agreement with the Respondent
that it would not instigate the filing or assist the processing of the instant charge
of discrimination against claimants since (as the undersigned has just found)
this element of the agreement was not submitted to, nor approved by, the Acting
Regional Director, and therefore was merely a private arrangement between the
parties,21 made in disregard of, and without provision for, the individual rights
of the claimants as employees. Moreover, the evidence does not warrant the
findings urged by the Respondent : i. e., that the Oil Workers in fact instigated
the filing of the charge in the present case ; that the claimants otherwise
would not have done so ; and that the Oil Workers is the real charging party and
the claimants merely ostensible parties. For the charge is obviously directed to
the protection of the claimants' individual interests under the Act and to secure
redress for discrimination which they assert was committed against them. On
the other hand, no such benefit to the Oil Workers would result from the success
of the charges. It seems clear, therefore, that the claimants must be regarded
as having filed the charges as the actual and real parties in interest to protect
themselves, and not as mere proxies for the Oil Workers. They are therefore
entitled to have the Board process the charge in usual fashion.
The Respondent further contends that it was entitled to rely upon the Acting
Regional Director's approval of the Oil Workers' withdrawal of its charge
"with prejudice" as assurance that no unfair labor practice charges arising out
of the strike would thereafter be entertained by the Board. This argument is
also based upon the assumption, which has already been rejected, that the Acting
Regional Director's action can be construed as approval of elements of the
settlement which were not brought to his attention. Furthermore, it would
certainly have been unreasonable for the Respondent to have relied upon the
Acting Regional Director's approval of the withdrawal of the charge as a bar
to future individual claims of discrimination since the Respondent failed to notify
him that it had just been warned by the Oil Workers of the possibility that such
claims might be filed.
Upon the foregoing considerations, the undersigned rejects the Respondent's
contention that the present complaint should be dismissed so far as it is based
upon the charge in Case No. 21-CA-295, because of the strike settlement agree-
ment between the Oil Workers and the Respondent, the withdrawal "with
prejudice" by the Oil Workers of its charge in Case No. 21-CA-239, or the Acting
Regional Director's approval of this withdrawal request.
b. The status of the strikers and their "accumulated seniority" rights
It is undisputed, and the undersigned finds, that the strike in its inception
was an economic strike arising from the dispute on the wage raise issue. In
20 In its brief which was filed on January 31, 1949, the Respondent expressly abandoned
this argument. However, on May 15, 1949, it made substantially the same argument in
support of its motion to dismiss the complaint because, at the time of the issuance of the
complaint, the Congress of Industrial Organizations, as the parent organization of the
Oil Workers, had failed to comply with requirements of Section 9 (h) of the Act. It
will be recalled that in the Statement of the Case, supra, the undersigned considered and
denied this motion.
21 Ingram Manufacturing Company, 5 NLRB 908; Poultrymen's Service Corporation,
41 NLRB 444, 462, enforced 128 F. 2d 204, 210 (C. A. 3).
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the notices given by the Unions to the Respondent on -arch 26. and to
the Federal and State authorities on April 24, it is also undisputed, and the
undei signed finds, that the strike violated neither the provisions of the contracts
with the Respondent nor the notice-requirements of the proviso to Section 8 (d)
of the Act 22 The undersigned accordingly further finds that, by joining in the
strike, the employees neither forfeited their normal rights as economic strikers
to reinstatement to available jobs upon application, nor their employee-status
under the Act.
There is dispute, however, concerning the applicability of the notice-require-
ments of Section 8 (d) of the Act to the Respondent The General Counsel
argues that, under this section of the Act, the Respondent, having failed to give
the prescribed notices of an intention to "terminate or modify" its existing
contracts with the Unions, was l ound to continue "in full force and effect . . .
all the terms and conditions of the existing contract[s]," including the provisions
for accumulated seniority. The Respondent, however, contends (1) that this
argument is not available to the General Counsel because Section 8 (d) merely
defines a technical refusal to bargain and the complaint does not allege such
an unfair labor practice on the part of the Respondent; (2) that failure to give
notice as required by Section 8 (d) does not have the effect of extending a con-
tract beyond its expiration date, and (3) that, in any event, "The terms of a
labor contract cannot possibly be kept in force and effect during a time when the
employes, the very ones upon whose behalf the Union has negotiated the contract,
have withdrawn their services and are refusing to work."
Rejecting these arguments of the Respondent, the undersigned agrees with the
position of the General Counsel as to the application and effect of Section 8 (d)
in the present case The basic objective of the proviso to that section is to
az The pertinent provisions of Section 8 (d) are the following .
. . Wheie there is in eftect a collective-bargaining contiact covering employees
in an industry affecting commerce, the duty to bargain collectively shall also mean
that no paity to such contract shall terminate or modify such contract, unless the
party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of the proposed.
termination or modification sixty days prior to the expiration date thereof of in
the event such contract contains no expiration date, sixty days prior to the time it
is proposed to make such termination or modification .
(2) offers to meet and confer with the other pasty for the purpose of negotiating
a new contract or a contract containing the proposed modifications ,
(3) notifies the Federal Mediation and Conciliation Seriice within thirty days
after such notice of the existence of a dispute, and simultaneously therewith notifies
any State or Territorial agency established to mediate and conciliate disputes within
the State or Territory where the dispute occurred, provided no agreement has been
reached by that time ; and
(4) continues in full force and effect , without resorting to strike or lock -out, all
the terms and conditions of the existing contract for a period of sixty days after
such notice is given or until the expiration date of such contract , whichever occurs
later
The duties imposed upon employers , employees , and labor organizations by
paragraphs ( 2), (3), and ( 4) shall become inapplicable upon an intervening certifica-
tion of the Board, under which the labor organization or individual , which is a
party to the contract , has been superseded as or ceased to be the representative of
the employees subject to the provisions of Section 9 (a), and the duties so imposed
shall not be construed as requiring either party to discuss or agree to any modification
of the terms and conditions contained in a contract for a fixed period , if such modifica-
tion is to become effective before such terms and conditions can be reopened under
the provisions of the contract. Any employee who engages in a strike within the
sixty-day period specified in this subsection shall lose his status as an employee
of the employer engaged in the particular labor dispute , for the purposes of Sections S.
9, and 10 of this Act, as amended , but such loss of status for such employee shall
terminate if and when lie is reemployed by such employer
THE TEXAS COMPANY 1389
continue, and to bind the parties to an observation of, an existing contractual
status quo for GO days, whenever a dispute as to modification or termination
arises, so that a strike or lock-out may be avoided while the parties attempt
to reach a solution by bargaining 23 The proviso accomplishes this not only, as
the Respondent argues, by defining a technical unfair labor practice in order
to permit the issuance of an appropriate, specific remedial order, but also by
clearly imposing upon the parties the "duties" of continuing "in full force and
effect . . all the terms and conditions of the existing contract for a period
of sixty days after . . notice is given or until the expiration date of such
contract, whichever occurs later " Contrary to the Respondent's contention, the
proviso thus operates to extend the effectiveness of a contract beyond its expira-
tion date, not only in cases in which notice of termination or modification is
given less than 60 days before the expiration date, but also in cases like the
present case, where no notice at all is given 2' Finally, this obligation of the
Respondent to continue to observe the provisions of the contrast, including
those which dealt with seniority rights, was not affected by the strike since the
strike did not violate or seek to change or abrogate the terms of the contract.
'Therefore, the Respondent having failed to give the requisite notices under
Section S (d), was bound to continue to observe, and not to withdraw from its
employees, including the strikers, the seniority rights which they had earned
under the contracts.
Even aside from the provisions of Section S (d) the facts in the present case
would impel the Came conclusion For the seniority structure set forth in the
contracts had become an important element in the general existing terms and
conditions of employment, as the Respondent itself recognized by continuing its
observance after the expiration dates of the contract and until the occurrence
of the strike Under the general provisions of the Act, quite apart from the
provisions of Section S (d) in employer with an established bargaining relation-
ship with representatives of its employees is free to make changes in such
fundamental matters only after resorting to the process of collective bargaining.
This the Respondent failed to do. At no time was the possibility of any change
in the general structure of the existing seniority system discussed by the Re-
spondent with the Unions. The Union's notices of March 26 , which led to the
bargaining conferences , raised only the question of a wage increase which was
23 See United Packanghouse lVookcis of America, CIO (Wilson & Co , Inc ), 89 NLRB 310.
In considering the restnctions nhich the proviso to Section 8 (d) places upon
strikes to change or terminate the terms of existing contracts , the Board recently said
in the Nilson Co , case, supra
Thus, in our view, the phrase "whichever occurs later" was specifically directed at
a situation in which notice of it desire to modify or terminate a contract was given
less than 60 clays before termination of the contract Congress wished to make
certain that m such a case the 60-clay `cooling oft" peuod would nonetheless be
observed betoce a stiike of a lock-out is resorted to The expiration of the contract
does not automatically permit sfiike action if the 60-day notice period has not
expired by that time Bun exajnple, where notice is giien 30 clays before the
oxpaation of the conti,ict, the end of the 60-day notice "occurs later" than the
expiration of the contract and the parties must wait until 30 clays after the expiration
of the contract before taking economic action
Upon the construction thus given to Section 8 (d) by the Board, the arrival of the
expo ation date of a contract without notice of termination having been given, does not
terminate the eftectivenes of the contract Otherwise, con(iary to the Board's supposi-
tion, no party would ever give notice of termination within the 60-day period immediately
preceding the contract-expiation date since, to accomplish his objective in the minimum
time, he would merely have to wait until the contract date aurvcd, ishereas if he gave
notice, lie would be bound to observe the contiact's ^teuns for the next 60 days and
beyond the contract expiation date
'1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not covered by the contracts. In the slightly broadened discussion which
followed, the Union's proposals concerning seniority, which were tentatively
accepted by the Respondent, would not have impaired the seniority rights of the
employees but, on the contrary, would have strengthened them by eliminating
some of the restrictions. In the absence of an attempt to bargain on the point,
therefore, the Respondent had no right to change, eliminate, or refuse to observe
the seniority principles to which the contracts had given full expression or the
seniority rights accumulated by the employees thereunder.28
c. The justification of the Respondent's refusal to reinstate, and later to recall,
the claimants, assuming the claimants to have remained economic strikers
Whether the strike after its inception remained an economic strike or was
converted into an unfair labor practice strike depends upon the significance of
the Respondent's letter of September 28 to the strikers and upon other evidence
which will be discussed in the following section of this Report. Assuming for
the present that it remained an economic strike, the Respondept was justified
in refusing to reinstate the striking claimants upon their applications, if it had
by that time filled their jobs with permanent replacements.26
It will be recalled that by October 13, October 16, and October 22, the Re-
spondent had secured full complements of workers and had resumed full opera-
tions in the Los Angeles production unit, the Ventura unit, and the gasoline
unit, respectively, and that on these dates the jobs of the strikers including the
claimants had been filled by upgraded prestrike employees or by employees newly
hired during the strike. It will also be recalled that thereafter, in spite of the
Respondent's decision to recall all strikers who had applied for reinstatement
as if they were laid-off employees, the Respondent reemployed only one of them
in his prestrike classification, although it filled 13 job vacancies which occurred
in the 3 bargaining units, by transferring from other districts employees who
had less seniority than the claimants.
The General Counsel contends in substance, as District Director Mattern of
the Oil Workers told Division Manager Wood on October 27, that the employees
newly hired to replace the claimants cannot be held to have been permanent
replacement because, as employees with less than 120 days' service at the time
the claimants applied for reinstatement, they were "temporary employees" under
the seniority provisions of the contracts 27 But, in the absence of unmistakably
specific language, it appears to the undersigned to be unreasonable thus to
construe the seniority provisions in a contract as a relinquishment by the em-
ployer of his right under the Mackay rule 28 to continue his business in spite of
an economic strike through the hire of permanent replacements. Certainly,
unless it be clearly spelled out, this cannot be said to be the intended and
reasonably understood meaning of such provisions. The undersigned, therefore,
rejects the General Counsel's contention that the replacements hired by the
Respondent were temporary employees because of the seniority provisions of
the contracts.
The General Counsel also contends in substance that the new employees hired
by the Respondent to replace strikers were not permanent replacements because
even by the time the claimants applied for reinstatement, "the new hires who.
had replaced them had not yet acquired the training necessary to perform the
2a General Electric Company, 80 NLRB 510.
N L R B. v. Mackay Radio & Telegraph Co , 304 U. S. 333.
T' The substance of these provisions is discussed in Section III, B, 1, above.
28 N L. R. B. v. Mackay Radio & Telegraph Co., supra.
THE TEXAS COMPANY 1391
work." In support of this argument, the General Counsel refers to the fact
that when claimants Buckmaster, Ladd, and Aielville were rehired as roust-
abouts rather than in their prestrike jobs as plant operators, they were put to
work instructing new plant operators.
The undersigned, however, is not impressed by this argument on the facts of
the present case. It is conceivable that a striker-replacement in some cases may
be so inept and unsuited for the job in which he has been placed that it is ques-
tionable whether the employer intended to keep him permanently on the job or
merely to create the appearance that the job had been permanently filled so that
the striker who had held the job might be refused reinstatement. But an em-
ployer, in fairly contesting an economic strike and containing his business, is not
to be refused the right to make permanent replacements of strikers and to make
commitments to that effect in good faith, simply because possible replacements
need some training in the job`s in which they are placed. And, the mere fact
that the replacements may still need some training even when strikers are ready
to come back to work does not justify their being "bumped" by the strikers, if
in fact they were originally hired in good faith as permanent replacements. In
the present case the undersigned has no reason to doubt that the newly hired
replacements were in fact intended to be permanent replacements and were noti-
fied that they would receive permanent employment.
The General Counsel also contends that after November 1, the Respondent
failed to observe the seniority rights of the claimants as laid-off employees under
the provisions of the contracts, by transferring 13 of the employees from other
districts to fill vacancies occurring in the 3 bargaining units, instead of recall-
ing, in any case, an available claimant with greater seniority. In making this
argument, the General Counsel relies upon the following 2 provisions common
to the 3 contracts to show that the claimants as laid-off employees were com-
petitors of the transferees for the vacancies and that the choice should have been
in favor of the claimants because of their greater seniority:
Any former employe with less than one year's service, who has earned
seniority rights and has been laid off, will for the period of 180 consecutive
days be given preference in filling vacancies, and any former employe with
one year or more service who has been laid off, will for the period of 365
consecutive days be given preference in fillvng vacancies; and the Company
will notify the eligible laid off employes of such opening by giving him actual
notice or by registered letter addressed to him at his last address on file with
the Company .. .
In filling vacancies, the Company may, at its option, and, when practicable
in accordance with seniority, transfer any employe within [the same type
of operations in the] Pacific Coast Division, from one district to another ..
The Respondent asserts that the General Counsel has misconstrued the mean-
ing of this language and that, upon a proper construction, it appears that in
making the transfers rather than recalling any of the claimants with greater
seniority, the Respondent did not violate the contracts nor the seniority rights
of the claimants. The Respondent, in effect, calls attention not only to the
term "former employe" as it is used in the already quoted language to describe
employees on laid-off status, but also to other provisions common to the contracts
29 Emphasis is supplied by the undersigned to indicate not only language stressed by
the General Counsel in his argument but also other language relied upon by the Respondent
for a contrary interpretation which is hereinafter discussed.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which the return of laid-off employees is referred to as "re-employment."'0
In addition, the Respondent directs attention to the testimony of Personnel
Man Smith, which the undersigned has already credited, that, in accordance
with the Respondent's practice and its interpretation of the contracts, the 13
men were transferred from other districts to avoid laying them off and that,
although the Respondent was bound to observe and did observe the competing
seniority rights of men then at work in the districts to which the ti ansfers were
made, employees in laid-off status in the latter districts, including the claimants,
were not considered.
Upon these considerations, the bases of which are all in the record, the Respond-
cut argues that, upon proper construction of the contracts consistent with prac-
tice, laid-off employees were "former employees" who had a preferential claim
to "re-employment" as against the hire of new employees, but that, in the filling
of vacancies, their seniority did not afford them a right to compete against
employees who are on the job in the same district, or in another district but with
a prospect of transfer to avoid layoff.
For the purposes of the present case, the Board is not called upon to decide
which of these opposing constructions of the contracts urged by the General
Counsel and the Respondent is the proper construction. Instead, the exact
problem to be decided in the case is whether the construction urged by the
Respondent is so unreasonable that it can be inferred that its transfers to fill
vacancies in the 3 bargaining units rather than to fill them by the recall of
claimants was based not upon its belief that the contracts required this course,
but upon its intent to disi egard the seniority rights of the claimants and thereby
to discriminate against them. The undersigned feels that the Respondent's con-
struction of the contract is not unreasonable He therefore concludes that the
Respondent's transfer of 13 employees from other districts instead of reinstating
'claimants with greater seniority to fill these N acancies does not warrant a finding
that the Respondent discriminated against the claimants
Upon the foregoing considerations, the undersigned finds that, unless the
strike had previously been converted into an unfair labor practice strike, neither
the Respondent's iefusal to reinstate the claimants to their former jobs nor its
failure to recall them constituted discrimination against the claimants in regard
to their hire and tenure of employment.
^C The Respondent 's unfair labor practices preceding as well as including its
refusal and continued failure to reinstate or recall the clainranl,ts
1. Interference, restraint, and coercion
The General Counsel contends, and the Respondent denies, that, by sending
the letter of September 28 to all the strikers and by oral statements made to the
10 For example, see the following language of the contracts in the article conceining
"layoff"
A layoff for a period of 180 consecutive days more or less will be considered
temporary, but (luting such period the employe laid off will not be entitled to any
rights or benefits as an employe.
If an employe who has been in the employ of the Company for a period of 120
consecutive days or more is re-employed within 180 days after being laid off, all his
tights and benefits as an employe which accumulated up to the date of his layoff
will be reinstated
Emploves Kith one year or more service who are laid off for a period of not more
than 365 calendar days will be given pieference for re employment in the order of
their seniority, as of the date of layoff, as provided in [the paragraph dealing with
pieferential rehire]
If an employe who has been in the employ of a Company for a period of one
year or more is re-employed within 365 days after being laid off, his status under
the Vacation Plan as of the time of layoff will be reinstated .. .
THE TEXAS COMPANY 1393
strikers by its superintendents and members of its supervisory staff, the Respond-
ent (1) solicited the strikers to return to work on or before October 4 and thus
to abandon the strike; (2) conditioned the return of strikers after October 4
upon the loss of their seniority and (3) thereby prolonged and converted the
strike into an unfair labor practice strike. Much of the relevant evidence bears
upon all three of these questions and the answers themselves are necessarily
interlocked.
a. Evidence rejected
Consideration of the testimony relating to oral statements made to strikers
by the Respondent's superintendents and other members of its supervisory staff
has led the undersigned to eliminate a substantial number of these alleged
statements as possible bases for any finding of unfair labor practice, either
because the denials of the Respondent's witnesses were credible,31 or because the
statements to which the General Counsel's witnesses testified (1) were merely
favorable replies to strikers' inquiries for reinstatement,32 (2) were not invita-
tions on their face or even in context,' or (3) were clearly arguments or
31 Thus the undeisigned credits (a) Superintendent Loomis' denial of stiikers Summer-
felt's and Moore's testimony that, upon their asking for it postponement of the October 4
"deadline," Loomis told them that they had better get hack to work because they were
in the "lightest spot" they were ever in ; (b) Loomis' denial of Suminerfelt's and Aloote's
testimony that, upon their application to Loomis for reinstatement on October 13, Loomis
told them that they were no longer employees of the Respondent, (c) Ventura Supeun-
tendent Jackson' s denial, couroborated by striker De Groodt, of striker Pence's testimony
that Jackson told Pence, De Groodt, and Simmons on October 6 that if they went back to
woik, they would go back to woik as "new men", (d) Assistant Production Foreman
J. C Berry's denial of C 0 Moore's testimony that shortly before October 4, Berry told
Moore and L E Tracy, another picket, "Well, I think you fellows have lost the strike.
You had better go on back and go to woik" , and (e) Tank Foreman McKay's denial of
the testimony of striker Nyman, a tank crewman, who became sick during the strike, that
during a visit to Nyman 's ]ionic made by McKay with the Respondent's work truck and
the full tank crew of three other men on Sunday, October 10, McKay told Nyman, "your
job is open Get eight on the truck, and you will get it lull day " The undersigned also
credits McKay's testimony that, in the course of their troik that day, they were near
Nyman's home , that, at the suggestion of one of the crewmen, they visited Nyman to see
how he was feeling, and that McKay did not invite Nyman to come back to work for
the Respondent but did tell him that a job with the Superior Vacuum Tank Company,
about which they had spoken the preceding night. was still open
32Theie were four instances on this soft A few chute after striker P I. Barns, a
mechanic #2, had asked Superintendent Loomis for woik, Loomis, Personnel _Man Smith and
Fotenian Carter, a personal friend of Karns, visited Karns at his home and offered him
work as a mechanic #1, which Barns accepted and retained only for the strike period
On or about September 30, a gioup of nine strikers with Bynuin as spokesman told Loomis
they wanted to return to woik by the "deadline" and wanted to know their status
Loomis replied that there was work to do, that the Respondent wanted to start up, and
wanted everyone to return In it third case, when gasoline employee Hannibal Williams
telephoned Foreman Perry shortly before October 4 that lie wanted to come back to woik
but did not want to come through the picket line Perry told Williams that lie could
come through the back gate wheic there were no pickets In the fourth case, Foreman
J. W Davis visited strikes Elmer Gothard's home shortly betoie Octobei 4 and offered
hint wo is because, as Davis credibly testified, other strikers whom he had visited at their
request had intoimed him that Gothard, like them, wanted to come back to work If the
Gothard incident were one of a number of cases in which the Respondent sought to
justify an offer of work to pai ticular strikers on the suggestion of other strikers that
the offcrees wanted to come back to work, the explanation and propriety of the offers
would be questionable But, since Gothard's case was an isolated instance, the under-
signed finds no impropriety in Davis' offer to him
at As lie walked through the picket line, Assistant Production Foreman J C Bert y told
picket Robert Bullock, "you had better wake tip" Ventura Foreman George Curyea
asked striker Pence and several other pickets, "When are you hots going back to work9"
When Gasoline Plant 3 resumed opciations, Foreman C A ]'env told Hannibal Williams
that it was too bad Williams had been replaced
943792-51--89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expressions of opinion , which, being devoid of threat or promise of benefit, were
protected by Section 8 (c) of the Act s"
Nor, in the opinion of the undersigned , does the evidence warrant a finding, as
the General Counsel urges, that a "reception committee" of the Respondent's
superintendents and other members of its supervisory staff encouraged the
return of strikers on the morning of October 4 at the Respondent 's Signal Hill
Production Headquarters. It will be recalled that, according to the Respondent's
letter of September 28, this was the last day that the strikers were assured of
resinstatement. On the preceding day, as an apparent countermeasure, the
Unions had canceled the picket -line passes which they had issued to supervisors
and strikers who were not in the striking bargaining units.
The main entrance to Respondent's headquarters is located near Atlantic
Avenue and 31st Street, on the boundary line between the cities of Long Beach
and Signal Hill. A private road across property leased by the Respondent
leads from Atlantic Avenue to the main gate, approximately 200 feet away. On
October 4 and on the preceding days of the strike, the picket line was located on
the private road about 135 feet from the gate and 65 feet from Atlantic Avenue.
On the morning of October 4, Superintendent Loomis, having learned of the
Unions' cancellation of the strike passes, notified the police of Long Beach
and Signal Hill, who, at his request, immediately sent policemen in squad cars
and on motorcycles to the Atlantic Avenue entrance. The Respondent also placed
2 company trucks between the gate and the picket line and, in front of each truck,
a sign : "Passes to enter are not required-The Texas Company." Then, between
7: 15 and 7: 55 a. m., Superintendent Loomis and the following managerial and
supervisory employees gathered between the gate and the picket line: Personnel
Man K. C. Smith, Production Foreman Mitchell, Division Warehouse Supervisor
Pilkington, Laboratory Foreman Escobar, Chief Clerk Swearingen, Division
Chemist Robinson, and Crippen, his assistant. At the same time, not only were
there 2 pickets on the line across the private road , but 15 or 20 other strikers
had gathered along Atlantic Avenue.
With the stage thus set, cars occupied by supervisors and rank-and-file em-
ployees outside the striking bargaining units began entering the gate from
Atlantic Avenue via the private road. When several of these cars paused at
the picket line, Loomis waved to the drivers to come through the gate. Then,
a number of the strikers who had spoken to Loomis about coming back but had
informed him the night before that they had decided not to do so, approached
the picket line in cars ii In each case, the driver had turned the car into the
private road without hesitation. And as in the cases of the other cars, Loomis
and a number of the supervisors waved them to come on.
u In this category are (1 ) a statement by Foreman Stroud to Ventura pickets in the
latter part of September that "It looks like you boys just have the wrong union" ;
(2) a statement by Ventura Superintendent Jackson to employee Abbiatti shortly after
the strike began that he thought the Union had let the men down because it should have
accepted the Respondent 's offer of the wage increase , ( 3) statements by Beauchamp,
District Superintendent of Gasoline Operations , to Robert D. Symons and another picket
that the strike was pulled at the wrong time, that the Union ' s demand was based on its
estimate of the Respondent's ability to pay, but that the Respondent, believing that a
121/2-cent raise was ample to cover the cost -of-living increase "didn ' t expect the employee
to buy a television set" ; (4 ) a statement by Superintendent Beauchamp to picket Buck-
master that the Union had poor leaders and had used poor judgment in striking at the
time , and ( 5) statements made by Superintendent Beauchamp contradicting striker Ernest
Flippen's assertions that Flippen thought "the Company had made better than $ 2 00 per
hour per man net profit " and, therefore . that it had "made enough profits this year that
the men deserved a raise "
Those who were specifically identified by the witnesses were Bynum and other
members of the group of nine who , as has been noted in footnote 32, had previously met
with Loomis at their request.
THE TEXAS COMPANY 1395
The General Counsel contends that the admittedly unusual gathering of the
superintendent and the supervisors and their beckoning to the strikers who
approached in cars, constituted improper encouragement of those strikers who
were then returning to work.' The undersigned, however, accepts Loomis' testi-
mony that his presence and that of the other supervisors was not prearranged;
that he appeared out of curiosity to see what would happen in view ofcthe Unions'
withdrawal of the picket line passes, and also to thank the police; and that their
waving to incoming cars was to prevent congestion at the picket line. Since
they waved at other ears as well as those of the strikers and since the returning
strikers had already entered upon the private road upon an evident decision to
return to work, the undersigned does not believe that the evidence is strong
enough to justify a finding that Loomis and the supervisory staff were then
encouraging strikers to return to work.
b. Oral statements to strikers on and before October 6
The evidence, however, discloses other instances in which Respondent's super-
intendents and other supervisors did solicit the return of strikers to their jobs,
either by direct invitation, by stressing the letter of September 28, or by speaking
of, or'alluding to, the likelihood of their losing their jobs or their seniority. Thus,
the undersigned makes the following findings upon credible testimony of the
General Counsel's witnesses, in spite of denials by the Respondent's representa-
tives to whom the remarks were attributed : 37
(1) Shortly after September 28, Assistant Chief Chemist Crippen telephoned
John A. Williams, a routine tester #1, and asked him if he had received the
Respondent's letter
(2) On or about September 29, Production Foreman Stroud, upon being asked
by Ventura pickets how he was getting along, told them he needed some pumpers
and a mechanic and asked them if they wanted to pump.
(3) In the latter part of September, Superintendent Jackson of the Ventura
District told pickets, "I am going to start them up. Any of you fellows want
to pump?"
(4) Shortly after striker Milton had received Respondent's letter, Gas Dis-
patcher Foster visited him at his home, offered him a ticket to a banquet, and
told him that he was making a mistake in not coming back to work and that
the men did not have a chance if they did not come back before the "deadline."
-(5) Shortly before October 4, Gas Plant Foreman J. W. Davis told pickets
Gothard and Lucas that he hated to see them lose their seniority and wished
they could get back to work.
(6) On September 30 or October 1, Field Foreman Perry of the Gasoline De-
partment told pickets Galloupe and Rubottom, "When the deadline is up, they
start hiring. You will be left out . . . I know what I would do."
(7) A few days after September 28, Superintendent Beauchamp said to pickets
Galloupe and Wren, "You are not back to work? Well, when the time expires
on that letter, I am instructed to hire."
(8) In late September or early October, Gasoline Superintendent Beauchamp
told picket Redden that if he wanted one of the jobs he had better get over and
sign up for it.
(9) Maintenance Foreman McGray of the Gasoline Department told striker
In his brief , the General Counsel specifically disclaims any contention that the
supervisors by their motioning encouraged the return of other strikers who were standing
in the vicinity.
17 There was no contradiction of the General Counsel's uuitnesses' testimony upon which
the undersigned bases his findings as to Items 1 and 2. , The substance of the other items,
however, was denied in each case by the superintendent or supervisor to whom the
statement was attributed.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
John Russel and several of the other pickets in the first week of October that
the Respondent was going to start operations in Gasoline Plant #5 and that,
if they wanted to go back to work, they had better "sign up," because there were
only seven jobs left in the plant.
(10) Field Foreman Perry of the Gasoline Department said to pickets during
the third and forth week of the strike, "It looks like you are out of luck boys.
You are out on a limb "
(11) A few days after September 28, Maintenance Foreman McGray,of the
Gasoline Department told striker Ernest Flippen, "I tell you, Ernest, you fellows
better get back on the job . .. they are going to bring in some men and start
this plant up. You fellows better make up your mind."
(12) Four weeks after the beginning of the strike, Field Foreman Perry told
strikers L D. and L E. Tracy that he wished they were back, and that, "I, hate to
see you fellows go. I have been associated with you so many years, but I don't
think you have a chance."
(13) On September 29 or 30, Superintendent Beauchamp, answering picket
,Rubottom's question as to what the Respondent's letter of September 28 meant,
said that the letter was self-explanatory. In answer to Rubottoni's further
question whether failure to return by October meant loss of job, Beauchamp
replied that the Respondent would begin filling jobs on October 4, that it would
thereafter reinstate strikers only to the extent that jobs were still available, and
that the strikers would be taken back "as new men."
The General Counsel argues that the Respondent's letter of September 28,
which preceded these oral solicitations, also had asked the strikers in effect to
return to work on or before October 4, and had brought pressure upon them to
do so, by raising fears on their part that unless they returned by that day,
they would lose their jobs or their accumulated seniority rights. Whether such
fears were reasonable from a reading of an already-quoted language of this let-
ter,38 will be considered later. That they were in fact created by the letter in the
minds of the strikers is evidenced, however, by the strikers' inquiries of the super-
intendents and the foremen whom the letter directed them to see. Moreover the
answers which were then given, as well as a number of the volunteered statements
just discussed, not only did nothing to allay these fears, but in some cases served
to confirm them.
Thus, when Ventura Superintendent Jackson and Foreman French were asked
by strikers Price and Riddle on September 30 or October 1, "what the conditions
would be if we would return to work at this time," French answered in Jackson's
presence, "Well, you have got a good chance to stay on the same jobs you are on,
you wei e on, same place- Again, on October 6, strikers Pence, De Groodt,
Simmons and Lair asked Jackson whether they would lose their seniority_ik they
returned to work as roustabouts 'instead of their higher prestrike jobs which
Jackson said were filled. Jackson told them "you know as much about that as I
do. You have [the September 28] letter and I can't tell you any more than what
the letter says."" Thus, it appeared to the Ventura strikers that Superintendent
Jackson did not know what the letter meant and was willing to permit the
strikers to give it a sinister meaning for those of them who did not return to work
by October •4.
This attitude as the meaning of the September 28 letter was not peculiar
to0Jackson and his supervisor's in the Ventura unit, but extended from the divi-
38 See page 1378 above
35Although the quotation in the text is taken from De Gioodt's testinionv the finding
is also based upon Jackson's consistent testimony The undersigned has already credited
Jackson's denial, corroborated by De Groodt• of Pence's testimony that Tackson also
said on this occasion that if the men went back to work, they would go back as "new men"
(see footnote 31).
THE TEXAS COMPANY 1397
Sion manager down through the superintendents and supervisors in the Los
-Angeles production and gasoline units as well. For, contrary to the innocuous
construction which the Respondent now urges for the letter, Division Manager
Wood's testimony and his October 6 memorandum to his superintendents,
show clearly that until December 15, the Respondent's managerial group was
uncertain whether the Respondent would permit the retention of accumulated
seniority by strikers who returned after October 4, and that the Respondent's
announcement of its eventual decision to recognize the continuation of these
rights was made to its striking and nonstriking employees only on December 30.
c. Events aftei October 6
It has already been found that, before the issuance of Division Manager
Wood's memorandum to his superintendents on October 6, Superintendent
Beauchamp and several of the supervisors in the gasoline department had
stresser the dangers of loss of job and of seniority in their solicitation of the
return'of the strikers on the basis of the letter of September 28. The General
Counsel further contends that even after Wood's memorandum, the Respondent
conditioned the return of strikers upon loss of their prestrike seniority. In sup-
port of this contention, the General Counsel relies in part upon the Respondent's
requirement that strikers returning after November 1 fill out employment appli-
cations and take physical examinations as new employees. In addition, the
General Counsel relies upon disputed evidence concerning (1) statements made
by Superintendent Loomis at a meeting on October 8 with strikers John A.
Summerfelt, C. O. Moore, and O. E West, the three members of the identically
constituted Workmen's Committee and Strike Committee for Local 128 in the
Los Angeles production unit; (2) a statement made on the afternoon of October 8
by Production Foreman Mitchell to Summerfelt and other strikers upon applica-
tion for reinstatement; (3) a statement made by Superintendent Loomis to
Summerfelt and Moore on October ]3 when they applied for reinstatement;
(4) and a statement made by Superintendent Beauchamp to plant operator
Thomas Melville on November 7.
The October 8 meeting of Superintendent Loomis with Summerfelt and the
other members of the Workmen's Committee for the Los Angeles production
unit was held at the request of Summerfelt. Personnel Man K C. Smith was
with Loomis throughout the meeting and Foreman Mitchell was called in by
Loomis shortly after the meeting began. The critical points raised by Summer-
felt and discussed at this meeting were the extent to which jobs were still avail-
able for strikers and whether returning strikers would retain their seniority
rights.90
40 Summerfelt, West, and Moore testified, and Loomis, Smith, and Mitchell denied, that
Summerfelt , as chairman of the Workmen 's and Strike Committees , applied to Loomis
not merely for the reinstatement of himself and his two companions, but for the reinstate-
ment of all the strikers. IIowever, the undersigned finds it to be immaterial and therefore
unnecessary to decide, whether such an explicit request was made by Summerfelt. Even
were such a request to be assumed, it would not in itself have imposed upon the Respondent
the obligation to reinstate any of the strikers since (1) as the General Counsel has
conceded, it would have been a conditional request, ineffective because of the unavailability
of it sufficient number of jobs at the time , and (2) the evidence does not indicate that the
Workmen's Committee or Summerfelt as its chairman, had authority at the time of the
meeting to make such a request, either from all the individual strikers or under the
Committee's general powers. On the other hand, if it be assumed, contrary to the
'testimony of the General Counsel 's witnesses , that Summerfelt did not make a blanket
request for reinstatement , the evidence does disclose, and the undersigned finds, that
Loomis knew, or had reason to believe, that any statements made by him at the meeting
eoncerning ' the stickers ' seniority rights would be communicated to the strikers who had
not yet returned to work.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the first of these points, it is undisputed, and the undersigned finds, that
Loomis said that upon application, strikers would be put back to work in their
own or other jobs, if they were available. However, Moore and West testified,
and Loomis and Mitchell denied, that Mitchell upon being called into the meet-
ing said that he had only three tankie jobs and two roustabout jobs open. On
the other hand, Loomis, Mitchell, and Smith affirmatively testified, and Moore
and West denied, that Mitchell said he could use well pullers In view of the
fact that, as an apparent result of this conversation, Summerfelt, Moore, West,
and Skinner were scheduled to return to work as well pullers, the undersigned
credits the testimony of Loomis, Mitchell, and Smith, and finds that on the morn-
ing of October 8, Summerfelt's group was told not only that tankie and roust-
about jobs were open, but that well puller jobs were available.
On the question of strikers' seniority rights, the witnesses were in agreement
that Loomis said in effect that, in spite of greater seniority, returning strikers
would not be permitted to displace employees previously upgraded into, or newly
hired for, the strikers' jobs. The witnesses were also in agreement that either
Summerfelt or Moore asked Loomis whether, after return to -work, strikers
would retain their prestrike seniority, and that Loomis, in the course of answer-
ing this question, stated that a loss of seniority would make only a slight differ-
ence to Suminerfelt (who would return as a well puller instead of as a relief
head well puller), and no difference to Moore and West (who would return to
their prestrike •jobs as well pullers), because they were so low on the promo-
tion list anyway.
But there was sharp disagreement between the witnesses as to the balance of
Loomis' answer to the question of whether returning strikers would retain their
seniority for purposes of future promotion, demotion, and layoff. Loomis testi-
fied that by the time of this meeting he had received Division Manager Wood's
memorandum of October 6. Consistent with this memorandum, Loomis,
Mitchell, and Smith testified (and so also did West, incidentally, at two points in
his testimony) that Loomis told Summerfelt's group that he did not know
whether returning strikers would retain their seniority, because the question had
not yet been decided by "management." Summerfelt, Moore, and West testified,
however, and Loomis, Mitchell, and Smith denied, that Loomis made a number
of statements to the general effect that returning strikers would not retain their
seniority, and also that Smith said an appeal to Rogers was useless because
Division Manager Wood had already made up his mind. As Summerfelt de-
scribed Loomis' statements, Loomis said that the strikers "would have to come
back as new men," that their seniority "would start as [they] came through the
gate . . . [and] started to come to work," and that Summerfelt would be No. 15
on the well pulling list," and would be one of the first laid off in case of a reduc-
tion in staff. West testified that Loomis said that the strikers would return as
"new men, so far as job seniority was concerned." And Moore testified that
Loomis said "that we wouldn't have no seniority. We couldn' t bump any of
the men that were in there, that went back before us, that we would have to go
back as new men, you might say." 42
Although the General Counsel's witnesses so testified, it is improbable that
Loomis, as the careful man he appears to be, would thus have made statements
41 Snmmeifelt was No 3 on the well pulling list before the strike
42 The General Counsel argues in his brief that the evidence shows that Suminerfelt,
Moore, and West had another conference with Loomis, Smith, and Mitchell that afternoon,
and that Loomis then repeated his statement to them to the effect that the strikers would
return as new men. Although Summerfelt so testified, neither Moore nor West made any
mention of such a meeting in their testimony Moreover, Loomis, Smith, and Mitchell
denied that there was any such afternoon meeting The undersigned finds that the only
meeting with Loomis on October 8 was the morning meeting which is discussed in the text.
THE TEXAS COMPANY 1399
to members of the Union's committee so clearly and squarely at variance with
the instructions just received by him in the management memorandum on the
subject. It is much more likely, and the undersigned accordingly finds, that
Loomis told them, as the memorandum required him and the Respondent's wit-
nesses all testified, that he did not know whether the strikers would retain their
seniority until management decided the matter.
During the afternoon of October 8 (after the morning meeting with Loomis)
Summerfelt, Moore, and O. E. West, accompanied this time also by strikers
Skinner. Sesma, and Gandy, visited Foreman Mitchell. At their request,
Mitchell scheduled all six of these men to return to work. In so doing, he placed
Moore, West, and Skinner in their prestrike jobs as well pullers; Sesma and
Gandy in their prestrike jobs as tank crewmen or "tankies"; and Summerfelt in
a well puller's job rather than in his prestrike job as relief head well puller,
which the Respondent claims had been filled on October 4 by the return to work
and promotion of F N. Baker, a prestrike well puller with less seniority than
Summerfelt. Accordingly, O. E. West, Skinner, Sesma, and Gandy resumed work
in their prestrike jobs on Saturday, October 9. On that day, however, Summer-
felt and Moore told Mitchell, that, upon reconsideration, they had decided not
to return to work under the conditions outlined to them by Loomis the preceding
day.
Moore testified, and Mitchell denied, that before scheduling the men to return
to work on the afternoon of October 8, Mitchell told them that they would have
to start as new men because they had lost their seniority. Summerfelt's testi-
mony contains no reference to any such statement and West testified that nothing
was said about seniority. The undersigned credits Mitchell's denial of Moore's
testimony.
On October 13, Summerfelt and Moore again applied for reinstatement and
were told that their jobs had been filled. It will be recalled that this was the
day on which the Respondent completed filling the working staff in the Los
Angeles production unit. Summerfelt and Moore testified, but Loomis denied,
that Loomis told them they were no longer employees of the Respondent. The
undersigned credits Loomis' denial.
The next significant events reflect a change in the Respondent's attitude toward
the strikers after their replacement. _ According to Personnel Man Smith's testi-
mony, he required all strikers returning to fill vacancies occurring on and after
November 1, to fill out employment applications and to take physical examina-
tions. As Smith explained, these were the usual requirements which the Re-
spondent in practice imposed upon the return of employees who had been laid
off for 60 or more days, and were permissible under the contract if the strikers
were properly regarded as having a status in all material respects comparable to
that of laid-off employees." Then, in the representation petitions filed by it with
the Board for the three bargaining units on November 1, the Respondent asserted
its doubt as to the continuance of the Union's majority in each unit, in part be-
cause of the replacement of striking members of the Unions. Finally, in speaking
of strikers then returning to fill new vacancies, Division Manager Wood informed
his superintendents in a memorandum dated November 17 that they were not to
discriminate in considering the applications of any of these "former employes."
From Smith's testimony, the substance of the Respondent's petitions, and Wood's
memorandum of November 17, it appears, and the undersigned finds, that, accord-
ing to the Respondent's thinking, strikers had lost their employee-status upon
being replaced.
43 See Section III, B (1), above
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas Melville, chairman of the Workmen's Committee for the gasoline unit,
testified and Superintendent Beauchamp denied, that on November 7, Beauchamp
told him that if the strikers came back at that time, they would come back
as "new men." The undersigned credits Melville's testimony.
d. Conclusions
The General Counsel contends, and the Respondent denies, that, both by the
sending of the September 28 letter to all the strikers, and by the statements
thereafter made by its superintendents and supervisors to the strikers, the Re-
spondent solicited the strikers' return to work and their abandonment of the
strike on or before October 4, and conditioned their return after that date upon
loss of seniority.
The arguments of counsel focus particular attention upon the following por-
tions of the letter :
Employes who return to work on or before October 4, 1948, will find jobs
available for them. After October 4, 1948, full measures will be taken to
fill all remaining vacancies from every available source. As to those em-
ployes who do not return to work on or before October 4, 1948, the Company
will take whatever action may be deemed to be proper at the time.
•
If you want to return to work, you should communicate with your Fore-
man or Superintendent for instructions.
The Respondent argues that the letter was perfectly proper and even com-
mendable, since it did no more than inform the strikers, as a matter of fairness
to them, that they could be sure of keeping their jobs if they returned to work by
October 4, but after that date, in accordance with the decision of the Supreme
Court in the Mackay Radio case," their rights to reinstatement as economic strik-
ers would depend upon whether their jobs had in the meantime been filled by the
Respondent's contemplated hire of permanent replacements. The Respondent's
argument, in sort, is that an employer has the right to make fair statements to
strikers of the law which governs the continuance of their relationship with him,
and that if such statements should imply or suggest an invitation to return to
work, the implication or suggestion is unavoidably incidental to the exercise of
the right and therefore permissible.
But, in making this argument, the Respondent does not recognize the fair,
full import of the letter of September 28. It is true that, in the first two of
the sentences which have just been quoted, the letter assured the strikers that
their jobs would not be filled before October 4, and that they would be reinstated
if they sought to return on or before that date. To this extent, the letter did
in effect state that the Respondent would observe the requirements of the Mackay
doctrine. But the Mackay doctrine is much more than this. It requires an
employer to grant full reinstatement to economic strikers on their application
so long as their jobs have not been filled. The letter not only failed to give this
assurance beyond October 4, but, by the language of the third sentence in the
portion just quoted, reserved to the Respondent, in case of strikers' applications
after October 4, the right to "take whatever action may be deemed proper at
the time." Thus, the letter of September 28 on its face withheld from the
strikers the assurance, to which they were entitled under the Mackay rule, of
a continued right of reinstatement with unabated seniority, upon application
even after October 4, if, and so long as, their particular jobs had not been filled.
44 N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333.
THE TEXAS COMPANY 1401
Certainly, as the General Counsel argues, the normal, reasonable meaning of
this letter to the striker who received it and whose job and seniority were at
stake, was that the Respondent was asking him to return to work and also telling
him that, if he did not do so on or before October 4, he might lose his job or his
accumulated seniority even though he might not have been replaced.
If there were any doubt that this was the calculated as well as reasonable
meaning of the letter, it would disappear upon consideration of (1) Division
Manager Wood's later memorandum of October 6, in which he expressly reserved
for the Respondent the light to decide whether strikers returning after October
4 would retain their accumulated seniority; and (2) the statements made to the
strikers by the superintendents and supervisors after September 28 and October
4. (See Section III, B. 1 (b), above.) From Wood's memorandum, it is clear
that, in his drafting of the critical language of the September 28 letter, he had
in mind the possible loss of seniority in the event of failure to return by October
4. From the statements made by the superintendents and supervisors to the
strikers, it is also clear that they not only repeated and laid stress upon the
letter's invitation to return to work, but, in support thereof, also developed the
letter's threat of a loss of seniority. For, in each conversation in which they
or the strikers referred to the terms and conditions of return, they either failed
to dispel, encouraged, or confirmed the strikers' fears that, under the letter, the
strikers returning after October 4 would not retain their accrued seniority.
The undersigned accordingly finds that by the letter and the statements of
the superintendents and supervisors on or before October 4, the Respondent not
only invited the strikers to return to work and abandon the strike, but sought
to induce them to do so, by threatening to condition a later return upon loss
of seniority.
Superintendent Loomis' statement to Summerfelt's group on October 8 con-
tinued the Respondent's threats of a loss of seniority for strikers who had re-
turned after October 4 or who might still seek to return, for he said merely that
the Respondent had not yet decided what it would do with respect to this matter.
Although at this point the threat of loss of seniority no longer served as a prod
upon the strikers to accept the Respondent's invitation to return to work, it still
constituted a refusal by the Respondent to recognize the seniority rights of any
strikers who might thereafter come back to work. In effect, therefore, it con-
ditioned the return of these strikers upon the loss of their seniority. The under-
signed so finds."
In sum, the undersigned has found, in accordance with the General Counsel's
argument, that, both by the sending of the September 28 letter to all the strikers
and by the statements thereafter made its superintendents and supervisors, the
Respondent urged the strikers to return to work and abandon the strike on or
before October 4, and also conditioned their return after that day upon loss of
seniority. In urging the strikers to return to work and thus to abandon the
strike which was undertaken in support of the bargaining demands made by their
In view of the intervening full replacement of the strikers and the Respondent's
apparent belief that they thereby lost their employee status, the undersigned does not
find Superintendent Beau champ's statement to Melville on November 7 that strikers would
thereafter return as " new men ," to be a further indication of the Respondent' s imposition
of loss of seniority as a condition of future recall. Nor, in view of the layoff provisions of
the contracts, does the undersigned find such an indication in the Respondent' s require-
ment that strikers , like "laid off employees ," fill out employment applications and undergo
physical examinations before returning to fill vacancies after November 1 Furthermore,
since it is not within the scope of the complaint , the undersigned does not consider nor
decide the question of whether it was proper for the Respondent to treat these returning
strikers exactly as if they were laid -off employees by iequiring them to show satisfaction
of the Respondent' s minimum standard of physical fitness.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives, the Respondent violated its obligation under the Act to deal
with the Unions as their statutory bargaining representatives and not to
undermine their authority as such representatives by dealing with the employees
individually' In conditioning reinstatement of strikers after October 4 upon
the loss of existing accumulated seniority rights for purposes of future promo-
tions, demotions, and layoffs, the Respondent imposed unjustifiable conditions
upon their reinstatement," and, before October 4, sought thereby to coerce the
strikers to return to work in accordance with the invitation expressed in the
letter of September 28 and the oral invitation by superintendents and supervisors.
In each of these respects, the Respondent, in violation of Section 8 (a) (1) of the
Act, interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed to them in the Act.
In making these findings and reaching these conclusions, the undersigned has
considered arguments of the Respondent's counsel (1) that, since an employ'er's
solicitation of strikers to abandon a strike is an unfair labor practice only when
it undermines or tends to undermine the exclusive bargaining authority of their
statutory representative, it must be pleaded in the complaint as a refusal to
bargain in violation of Section 8 (a) (5) of the Act, which was not done in the
present case; and (2) that the history of amicable bargaining relations between
the Respondent and the Unions demonstrates an absence of antiunion animus
on the part of the Respondent, which must be weighed heavily, if not conclus-
ively, against a finding that the Respondent committeed the unfair labor
practices with which it is charged in the present case.
The undersigned rejects the first of these arguments because it ignores the
fact that the present proceeding, as has already been noted, has been brought
not to enforce the incidental rights of the statutory representatives to bargain
with the Respondent, but to enforce, in the public interest, the rights of the
employees to be free from their employer's interference with their concerted
activities, and from any discrimination which may be a part of that interference.
Thus, as the undersigned has found, an employer's solicitation of strikers to
abandon a strike in support of a statutory bargaining representative is clearly
an interference with the employee's right to engage in concerted activities and
is violative of Section 8 (a) (1) of the Act. Contrary to the Respondent's
argument, it is immaterial that it might also have been found to be a refusal
to bargain in violation of Section 8 (a) (5) of the Act, if the Respondent had
been so charged in the complaint."
With respect to the second of these arguments of the Respondent, the under-
signed believes that he has given the appropriate consideration and weight to
the previous history of the Respondent's amicable relations with the Unions.
Certainly, the prior innocence of a particular Respondent does not preclude a
finding of recent unfair labor practice where the credible evidence and applica-
tion of the rules of law otherwise warrant it. It does, however, serve to resolve
doubtful points of credibility and inference in his favor.' That this has been
done, should be apparent. Indeed, in the present case, such resolutions of
conflicting evidence as has been made against the Respondent have seemed
justified to the undersigned not only upon the strength of the testimony of the
46 N. L R. B v. Electric City Dyeing Co., 178 F. 2d 980 (C. A 3) ; Samuel Bingham's
Son Mfg Co., 80 NLRB 1612, Kansas Milling Co., 80 NLRB 925; Anchor Rome Mills,
86 NLRB 1120; Cathey Lumber Co, 86 NLRB 157; Cincinnati. Steel Castings Co., 86
NLRB 592.
47 The General Electric Company, 80 NLRB 510.
'B See the Bingham and Kansas Milling cases, above, in which the Boaid found violations
of Section 8 (a) (1) but not of Section 8 (a) (5).
49 Colgate Mfg Corp , 85 NLRB 864
THE TEXAS COMPANY 1403
General Counsel's witnesses, but upon their consistency with the plain intent-
ment and effect of the Respondent's letter of September 28 and the various
memoranda and testimony of the Respondent's witnesses concerning its position,
including Division Manager Wood's management memorandum of October 6.
2. The Respondent's refusal and continued failure to reinstate the claimants as
unfair labor practice strikers
The remaining question in Case No. 21-CA-295 is whether the Respondent's
violations of Section 8 (a) (1) of the Act prolonged and converted the strike
into an unfair labor practice strike. As the Board said in the Anchor Rome
Mills case, 60
An employer's unfair labor practices during an economic strike do not
automatically convert it into an unfair labor practice strike. Such conver-
sion will be found only when there is proof of a causal relationship between
the unfair labor practices and the prolongation of the strike.
In the Anchor Rome Mills decision, the Board found that the respondent-
employer committed unfair labor practices in violation of Section 8 (a) (1)
of the Act during an economic strike by sending letters to 3 strikers (out of a
total of more than 60 strikers), advising them that they had been replaced, and
threatening to discharge them if they did not apply within 5 days for the jobs
which were still available. In deciding that these'unfair labor practices did
not prolong and thus did not convert the strike into an unfair labor practice
strike because there was no showing of cause or relation, the Board referred to
the stalemate in bargaining which caused the strike, a statement by a union rep-
resentative that the strike would continue until a "reasonable contract" was nego-
tiated, the absence of any discussion at the bargaining conferences of the rein-
statement of the strikers who had received the letters, and also the absence of
any indication "the reinstatement of strikers was at any time at issue between
the Union and the Respondent." Continuing, however, the Board stated :
Furthermore, it does not appear that the Union knew of the three letters
which the Trial Examiner found prolonged the strike, that the three
strikers at any time applied for and were denied reinstatement, or that such.
application appeared to be futile It is clear, therefore, that the disagree-
ment regarding contract terms which caused the strike remained the sole
obstacle to its settlement. [Emphasis supplied.]
In the Kansas Milling Co. case," the Board found that a conversion of a strike
into an unfair labor practice strike had resulted from a respondent-employer's
warnings to employees that they might or would lose their jobs if they persisted
in striking and that they would be considered as having vacated their jobs
if they did not return to work by a specified date. The Board found "that this
position of the Respondent became the `paramount issue' in negotiations to
settle the strike," that its effect was to prolong the strike, and, therefore, that the
strike was converted into an unfair labor practice strike.
Although the Anchor Rome Mills decision and the Kansas Milling Co. decision
thus indicate that an employer's unfair labor practices may be the cause of
prolonging and converting a strike by becoming a contributing factor in a decision
made by the union or the strikers not to return to work, the Board's decision in
the Cathey Lumber case," shows clearly that they may also be regarded as
50 Anchor Rome Mills, Inc., 86 NLRB 1120.
"1 86 NLRB 925
52 Cat hey Lumber Company, 86 NLRB 157.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
causing a prolongation and conversion of the • strike, if they, "demonstrably,"
strengthen the employer's hand in continuing his own contest of the strike. Ror,
in its decision of the last mentioned case, the Board found that a respondent-
employer prolonged a strike by unlawfully soliciting the return of strikers, and
thereby converted the strike into an unfair labor practice strike as of the date
it began the solaertations. In explaining this conclusion, the Board said:
. . . The individual solicitations occurred during the period from October 8
to October 13, 1946 . . . These successful solicitations helped the Respondent
secure a working force sufhciently large to enable it to resume capacity
operations on October 14, 6 days after the start of the strike. With the
resumption of operations, the Respondent's hand in resisting the Union's
demand was demonstrably strengthened.... Beyond peradventure of a
doubt, therefore, the Respondent's illegal solicitations, which augmented the
Respondent's strike-breaking working force, were instrumental in prolonging
the strike. Accordingly, we find that on October 8, 1946, the strike which was
economic in its inception, became an unfair labor practice strike. . . .
As the economic strike Was transformed into an unfair labor practice
strike on October 8, 1946, the Respondent on that date, forfeited ,its right
permanently to replace the strikers. . .
The undersigned agrees with the General Counsel that the Respondent's
unfair labor practices prolonged and converted the strike into an unfair labor
practice strike on September 28, the date of the Respondent's letter to all
strikers. As in the Cathey case, the Respondent's solicitation by this letter and
the statements of its supervisors to strikers before October 4, certainly "helped
the Respondent secure a working force sufficiently large to enable it to resume
capacity operations. . . " That the Respondent was by that time seriously
concerned and affected by the month-old strike is evidenced by Division Manager
Wood's testimony that it decided'that a resumption of operations was necessary
to avoid drainage. Resumption of operations without losing the strike was
made possible for the Respondent by the return of a substantial nwnber of
strikers after the September 28 letter and the individual solicitations of the,
supervisors. That the Respondent, like the respondent in the Cathey case, thus
prolonged the strike seems evident.
The undersigned also believes that the Respondent's conditioning' the return
of strikers after October 4 upon loss'or possible loss of seniority also contributed
to the decision of the strikers not to return to work, thereby also prolonging the
strike. Under the Act, the strikers were entitled upon application to return to
work in available jobs with the full rights they had enjoyed before the strike.
began. But the letter of September 28, the supervisors' statements and Super-
intendent Loomis' remarks to Summerfelt's group on October 8 at first indicated
that they would not retain their prestrike seniority and then, that retention
would depend upon the Respondent's decision as to their return.. Under the
circumstances, it was futile for them to seek the reinstatement to which they
were entitled.
Having thus found that the Respondent's unfair labor practices converted the
strike into an unfair labor practice strike on September 28, before.any of the
claimants had been replaced by new employees, the undersigned finds that by
refusing to reinstate them on their applications on or after November 1, the
Respondent discriminated in respect to their hire and tenure of employment by
discouraging membership in the Union.
THE TEXAS COMPANY
IV THE ALLEGED UNFAIR LABOR PRACTICES IN CASE NO. '21-CA-375
A. Introduction
1405
George Cody was employed by the Respondent in the pipeline department in
the Los Angeles Basin District in various rank-and-file jobs from laborer to field
gauger from April 6, 1928, until February 1948, at which time he was promoted
to become an assistant foreman. On September 28, 1948, during the fourth week
of the strike, he was discharged. Failing in applications to secure reinstate-
ment, he then applied for a rank-and-file job with the Respondent. The Re-
spondent rejected this application.
It is undisputed that the Respondent's discharge of Cody as an assistant
foreman was not a violation of the Act, since Cody was then a "supervisor" and
not an "employee" within the meaning of the Act. The General. Counsel con-
tends, however, and the Respondent denies, that the Respondent's refusal to
hire Cody in a rank-and-file job on and after November 16, 1948, constituted dis-
crimination in violation of Section 8 (a) (3) of the Act.
B. The facts
Befo're` and after his promotion to the assistant foremanship in February 1948,
Cody was reco'g'nized as a good; capable worker. He was also very active in the
Oil `V6" keis which he joined in 1934. In 1941 he took successive leaves of
absence from his work for the Respondent for a continuous period of approxi-
mately 18 months to serve as an internatioiial representative of the Oil Workers.
Sometime' after his return to work for the Respondent, and for an unspecified
period ending- with his promotion to assistant foreman in February 1948, he
served Local` 128 as the chairman of its Texas Company unit, participated in
that Loc'al's contract negotiations with the Respondent, was one of the signers
for the Oil Workers of th'e resulting contracts in 1947, including the contract
covering the refinery and pipeline employees, and Handled' grievances under
that contra'ct,' first with' Superintendent Dreyer and Assistant Superintendent
Jones, and'theii; when' necessarS, also at higher levels.. When he was promoted
to become assistant foreman, Cody secured a` withdrawal card from the Oil
Workers"at the request of Sliperintendeiit Dreyer.
Cody was on' vacation froin August 23' to September 12, 1948. Pour or five
days before he was to return to work, lie telephoned Assistant Superintendent
Jones and was told tliat there was a strike. Cody laughed and said it looked
as' if he could' liave some more vacation., Jones told him, however, that he
should' coine back to work on Monday, September 13, because the Respondent
had'a picket'lind puss for lino froni'the Oil Workers to do maintenance, safety,
and patrol work:
Cody, receiving his pass, patrolled the Respondent's lines and checked its pump
stations, and'made reports to Superintendent Dreyerlfrom September 13 to Sep-
tember'2S; inclusive. On several occasions he noticed that oil was being pumped
through the lines and on one occasion he asked Letson, the foreman, what was
going on'but Letson said he did not know.
On Thursday, September 21, according to Cody's testimony, Chief Dispatcher
Evans, referring to papers which lie held in his hand, told Cody "that these
strappings" [have] to be delivered" to the office, and Cody answered that Evans
^ A strapping is a table, specially prepared for each of the oil tanks, for converting
into'barrels the linear measurement of the difference between high and low gauges shown
on a run ticket Run tickets are reports which are ordinarily made out by gaugers and
which show the temperature and the high and low gauges on a change in level of a
tank. e g , on a shipment from a tank Both run tickets and stiappings are normally
delivered to the office.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"could depend that [Cody ] wasn't going to take them for him " On the following
day, Evans told Cody that certain run tickets had to be delivered to the office and
placed them on Cody's desk Cody, however, left them on his desk and started
on his patrol. When he returned they were gone. In his testimony Cody gave
Flo reason for not delivering the run tickets but said that he had refused to
deliver the strappings on the preceding day "because the strappings that are
sent out to the various companies . . . are to show on the run tickets as to how
much oil was shipped from a tank. I wanted no part in the operation."
Cody was injured in an automobile accident on Thursday , September 23, and
Assistant Superintendent Jones excused him from work from Saturday, Sep-
tember 25 , through Tuesday, September 28. On Monday , however, Assistant
Superintendent Jones telephoned Cody to return to work on Tuesday, September
28, and on that day Cody reported to Jones' office.
Jones thereupon told Cody "that the Respondent had changed their minds
now," that they were going to start up operations and that in lengthened, over-
time schedules , the men were to ride in pairs, with Huso, a junior engineer, as
Cody 's partner . Jones also told Cody that Cody was to gauge and sample three
tanks at the Yorba Linda Pumping Station sometime before October 1, for a
"first of the month report." 34 Cody objected to gauging and sampling , because
as he then told Jones , it was work normally done by nonsupervisory employees.
He also reminded Jones of his long service on the Union 's committees since 1933
and said that he had "an actual fear of what would happen to [his] family and
[his] home because of [his] activities in the Union."
During this conversation between Jones and Cody, Superintendent Dreyer
entered Jones' office. Jones told Dreyer that Cody "didn't see fit" to do the
work assigned to him and asked what should be done about it. Cody repeated
what he had told Jones and then, when Dreyer said that he must perform his as-
signment, he asked Dreyer "if he couldn't call [his] partner and let him do the
work." Dreyer answered that it would not be fair to do that , and that if Cody
"couldn't do the work," they would have to discharge him. Cody then told
Dreyer "he would have to give the order," whereupon Dreyer said that he wanted
Cody to gauge and sample the Yorba Linda tanks and "get the station ready to
run." 65 Cody refused , and was discharged.
On the same day, Cody secured the cancellation of his withdrawal card from
the Oil Workers and addressed a meeting of the Respondent 's striking employees.
Thereafter , he made trips to other locals of the Oil Workers to secure strike
contributions and spent most of the rest of his time at the office of Local 128.
He also addressed a meeting of striking employees of the Standard Oil Com-
pany. Since November 22, 1948, he has been employed "on and off" by Local 128.
Beginning with November 4, Cody made a series of attempts , first to regain
his job as assistant foreman and then , on and after November 16, to secure em-
ployment with the Respondent in a rank-and-file job.
On November 4, Cody asked E. B. O'Connor , manager of the Respondent's Pipe-
line Department in the Pacific Coast Division, to be reinstated. He agreed with
O'Connor that he had made a mistake as a foreman but said he did not under-
stand why he could not return to work as had the rest of the employees.
64 Jones gave no testimony concerning this conversation , the findings with respect thereto
are based upon Cody ' s testimony . Although Cody testified on direct examination that
Jones also told him "to get the [ Yorba Linda Pumping] Station to run ," he modified
his testimony on cross -examination by saying that this statement was made to him, not
by Jones, but by Superintendent Dreyer who later appeared and joined in the conversation
6°'The finding as to this particular statement by Drever is based upon Cody's testimony
in spite of Dreyer ' s denial Otherwise the findings as to this conversation are based upon
the consistent testimony of Dreyer and Cody.
THE TEXAS COMPANY 1407
O'Connor said that, in view of the circumstances of his discharge, Cody had to
make his peace with Superintendent Dreyer before he could be rehired and
made an appointment for Cody to see Dreyer.
On November 8, Cody met Superintendent Dreyer at the pipeline headquarters
in the Los Angeles Refinery Works near Wilmington. Cody asked that he be
returned to his job as a supervisor, stating that it had been difficult for him to
decide not to do the work assigned to him and that, at O'Connor's suggestion, he
had come to see Dreyer to "make amends." In the discussion, Dreyer asked
whether Cody, if returned to a supervisor's job, would go through the picket
lines at certain points on the Company's properties and those of the Richfield
Oil Company and the Union Oil Company. Cody said that he thought it was
awfully unfair to ask that of him and that his answer was that he could not do
it on September 28, and he still could not do it. Dreyer told Cody that he would
consider Cody's request for reinstatement and would give Cody an answer with-
in a week. On November 11, Dreyer called Cody on the telephone and told Cody
that his decision was still the same as it was on September 28 and that he wished
Cody much success in finding a job elsewhere.
On Monday, November 15, Cody told O'Connor of his visit to Dreyer and
Dreyer's answer. O'Connor said that he thought, from a conversation he had
with Dreyer, that perhaps Cody had been "a little bit too cocky," when he asked
Dreyer for his job back. O'Connor also asked Cody whether he was sure he
wanted to work for The Texas Company and upon Cody's affirmative answer,
O'Connor said, "My reasons for asking that I think you have a lot to contribute
to organized labor. Maybe you should make your career out of that." Cody
Raid that a respresentative has no home life. O'Connor asked what Cody wanted
him to do. Upon Cody's suggestion of his meeting with both O'Connor and
Dreyer at the same time, O'Connor refused, stating that he thought Cody
himself should make amends with Dreyer. Cody said he recognized O'Connor's
position. O'Connor said in substance that be could order Dreyer to put Cody
back to work but that he did not think that was the right thing to do-that he
thought Cody should make amends with Dreyer. At Cody's request O'Connor
made another appointment for Cody to see Dreyer on November 16.
On November 16, Cody again saw Superintendent Dreyer and told him that,
as a foreman, he had probably made some mistakes but that now he was asking
for "any job." He also told Dreyer in substance that he thought it was an
excessive penalty to discharge a man like him with such long service with the
Company and referred to other cases in which employees had been merely de-
moted. Dreyer told Cody that he thought Cody's act "was a premeditated act,
that if it had been something . . . done on the impulse of a moment, he might
be able to excuse it." At the end of their conversation, Dreyer said that he
would consider the matter and give Cody an answer later. On November 19,
Dreyer telephoned Cody and told him that his decision was still the same as
it was on September 28 and that he again-wished Cody much success in finding
employment elsewhere.
On receiving Dreyer's telephone call on November 19, Cody again appealed
to O'Connor by telephone, stating that he was getting "double talk" from Dreyer
and asked that O'Connor arrange to meet both Dreyer and Cody. O'Connor said
he was not satisfied with Dreyer's answers to Cody and would telephone to Cody
about the matter later on.
Not hearing from O'Connor, Cody wrote him a letter on December 16, 1948,
and then visited him after January 1, 1949. O'Connor again told Cody to make
amends with Dreyer and also suggested getting Cody a foreign job through
the Respondent's refinery superintendent. But Cody said to hold that possi-
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility in abeyance because he was going to do all he could to get a job in the
pipeline department. '" ' '
On February 1 or February 2, 1949, Cody saw Dreyer for the- last time and
was told by Dreyer in effect that the matter of Cody's application for work and
Dreyer's reasons for refusal had been fully discussed and was ended.
C. Conclusions
The General Counsel argues that the Respondent's refusal on and after
November 16 to hire Cody in a rank-and-file-job was based upon his "excessive
loyalty" to the Oil Workers ; the Respondent argues that its refusal was based
upon Cody's improper refusal as a supervisor to' perform work assigned to him
by the Respondent when he, thought it adversely affected the intei•ests of the
Oil Workers and the strikers and his insistence at the same time that he be
permitted to continue as a supervisor in the performance of other functions.
Regardless of approach, the critical point of disagreement is whether the Re-
spondent refused to hire Cody in a rank-and-file job in order "to discourage
membership in a labor organization" • (i. e, the Oil Workers), within the
meaning of, and in violation of, Section 8 (a) (3), of the Act.
Although Cody was extremely active and prominent in the Oil Workers' activi-
ties both before his promotion to the assistant foremanship and after his dis-
charge, the evidence does not persuade the undersigned that his membership in,
and aggressive support of, the Oil Workers, or the prospect of his resuming these
activities in a rank-and-file job, was the reason for the Respondent's refusal to
permit Cody to return as a rank-and-file employee. There was never any in-
terference by the Respondent with these activities on Cody's part nor any indica-
tion that it was disturbed by his long and effective service for the Unions On the
contrary, the Respondent promoted him and made him a supervisor.
On the other hand, upon the evidence, it seems clear that the real reason for
the Respondent's refusal to permit Cody to return to work as a rank-and-file
employee was the same as the reason for which he was discharged as an assistant
foreman; namely, that, as an assistant foreman, he had improperly refused to
perform services because, in his opinion, they would help the Respondent and
injure the chances of the strikers in the strike contest. In cases of this sort,
supervisors, not being employees but representatives of the employer, may be
expected by the employer to assist him in resisting the strike by continuing his
business during and in spite of the strike. Thus, an employer's discharge of a
supervisor because of a refusal by him to render this assistance (unless it be a
refusal to participate in an unfair labor practice or to commit other unlawful
acts), cannot be said to have as its objective or necessary result, the discourage-
ment of membership in the striking union.
Nor can a subsequent refusal by the employer for the same reason, to hire the
erstwhile supervisor as a rank-and-file employee be regarded as discouraging
membership in a union For it is based neither upon the membership of the
former supervisor in a union nor any protected activities on his part on behalf
of the union in question On the contrary, it rests solely upon his unprotected,
prior refusal as a supervisor to align himself with his employer rather than with
the striking employees, in the employer's legitimate contest of the strike
The undersigned finds, therefore, that the Respondent, by refusing to reemploy
George Cody as a rank-and-file employee, did not discriminate with regard to his
hire and tenure of employment, in order to discourage membership in a labor
organization, in violation of Section 8 (a) (3) of the Act
THE TEXAS COMPANY
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
1409
The activities of the Respondent set forth in Section III, above, occurring in
coiinection'with the operations of the Respondent described in Section I, above,
have a close, intimate; and substantial'reliition to trade, traffic, and commerce
among the 'several States and tend to lead to labor disputes burdening andd
obstructing commerce and the free flow of commerce
.,
VI. THE REMEDY
Since it has been found that the Respondent has engaged in unfair labor prac-
tices withiii'the meaning of Section 8 (a) (1) and (3) of the Act, the undersigned
will recommend that it cease and'desist therefrom and take certain affirmative
action in order to effectuate the policies of the Act.
The undersigned has found that the Respondent's unfair labor practices pro-
longed and converted the strike into an unfair labor practice strike on September
28, 1948, before any new employees were hired to replace the strikers ; that, dur-
ing the strike, the number of jobs in each of the three bargaining units in the
present case was slightly reduced, but without intent to discriminate against the
strikers, and, finally, that on and since November 3, 1948, -the Respondent has
discriminated against the claimants named in Appendices A, B, and C by refusing
to reinstate them to their former positions in the employ of the Respondent.
The undersigned recommends that, in order-to effectuate the policies of the Act,
the Respondent offer the individuals named in Appendices A, B, and C, full rein-
statement to their former or substantially equivalent positions" without preju-
dice to their seniority and other rights and privileges, in the following manner:
All new employees hired after September 28 in the Los Angeles production unit,
the gasoline unit, and the Ventura unit, shall, if necessary to provide employment
to the claimants, lie dismissed ; if thereupon there is not sufficient employment
immediately available for the remaining claimants, all available positions shall
be distributed in accordance with the Respondent's usual methods of reducing
its force without discrimination against any employee because of his union affilia-
tion or union activities, following the system of seniority provided by the terms
and conditions of the 1947 contracts between the Respondent and the Oil `Yorkers
and its Locals, which have been referred to and discussed in this Report. Those
claimants who still have not been reinstated after such distribution shall be
placed upon a preferential list prepared in accordance with the principles set
forth in the previous sentence and shall thereafter, in accordance with such lists,
be offered employment in their former or substantially equivalent positions as
such employment becomes available and before other persons are hired for such
work.
The undersigned further recommends that, in order to effectuate the policies
of the Act, the Respondent make the claimants whose names are listed in Appen-
dices A, B, and C, whole for any loss of earnings they may have suffered by reason
of the Respondent's discriminatory failure to reinstate them, by payment to each
of them of a sum of money equal to that which he normally would have earned
as wages during the period from the date of the discrimination to the date of
the Respondent's offer of reinstatement or placement of his name upon the pref-
erential hiring list, less his net earnings, if any, during such period."
In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position when-
ever possible, but if such position is no longer in existence, then to a substantially
equivalent position " See The Chase National Bank of the City of Neic York, San Juan,
Puerto Rico Branch, 65 NLRB 827, 829
Si See Crossett Lumber Co ,•S NLRB 440
943732-51--90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with his findings in Case No. 21-CA-375, the undersigned also
recommends that the amended consolidated complaint be dismissed so far as
it alleges that the Respondent discriminated against George Cody in regard to
his hire and tenure of employment in violation of Section 8 (a) (3) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record of
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union and Locals 120 and 128 thereof, which
are affiliated with the Congress of Industrial Organizations, are labor organiza-
tions within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of the
claimants named in Appendices A, B, and C, attached hereto, thereby discourag-
ing membership in Oil Workers International Union, Locals 120 and 128 thereof
(all affiliated with Congress of Industrial Organizations), the Respondent has
engaged in and is engaging in, unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
3 By interfering with, restraining, and coercing its employees in the exercise
of the 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.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
5. The Respondent did not discriminatorily refuse to employ George Cody to
discourage membership in a labor organization.
[Recommended Order omitted from publication in this volume.]
AMERICAN BROADCASTING COMPANY, INC. (KECA-TV) and SCREEN
DIRECTORS GUILD OF AMERICA (INCORPORATED ), PETITIONER. Case
No. 21-RC-1377. April 16, 1951
Decision and Order
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Eugene M. Purver,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error are hereby affirmed.l
Upon the entire record in this case, the Board finds : 2
1. The Employer is engaged in commerce within the meaning of the
Act.
i The Petitioner's motion to deny intervention by Hollywood Local, Radio and Television
Directors' Guild, AFL, hereinafter referred to as the Intervenor, on the ground of alleged
fraud in complying with Section 9 (f), (g), and (h) of the Act, was rejected by the
hearing officer. The Board has consistently held that investigating the truth of affidavits
filed under Section 9 is by the Act made a function of the Department of Justice. Seaboard
Radio Broadcasting Corporation, 92 NLRB No 55.
2 The requests of the Employer and the Intervenor for oral argument are hereby denied
as the record and briefs, in our opinion, sufficiently present the issues and the positions
of the parties.
93 NLRB No. 245.