Idaho Refining Co.

National Labor Relations Board - Board Decisions

Feb 25, 1943

47 N.L.R.B. 1127 (N.L.R.B. 1943)

r
,In the Matter • of IDAHO REFINING COMPANY and TEAMSTERS,
CHAIIFFEUP,S, WAREHOUSEMEN AND HELPERS, LOCAL No. 983,
A. F.L.
In the Matter Of IDAHO REFINING COMPANY and INTERNATIONAL
ASSOCIATION OF MACHINISTS, LOCAL No. 198, AFFILIATED WITH THE
A.F.L.
Case Nos. C-2380 and CD381, respectively. Decided February ^9,5,
1943
Jurisdiction : oil refining industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: activities of officials and supervisory
i employees in interrogating employees as to union membership, instructing
them not to engage in union 'activity, threatening to discharge them because
of their union membership, declaring that the union could be of •no"benefit
to the employees and that the respondent was opposed to-"outside" unions,
and expressing a preference for the "inside" organization. -
Company-Dominated Union: attendance of officials and supervisory employees
at organizational meeting held on company property; membership in aad
participation of officials and supervisory employees in the affairs of the
organization ; meetings on company property ; operation by the organization
of concessions on company property, pay-roll deduction by respondent of
employee purchases at such concessions and other assistance by respondent
in operating such concessions;. grant of dues check-off without proof of
majority ; disparity in treatment of "inside" and "outside,' organizations.
Discrimination: truck drivers at one of respondent's plants, held to have been
discharged for union membership and activities and not because of cancella-
tion of-insurance on trucks because of high loss ratio and accident frequency;
a driver working outside plant held to have been discharged for union mem-
bership,,and not because of accident had several weeks prior to discharge ;
employee who was active in organizing the drivers at the plant and who was
discharged on same day that the drivers were discriminatorily discharged,
held to have been discharged because of his union membership and activities
and not because of various derelictions attributed to him by respondent.
Collective Bargaining: charges of refusal. to bargain, dismissed when respond-
ent's request for proof that union represented majority was found under the
circumstances to have been made in good faith, and union failed to present
such proof. '
Remedial Orders : cease and desist unfair labor practices; dominated union, dis-
established, and contract therewith abrogated ; respondent's offers of employ-
ment on the loading dock to discharged drivers held not to have been offers
of substantially equivalent employment ; employment in respondent's ware-
house held not to have been substantially equivalent to employment as a truck
driver; respondent's contention that four' of the discharged drivers would. in
47 N. L. R. B., No.,142.
1127
B
J
1128- DECIISIIOiNS OF NATIONAL LABOR RELATIONS BOARD
any event have been discharged because 'of the decrease in the number of driv-
ers required during the winter held without merit, when the four drivers in
question were replaced during the winter; discharged drivers, except those
involved in serious accidents, ordered reinstated with back pay.
Definitions : relationship between respondent and two other companies held to
constitute respondent the employer of- the employees of these, companies.
DECISION
AND
ORDER
Upon a complaint issued pursuant to charges filed by Teamsters,
Chauffeurs, Warehousemen and Helpers, Local No. 983, A. F.: of L.,
herein called the Union, and by International Association- of Ma-
chinists, Local No. 198, A. F. of L., against Idaho Refining Company,
Pocatello, Idaho, herein called the respondent, a hearing was held
before a Trial Examiner in Pocatello, Idaho, from August 3 to 13,
1942, in which the Board, the respondent, and Idaho Refining Com-
pany Employees' Benefit and Labor Association, herein called the As-
sociation, participated by their representatives. The Board has re-
viewed the Trial Examiner's rulings on motions and on objections to
the admission of evidence and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
On October 20, 1942, the Trial Examiner issued his Intermediate
Report, attached hereto, in which he found that the respondent had
engaged in unfair labor practices. Thereafter, the respondent filed
exceptions to the Intermediate Report and a brief in support of its
exceptions. Oral argument was held before the Board at Washing-
ton; D. C., on January-7,1943.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, except insofar
as they are inconsistent with our decision and order hereinafter set
forth.
1. We'agree with the Trial Examiner's conclusion that the truck
drivers at Pocatello were discriminatorily discharged
That the underlying reason for the discharges was not the cancela-
tion of the insurance, as alleged by the respondent, is evidenced in.
part by the fact that approximately half of the discharged drivers had
never had an accident and therefore- did not contribute to the loss
ratio or accident frequency. In explanation of its action, the respond-
ent contends that it did not have the accident records of the individual
I
We -do not agree with- the subsidiary finding of the Trial Examiner that Gilbert Moyle
told - Evans, one of the drivers, on November 14 that he had been ordered discharged by the
Insurance Company. .
IDAHO REFINING COMPANY 1129
drivers, that it did not have adequate time in which to effect a segre-
gation of those who had never had an accident, and that the discharge
of all the drivers was necessary in order to obtain new insurance. We
find these contentions to be without merit. The record discloses that
the accident records of the individual drivers were available both- at
Salt Lake City, where the respondent contends the decision to dis-
charge was made, and at Pocatello, where we find, as did the Trial
Examiner, the decision was made. Moreover, the accident records
of the-individual drivers could have been readily secured by the
respondent from the Insurance Company and adjusters' bureaus. Nor
do we credit the respondent's contention that it did not have ample
time in which to effect a segregation.
As for the respondent's assertion that it had to discharge all the
drivers in order to obtain new insurance, it is clear that prior to the
discharge no insurance company or agent required that the respond-
ent discharge any of the drivers as a condition to the issuance of a
policy. The respondent contends, however, and Henry Moyle- so
testified, that Gilbert Sheets and Henry Moyle, who were familiar with
the operations - of insurance companies, believed that. no insurance
company would issue a policy unless the respondent discharged all
the drivers. In support of this contention, the respondent points to a
letter dated November 24, 1941, to the respondent from Sweeney, an
insurance broker other than the one who obtained the new insurance,
in which a quotation for new insurance was submitted on the under-
standing that the respondent had discharged all drivers in its employ.
There is also the testimony of Henry Moyle that on November 17,
1941, Watkins, the insurance broker through whom the respondent ob-
tained the new insurance, and Sweeney, both told him that if the
drivers had not been discharged they would not have considered is-
suing a policy- to the respondent.' The foregoing is not persuasive,
however,-in view of the fact that Benson, Sweeney's principal, who was
responsible for the letter of November 24, and Watkins, were merely
advised that the respondent had discharged the drivers and were not
told that some of them had never had an accident. They had heard
that the respondent had a high loss ratio and that the accidents were
generally due to careless driving. With such information at hand,
and in the absence of knowledge that approximately half of the drivers
had never had an accident, it would seem reasonable for them to have
regarded all the -drivers, as a unit, as responsible for the high loss
ratio. It is unlikely that any insurance company would have required
the respondent to discharge drivers with perfect records _and hire
new ones whose ability in handling the respondent's equipment had
not been tested. On the contrary, it would seem that the incentive to
an insurance company's issuance of a policy would have been greater
if the respondent' had discharged only those drivers with accident
1130 DECISIONS OF NATIONAL; LABOR RE'LATbON'S- BOARD
records. This conclusion" is substantiated by Benson's admission that
if he knew that one or more drivers were responsible for a company's
high loss ratio, he would either refuse to write insurance for' that
company at all or demand that the particular drivers be removed.
That the cancelation-of the insurance was not the motivating cause
of the discharges is further evidenced by the respondent's failure to
take any action with regard to drivers operating outside of Pocatello
who had had accidents which contributed to the high loss ratio and
accident frequency.2 The respondent contends that it confined the
discharges to the Pocatello drivers because they were the principal
offenders . However, the record discloses that 4 of the drivers operat-
ing outside • of Pocatello had had serious accidents and 3 had had
minor ones . This is to be compared with the 5 Pocatello drivers who
had had serious accidents and the 3 who had had minor ones. More-
over, of'the 12 drivers who had had accidents on which the Insurance
Company is shown to have suffered a loss, 7 were not Pocatello drivers.
Although 3 of these 7 had had minor accidents on which insubstan-
tial sums were- paid by. the Insurance Company, cancelation of the
respondent's insurance; according to the agent who handled the can-
celed policy, was effected not only because of the amount of the losses
but-also because of the number of accidents, and Gilbert Sheets ad-
mitted that he knew that insurance companies were concerned about
accident frequency as well as loss ratio.
`That the union membership and activities of the Pocatello drivers
.were the underlying cause of their discharge is evidenced-not only
by the inadequacy of the reason assigned by the respondent for the
discharge, and the respondent's general hostility toward outside
unions,3 but also by the statements and activities, properly found by
the Trial Examiner, of Manager, Gilbert Moyle, Foreman Sheppard,
Copening, secretary of the respondent, and Foremen Henninger, Stiff,
'and Rice. Such statements and activities clearly indicate that the
respondent was opposed to the unionization of the Pocatello drivers
2 The respondent contends that some of the drivers : who operated outside of Pocatello
were lessees or independent contractors . The record discloses , however, that some of
those who drove the trucks of the respondent , or of Corey or Idaho, outside of. Pocatello,
were clearly employees , and among them were two who had had accidents on which the
Insurance Company had paid substantial sums Moreover , the respondent did not estab-
lish that it was without power to prevent those who may have been lessees or independent
contractors from continuing to drive the equipment which was covered by the insurance
policy and In which the respondent had some interest.
a The respondent 's hostility toward outside unions is clearly manifested by the conduct
of Its officials and supervisory employees , as properly found by the Trial Examiner, in
interrogating employees as to union membership , instructing them not to engage in union
activity , threatening to discharge them because of their union membership , declaring that
the Union could be of no benefit to the employees and that the respondent was opposed
to outside unions, and expressing a preference for the Association , as well as the respond-
ent's domination and support of the . Association. .
IDAHO REFINING COMPANY
and that their union membership and activities were the motivating
cause of their discharge.4
2. We agree with the Trial Examiner's conclusion that Leo Archi-
bald was discriminatorily discharged. Except with respect to a few
minor derelictions which had occurred some time prior to the dis-
charge, Archibald, whom we find to be a trustworthy witness, denied
the testimony of the respondent's witnesses, whom we find to be in-
credible, regarding the derelictions with which Archibald is charged.
We are convinced that the few minor derelictions which were admitted
by Archibald were not the motivating cause of his discharge. Nor
'do we believe that Archibald's illness on few occasions, or his absences,
during his 10 months' of employment, were responsible for his dis-
charge. Also, we credit Archibald's denial of the testimony of the
witnesses for the respondent that Archibald had been threatened with
discharge on various occasions.
We believe,it significant that Archibald, who was active in organ=
izing the truck drivers at Pocatello ,5 was discharged on November 14,
the same day that the drivers were discriminatorily discharged. The
respondent, in an effort to demonstrate that Archibald's discharge
was in no way connected with that of the drivers, attempted to prove
that the decision to discharge Archibald was made some time prior
to November 14 and not later than November 10, the date of his last
alleged dereliction. That this position is untenable is demonstrated
not only by the inconsistency in the testimony of the respondent's
own witnesses as to when the decision to discharge Archibald was
made, but also by the absence of a clear and consistent explanation
by the respondent as to why Archibald was discharged on November
14 rather than at any other time. Foreman Rice, in his testimony,
assigned different reasons for not discharging Archibald on Novem-
ber • 10, when, according to Rice, the decision to discharge him was
made. He first testified that he had to wait- until "we caught up
on our work" and stated that on November 14, the work was "caught
-up with." 6 However, Subforeman Brown,, as well as Rice himself,
admitted that at the time of Archibald's discharge the mechanics
were as busy as ever. Later in his testimony, the reason given by
Rice for not discharging Archibald on November 10 was that he had
'to wait until he found another mechanic. The record discloses, how-
One of the drivers ( K C Brower ) had not joined the Union . However , we agree with
the Trial Examiner that because of Brower ' s association and employment with the other
drivers, the respondent concluded that he too was a union member and discharged him in
furtherance of its effort to destroy the Union.
In addition to the evidence set forth in the Intermediate Report in support of the con-
elusion that the respondent had knowledge of Archibald's union , activities , we note and
find that many of his activities on behalf of the Union were carried ' on, at the plant.
e We do not concur in the statement of the Trial Examiner that " it may be ,true that by
November 13.Archibald -'bad completed a specific work assginment." ' '
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, that mechanics were available for employment between Novem-
ber 10 and 14, and that, in any event, another mechanic to replace
Archibald was not hired until November 20, 6 days after Archibald's
discharge.
3. We agree with the Trial Examiner's conclusion that Wayne
Douglas' discharge was discriminatory. That- the motivating cause
of his discharge was not his accident at Weiser on October 16, as the
respondent alleges, is amply supported by the record. Douglas was
not discharged until 5-weeks after the accident, and the respondent
has not satisfactorily explained the reason for the delay in-discharg-
ing him. Also, when Douglas was first notified of his discharge,'
no reason was given him for such action and he was told not to ask
any questions. Further, when Douglas inquired of Gilbert Moyle
and Copening a day or two after his discharge as to the reason there-
for, he was told that it was because of the cancelation of the insur-
ance, and no mention was made of the Weiser accident.8
In support of its contention that Douglas was not discharged be-
cause of his union membership, the respondent points to the fact that
five other drivers who were employed with Douglas at Baker, Oregon,
were union members, having joined a local of the Teamsters Union
other than Local 440, and were not discharged. We do not believe
that this circumstance negates a discriminatory motive in the dis-
charge of Douglas. The bulk of the respondent's drivers were em-
ployed at Pocatello, and the evidence clearly establishes that the re-
spondent was perturbed over the unionization of the Pocatello drivers.
We find that Douglas' discharge was motivated by the fact that while
working at Pocatello, he had joined Local 440 of the Teamsters
Union during its organizational drive and that, so far as his union
membership is concerned, he- was identified by the, respondent with
the Pocatello group even though he returned to Baker, Oregon, in the
early part of October 1941.
4: We do not agree with the Trial Examiner's findings and con,
elusion that the respondent refused to bargain collectively with the
Union in violation of the Act. We are not satisfied that at the con-
ference of November 21 between the respondent and the Union,, the
latter purported to represent truck drivers alone. Under these cir-
cumstances, we are not convinced that the respondent's request for
proof that the Union represented a majority was not made in good
7 This was on November 20, when Mrs . Stiff instructed Douglas "not to pull any more
trips, and not to ask any questions ." The record discloses that Mrs . Stiff served as secre-
tary to Mr. Stiff, who we find was a foreman acting on behalf of the respondent, and we
infer from the entire record,that what Mrs. Stiff told Douglas on November 20 was pur-
suant to the instructions of Foreman Stiff or some other representative of the respondent.
8 This finding is based upon the testimony of Douglas, whom we find to be a credible
witness. We do not credit Gilbert Moyle's and Copening ' s denial of Douglas' testimony.
IDAHO REFININIG COMPANY 1133
faith. Since the respondent's refusal to bargain is predicated on the
Union's failure to furnish such proof, we find that under the circum-
stances presented herein, there has been no violation of Section 8 (5)
of the Act.9 We shall accordingly dismiss the complaint insofar as
it alleges that there has been such a violation.ro
The Remedy
We have found that the respondent- discriminated in regard to isle
hire and tenure of employment.of the employees listed in Appendix A,
attached hereto, and of R. E. Miller, one of the discharged Pocatello
drivers. We turn now to a consideration of their reinstatement and
back pay.
We agree with the conclusion of the Trial Examiner that the re-
spondent's offers of employment on the loading dock to some of the
discharged drivers were not offers of substantially equivalent employ-
ment. The nature of the work and the skill required, as well as the
earnings," were substantially different in the two types of employ-
ment.12 We also find, in view of the differences in the nature of the
work and the skill required, that Myron D. Whitesides' employment
in the respondent's warehouse subsequent to his discharge was not sub-
stantially equivalent to employment as a truck driver.
The respondent contends that Guy Campbell, Howard Davis, John
Ray, and Leland Stanford, Who Were extra-board drivers, would in any
event have been discharged because of the decrease in the number of
drivers required by the respondent during the winter season, and that
therefore such drivers should not be reinstated. Foreman Rice testi-
fied that on October 15, 1941, he advised these four drivers that there
would not be sufficient work for them during the winter and that they
should therefore seek other employment. We find this contention to
be without merit. - The record discloses that during the winter the re-
9 In finding that there has been 'no refusal to bargain in this case, we note that the
decision to discharge the drivers was made prior to the Union ' s request for recognition and
collective bargaining. We do not agree with the finding of the Trial Examiner that
James Ayers told Forer*an Rice on November 13 that the drivers were going to present a
contract. The record establishes that Ayers told Rice that the drivers wanted a certain
wage, but it is not clear from Ayers' testimony that he informed Rice that their demands
were being incorporated in a contract which the drivers or the Union were planning to
submit to the respondent. -
10 We accordingly find it unnecessary to determine the appropriate bargaining unit.
11 We do not agree with the finding of the Trial Examiner that their earnings on the
loading dock would have been approximately the same as their earnings as drivers . Since,
according to the testimony of Foreman Henninger, they would have averaged 14 hours
overtime on the loading dock, their earnings in such capacity would have been substantially
less than their earnings as drivers
12 In finding that the offers of work on the loading dock were not offers of substantially
equivalent employment , we do not rely , as did the Trial Examiner , on the fact that nothing
was said to the individuals in question about the restoration of any of their previous
privileges. - -
1134, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent hired drivers to replace all the discharged drivers, including
the four in question .13
• ' The ' respondent also contends that those discharged drivers listed,
in Appendix A whose accidents were caused by their carelessness
should not be reinstated . We have found that the union membership
and activities of the Pocatello drivers, as well as of Douglas , were the
underlying cause of their discharge . Under such circumstances, in
order to effectuate the purposes and policies of the Act , we would nor-
mally require the respondent to reinstate each of them and make each
whole for any loss of pay he may have suffered by reason of the dis-
crimination . However, some of these drivers , namely, Boyd Cornia;
Wayne Douglas, Henry Henricksen , A. Stanley Merrill , and Myron D.
Whitesides , had been involved in serious , accidents .- We do not believe
it would effectuate the policies of the Act to apply our usual remedy
to these-five employees . Accordingly , we shall order the -reinstatement
with back pay, of all the drivers listed in Appendix A, except the five
individuals mentioned above.14
Since R. E. Miller has been reemployed by the respondent as a truck
driver, we shall not order his reinstatement ; however , in order to effec-
tuate the purposes and policies of the Act , we shall order the respond-
ent to make him whole for any loss of pay he may have suffered by
reason of his discriminatory discharge on November 14, 1941 , by pay-
ment to him of a sum of money equal to the amount he normally would
have earned as wages from the date of the discrimination against him
to the date of his reemployment with the respondent as a truck driver,
less his net earnings during such period.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of-the National'Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Idaho Refining Company, its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of Idaho
Refining Company Employees' Benefit and Labor Association, or
12 Thus, a list of the respondent 's truck drivers employed between November 14, 1941,
and March 28, 1942 , which was admitted in evidence , discloses that 17 new drivers were
hired between November 14 and 18 , 1941, to replace the 18 who had been discharged ; that
the employment of 2 of these was terminated by November 27, 1941; that 5 additional
drivers were employed between December 1 and 23, 1941; and that between November 14,
1941, and March 28, 1942, the respondent had an average of 19 drivers in its employ. -
.14The record indicates that some of the. individuals listed in Appendix A whom we
shall order reinstated may have obtained regular and substantially equivalent employ,
'Tent elsewhere since their discharge by the respondent We fled that it will effectuate
the policies of the Act to require the respondent to offer reinstatement to such , persons
whether or not they, or any of them, have obtained other regular and substantially
equivalent employment. See Matter of Ford Motor Company and International Union,
United Automobile Workers of America, Local Union No. 249, 31 N. L. R. B. 994, 1100.
IDAHO REFINING COMPANY 1135
with the formation or administration of any other labor organization
of its employees, and from contributing financial or other'support to
said labor organization or any other labor organization of its
employees;
(b) Recognizing or in any manner dealing,with Idaho Refining
Company Employees' Benefit and Labor Association as the representa=
tive of any of its employees for the purpose of dealing with the re-
spondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or other conditions of employment;
(c) Performing or giving effect to the contract of June 1, 1942, with
Idaho Refining Company Employees' Benefit and Labor Association,
or to any amendment, extension, or renewal thereof, or to any other
contract, agreement or understanding entered into with said Associa-
tion relating to grievances, labor disputes, wages, rates of pay, hours
of employment,, or other conditions of employment;
(d) Discouraging membership in Teamsters, Chauffeurs, Ware-
housemen and Helpers, Local No. 983, or International Association of
Machinists, Local No. 198, both affiliated with the American Federa-
tion-of Labor, or any other labor organization of its employees, by
discharging or refusing to reinstate, or in any other manner discrimi-
nating in regard to their hire or tenure of employment 'or any term
or condition of their employment;
(e) In any other manner interfering with, restraining, or coercing
its employees iii the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activi-
ties for the, purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act.
2. -Take,the following affirmative action which the Board finds will.
effectuate the policies of the Act : -
(a) Withdraw all recognition from Idaho Refining Company Em-
ployees' Benefit and Labor Association as the representative of any of
its employees for the purpose of dealing with the respondent concern-
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or other conditions of employment, and completely disestablish
said Association as such representative;
(b) Offer to the employees listed in Appendix A, except Boyd Cor-
nia, Wayne Douglas, Henry Henrickson, A. Stanley Merrill, and My-_
ron D. Whitesides, immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice to their senior-
ity and other rights and privilege's;
(c) Make whole each of the employees. ordered reinstated ih para-
graph 2 (b) of this Order for any loss of pay he may have suffered
by reason of the respondent's discrimination against-him, by payment
to him of a sum of money equal to the amount which he normally
0
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would have earned as wages from the date of the respondent 's discrim-
ination against him to the date of the respondent 's offer of reinstate-
ment, less his net earnings during such period;
(d) Make whole R. E. Miller for any loss of pay he may have suf-
fered by reason of the respondent 's discrimination against him, by
payment to him of a sum of money equal to the amount which he nor-
mally would have earned as wages from the date of the respondent's
discrimination against him to the date of his reemployment with the
respondent as a truck driver, less his net earnings during such period;
(e) Post immediately in conspicuous places at its plant at Pocatello,
Idaho, and at the premises occupied or used by the respondent at
Baker, Oregon and Boise, Idaho, and maintain for a period of not
less than sixty ( 60) consecutive days from the date of posting, notices
to its employees , stating : ( 1) that the respondent will not engage in
the conduct from which it is ordered to cease and desist in paragraphs
1 (a), (b), (c ), (d), and ( e) of this Order; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a), (b), (c),
and (d ) of this Order; and ( 3) that the respondent 's employees are
free to remain or become members of Teamsters , Chauffeurs, Ware-
housemen and Helpers , Local No. 983 , and International Association
of Machinists, Local No. 198, both affiliated with the American Fed-
eration of Labor, and that the respondent will not discriminate
against any employee because of membership or activity in those
organizations ; -
(f) Notify the Regional Director for the Nineteenth Region- in
writing within ten (10 ) days from the date of this Order what steps
the respondent has taken to comply herewith. -
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges that the respondent has refused to
bargain collectively with Teamsters ; -Chauffeurs , Warehousemen and
Helpers, Local No. 440 , and its successor , Teamsters , Chauffeurs, Ware-
housemen and Helpers, Local .N o. 983, both affiliated with the American
Federation of Labor.
APPENDIX A
Leo Archibald Wayne Douglas A. Stanley Merrill
James Ayers Victor Ellingford John Ray
K. C. Brower John Evans Leland Stanford
S. R. Burkholder _ Leonard Fowler P. P. Stanger
Guy Campbell Arthur Heckert Myron D. Whitesides
Boyd Cornia Henry Henrickson
Howard Davis Carl Hill
MR. GERARD D. REILLY, dissenting in part:
I am compelled to-dissent from the view adopted by the majority,
that the drivers at Pocatello , who had been engaged in accidents
0
IDAHO REFINING COMPANY 1137
resulting , in claims which the insurance company had been called
upon to bear , were discharged in violation of Section 8 (3) of the
Act. The sole basis for the Board's finding that the discharge of all
the Pocatello drivers was discriminatory is the fact that the respond-
ent could not have reasonably believed that any insurance company
would have required it to discharge drivers who had perfect driving
records in order to obtain new insurance . But in resolving the issue
of, whether the respondent was motivated in discharging the drivers
by the absolute necessity of obtaining new insurance or by a desire
to rid itself of union drivers , I think it is fallacious to assume that
because the realities of the insurance situation did not require
the discharge of drivers with flawless records , that it therefore like-
wise did not require the discharge of drivers whose records were poor,
Just as it is unreasonable to assume that insurance companies would
have conditioned the issuance of new insurance upon the discharge
of drivers whose accident records were good, so it is unreasonable to
assume that insurance companies would have been willing to issue new
insurance if the respondent retained in its employ those drivers whose
accident records made the respondent a poor insurance risk. In my
opinion, the respondent , faced with the necessity of dismissing those
drivers whose - accident records were -poor, properly discharged them.
I think it is a fair inference , however, that the respondent used this
opportunity to rid itself of all other Pocatello drivers who were
adherents of the Union and I concur in the result as to them.
INTERMEDIATE REPORT
Mr. Louis S. Penfield and Mr. Gerald P. Leicht, for the Board.
Mr. Henry D Moyle and Mr. David L. McKay, of Salt Lake City, Utah, and
Mr. A. L. Merrill, of Pocatello, Idaho, for the respondent
Mr. Delmar R Peters, of Pocatello, Idaho, for the Association.
STATEMENT OF THE CASE
Upon an amended charge duly filed by Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local 983, A F. of L, herein called the Union, in Case No.
XIX-C-1071, and a charge duly filed by International Association of Machinists,
Local No. 198, A F. of L., herein called the Machinists, in Case No. XIX-C-10S2,
and the National Labor Relations Board, herein called the Board, on June 6,
1942, acting pursuant to Article If, Section 36 (b) of the National Labor Re-
lations Board Rules and Regulations-Series 2-as amended, having ordered
that Cases Nos. XIX-0-1071 and XIX-C-1082 be consolidated, the Board, by
the Acting Regional Director for the Nineteenth Region (Seattle, Washington),
issued its consolidated complaint dated June 24, 1942, against Idaho Refining
Company, Pocatello, Idaho, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor practices affecting
commerce , within the meaning of Section 8 ( 1), (2), (3), and (5) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. Copies of the. consolidated complaint, amended charge and charge,
accompanied by a consolidated-notice of hearing , were duly served upon the
513024-43-vol. 47-72
1138 DECISIONS, OF NATIONAL LABOR RELATION'S BOARD
respondent, the Union, the Machinists, and the Idaho Refining Company Em-
ployees' Benefit and Labor Association, herein' called the Association. -
With respect to the unfair labor practices, the consolidated complaint alleged,
in substances, that the respondent through its officers, supervisors, and agents :
(1) at various, times in and after March 1940,'inquired of its employees and
applicants for employment whether they were members of the Union or any
labor organization and informed the employees that the respondent was opposed
to its employees joining unions, "advised an employee in October 1941 that its
truck drivers would be discharged if they joined the Union : about November
16, 1941, inquired whether employees of the Idaho Gas & Oil Company' were
members of the Union and threatened discharge to those who were or became
members of the Union; instructed truck drivers in November and December 1941
to present their grievances directly to management and not through the Union
or any outside representation and indicated to the said employees that truck
drivers employed prior to November 14, 1941, had been discharged because they
sought representation by the Union; and in January 1942 transferred truck
drivers from Baker, Oregon, to Pocatello, Idabo,'instructing the drivers at the
time of the transfer to refrain from engaging in union or concerted activities;
(2) discriminated in regard to the hire and tenure of eniplo}meat of 20 named
individuals;" (3) on or about November 14, 1941, and at other times thereafter,
refused to bargain collectively with the Union as the exclusive representative
of its employees in a unit appropriate for collective bargaining, although the
Union on or about November 14, 1941, became and at all times thereafter has
been the duly" designated representative of a majority of the employees in such
unit, by (a) discharging on November 14, 1941, all employees in the appropriate
unit in order,to avoid its obligation to bargain, 6) refusing uu November 21,
1941, and at all times thereafter, to recognize the Union although advised of
its majority representation, and refusing to negotiate or discuss with the Union
a proposed -agreement or the disclarge or reinstatement of the truck drivers
discharged between November 14 and 24, 1941; (4) about July and August 1938,
dominated and interfeied with the formation of and thereafter interfered with
the administration of and furnished financial and other assistance to the Asso-
ciation ; and (5) by these acts, interfered with, restrained, and coerced its em-
ployees in the exercise-of the rights guaranteed in Section 7 of the Act. On
July 7, 1942, the respondent filed motions for extension of time within tbhich
to answer, to make the consolidated complaint more specific, and to continue
the hearing. The Regional Director granted the motions for an extension and
to continue the hearing but did not pass upon the motion to make more specific
. On July 11, 1942, the respondent filed its answer to the consolidated complaint,
in which it admitted the allegations of the complaint as to the nature of its
business but denied that it had committed any of the alleged unfair labor
practices. By way of affirmative defenses the respondent averred that it had
terminated the employment of the individuals named in the consolidated com-
plaint for specified reasons not connected with their union membership or
activity, and admitted a refusal to bargain with the Union for, the reasons that.
'The complaint alleged that Idaho Gas & Oil Company was a wholly owned subsidiary
of the respondent and under its direct supervision and control . A finding with respect to
this allegation is hereinafter made.
2James Ayers , K. C Brower, S. R Burkholder, Guy Campbell , Ed«aid Boyd Cornia,
Howard Davis , Wayne Douglas , Victor Elhngford , John Evans , Leonard Fowler , Arthur
Iieckert, Henry Henricksen, Carl Hill, A Stanley Merrill, R. E Miller, John Ray, Leland
Stanford, P P. Stanger, and Myron D Whitesides because of their membership in or
activity on behalf of the Union, and Leo Archbald because of his membership in or activi-
ties on behalf of the Machinists , or his activities on behalf of the Union.
IDAHO REFINING COMPANY i 1139
the Union failed, upon request, to furnish proof of its authorization and the
respondent was under written contract with the Association, as the representa-
tive of its employees. Other affirmative defenses of the answer are considered
below in a discussion of the issues raised by the pleadings.
Pursuant to notice, a hearing was held from August 3 to August 13, 1942, in
Pocatello, Idaho, before the undersigned, the Trial Examiner duly designed by
the Chief Trial Examiner. The Board and the responudent, represented by
counsel, and the Association, by its representative, participated in the hearing.
Full opportunity to be heard, to examine and cross-examine witnesses, and.to
introduce evidence bearing on the issues,was,afforded all parties.
At. the outset of the hearing, the Board moved to amend the consolidated
complaint to correct certain minor typographical errors therein and the respond-
ent renewed its motion to make more specific. The former motion was granted
without objection and the latter denied by the undersigned.
At the conclusion of the Board's case, the respondent moved to dismiss the
consolidated complaint for failure of proof and specifically as to employees
Douglas, Brower, Henrickson, and Ellingford on the ground that there was no
evidence as to their union membership, and to strike the testimony of employee
Archibald on the ground that the respondent had no knowledge of his union
membership. The motion to dismiss the consolidated complaint and specifically
as against the individuals named above was denied, as well as the motion to
strike the testimony of Archibald. The Board consented to have stricken para-
graph V, subdivision 2, of the consolidated complaint for lack of proof.' At the
conclusion of the hearing, the undersigned granted without objection the motion
of the Board's attorney to conform the pleadings to the proof, and reserved
decision on the respondent's motion to dismiss which is disposed of in the manner
hereinafter indicated. Oral argument, in which the Board and the respondent
participated, was had on the record. Following the hearing, the respondent
submitted a brief. Neither the Board, the Union, the Machinists, nor the Associa-
tion filed briefs with the undersigned.
Upon-the entire record thus made, and from his observation of the witnesses,
the undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Idaho Refining Company, is a Nevada corporation having its
principal office and, place of business at Pocatello, Idaho, where it employs approxi-
mately 90 employees. It is engaged in the refining of petroleum and crude oil
and the manufacture of asphalt, and selling and distributing gasoline, oil, fuel
oil, asphalt, and other products in the States of Idaho, Nevada, Utah, and
Wyoming. During 1941, the respondent purchased for use in its operations raw
materials and finished products valued at approximately $1,328,000, of which
approximately 90 percent was shipped to the respondent from sources outside the
State of Idaho. During the same year the gross sales of the respondent amounted
to approximately $1,900,000, of which approximately 10 percent represented sales
of commodities to points outside the State of Idaho
A substantial portion of the products sold and distributed by the respondent
are sold 'and distributed' in Idaho by the Covey Gas & Oil Compaiiy of Idaho, its
8 Therein the Board alleged that in August. or September 1941, the respondent, through"
Gilbert Moyle, its general manager, and Frank Copening, its secretary, advised an employee
of the Idaho Gas & Oil-Company at Mackay, Idaho, that it would not hire or retain in its_
employment truck driveis who belonged to the Union. -
1140 • DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
wholly-owned subsidiary, hereinafter called Covey, and the Idaho Gas & Oil
Company, hereinafter called Idaho. At the time of the hearing, Covey and Idaho
obtained all of their gasoline from the respondent. Covey and Idaho maintain
their offices in the respondent's office building at Pocatello. In 1940, John N.
Peterson and Arch Webb, treasurer and secretary, respectively, of the respondent
were president and secretary, respectively, of Idaho. Frank Copening, who suc-
ceeded Webb as the respondent's secretary, likewise succeeded to his office as
secretary of Idaho, and in the spring of 1942, B. J. Albertson, the respondent's
treasurer, became president of Idaho. The respondent has loaded Idaho approxi-
mately $295,000 and exercises close control over its operations because of this
debtor-creditor relationship. Individual owners of stock in the respondent cor-
poration hold a similar stock interest in Idaho. Willard A Sheppard, the
respondent's manager at Boise, is likewise manager of Idaho's operations in that
area and is paid by, the respondent for acting in both capacities.
The relationship between the three corporations above referred to is such,
and the officials of the respondent have so acted, as to constitute the respondent
an "employer" within the meaning of that term as used in the Act, of the
employees of Covey and Idaho.'
II• THE ORGANIZATIONS INVOLVED
Teamsters, Chauffeurs, Warehousemen and Helpers, Local No 983, successor
to Local No. 440,6 and International Association of Machinists, Local No. 198,
both affiliated •R ith the American Federation of Labor, are labor organizations
which admit to membership employees of the respondent.
Idaho Refining Company Employees' Benefit and Labor Association is a labor
organization which admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
Synopsis of the chronology of the events
The respondent commenced refinery operations at Pocatello in the summer of^
1938. The Association, presently in existence, was organized that fall on com-
pany property. Shortly thereafter it was granted a dues check-off and other -
concessions. The respondent's officers and supervisors became members of the
Association. In the fall of 1938, some of the respondent's truck drivers inquired
about union membership and were told to decide the issue themselves. In June
1941, the Association and the respondent entered into an agreement fixing wage
scales for all employees except the drivers In the same month the drivers were
placed upon a monthly wage scale of $160. In September 1941, the drivers
started to join the Union and by late October all but one had joined the Union.
Their union membership was the subject of general discussion among the re-,
spondent's other employees.
On or about November 1, 1941, the Union undertook to draft a proposed con-
tract which was submitted to the respondent on November 14. On November
10, the respondent received notice from its insurer of the cancellation, effective
November 17, of insurance covering the automotive equipment of the respondent,
Covey and Idaho, due to frequency of accidents and an excessive loss ratio. On
November 12 or 13, the respondent allegedly decided that in order to effectuate
new insurance it'would be necessary to discharge all of its truck drivers. On
4 See Bethlehem Steel Company v. N. L. if. B., 120 F (2d) 641 (App. D. C.).
5In January 1942, Local No 983, on action of the International Union, succeeded Local,
No. 440, whose charter was revoked. '
IDAHO REFINING COMPANY 1141
November 14, all of the truck drivers and one mechanic, also- a union member,
were discharged. On the morning of November 14, the Union presented its
contract to the respondent, but no discussion of its various provisions was had
and an agreement was made to meet again on November 21. The union repre-
sentatives were not informed of the discharge of the truck drivers and they had
no knowledge of this fact. At the second conference, held on November 21, the
respondent refused to negotiate with the Union without proof of its majority
designation, which proof, other than for-oral assurances, was not submitted. On
November 15 and 16, new truck drivers were hired, and on November 17 the
respondent obtained new insurance for its equipment.
A. The Association
In the late summer or early fall of 1938, shortly after the respondent began
operations at Pocatello, various employees expressed interest in organizing a
union. George Hibbler, the respondent's chief and only chemist, together with
George Mann, a helper on the cracking unit, became active in broaching the subject
of organizing to other employees About October the employees gathered together
for their first meeting. Notice thereof was passed around the plant and posted on
a bulletin board, and the employees met in the refinery office. The meeting was
attended by nearly all employees, including Kermit Rice,, superintendent of trans-
portation, Arch Webb, the respondent's secretary, Val Gaudet, then plant super-
intendent, - and a large part of the clerical force. Mann presided and Hibbler
spoke of the advantages offered by an inside union at his previous place of employ-
ment, mentioning such matters as sick and hospital benefits and a welfare fund.
It was contemplated that membership would be open to all employees, including
supervisors. At the meeting, the name Idaho Benefit Association was chosen.
At the second meeting of the Association, held about a month later on company
property, bylaws were adopted and officers elected.
George Mann, the Association's first president, was succeeded by A. V. Simpson,
the yard foreman. At a later date, C. E. Henninger, foreman of the loading dock
and one who, clearly in addition to other supervisory duties, exercised authority to
hire and fire employees, was elected Assolation president. Henninger, late in
1939 or early 1940, suggested a change in the Association's name by adding the
word "Labor" to the title in order, according to the witness, Haskell Duncan,
to comply-with the,Act and make the-Association a " bona:flde"- labor organization:-
Following its inception, the Association met,. regularly- in the respondent's
offices. Commencing in the spring of 1940, the Association transferred its meet-
ings to the employee change house which had been built on company property at
the suggestion of the Association, the respondent furnishing the necessary
material and the employees the labor, to construct the building. About January
1941, after a decline in membership attendance at meetings, control of the Asso-
ciation passed, by constitutional change, to its Board of Directors, which carried
on Association affairs between annual or special meetings. Simpson, the yard
foreman, was president of the Association when this decision was,made. The
Association's directors met monthly in the change house.
In addition to the supervisors mentioned above, the following officers of the
respondent were members of the Association during their tenure with the
respondent: Arch Webb, the secretary; Frank Copening, Webb's successor as
secretary ; John H. Peterson, treasurer and president of Idaho ; and B. J. Albert-
son, Peterson's successor as treasurer. In June 1942, the following supervisors
were Association members : C. E. Henninger, truck dispatcher and superintendent
of the losding,dock;:Kermit Rice;- superintendent -of. transportation^;- E V. Smith,
plant sup ^rintendent ; A. V. Simpson, yard foreman ; and G. L. Farnsworth, chief
1142 DECISIONS OF NATIONAL LABOR 'RELAT'IONS BOARD
chemist. The activity of some of the supervisors was not confined solely to mere
membership and payment of dues to the Association. As indicated above, Simpson
served at least one term as the Association's president Haskell Duncan, while
night superintendent in 1940, served as a member of the Association's safety
committee At the annual meeting of the Association held on February 13, 1942,
22 members were present, including supervisors Smith, Simpson, Farnsworth, and
Henninger. Minutes of the meeting introduced in evidence indicate that these
supervisors voted for new officers and an amendment empowering the Associa-
tion's directors to amend the bylaws respecting hospital benefits. Henninger was
chairman of the nominating committee reporting to the meeting.
In May 1939, the respondent was placed on the unfair and non-patronage lists
of the Pocatello Building Trades Council-and the Pocatello Central Trades and
Labor Council. In September, like action was taken by the Idaho State Federation
of Labor. In an attempt to adjust its differences with these bodies in the fall
of 1939, Webb and Peterson' sought a conference with August Rosqvist, the secre!
tary of the State Federation of Labor Rosqvist informed Webb and Peterson
that their differences could be composed if the respondent employed union labor
on its construction work and union truck drivers. At the conclusion of the con-
ference Webb invited Rosqvist and Thomas Brandt, secretary of the Central
Trades and Labor Council, to address a gathering of the respondent's employees
and explain the benefits of trade union membership Thereafter, a meeting of the
respondent's employees was held on company property Aside from a decided
conflict on one,point, a summary of all testimony regarding this meeting reveals
that George Mann, who was or had been the Association's president, presided
at the meeting and that Webb introduced Rosqvist and Brandt as A. F. of L.
representatives who, spoke and answered questions of the assemblage. Rosq^ist
explained how employees could join the A. F. of L. and truck ,drivers the Union
Webb and Peterson, both Association members, were present while Rosqvist and
Brandt spoke. The conflict above mentioned arose over the question of whether
Webb and Peterson left, the meeting with Rosqvist and Brandt upon completion
of their remarks and whether at some time during the course of the gathering,
Webb-indicated by his remarks the .respondent's hostility to unions and favor
of the Association . With respect to the latter point, Anderson an.Associatiou
member, testified as follows :
Well, he [Webb] told us that he wouldn't advise' us to join the union, or not
to join it. He just left it up to its, whether we wanted the union or whether
we didn't . . . Well, he said that he didn't think that a Union would do
anything for us that the company wouldn't do.
Webb denied any remarks indicating that the respondent would match any
benefits obtained through organization, testifying that he advised the employees
that union membership was a matter for them to decide. Copening corroborated'
Webb's testimony. The undersigned is satisfied, upon review of all credible
testimony concerning this meeting, that Webb and Peterson left the meeting
with Rosgvist and that Webb did not make the remarks attributed to him by
Anderson. At the close of the meeting, those present, at someone's suggestion,
decided by a vote of about 40 to 2 to reject union affiliation.
In addition to the respondent's support of the Association by reason 'of offi-
cers' and supervisors' membership therein, the Association realizes a steady
profit from concessions that it operates on the respondent's property. Vending
machines owned by the Association dispense soft drinks and the boiler house
ffireman.sells cigarettes to the employees. The.Association_also inaintains,a laun-
dry service for the employees operated from company property. Deductions for
concession purchases are handled in the- following manner: the Association's
IDAHO REFININiG COMPANY 1143
secretary-treasurer prepares a list of employee debits for deduction from the
pay check of the employee for any credit which the Association has extended
for the purchase of soft drinks, candy, cigarettes, gasoline,' and the laundry
service. Usually this work is clone after office hours, but occasions do arise
when part at least of the secretary's calculations take place on company time
Before each pay day, Carlson turns the record of pay-roll deductions over
to the pay-roll clerk and, on the basis of Carlson's figures, the clerk deducts all
debits, including Association dues of 50 cents a month in the case of Association-
members only, from the pay check' Thereafter, the pay-roll clerk hands the
Association's secretary the respondent's check for the total of all deductions
made The amount checked off for dues is deposited in the Association's hospital
benefit fund.' Any profit remaining after payment of the cost of operating the
concessions is deposited in the Association's welfare fund. For the period
October 1-10, 1941, pay-roll deductions, including dues check-off for Association
members, candy, drinks and laundry, totaled $128 87. For the period June 1-15,
•1942, deductions for these items equalled $187.13. The dues check-off inaugurated
in 1938 is pursuant to authorization given the respondent at the time the em-
ployee applies for membership in the Association. Gilbert Moyle was unable
to state who on behalf of the respondent agreed to furnish this privilege to
the Association. He readily admitted that when the dues check-off was started
the respondent assumed that the Association represented a majority of the
employees. Association bylaws, adopted February "1941, provided that the-
respondent pay to its secretary "once each month the total amount of dues
collected from the members." Authorization for deduction of concession pur-
chases is not written but is, handled by arrangement between the respondent
and the Association
In May 1941; some of the employees expressed dissatisfaction over their wages
and decided to seek increases. Some of the still operators circulated a petition
upon which each employee was asked to state the hourly wage he was then
receiving 'and the wage he was demanding. Delmar Peters, the Association's
president at the time, testified that the petition was not Association inspired,
;`but it fell into that category shortly after." The respondent's drivers were
not asked to sign this petition, because the employees instrumental in circulat-
ing the'petition didn't know anything about driving a truck or anything like
that." The petition was handed to a committee consisting'of Peters, John Ander-
- 6 Considerable testimony was adduced concerning a meeting of the respondent's em-
ployees held in the spring of 1940 , at which it was alleged Henry D. Moyle , the respond-
ent's vice president and general counsel, advised the employees that it would arrange for
Association members only a discount on gasoline purchased at a local Covey service station
Duncan testified : "It runs in my mind that it was members of the Association," who were
to get the discount through Covey. The testimony of the respondent's witnesses in refuta-
tion of the Board's contention that the discount was restricted to Association members
is persuasive to the contrary . The undersigned is satisfied and finds, on the basis_ of this
'testimony, that the meeting was called to acquaint all employees of the possibility of their
securing FFIA loans rto aid in financing home building ; that the respondent indicated its
willingness to assist 'home builders in the matter of securing discounts on building
materials as well as gasoline , and it cannot reasonably be inferred that'all or any of the
'proffered help, was to be restricted to Association members. None the less, it appears
clearly from the testimony of P. W. Carlson, the Association's secretary-treasurer, that
when an employee signs an Association application card, Carlson furnishes Covey the name
and automobile license number of the applicant so that he may secure his gasoline
discount . How or who makes similar arrangements ; if any, in the case of a non -Association
member is not clear.
7 Dues of Covey and Idaho employees who are Association - member̀s are ' likewise
checked off. -
This would include, of course , the checked -off dues of the respondent ' s' officers and
supervisors such as Webb , Copening , Smith, Henninger, and others: -
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
son, Max Pope, and Kay Mills. Peters presented the proposed wage scale to
W. M Miller, then plant superintendent, asking him to present it to Gilbert Moyle
and to secure an appointment for the committee to meet with Moyle. About
10 days later Moyle informed Peters, through Miller, that he would meet at
an agreed time to consider the proposed wage scale. Thereupon, Peters posted
a notice for a meeting of the Association to be held on May 21 in the refinery
office. At the meeting, Moyle offered the respondent's proposed hourly wage
scale, which was less than the demands of the workers The employees voted
to accept it and, at Moyle's suggestion, to incorporate the scale in an agreement
between the respondent and the Association. Some truck drivers who were
present asked Moyle why the wage scale did not cover them and were informed
that the matter of adjusting their wage rates would be considered later s Fol-
lowing the meeting, a local attorney drafted an agreement incorporating the
respondent's wage scale. It was thereafter signed by officers of the Association
and presented to the respondent for the signatures of its president and secretary.
This agreement, effective June 1, 1941, for a period of one year, established
new hourly wage scales for 12 categories of refinery employees, with provision
for time and one-half for all overtime. The agreement did not include an hourly
wage scale for truck drivers. It is significant that the Association was not
asked to prove its majority representation, the respondent- accepting oral assur-
ances that this was the fact, and Gilbert Moyle assuming, as he testified, that
Peters had authority to represent the Association. Further, although there is
no express recognition of the Association in the agreement, as the employees'
exclusive representative, the agreement did by its language intend to fix with
the Association "a certain definite, designated wage scale for the employees"
of the respondent. In effect, the Association was accorded the recognition of
an exclusive bargaining agent.
In May 1942, the employees again were asked to set down on paper the hourly
wage rate which each thought he was qualified to receive. Peters testified that
he personally contacted every Association member except the truck drivers and
mechanics concerning a new hourly wage rate. Through the instrumentality
of Smith, plant superintendent at this time, Peters arranged for the Associa-
tion's committee to meet Gilbert Moyle, who agreed to consider the matter and
confer again with the committee. A few days later, Moyle presented the respond-
ent's counter-offer. In the absence of a quorum10 at the Association meeting,,
called to consider the counter-offer, the matter was referred to its Board of
Directors for official action. At its meeting, it was voted to accept the respond-
ent's wage scale and to incorporate it in a new six-months agreement which
was copied from the 1941 agreement. Except for pertinent dates and the hourly
wage scales, the 1942 agreement was an exact copy of the 1941 agreement. Gilbert
Moyle, as in 1941, accepted Peters' assurance that the Association represented
a majority of the employees.' The agreement was thereafter executed by officers
of the Association and by Gilbert Moyle and Copening, effective on June 1, 1942,
for a period of 6 months." ,
G Following the execution of the above agreement, the drivers conferred with Gilbert
Moyle, John Peterson, Rice, and Henninger . They were told that due to the fact that some
of the respondent 's trucks crossed State lines, it would be necessary, under rules of the
Interstate Commerce Commission , to place the drivers on a monthly wage . This wage
was fixed by the respondent at $160 a month.
is A quorum consisted of 15 members.
11 It seems reasonably clear that a majority of the employees, including drivers,
belonged to the Association.
32 The agreement as executed contained a wage rate of 60 cents per hour for truck
drivers. Presumably this.was for extra board ,drivers; for at "this time regularly employed'',
drivers received $175 a month. _
IDAHO REFINING COMPANY
CONCLUDING FINDINGS WITH RESPECT TO THE ASSOCIATION
1145
From the very inception of the Association, the respondent displayed an interest
in its affairs. The first Association meeting held on company property was
attended by at least three important supervisory officials.
Thereafter, officers of the respondent and its supervisors became members of
the Association. Two supervisors, Simpson and Henninger, were elected Asso-
ciation presidents and Henninger, as indicated above, was otherwise active. In
February 1942, four supervisors attended the annual meeting, voting for the
election of Association officers, and a proposed change in the bylaws. As late
as June 1942, the dues of the respondent's officers and supervisors were being
checked off and turned over to the Association. At no time did the respondent
attempt to stop or limit in any way the action of the supervisors in any of the
Association's affairs, and they assumed complete freedom of action at all times.
The non-supervisory employees were never informed of any limitation upon the
authority of the officers or supervisors whom they considered to be the re-
spondent's representatives and whose actions conformed to the pattern estab-
lished by the respondent. That such a relationship between an employer and a
labor organization soon develops on the part of employees a reliance and de-
pendence on the employer rather than the labor organization as the employee
representative, is revealed in this case by the overwhelming vote of confidence
given the Association in the vote conducted on company property -following the
address of Rosqvist. It can hardly be asserted that this vote afforded employees
an opportunity to fairly consider the relative advantages and disadvantages
of trade union versus Association membership.
Of equal significance is the substantial financial assistance rendered the Asso-
ciation from the dues payments of the respondent's officers and supervisors.
Regardless of reasons advanced by the respondent for its officers joining the Asso-
ciation, this, nonetheless, is financial support of the Association. Of further
significance in considering. the question of financial support is the substantial
group of concessions which the Association operates on company property with the
respondent's assistance. The deductions for employees' purchases from con-
cessions, together with the dues check-off, completes the picture of material finan-
cial aid given the Association by the respondent.
Indicative of the respondent's attitude towards the Association is the recog-
nition accorded to it in executing the 1941 and 1942 agreements. No inference
is intended that hard bargaining is always the hallmark of a free and inde-
pendent labor organization, but the respondent's attitude towards the Asso-
ciation revealed in these dealings is so markedly- different from that imparted
to the Union in November 1941 as set forth below, as to indicate the respondent's
favor of the Association and opposition to the Union.
The respondent urges that its afore-mentioned activities did not constitute
unfair labor practices because Association members testified that they were
not coerced into joining the Association and did so of their own free will. In
support of its contention, the respondent points to the testimony of Peters that
the employees desire to be represented by the Association The undersigned re-
jects this contention as being without merit. The real question for determina-
tion is whether the acts of the respondent constituted interference with, re-
straint, or coercion of its employees in the exercise of rights guaranteed in Section
7 of the Act. Evidence concerning the effect or lack of effect of the respondent's
acts on particular individuals is clearly not decisive of this issue., The reasonable
1146 DECISIONS OF NATIONAL LABOR •RELATIONS BOARD'
Inference is that the anti-union conduct of an employer does have an adverse
effect on self-organization and collective'bargaining.'a
From the foregoing, notwithstanding employee assertions relied upon by the
respondent, the undersigned finds that, si.ce 1938, the respondent interfered
with, supported, and dominated the formation and administration of the Asso-
ciation ; and that the respondent, by such conduct and by its entire,course of
conduct, interfered with, restrained, and coerced its employees in the exercise
of the rights to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining, as guaranteed
in Section 7 of the Act" '
B. Interfei ence , resti aint, and coercion
. The respondent's decision in June 1941 to place its Pocatello drivers upon . a
monthly wage basis was the cause of dissatisfaction among the drivers. By the
middle of July the drivers had determined that to secure better working con-
ditions and increased earnings, membership in the Union was,desirable. By
September 29, ten of the drivers signed applications for membership in Local 440
of the Union.1i About the same time, Leo Archibald joined the Machinists. By
October 2, more than a majority of the 19 drivers had signified their intention
of joining the Union, and by November all but one of the drivers on the Pocatello
pay roll had either signed applications or paid partial initiation fees in Local
No. 440. John Anderson, a member of the Association, testified that in October
"practically everyone in the refinery" knew that the drivers were joining the
Union and that it was the subject of discussion among other employees.
Early in October, Loren R McBride was employed as a truck driver by the
Inland Empire Refineries Company, herein called Inland, working out of Baker,
Oregon, under the direction of R. E. Stiff: He drove two trucks leased by Stiff
to Inland. About October 10, 1941, Stiff sold these trucks to the respondent.
Thereafter McBride was in the respondent's employ and, as theretofore, con-
tinued to take his orders from Stiff. Just prior to this transaction, McBride was
in conversation with Gilbert, Moyle at the Boise bulk plant of Idaho. He tes-
tified as follows concerning this conversation :
Mr. Moyle came up to me and said, "I aim taking tip the trucks" .. . and
he- said, "You don't need to think that Union button you are wearing is going
to do you any.good up there with their bunch", and I said, "Won't it? What
cif we get your bunch to join?"-the bunch at Pocatello-and he said, "If
you do, I will can everyone of them."
I said, "What will you do for drivers? They are kind of scarce." And he
said, "I can get plenty of drivers, and if I can't I will hire a bunch of old
women to drive them." -
Boyd Cornia, one of the respondent's drivers, was in Boise and overheard the
conversation between McBride and Moyle. He corroborated McBride' s version
is See Matter of Grower-Shipper Vegetable Ass'n and Nruit and Vegetable Workers' Union
of California, No 18211 , 15 N. L R B . 322, enf'd as modified N . L. R. B. v. Grower-Shipper
Vegetable Association, 122 F . ( 2d) 368 ( C. C. A. 9).
14N L. R. B. v. Link -Belt Co., 311 U. S 584 , N. L. R B v, Automotive Maintenance
Machinery Co., 62 S . Ct. 608, rev'g 116 F . ( 2d) 350 (C C. A. 7).
15 See footnote 5, supra.
0
IDAHO 'REFININiG COMPANY 1147
of Moyle's remarks.18 Gilbert Moyle adniitt?d that he had a conversation with
McBride and knew he was a union member, but denied making the statements
imputed to him by McBride and Corma. McBride was a deliberate witness and
testified with dignity and regard for care in the words he used. Gilbert Moyle's
denial was not convincing and on other occasions he exhibited a tendency to
fence with counsel; avoid -direct answers to questions, and shift responsibility to
other isupervisors The undersigned finds that Gilbert Moyle made the state-
ments attributed to him by McBride and Cornia, thereby conveying to the drivers
the respondent's opposition to the Union.
When Stiff's trucks were transferred to Pocatello in January 1942, the drivers,
including McBride, were stationed at Gooding, Idaho. McBride testified that
about January 12, 1942, Stiff told the drivers that Gilbert Moyle informed him
that the drivers, upon transfer, were not to discuss union affairs or to associate
with the Pocatello drivers "in that capacity" ; that the respondent had experienced
"trouble with the laborers in the Union capacity" and did not want this to occur
again. Stiff did not testify and Moyle was not questioned concerning this in-
cident except to deny generally that he had attempted to discourage membership
in "Teamsters Local 440 or 983." The undersigned finds Stiff to have made the
remarks.
Leo Archibald, a truck mechanic and member of the Machinists, was active
in assisting the drivers to enter the Union by distributing application cards and
collecting their initiation fees and dues. He testified that, about November 1,
his foreman, Kermit Rice, who at one time had been a member of the Machinists,
remarked that trade union membership had never benefited him Rice denied
Archibald's testimony. About 9: 30 on the morning of November 13, James Ayers,
one of the drivers, was about to depart from the refinery with a loaded tank
for Jerome, Idaho. He testified that, just before leaving, Rice came up to him
and remarked that he had heard "the boys joined the Union," and inquired what
it was the drivers wanted. According to Ayers, lie acknowledged that the drivers
had joined the Union and answered that they were going to present a contract
demanding a monthly wage of $185 and a guarantee of $100 a month for extra-
board drivers.17 With respect to this Rice testified first that he did not think he
had any such conversation and then denied Ayers' testimony. Arthur L. Heckert
testified as follows concerning a conversation he is alleged to have had with Rice at
the time he was hired in 1940: "Well, he asked me if I belonged to any union,
and I says 'No,' and' he says, 'Well,,that is okeh.' He'said-'Mr. Moyle is'strictly
against - union.' " On cross-examination Heckert vigorously affirmed his previous
testimony. Rice admitted that he talked to Heckert but denied that he made
any remarks concerning Gilbert Moyle, unions, or that he inquired of IIeckert's
union membership. The demeanor of Ayers and Heckert impressed the under-
signed . There is a consistent pattern of interest in the union membership of
the men Rice had authority to hire and fire, as shown by the testimony of Archi-
bald, Ayers, and Heckert. The undersigned was not favorably impressed by
Rice's demeanor or bearing as a witness and finds that he did make the statements
substantially as ascribed to him by these three witnesses.
Is Cornia testified : "Well, I was sent to Boise . . . to deliver some tanks from - Boise Into
Huston the next day and . . . I was standing back there waiting for Mr. [Gilbert] Moyle
to get through so I could get my orders where to deliver the tanks, and he said that=
Mr. Moyle said to Mr . McBride, he said, 'You would be a pretty good driver if you didn't
have that union button on your cap' He says, 'Oh , I don't know, I will be up and join
your boys one of these days,' and he said, 'If you do , I will can every damn one of them.'' 11
17 Extra-board drivers are those who work when regular drivers are not available or
otherwise engaged
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 14, the respondent discharged all, of its Pocatello drivers, under
circumstances more fully described below, and at once undertook to secure new'
drivers for its trucks. Trevor Moss applied to Rice for a job as a driver
on the afternoon of November 15. - At the completion of a test run Moss went
to the respondent's office Moss testified that there he found Gilbert Moyle,
-Copening, and Rice; that Moyle asked him if he belonged to any union, to which
he replied, "no" ; and that Moyle then said : "We have our own union and own
organization out here in the company," which the employees were free to join.
Gilbert Moyle testified that he was in and out of the office while Moss was
interviewed, but denied talking to Moss, questioning him 'about union member-
ship, making any remarks about the Association, or that anyone in his presence
asked Moss if he belonged to a union. Rice denied that the question of union
membership was discussed in his presence by Moss, Moyle, or anyone else.
Finally, Copening testified that it was his recollection that only he and Rice
were present ; that he interviewed Moss and questioned him concerning his
marital status, driving experience, and work habits. Clearly, Moyle's partial
presence at the interview gave rise to the opportunity to make the comments
he is alleged to have passed. Rice and Copening denied that they questioned
Moss concerning union membership, but Moss did not testify that they did. Moss
pinned responsibility solely upon Moyle. In this respect the alleged remarks are
consistent with Moyle's remarks to McBride as found above and with the.true
cause, as hereafter found, for the- discharge of all drivers on November 14.
The undersigned finds that Gilbert' Moyle questioned Moss concerning his union
membership and expressed approval of the Association as the respondent's "own
organization."
Merlin Bowman was also given a test run and hired as a driver on either
November 16 or 17, 1941. He testified that during his interview by Copening
concerning his previous experience and habits he was asked if he belonged to a
union. Copening admitted an interview with Bowman, that it was concerned
with his experience and habits, and that he asked Bowman if he had filled out
an application for employment blank which asked, inter alia, the "Lodge Affilia-
tion" of the applicant. He denied asking Bowman if he belonged to a labor
union The undersigned credits Bowman's testimony and finds Copening did
question him concerning his union. membership.
Roy Williams was hired by Gilbert Moyle-to work for Idaho at Boise. Williams
voluntarily quit in May 1942, because of differences with his foreman, W. A.
Sheppard, who was the respondent's district manager and also manager of Idaho
at Boise Williams, a non-union member, testified that on November 13, Sheppard
telephoned him at his home and inquired if Williams knew where Sheppard could
hire truck drivers to go to work at the Pocatello, plant the next day. Williams
told Sheppard that he did not know of any drivers. He was again asked the same
question by Sheppard the next day in the Boise office. On November 16, Sheppard
came to Williams' home and wanted to know if Ray Pittman and Mervin Zollman,
Williams' co-drivers, were union members. Williams replied that he did not know
and, upon being requested to find out, refused to do so. Sheppard then, according
to Williams, said that if they had joined the Union that he [Sheppard] would use
two recent accidents they had been involved in as an excuse to fire them Sheppard
admitted that he telephoned Williams to ascertain the names of two drivers to
refer to Gilbert Moyle, following a telephone conversation with Moyle on Novem-
ber 13, wherein the latter informed him that he'was going to discharge all of, the
Pocatello drivers Sheppard denied any conversation with Williams on November
16, or inquiry concerning the union membership of Pittman and Zollman. He
testified that, for- some unknown reason Williamsmwas embittered- against him
IDAHO REFINING COMPANY 1149 ,
and the respondent. He admitted, however, that he had at one time been on
friendly terms with Williams and visited his home on at least two occasions.
There is,no evidence that whatever feeling later developed between the men
existed on November 13. Sheppard admittedly sought his help on that day. It
may reasonably be inferred that the subject of the requested help was a matter
of further discussion on November 16 and that, because of the friendly relation
between the men at the time, Sheppard made the remarks attributed to him.
The undersigned so finds.
The respondent urges that, even assuming these statements to have been made
by its supervisors, they were sporadic, mere expressions of opinion, and not
intimidatory in fact because union drivers were hired following the utterance
of these remarks. That they were sporadic is not significant when consideration
is given to the fact that some of the comments were made to drivers, then attempt-
ing to organize, by responsible agents who exercised hiring and firing authority
over them. Nor can the contention that the statements were mere expressions
of opinion have validity when the utterances are placed in juxtaposition to the
totality of events occurring at this'time. What might otherwise be a harmless
expression of honest personal opinion takes on a different color, when uttered
to or overheard by an employee who joins a union to better his working conditions,
or is made during controversy between employees and employer over the former's
rights to self-organization. It was the respondent's entire course of conduct during
the period in question, as well as the statements made by its supervisory em-,
ployees, that had this coercive effect. Their views about the Union merged into
and were only a part of the respondent's total conduct designed to forestall the
Union."
The undersigned concludes and finds that the respondent through its agents,
by interrogating employees about the Union and union activities ; by expressing
a preference for the Association as its "own organization" ; by threatening directly
and indirectly employees with termination of employment because of membership
or activity in the Union, which it opposed, and by the totality of such conduct
and action, interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
The undersigned makes no finding based upon the testimony of R E. Miller that
on-March 9,,1942,-Miller was offered a.job as truck driver by Henninger and then
asked ',how'he-stoo&with the union." The undersign2d''is`satisfied; based upon
Henninger's testimony, that the remark was a natural one made upon circum-
stances which reasonably induced the question. In December 1941, Henninger
had offered Miller a job on the loading dock and Miller had refused, on advice of
the Union. This he told Henninger. It seems understandable that, once having
refused a job because of union advice, when next offered a job Henninger would
want to know whether the same advice still barred acceptance.
0. The discriminatory discharges
1. Leo Archibald
Archibald was first employed by the respondent as a truck mechanic and welder
on January 25, 1941. His duties included the general repair and maintenance
of trucks and traileiMM aiid the welding and repair of transportation 'tanks. "Archi=
bald started at 50 cents an hour and about March 1, 1941, his hourly wage was
"See N. L R B v. Virginia Electric and Power Company, 314 U S 469 See also the
language of Learned Hand, Circuit Judge, in N. L. R. B. v. The Federbush Co., Inc., 121
F. (2d) 954 (C. C. A. 2).
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raised to 60 cents. He joined the Association in January 1941, and signed an
application card in the Machinists in September 1941.
Archibald talked to the drivers concerning the Union and discussed with them
ways and means of bettering their working conditions He took some drivers and
Oran Thomas, another mechanic, to Rosgvist's home, where they signed application
cards and later, at Rosqvist's request, collected initiation fees and dues from
drivers and machinists. A Stanley Merrill testified that Archibald spoke to
him on a number of occasions about the Union and that he `might have been"
influenced by Archibald's efforts in this regard. Archibald was never questioned
by the respondent concerning his own union affiliation, but Rice did ask him
about the affiliation of the drivers Although Rice and Gilbert Moyle denied
any knowledge of, Archibald's union membership or activities, their denial is
unworthy of belief and it is a fair surmise, in view of the other circumstances
of the case, that Rice, at least, was aware of his union membership In a small
plant like the present one it is a reasonable inference that knowledge of Arcbi-
bald's extensive union activities came to the notice of higher management
ofllcials.rs
The Board alleged that Archibald was discharged on November 14, 1941,
because of his membership in or activities on behalf of the Machinists or for
his activities on behalf of the Union. In its separation notice given Archibald
at the time of his discharge, the respondent stated it was because he was "irregu-
lar in reporting for work" ; in its answer the respondent averred his discharge
was "because of drunkenness, and of the habit of drinking"; and at the hearing
it sought to prove his discharge was due to lack of work together with unsatis-
factory workmanship and conduct. The undersigned turns, therefore, to a
consideration of these defenses.
Kermit Rice testified that when Archibald was first employed, he was a good
mechanic and a fast worker but as time went on he slowed up. He cited three
examples to support this latter conclusion. . One (lay in June 1941, Archibald
had completed his work for the day and gone home when Rice called him to
return in the evening to weld a tank Rice testified that when he appeared at
the garage that evening he discovered that Archibald had burned a small hole
in the tank; that in his opinion he appeared to be under the influence of liquor ;
and Archibald was warned that if he again carne to work in that condition or
did poor work he would be fired. On another occasion, not fixed as to time,
Rice testified that he missed Archibald all day, could not locate him on the job,
and when Rice went home at night he discovered Archibald sitting in a car
adjacent to company property looking "like he had been out all night." Rice
said nothing to Archibald about this incident. The third dereliction attributed
to Archibald by Rice occurred on Monday, November 10, when according to
Rice's testimony, he came to work with "the bellyache," "was all bent over,"
and in Rice's opinion had been drinking Rice testified that he told Archibald
he "couldn't stand that kind of carryings on any more at all."
In further explanation of its reasons for dispensing with Archibald's services
the respondent introduced in evidence a written record of his absences from
work during, the period of his employment. This record shows that for. the
period January 25 to November 13, 1941,, Archibald was absent 37 days including
25 Sundays. The manner of the respondent's operations were such that truck
mechanics were on 24-hour duty, including Sundays, unless otherwise excused:
On the Sunday following the July 4 holiday, Archibald did not appear for work.
.'5N L R B.v Abbott Worsted Mills, 127 F (2d) 438 (C C A 1)
IDAHO REFINING COMPANY 11 51
Earl -Brown, in charge of the garage in Rice's absence, attributed this to "too
much celebrating on the Fourth," cautioned Archibald about it, and mentioned
the incident to Rice on his return Brown testified that on five or six occasions,
generally on the first day of the week, he noticed that Archibald came to work
in unfit condition to perform his duties; that he spoke of this to. Archibald, who
attributed his condition to hard work, late hours, and illness. Brown asserted
that he never saw Archibald drunk or take a drink but he "would say that he
had been drinking." Henninger testified that he saw Archibald on the premises
under the influence of liquor ; that he was a slow worker ; and complained to
Rice about it. Rice never saw Archibald drink intoxicating liquor and he
testified that at no time during his employment did he specifically speak to or
caution Archibald about this habit.
- Archibald admitted that he would take a drink occasionally, and had been
drunk ,on occasions, but denied drinking on the job or appearing for work in
a drunken condition He attributed his illnesses and relapses complained of
by Paown and Rice to stomach ulcers for which he had previously been under
medical treatment. He also admitted that Rice had complained about the weld-
ing job and that he was once criticized for slowness; that he did absent himself
front work on three or four days due to illness and on another occasion for
personal reasons, and that on Monday, November 10, he did report for work,
felt ill, and asked for and received permission to go home. Although Rice testi-
fied to the contrary, Archibald admitted that on one occasion Rice told him
he would have to let whiskey alone if he wanted to work; that he thought Rice
was joking and told him to fire him if he ever came to work drunk.
Archibald's working hours averaged 9 to 91/z hours a day, including Sunday,
during the period of his employment. The mechanics were off duty two Sundays
a month, and when they accumulated overtime above 40 hours were accustomed,
to take off a day, combining it with Sunday, without asking, permission. This
fact partially explains Archibald's 37 absences, including 25 Sundays, over a
period of about 10 months Brown, during the same period, was absent 13 days,
including 9 Sundays, and, because of his seniority and ability, was accustomed
to work more Sundays than the other mechanics. Between June 1 and August
23, 1941, mechanic Boyer was off-shop 16 days, including 10 Sundays, and
mechanic 'T'homas was absent eight days, including five Sundays, between Sep-
tember 3 and November 13. Accoiding to Archibald's uncontradicted testimony,
he was absent only once without permission Thus, on a comparative basis„the
record of Archibald's absences alone is not persuasive as grounds for dismissal.
On coming to work on Friday, November 14, Archibald changed cldthes, un-
locked his tools, and Rice told him for the first time of his discharge. He testified
that, on inquiry as to cause, Rice replied, "for getting drunk and laying off work."
Archibald asserted that he laughed at this rejoinder and remarked that both
men "knew what it was about."' Rice testified, on the contrary, that he "ex-
plained that our work had slowed up considerably, and that his work was un-
satisfactory and that I just wouldn't need him any more," and Archibald ac-
cepted this statement He denied any statement about Archibald's drinking
The undersigned accepts Archibald's account of what was said to him on November
14.
Gilbert Moyle testified that he asked Rice about,November 1 why he continued
to put up with Archibald's conduct and Rice replied that,. as soon as the wort
then on hand was completed, Archibald would be fired Rice testified that he
made up his mind to discharge Archibald on Monday, November 10, when Archi-
bald "came out and couldn't work." Why judgment to discharge was not exercise''
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on November 10 and why Archibald continued to work until November 14 is not
satisfactorily explained. Although it may be true that by November 13 Archibald
had completed a specific work assignment, the overall picture of the respondent's
operations indicates rather clearly that work in the garage continued unabated
after that date. Brown testified that the garage "had all the work we could
handle" at this time. The undersigned is not convinced or persuaded by the
testimony of Rice that the decision to discharge Archibald was reached on
November 10.
It is the undersigned's considered judgment that although Archibald's absences,
ability as a worker, and illness, whether caused by ulcers or drink, may have
contributed in part to his discharge, the underlying motive and real cause for the
respondent's discharge of Archibald on November 14 is found in his union activi-
ties and the union membership of the drivers with whom he was so closely identi-
fied. The incidents of allegedly reprehensible conduct cited by the respondent as
justification for Archibald's discharge occurred several months, except for his
absence on November 10, before his dischai ge With respect to this latter occa-
sion the evidence is conflicting and contradictory as to the reason for Archibald's
absence, Rice concluding from Archibald's appearance that he had been drinking
To the undersigned it is reasonably apparent that resurrection of these various
incidents was an attempt to "justify . . . discharge in retrospect, and that they
did not motivate his dismissal." 20
The undersigned -finds that -Archibald was 'discharged because of his union
membership, more particularly his activities in behalf of the Union and because
of his close association with its members, and that by thus discharging Archibald,
the respondent discriminated in regard to his hire and tenure of employment, and
thereby discouraged membership in the Machinists and the Union, and interfered
with, restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. The truck drivers at Pocatello
Sequence of events
The-• respondent had an extensive fleet of automotive equipment for the dis-
tribution of its products; "including' passenger cars, light and heavy gasoline
trucks, trailers, and semi-trailers. On August 22, 1940, the Firemen's Insurance
Company of Newark, New Jersey, and The Metropolitan Casualty Insurance Com-
panyxof New York, both hereafter called the Insurance Company, issued a joint
policy FM 199, extending protection on this equipment against losses due to fire,
theft, property damage, personal liability, and collision. The same policy also
covered the automotive equipment of Covey and Idaho, because, in the words of
Decker Little, branch manager of the Insurance Company, all three corporations
"were so closely interwoven." Not only vehicles driven by the respondent's truck
drivers at Pocatello were thus covered, but also the vehicles, passenger and truck
alike, driven by any agent of the respondent, Covey, and Idaho.
According to Little, between August 1940 and August 1941, the Insurance Com-
pany suffered disastrous losses on its policy FM 199, the loss ratio exceeding 100
20IJeekerman Shoe "Corpomatioiz of Kutztown and United Shoe Workers of America
(C I. 0.), 43 N L. R. B. 435.
IDAHO REFINING COMPANY , 1153
percent of the allotted premium .2' In July 1941, the Insurance Company was
loath to renew but, after conferring with the respondent, did so in the. hope "that
the line would not continue to show a loss ratio." Accordingly, on August 22,
1941, R. S. Turner, an authorized agent of the Insurance Company at Pocatello,
issued a,renewal policy, FM 227, continuing the coverage over the automotive
equipment of the respondent, Covey, and Idaho. '
The respondent's accident experience under the renewal policy showed no signs
of improvement. Between August 31 and November 5, 1941, the Insurance Com-
pany paid on 13 claims arising out of accidents.' The respondent was aware of
these, accidents, as well as those experienced under its older policy. * From time
to time during the life of the older policy it had made desultory attempts to re-
duce its loss ratio by holding meetings at which the drivers were urged to exercise
more care in driving. These meetings, according to''Rice, were held "just at
random" and it is clear from all the evidence that the respondent did not under-
take in an organized and systematic way to fashion a safety program to which
its drivers had to adhere.
On October 27, 1941, Little wrote the respondent,insisting that it do something
to reduce its accident frequency and losses, and threatening to cancel upon the
occurrence of another loss. This letter was never answered by the respondent.
Ayers, a driver, heard that the respondent received this letter and was aware
of the threat to cancel on the next occurrence of a major accident.
On. November 5, Patterson, a driver, was involved in a collision on which
the Insurance, Company paid a claim of $625.23 On November 8, Little called
21 The record discloses the following losses paid on this policy,
Date Driver Loss -
Dec. 11, 1940-__-_ Henry Henricksen ---------- $298 53 property damage.
$2,000 00 public liability
May 15,1941-___ Boyd Cornia________________ $2,500 00 public liability. F`
June 10, 1941_____ Fred,Pearson__ ______________ $299 00 collision.
$1,250 00.
Aug. 15, 1941___- Hollis Walker______________ $25 10 property damage.
Henricksen and Corma were drivers on the respondent's Pocatello pay roll Pearson was'a "lessee
account" at Challis, Idaho, and the loss was on a 1941 tank truck belonging to the respondent. Walker
was either an agent of Covey or Idaho and covered under the blanket policy.
21 The date of accident, driver involved, and loss is shown in the table below:
Date, 1941 - Driver Amount of loss
Aug 31 ---------- Conrad -------------------- $7 00 property damage.
Sept 6-_-_-_____ Elhngford ___________________ $ 112 50 property damage.
Sept.12_________ Whitesides__________________ $50 00 property damage.
Oct.4___________ Zollman_ ____________________
$1,044.10 collision damage.
$90 35 property damage.
Oct. 16___-__-_-_ Douglas--------------------- $90.40 property damage.
$1,926 00 collision damage.
$52 55
Oct 22_---______ Crawshaw------------------ $26 45 property damage
Oct 24______--__ White--j ------------------- $215 00 property damage.
Nov 5____-___-__ __________________Patterson-------------------
$249 04 collision damage.
$625 00 collision damage.
Oct.24__________ White -----------------------White----------------------- $315 00 collision damage
[Turner, who testified concerning these claims, was
unable to state with clarity- whether the driver
involved in this latter accident was White or
Wbitesides J
Ellingford, Whitesides, and Patterson were on the Pocatello pay roll, Douglas worked under Stiff
at Baker, Oregon. The other drivers mentioned above drove the respondent's equipment, or that of
Covey and Idaho,.at places other than Pocatello.
23 He -wasidiscilarged prior to November 14, because of this accident. ,
513024-43-vol. 47-73
1154 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
upon Gilbert Sheets, the respondent's president, in Salt Lake City and informed
him that he'was forced to cancel policy FM 227. Sheets thereupon informed
Gilbert Moyle `of this fact. On Monday, November 10, Copening at, Pocatello
received -telegraphic notice of cancellation, effective as of noon, November 17",
Little testified that the policy was cancelled'at the election of the Insurance
Company because "the frequency of collision claims and property damage claims"
had practically wiped out the premium charge set up to cover losses In
cancelling the policy the Insurance Company made no attempt to segregate
losses attributable to the respondent's driveis as distinguished from those caused
by Covey or Idaho.25 Following receipt of the telegram on the 10th, Gilbert
Moyle and Copening discussed the situation and quickly came to the decision
that the respondent's trucks could not operate without new insurance Between
November 11 and 13, they did not effectuate new coverage
Sheets was also an officer of E L. Sheets' Company, of Salt Lake City, an
insurance broker, and had engaged in the general insurance business for about
20 years. On the morning of November 12, he and Henry Moyle held a confer-
ence at which they discussed the cancellation of the policy and the situation
of the drivers According to the testimony of both Sheets and Henry Moyle,
after a lengthy conference and consideration of all factors raised by the cancella-
tion, it was there decided.' without consultatohn of Gilheit Moyle, that the only
way to secure a new policy by November,17 was to discharge all of the drivers.
According to Sheets; the decision to,discharge'all'idrivers` was" for'tlie reason
that, " . . . there were so many of tliem,' and you couldii't pick one or two cut
of the bunch, because it wasn't one or two but a majority of them, ;" and
the discharge- of all would be convincing evidence that the respondent was
"serious in trying to get a decent loss' ratio " According to Henry Moyle, lie
and Sheets, "came to the conclusion that without the discharge of our drivers,
we would not be able to get anybody to !consider the re-writing of our insurance"
He testified further that Sheets informed him every possible insurance agency
had been contacted, that at the time no favorable reply had been received
and "nothing short of a complete change-definite- change-in our set-up 'would
be sufficient to put us in a position where any of the companies would consider
us," and since neither the, equipment nor jot) to be done could be changed,
they "came to the conclusion that these was only one thing that could be
changed, and that was the drivers" i
Quite aside from the rule of the Interstate Coninierce Commission requiring
insurance for interstate carriers, or the respondent's inability to provide insurance
as a self-insurer, it is appropriate to consider certain other factors, including
available evidence covering the exiierience and driving records of the Pocatello
drivers.
u This finding is based upon Copening's testimony Gilbeit Moyle testified he receivea
the telegram and showed it to Copening The telegram read as follows
DUE TO HIGII LOSS RATIO EXPERIENCEi) ON EQUIPMENT OWNED BY YOUR
CORPORATION FOR PAST FEW YEARS WE ARE CANCELLING OFF POLICY FM
227 BY REGISTERED CANCELLATION NOTICE TO BE EFFECTIVE NOVEMBER 17,
1941, NOON STANDARD TIME PLEASE MAKE OTFIER ARRANGEMENTS FOR
- INSURANCE
Turner testified that the major losses, were caused by collisions due, according to
adjusters'- reports, to the negligence of drivers ' The respondent asserted that its accidents
were caused by negligence on the part of the drivers occasioned' , by excessive speed in,
driving The true cause foi all or a majority of the accidents need not be determined by
the undersigned, for none of the drivers here 'involved was discharged for any alleged
negligence in the use of the respondent's equipment This latter statement; is subject to
the following qualification : The respondent urges it' discharged Wayne Douglas for an
accident on October 16, 1941 The case of Douglas is considered separately below
1
IDAHO REFINING COMPANY, 1155
Sheets and Henry Moyle knew of the losses which the respondent had incurred
and both were familiar with the insurance problem created by these losses. Both
men previously had never hired or fired any employee at the refinery, and yet
allegedly made their decision on November 12 without consulting the plant
personnel directly in charge of operations. It is undisputed that in reaching this
important decision neither man had before him the individual record of any
driver as to his driving 'experience and accidents or made any attempt to limit
the effect of their decision to only those drivers responsible for losses. Sheets
was aware of the fact that some of the accidents were caused by drivers employed
by' Covey or Idaho and that many of the Pocatello drivers had never had an
accident He testified that he assumed without inquiry that, the substantial
losses involved transport trucks driven by Pocatello drivers and made no attempt
to segregate any loss caused by drivers of Covey or Idaho hecai?se they were not
"the main offenders " That there is no basis for any such over-all assumption
is shown by the loss under the previous policy incurred by Pearson, an Idaho
employee, involving $1,549.00 Henry Moyle testified that the respondent's appli-
cation for insurance only received serious consideration after the discharge of
the drivers There is no evidence that any insurance company required as a
condition to the issuance of a policy the discharge of all the drivers employed
prior to November 14 Furthermore, there is no adequate explanation why the
discharge of drivers never involved in any accident would cause the respondent's
application tor insurance to receive more serious consideration.
Addition it light is thrown upon ilie decision of Sheets and Henry Moyle by
examination of the driving records of the discharged drivers Ayers, RroNvei•,,
Campbell, Hill, Davis, Heckert, Ray, Stanford, and Driller never had an accident
during the period of their emplolnient Evans and Fowler were involved in
slight accidents where the question of fault is an open one Cornia was absolved
of blame for a serious accident, and five men, Henricksen, Whftesides, Merrill,
Ellingford, and- Burkholder were involved in serious accidents Copening and
Gilbert Moyle testified to observation of the speed and carelessness with which
the respondent's drivers drove trucks Vet, despite this observation, and their
knowledge of losses, there is no clear or compelling evidence that,, prior to No-
vember 14, other than for sporadic meetings of the drivers at which careful
driving was stressed and the discharge of Pattei son, the respondent otherwise
disciplined those who allegedly were responsible for the accidents
Henry, Moyle carne to Pocatello on the atternoon of November 13. There,
according to 'his own testimony, he informed his brother, Gilbert Moyle, and
Copeniifg of the decision reached the previous day in Salt Lake City to discharge
the drivers and discussed the possibilities of securing new drivers. - Gilbert
Moyle's testinxuny1 concerning this conference is somewhat different. He testified
at first that Henry Moyle recited that the matter had been discussed with Sheets
"and that it would be absolutely necessary to discliai ge the drivers " , Later on
cross-examination he testified:
.Q Now, it' is true, it is not, that the decision to discharge the drivers had
already been made by Dir. Moyle before he arrived here-Mr. Henry Moyle?
A. No, I think not. •
Q The decision wasn't made- -
A. If he had, he didn't tell me about it. •
He testified finally with respect to this issue •
Q. Touching the decision to discharge' the drivers, concerning which- you
have been 'questioned, when Henry' Moyle came, up from Salt 'Lake 'City,
state whether or not you were informed that'that decision to discharge the
driven had already been made by Mr Moyle and Mr Sheets? J
1156 DECISIONS OF, NATIONAL LABOR • RELATIONS BOARD
"A. I think that it had.
Q. So-you were simply advised- r
A.. I was advised to discharge 'them; and I went ahead and did so.
Copening's testimony concerning this meeting on November 13 is more explicit
concerning the'finality of discharge allegedly determined upon the day before.
He testified that Henry' Moyle informed him that in order for the respondent to
secure insurance it was necessary to discharge the old drivers and that this
determination was made on the afternoon of November 13.
Thus it is by no means clear, based upon the testimony of the respondent's
own witnesses, when the decision to discharge was made and by whom. According
to Copening,'it was made on November 13. Indeed, it seems hardly likely that
Sheets and Henry Moyle, knowing as little as they did of the actual plant opera-
tions and personnel problems, would have come to such a major and final decision
without consulting Gilbert Moyle. The undersigned believes,'and finds, that the
actual decision to discharge, together with means of executing the decision, was
made the afternoon of November 13 at Pocatello, and not on November 12 in
Salt Lake City.
In reaching this decision on November 13 and thereafter in carrying it out,
neither Gilbert Moyle, Copening, nor Rice made effort to retain in the respondent's
employ those drivers whose records were beyond reproach. The discharges were
made throughout the day of November 14 in the following, manner: About 9
o'clock in the morning Rice telephoned all the drivers at their homes and asked
them to report-to the plant. Even at this hour, Evans had a premonition that
the drivers. were to be discharged and he so informed Merrill. The drivers who
were in Pocatello at the time'aiid had been called by Rice, reached 'the plant
between 9: 30 and 11: 30 a. in. The men waited around the yard until 11:45 a. m.,
when they were issued their checks and told of their discharge because of the
policy cancellation and that the respondent was hiring new drivers. The drivers
who were not in town that morning were informed of their discharge later that
afternoon and evening on their return to the plant from their out-of-town trips.
All drivers later received separation notices which,stated that their services were
"terinmated due to reorganization made necessary by cancellation of insurance."
The respondent gave no explanation for discharging the men on November 14
instead of November 15, the end of the regular pay period.
The day of the discharges was the day the Union presented its proposed con-
tract. The Union's committee, with the assistance of Brandt and' Rosqvist,
drafted- a proposed contract and the committee agreed' that. Brandt and Ros-
gvist would present it to the respondent A. C. Thompson, who was employed
by the Pocatello Central Trades and Labor Council, testified that he accom-
panied Brandt to the respondent's office ; that they arrived there about 10: 15
or 10: 20 and departed, after a brief conference with Copening and Gilbert
Moyle; 20 or 25 minutes later.' The only issue in dispute as it affects the
present discussion is the time Brandt and Thompson reached the respondent's
office. -Copening testified they arrived at 11:'30 a W. and that while they were
in his-office he time-stamped the submitted contract. The time stamp indicates
the contract was stamped at this hour Gilbert Moyle fixed the time of their
arrival as "around noon" and testified that all the drivers' checks had already
been made out and a great part distributed before their 'arrival.- Aside from
this conflict, this much is clear: (1) the in-town drivers were called by Rice
around 9 o'clock to report to the plant; (2) nothing was said at the conference
f0 The substance of this conference as it affects the allegation that the , respondent
refused - to bargain is considered hereafter.
IDAHO REFINING COMPANY 1157
by Copening or Moyle to Brandt and Thompson about the discharge of the
drivers; and (3) the submission of the contract confirmed what Ayers had told
Rice that the Union was demanding $185 a month for the regular drivers.
After receiving his check on November 14, Evans saw Gilbert Moyle and, re-
quested a letter of recommendation , He was told that he had been ordered
discharged ,by the Insurance Company and was referred to Copening. Although
Moyle' denied this, his denial cannot be credited for the following reason:
Sometime thereafter, :Evans went to Salt Lake City to see Little .and there ex-
plained that the drivers were unable to obtain work because the Insurance
Company had effected their discharge. On December 18, Little wrote Evans
that, in cancelling the policy, the Insurance Company had "never requested the
discharge of any drivers."
Reference has been made previously to the questions concerning union mem-
bership asked of Trevor Moss and Merlin Bowman on November 15 and 16 when
they were hired as new drivers, and to Sheppard's conversation with Williams
at Boise concerning the union membership of drivers in that plant. Moss had
some difficulty with one of the discharged drivers in December. Hearing of this,
Rice cautioned Moss to avoid associating with these men in order to prevent
any further unpleasantness. Moss testified that Rice remarked, "Some of the
fellows are under the impression that you are just working -here tempo-
rarily, . . . You have a job as long as you go ahead and do,your work . . .
Those sons of bitches are never going to drive out here again." • Rice admitted,
that he cautioned Moss to avoid the discharged drivers but denied the .other-
remarks imputed to him by Moss. The undersigned accepts Moss' testimony
and finds Rice did make these statements. Rice hired all the new drivers and,
by November 20, had a full crew of 18 men Whereas the discharged men had
received $160 a month, the new drivers were paid $175, a month, $10 less than
the Union was demanding.
One day in December 1941. Evans had gone to the plant and was engaged in
a friendly conversation with Foreman Henninger on the loading dock. Hen-
ninger remarked that it was unfortunate that the drivers had been discharged
because the insurance had been cancelled. Evans replied that the discharge was
not caused by the cancellation of the policy, but because the drivers had joined
the Union. He testified further that Henninger "kind of hung his head and
studied a little bit, and he said, `Well, maybe you are right.' He said, `I knew
you fellows belonged to the union a long time, before you were fired.'" Hen-
ninger admitted that he had a conversation with Evans in December and that
he made the remark "that it was too, bad that the insurance was cancelled and
that the boys. were all thrown out of work." . He testified further as follows :
Q. At the time you made that.comment, I will ask you whether or not
Mr. Evans said in substance or effect that you knew better, that they
were fired because they belonged to the union, to which you said,-hung
your head and siiid, "Maybe you are right?"
A. I might have made that remark, but I never hung my head and said
"You might be right." I thought Johnny knew me better than that.
Q. Did you make any comment that Evans might be right?'
A. No, Sir
The undersigned finds that Henninger made these remarks to Evans., . R. E.
Miller, one of the drivers discharged on November 14, was rehired as a driver
on March 10, 1942. He testified that about March 13 he had a conversation-
with' Rice. He testified ' as 'follows concerning this conversation :
A. Well, he merely told me that in case I had anything to talk over, to
come in and sit down and they would be glad to listen to me and also that
1158 DECISIONS OF._NATIONAL,- LABOR RELATIONS BOARD
during that meeting in July-I didn't attend-but he '.told me that it was
'agreed that if that wasn't enouglitnioney the drivers were to' come and
notify the office, • and he was satisfied that if they had, the office would
have done something about the wage'scaleni
Q. Did Mr. Rice mention anything about the Union directly or indirectly?
A.- Well, he merely, stated that. if the drivers had come to the officel
instead of-going uptown=l believe that was his words
Q. If they had done that they•would still have their jobs?
A. He didn't say -their jobs, lie just said they would be working now,
as nearly as I iemember it.
Rice denied Miller ' s testimony . Miller was a credible witness and appeared
to make every effort to confine his remarks to the truth . The undersigned
accepts his testimony end finds that Rice made the remarks attributed to him
by Miller
Offers of reemployment to the discharged drivers
On December 14, 1941, Henninger offered Whitesides it job on the loading
dock loading trucks with gasoline at 60 cents an hour for it 40-hour week,
with time and a half for overtime. The next day Whitesides informed
Henninger that the 'Union did not care to have him accept this position.
Between February 11, 1942, and June 19, 1942, Whitesides was reemployed in
the respondent's warehouse Similar jobs were offered to Evans, Coriia, and
Miller on'December 15 The men refused the jobs on'the advice of the Union
But on March 11, 1942, ' Miller was rehired as a truck driver. On December
.18, Henninger offered Brower a position on the loading dock, which he accepted
on December 20, working until February 20, 1942. When Brower quit his
job it was offered to Burkholder but he refused because he obtained a position
elsewhere as a truck driver.
Assuming that Henninger's estimate of 8 to 20 hours overtime per week on
the loading dock'is accurate, the men would have averaged on the basis of a
40-Bout week with,time and a half for overtime approximately the same earn-
ings. per month as they-had made as truck drivers It is clear, however, that
this was not an offer of an equivalent job,' and by Henninger's own testimony
he admitted that" nothing was said to , any of the truck drivers about the
restoration of any of the previous privileges they had enjoyed. He admitted
that they were io start on the loading dock as new employees. It is clear
from the testimony of Evans and Miller that in the opinion of the Union the
jobs offered to the drivers on the loading dock were not the equivalent of
those they formerly held as truck drivers and for that reason the Union did
not want them to accept Henninger's offer.
CONCLUDING FINDINGS
Although all of the respondent 's officers denied knowledge of the drivers'
union membership , their denials are hardly credible in view of the extensive
course of union . activity, the, findings Heretofore made and facts now to be
recited Between the renewal of the policy in August, and notice of cancella-
tion on November 10, the drivers at Pocatello were engaged in their efforts to
organize the Union In September and October , Evans disclosed his union`
membership to service station operators along the road, handling the respond-
2 The meeting referred to is the one held in June 1941 , when the drivers were informed
by Gilbert Moyle that thy would be put on a monthly wage of $160.
IDAHO REFINING COMPANY - 1159
eats pioducts ." It seems reasonably clear that ,by November 1, all of , the drivers
operating out of Pocatello , except K C Brower ," had either sighed applications,
.paid partial initiation , fees , or joined the Union . On or about November 1,
the respondent 's drivers at a meting in the Pocatello Labor Temple appointed
it committee ,consisting of Evans, Chairman , Leonard Fowler , and P . P.-Stanger,
to draft an agreement to be presented to the respondent. This committee as'
sisted by 'Brandt and Rosqvist di afted it proposed contract covering working
conditions and rates of pay . On November 13,-,as beretofore .found, Rice stated
to Ayers that "he FRice] . heard the boys joined the union," and Ayers in-
formed Rice ' of the terms of -i lie Union's proposed contract that had been
prepared . As hereinafter appears, the contract was not submitted to the re-
spondent until the morning of November 14. In December " 1941 , - Henninger
told Evans that he too, knew of the drivers ' union membership long before they
were fired : Gilbert Sheets , the respondent 's president , received daily, reports
from the plant and visited Pocatello once a month . Henry D. Moyle, also re-
ceived daily reports from the refinery and made frequent visits to Pocatello
and testified that he "knew from day to day and week to week and month to
month what was transpiring ." Thus, to credit denials of union knowledge on
the respondent ' s part, would be to ignore facts and circumstances that point
overwhelmingly t6, the contrary . The undersigned therefore finds that the re-
spondent knew or believed that all of its drivers at Pocatello had joined the
Union. '
In evaluating the good faith of the respondent , consideration has-been given
to the fact that all drivers , including those who the respondent knew' were
never in accidents , were discharged 'It is pertinent also to consider its failure to
discharge its other drivers whose accidents contributed to the loss ratio As
heretofore mentioned , the insurance policy covered the automobile equipment of
Covey and Idaho Four of their drivers , Crawshaw , White, Zollman , and' Conrad
were not discharged , and had been involved in four or five accidents , included in
the losses upon which the Insuirance Company"based cancellation 30 While it may
be true as the respondent asserts that it did not discharge any Covey drivers,
because these men did not drive transport trucks, this does not appear to-be the
fact in the case of all Idaho drivers , especially', those who worked under Sheppard's
orders at Boise, four of whom at least, were engaged in the bulk haul of gaso-
line . Two of'these drivers , Pearson and Zollman had accidents resulting in
substantial losses * that contributed to the insurance cancellation . Sheppard
could have discharged them at the time of their accidents or on November 14, had
the respondent so ordered.-
The only reasonable inference that can he drawn from this equivocal 'course
of conduct is that the respondent 's given reason for the discharge of the Pocatello
drivers , was not the true reason . The undersigned so finds.
From the foregoing, the undersigned finds that the respondent knew or be-
lieved that all the individuals listed in Appendix A had become members of the
Union and the Machinists ; that on November 14 the respondent discharged the
28 There is hearsay evidence upon which the undersigned makes no finding that Gilbert
Moyle and Copening learned -from service station operators that drivers Merrill ' and White-
sides had boasted of their union membership and how tough they were going to make it for
the respondent. '
28According td Ayers and Evans, Brower had not joined the Union . Brower was-how-
ever discharged along with the drivers. -
20 In answer to any possible contention that these accidents involved a small total
loss, there is the testimony of Little' that cancellation was based upon accident frequency
as well as excessive loss ratio. ' - ' "
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said individuals because of this knowledge or belief of their membership in or,
activity on behalf of the Union , and in the case of Archibald for his activities
on behalf of the Machinists or his activities on behalf of the Union. -
The undersigned finds that by thus discharging the employees listed in
Appendix A, the respondent discriminated in regard to their hire and tenure
of, employment , and thereby discouraged membership in the Union and the
Machinists , and interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
3. Wayne Douglas
Douglas started - to work for the respondent in January 1940. He was there-
after laid off and rehired about August 1941 by Kermit Rice, and worked at
Baker, Oregon. The drivers at Baker were engaged in the bulk haul of
gasoline from Umatilla, . Oregon and Attalla , Washington , to Baker and Boise;
Idaho.
In September ; Douglas was transferred to Pocatello where he engaged in the
same sort of work as the other drivers. On September 29, Douglas signed an
application card in the' Union stating thereon that he was employed at the
respondent 's plant in Pocatello . The finding , heretofore made ""that the respond-
ent knew or believed its Pocatello drivers had joined the Union is equally
applicable to Douglas . Sometime thereafter Douglas was sent back to Baker.
,On October 16, Douglas was involved in a serious accident at Weiser , Idaho,
for -which he was apparently responsible . He resumed work on October 29
and worked continuously thereafter down to November 20, 1941. Although
Gilbert Moyle testified that he instructed foreman Stiff to discharge Douglas
because of the Weiser accident , it is clear , as indicated above from the re-
spondent 's own records , that Douglas was not discharged and resumed work
after the accident.
Douglas testified that on November 20 Mr. Stiff instructed him "not to pull
any more trips , and not to. ask any questions ." This testimony is not con-
tradicted . On either November 21 or 22 Douglas went to Pocatello to inquire
about his status and saw Gilbert Moyle and Copening in the refinery office.
Douglas testified that he was told that'he was discharged for the same reason"
as the other drivers, "on account" of the insurance was cancelled ." He testified
further that Gilbert Moyle showed him the telegram that had been received
from the insurance company effecting cancellation of the policy.
The respondent urges that the discharge of Douglas had. no connection "with
that of the other drivers on November 14, and that it bore no relationship to
the cancellation of the insurance policy, but rather that Douglas was discharged
for his Weiser accident^on October 16. This seems hardly credible in view of
the undisputed testimony and the respondent 's own pay-roll , records indicating
that Douglas resumed employment on October 29 and worked continuously
until November 20. Gilbert Moyle testified that he instructed Stiff to dis-
charge Douglas on October 16; that he was subsequently discharged on-October
17 or 18; that he learned .about November 16 or 17 that Douglas was still on
`the payroll ; and "that. finally Mr . Stiff , concluded that for the best of the
service," to "let him go ." On cross-examination Moyle testified that he did not
know Douglas had resumed work on October 21) ; that he first discovered this
on examination of the Baker payroll on November 21, and that he had no further'
conversation , with Stiff about Douglas. .' Stiff did; not testify and the respondent
offered no explanation for its failure to call Stiff to corroborate Moyle's testis
mouy that Douglas had been discharged on October 17, or 18, or to explain why
Douglas resumed work on October 29. Moyle's testimony is indecisive, not
IDAHO REFINING COMPANY 1161
clear or convincing and in the absence of corroboration by Stiff does not con-
vincingly explain Douglas ' discharge five weeks after the accident . Copening
testified that when Douglas -reported to- Pocatello ' he was informed that he
was discharged because of the Weiser accident . When asked if he told Douglas
that he '-whs discharged for the same reason as the other drivers; he replied,
"I don't recall that statement . I would say that I did not make the statement "
When asked again if he told Douglas that he was discharged because of the
Weiser accident, he replied, "As -I recall I think that I did, yes." Gilbert Moyle
admitted . that he saw Douglas at the plant on either November 21 or 22, but
denied that he talked to Douglas or showed him the ' telegram.
It may be conceded that the Weiser accident on October 16 would be a suffi-
cient justification for the discharge of Douglas either at that time or on Novem-
ber 21. But if the discharge occurring more than five weeks after the accident
was in any proximate degree motivated by Douglas ' union membership it was
a discriminatory discharge under the Act. This is the undersigned 's conclu-
sion and for the following reasons: ( 1) Douglas was the only member of the
Union at Baker, Oregon; (2) he joined the Union in Pocatello and associated
with the other drivers; ( 3) the respondent 's assertion that Douglas was ordered
discharged on October 166 is hardly credible in view of his continued employment
thereafter ; and (4 ) the respondent 's asserted- reason that Douglas was dis-
charged because he was the only Baker driver involved in an accident has no
validity when consideration is given to the fact that Pocatello drivers who did
not have accidents but who belonged to the Union were discharged.
The undersigned therefore finds that the respondent discharged Douglas be-
cause of his union membership or activity and in so doing discriminated in
regard to his hire and tenure of employment thereby discouraging membership
'in the Union and interfered with, restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
D. The refusal to bargain collectively.
f 1. The appropriate unit
The consolidated complaint alleged that "the employees of the respondent
employed as truck drivers, excluding the truck foreman, constitute * * * a unit
appropriate for the purposes of collective bargaining * * *." The respondent
in its answer denied the, appropriateness of the unit as alleged but did not offer
any testimony in support of its denial . All of the drivers employed at Pocatello
perform essentially the sane services and are paid the same salary. Prior to
November 1941, they received $160 a month. The -drivers compose a compact
and cohesive unit, take their orders from Rice and Henninger , and, except on
the limited occasions when some of the drivers are engaged in the plant clean-up,
confine their duties to the hauling of the respondent 's petroleum products. The
drivers are under , bond and are charged at times with the responsibility for the
collection of monies owed the respondent by its customers. On November 1, 1941,
there were 19 drivers at Pocatello, excluding the foreman, all of whom were
eligible to join the Union.
The, undersigned finds that the employees engaged in the driving of the re-
spondent's transportation trucks at Pocatello, excluding the foreman, constituted
at (11 tines material herein, and that they now constitute, a unit appropriate for
the purposes of collective bargaining with respect to wages, rates of pay, hours
of employment , and other conditions of' employment , and that the said unit
insures to employees ' of I the respondent ' the full , benefit of their right , to self-
organization and to collective bargaining and otherwise effectuates the policies , of
the Act.
11'62 DECISIONS OF NATIONAL LABOR'"R'ELATIONS BOARD
2. Representation by'tbe Union of a majority in the appropriate unit
Employees in the unit above found appropriate became interested in the
Union in the summer of 1941 By September 29, ten of the employees on the
:respondent's pay roll had signed applications in the Union. 'By Octobef 21 seven
additional drivers had signed application blanks In addition, two drivers signed
applications which were undated Robert W Patterson, who signed an,applica-
tion on September 29, was discharged' for cause on or about November 5 and
the Union makes no contention with respect to his discharge.' Disregarding the
two undated application blanks and the application of Patterson and that of
Douglas. who had been transfered, the Union on October 21 had at least 15
signed applications for membership among the 19 drivers,in the appropriate unit.
By October 27, 17 of the 19 drivers, excluding Patterson and Wayne Douglas,
had paid all or part of their initiation fees in the-Union.,
On, January 16, 1942, the charter of Local No 440 of the Union in which the
drivers had signed applications and paid their initiation fees, was revoked on
instruction of Daniel J. Tobin, president of the International Union, and a new
charter installed for Local No 933 as its successor. Lee Owen succeeded Brandt
as business agent of the Union ilnd all records of Local No 440 were turned over
to Owen Although Owen, in testifying, could not identify the signatures on
the applications, he stated. as a matter of personal knowledge that 11 of the
drivers were members of the Union. In addition, six drivers, including four named
by Owen. identified their signatures on the applications, which were in
evidence The respondent and the Association offered no evidence that
the signatures on the-applications were not genuine n The Union undertakes
to bargain for those who have signed its applications. It is well established that
the signing of an application for membership in a labor organization in itself
constitutes a designation of that organization as a bargaining agent 32
The undersigned finds that on November 14, 1941, and at all times thereafter,
the Union was the duly designated representative of a majority of the em-
ployees in the appropriate unit, and that, by virtue of Section 9 (a) of the
Act, it was the exclusive representative of all of the employees in the unit for
the purposes of collective bargaining.
3 The refusal to bargain
On November 14, 1941, Brandt, business agent of-the Union, presented the
Union's contract to the respondent at a conference which wasi,attended by
Gilbert Moyle and Copening on behalf of the respondent. The terms of the
contract were not discussed by the parties and Brandt suggested that the parties
meet the following week to continue negotiations This was agreeable to the
,respondent, Copening stated that he -would in the meantime refer the Unioin's
contract to Henry D Moyle for study As indicated heretofore, nothing was
'said during the,.conference about the discharge of the drivers which had, oc-
curred that morning and Brandt was without knowledge of'this•_fact. On the
afternoon of,November 14 all 'of the discharged drivers who were in Pocatello
held a meeting at which they appointed John Evans to accompany Rosqvist and
Brandt to the next conference with the respondent.. '
31 In N. L. R. B. V. Somerset Shoe Co., 111 F. (2d) 681 (C. C. A. 1), the court placed
on the respondent the burden of going forward with evidence to challenge . the authenticity
of designation signatures "which could reasonably'have 6een ' checked against the signatures
of the employees on respondent 's pay roll."
81X L. R B v. Sunshane Mining Co., 110 F . ( 2d) 780 (C. C. A. 9), cert- den. 312 U S.
,678; N. L. R. B v. Chicago Apparatus Co, 116 F. (2d) 753 (C. C A. 7).
IDAHO REFINING -COMPANY 1163
On- Friday morning, November 21 Brandt and Rosqvist accompanied by Evans
.returned to confer with the respondent. Present at the meeting on, the re-
,spondent's behalf were Henry Moyle,, Gilbert Moyle, Copening, and Peterson.
Brandt started the conference by stating that either he or the committee rep-
resented the Union that they were present to. discuss the. submitted contract
anti-to seek reinstatement of,the discharged drivers. Henry Moyle, the respond-
ent's spokesman, replied that he did not know Brandt or Rosqvist and demanded
proof of the committee's authorization to represent the Union.. W:th respect
to the genuineness of Moyle's first statement, it is clear beyond any doubt
.that Gilbert Moyle,, Copening, and Peterson knew who these men were and
who they represented and why they were there Copening acknowledged this
at the hearing. In response to Moyle's demand for proof of authorization,
Brandt replied that he represented 52 percent of the drivers but refused to
divulge their names or submit any proof to substantiate his assertion. It
must have been reasonably clear to the respondent's representatives that the
committee purported to represent only the Union Henry Moyle had seen the
proposed union contract and must have known by reading it that the Union
sought to bargain only for the respondent's drivers Moyle wanted evidence
of the committee's "right to bargain for the employees of the refinery" and
stated that the respondent had a contract with the Association covering the
employees and that this agreement would prevent any negotiations with the
,Union unless its authority was established." Moyle testified that he had the
"impression that the committee sought to bargain "for all of, the employees
That any such impression could have been reasonably entertained is difficult
to believe in view of the committee's personnel and the explicit language of
the submitted contract which sought to include "road drivers, city pick-up
drivers, loaders, and checkers and other employees . properly, coining under
the jurisdiction" of, the Union Toward the close of the conference the sug-
gestion of an election to determine representation arose but it is not clear from
the evidence whether the suggested election was to be a contest to determine
the right of the Union and the Association to represent all employees or re-
cstricted to the drivers only. No agreement was reached regarding this. Evans
admitted while testifying, that Moyle stated he would bargain upon presenta-
tion of proper authority but the committee tailed to present proof of majority.
designation The respondent gave no reply to the committee's request for
reinstatement of the drivers The' conference concluded by Brandt's,-stating
if the iespondent would not recognize the Union, charges would be filed.
Regardless of the Union's. refusal to present proof of its majority it is clear
that an employer who under' ines,by means of unfair labor practices,' including
the discharge of all union members in the appropriate unit, the majority designa-
tion of the Union seeking to bargain collectively, cannot thereafter excuse his
failure to bargain on the ground that the Union failed to reveal its majority. As
fully described above, the respondent had completed its campaign to destroy the
Union. Its conduct had plainly placed in jeopardy the -majority status of the
Union and indicated its bad faith in demanding proof of a iajority Under the
circumstances, the refusal of the Union to furnish this proof or enter an election
to test its strength at that time' was not unreasonable .", The undersigned con-
'' The existence of a contract with an employer-dominated organization affords no justi-
fication for an -employer's *.refusal to baiguin- collectively with a bona fide, labor organization
which is the duly designated representative of the majority of its employees in an. appro-
priate unit. See N L R B, v. Bradford Dyeing'Associatiom, 310 U S 318; N L R B,
v. Wm -Tehel Bottling Company, 129 F (2d) .250,,(C C. A 8)
39Cf Matter of Chicago Apparatus Company and. Federation of Aichatecta, Engineers,
Chemists and Technicians, Local 107, 12 N. L. R B , 1002, enf 'd N L. -R. B., v Chicago
Apparatus Co., 116 F. (2d) 753 (C. C. A 7)
J-164 ' DECISIONS OF IVATiONAL: LABOR' RELATIONS BOARD
eludes and finds that no question with respect to the majority status of the Union
or the contract with the Association excused the respondent's failure to negotiate
with the Union on and after November 21, 1941. Such conduct coupled with the
respondent's destruction of the Union's majority by the discharges, constituted it
refusal to bargain with the duly designated representative- of its employees in an
appropriate unit, and was an unfair labor practice within the'Ineaning of the Act.
Accordingly, the undersigned finds that on and after November' 21, 1941, the
`respondent refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees within an appropriate unit, in respect to rates of pay,
wages, hours'of employment, and ,other conditions of employment, and that the
respondent` thereby interfered with, restrained, and coerced its employees in the
exercise of 'the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The undersigned finds that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate and substantial relation to trade, traffic
and commerce among the several States and tend to lead to labor disputes burden
ing and obstructing commerce and the free flow of commerce
V. THE REMEDY
Having found that the respondent has engaged in and is engaging in unfair
labor practices, the undersigned will recommend that it cease and desist there-
from and take certain affirmative action in order to effectuate the policies of the
Act.
The undersigned has found that the respondent has dominated and interfered
with the formation and administration of, and has contributed support to the
Association. The effects and consequences of the respondent's domination, inter-
ference with, and support of the Association, as well as the continued recognition
of the Association as a bargaining representative of its employees, constitutes a
continuing obstacle to the free exercise by its employees of their right to self-
organization and to bargain collectively through representatives of their own
choosing. Because of the respondent's illegal conduct the Association is incapable
of serving the respondent's employees as a genuine collective bargaining agency.
Accordingly,` the undersigned will recommend that the respondent disestablish
and withdraw all recognition from the Association as representative of any of its
employees for the purpose of dealing with it concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment as
The contract of June 1, 1942, between the respondent and the Association, which
by its'terms is still'in effect, was and is part of the respondent's plan to frustrate
self-organization and to defeat collective bargaining by its employees. Moreover,
it provides for recognition of the Association as the representative of the respon-
dept's employees, althoughat the time that the contract was entered into no proof
teas presented that the organization had been designated by an uncoerced ma-
jority' of the employees covered by the contract as their representative for the
purpose`s' of collective 'bargaining. The undersigned will therefore recommend
that the respondent cease and desist from giving effect to this or any other
contract with, the Association. respecting grievances, labor•disputes, rates of pay,
wages,' hours of work, -or other conditions of employment. Nothing in the reconi-
ae See National Labor Relations Board v. ' Link-Belt Co., 61 ' S. 'Ct. 358; H. J. Heinz V.
National Labor Relations Board, 61 1 S. Ct. 320.
IDAHO REFININ1G COMPANY 1165
mendation that follows, however, shall be deemed to require the respondent.to
vary or abandon the wage rates or conditions of employment which the respondent
may have established in conformity with the contract, as extended, renewed,
modified, supplemented, or superseded 36
The undersigned has found that the respondent has discriminated against
the employees listed in Appendix A and Wayne Douglas, in regard to their
hire and tenure of employment. The undersigned is of the opinion that, because
of K. C. Brower's association and employment with the other drivers, the
respondent concluded that he too was a union member and therefore discharged
him in furtherance of its effort to discourage membership in the Union. • By
discharging Brower, the respondent indicated that it considered him to be in
the same class and to merit identical tieatment with the union members whom it
also discharged. The undersigned will recommend therefore that the respondent
offer to the employees listed in Appendix A and Wayne Douglas full reinstate-
ment to their former or substantially equivalent positions without prejudice to
their seniority and other rights and privileges, and make them whole for any
loss of pay they may have suffered by reason of the respondent's discrimination
against them by payment to them of a sum of money equal to the amount which
they normally would have earned as wages from the date of the respondent's
discrimination against them to the date of the offer of reinstatement, less
their net earnings," during said period.
Having found that the respondent refused to bargain collectively with the
Union, the undersigned will; therefore, recommend, that the respondent, upon,
request, bargain collectively with the Union as the duly designated representa-
tive of the employees in the unit found appropriate, with respect to grievances,
labor disputes, wages, rates of pay, hours of employment, or other conditions
of employment
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. Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 440, was,
and its successor No. 983, affiliated with the American Federation of Labor ;
International Association of Machinists, Local No 198, affiliated with the Ameri-
can Federation of Labor ; and Idaho Refining Company Employees' Benefit and
Labor Association are, labor organizations within the meaning of Section 2 (5)
of the Act.,
2. 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 (1)
of the Act.
86 National Licorice Co.'v National Labor Relations Board, 309 U. S. 350, enf'd as mod.
Matter of National Licorice Co. and Bakery and Confectionery Workers International
Union of America, Local Union 405, Greater New York and Vicinity, 7 N. L. R B 537 ;
National Labor Relations Board v. Stackpole Carbon Co., 105 F. (2d) 167 (C. C. A. 3),
enfg as mod 6 N. L. R B. 171, cert. den 308 U S 605.
67 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incuired by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett'Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and • Sgwmill Workers Union, Local `2590, 8 N_ L. R B 440 Monies received for
work perforTa upon Federal, State, county, municipal, or other work-relief,pro)ects,shall
be, considered as earnings. See Republic Steel Corpm ataon V. N. L. R. B., 311 U. S. 7
1166- DECISIONS OF'NATIONAL LABOR RELATIONS BOARD
3."B9'dominating and 'interfering with the formation and admiiistration of
the Association; and contributing support to it, the respondent' has engaged
and is engaging in unfair labor practices within 'the meaning of Section 8'(2)
of the Act.
'.4 . By discriminating, in 'regard to the hire and -tenure of employment of the
employees -listed in ' Appendix A, and Wayne Douglas thereby discouraging'
membership in Teamsters, Chauffeurs, Warehousemen and Helpers, Local No.'
983, and International Association of Machinists. Local No. 198, • the respondent
has engaged 'in and is engaging in unfair labor practices, within the meaning
of, Section 8 (3) of the Act. - '
5. The respondent's truck drivers at Pocatello, excluding the foreman, consti-'
tute a unit appropriate for the' purposes of collective bargaining, within the
m eaning of Section 9 (b) of the Act
6 Teamsters, Chauffeurs, Warehousemen and Helpers, Local No. 440, was on
November 14, 1941,' and at all 'times thereafter until January 16, 1942, and
Local No. 983' thereafter has been, the exclusive representative of all of the
employees in such unit- for the purposes of collective bargaining within the
'meaning of 'Section 9 (a) of the Act.'
7' By refusing on November 21, 1941, and at all times thereafter, to bargain
collectively with Local No. 440 and therewith its successor Local No. 983 as
the exclusive representative of all its employees in such unit, the respondent
has engaged and is engagingin'unfair"labor practices, within the meaning of
Section' 8 (5) of the Act.
8 The aforesaid labor practices are'unfair labor practices affecting commerce
ibithin the meaning of Section 2 (6) and (7) of the•Act.
RECOMMENDATIONS
'Upon the basis of the above findings of fact and conclusions of law the under-,
signed recommends that the respondent, Idaho Refining Company, Pocatello,
Idaho, and its agents, officers, successors; and assigns, shall
1. Cease and desist from :
(a) Dominating or `interfering with"the administration of the Association,
or with the formation or administration of any other labor organization of'its
employees, and from contributing financial or other support to the Association, or
to-any other labor organization of its employees;
(b) Giving effect to or performing the contract of June 1, 1942, with the
Association,, or any, extension or renewal thereof, or any other agreements;
understandhrga, or rrangements entered into with the Association, respecting
rates of pay, wages, hours of work, or other conditioiis of employment ;
(c) Discouraging membership in Teamsters, Chauffetii•s, Warehousemen and
Helpers, Local No. 983, and International Association of Machinists,' Local No'
198, ,both. affiliated: with -,the American Federation of Labor, or any, other labor
organization of its employees, by discouraging, laying off, or refusing to reinstate
any of'-its•employees,'or in any other m'nner•diseriminating in regard to their
hire Ind tenui•e'of employment or ,any term oI
1
. r condition of employment;
.(d) Refusing to bargain collectively with Local Union No. 983 of Teamsters,
Chauffeurs, Warehousemen and Helpers, affiliated with the American Federa-
fioii'of Labor; as the exclusive representative'of the drivers at Pocatello,'exclud-
ing the foreman, in„respect f6 rates,of pay, wages, 'hours of employment, and
other, conditions' of employment; • . ,,
(e) --'In,' any, other 'manner interfering with, 'restraining,, or 'coercing-:its-
employees' in the exercise 'of - the' right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
IDAHO, REFINING COMPANY 1,167,
their own choosing,, and to engage', in. concerted activities for the purpose of
collective bargaining or other mutual aid or-protection as guaranteed in Section
7 of the Act., . - J
-. 2. Take the 'following affirmative action which the undersigned finds will,
effectuate the policies of the Act :
(a) Completely disestablish the Association as the representative of any of
its employees for the purpose of dealing. with the respondent concerning griev
ances, labor disputes, .wages', rates of pay, hours of work, and other conditions,
of employment ;
(b) Withdraw all recognition from the Association as the representative of,
any of its; employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of work, and other condi-
tions of employment, and completely disestablish the Association., as such
representative ;
(c) Offer to the employees listed in-Appendix A and Wayne Douglas immedi-
ate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their'seniority and other rights and privileges . ' • . '
(d) Make whole the employees listed in Appendix A and Wayne. Douglas'
for any loss of pay they may have suffered by reason of the respondent's dis-
crimination against them, by payment to eacli of them of a sum of money equal'
to that which he'normally would have'received as wages from the date of the
respondent's discrimination against him to the date of the respondent's 'offer of
reinstatement, less his net earnings,'' during said period ; .
(e) Upon request, bargain collectively with ,Teamsters,, Chauffeurs, Ware-
housemen and Helpers, Local No 983, affiliated with the American Federation'
of Labor, as the exclusive representative of the respondent's truck drivers at
Pocatello, excluding the foreman, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(f) Post immediately in conspicuous places in its plant at Pocatello, and on
the premises occupied or used by the respondent at Boise, Idaho, and Baker,
Oregon, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it is recommended that it cease and
desist in paragraphs 1 (a), (b), (c), (d) and (e) of these recommendations;
(2) that the respondent will take the affirmative action set forth in paragraphs
2 (a), (b), (c), (d), and (e) of these recommendations; and (3) that the
respondent's employees are free to become or remain members of Teamsters,
Chauffeurs, Warehousemen and Helpers, Local No 983, and international Asso-
cation of Machinists, Local No. 19S, both affiliated with the American Federation
of Labor, and that the respondent will not discriminate against any employee
because of membership or activity in those organizations ;
(g) Notify the Regional Director for the Nineteenth Region in writing within
ten (10) days from the date of the receipt of this Intermediate Report what
steps the respondent has taken to comply therewith.
It is further recommended that unless on or before ten (10) days from the
date of the receipt of this Intermediate Report, the respondent notifies said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respond-
ent to take the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended-effective October 14,
1942, any party may within fifteen (15) days from the date of the entry of the
88 See footnote 37, above.
1168 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
order' transferring the case to the Board, pursuant to Sectioii 32 of Article II
of said'Rules and" Regulations, file witli the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting forth
such exceptions,to the Intermediate Report or to any other part of the record
or proceedings (including rulings upon all motion or objections) as he relies
upon, together with the 'original and four copies of a brief in support thereof
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days after the date of the order transferring the case
to the Board.
MORTIMER RIEMER,
Trial Evaminer.
Dated October 20; 1942.
APPENDIX A
Leo Archibald Victor Ellingford R E. Miller
James Ayers John Evans John Ray
K. C. Brower Leonard Fowler Leland Stanford
S. R. Burkholder :Arthur Heckert P P. Stanger
Guy Campbell Henry Henricksen Myron D. Whitesides.
Boyd Cornia Carl Hill
Howard Davis A. Stanley Merrill