Jefferson Lake Oil Co., Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1939

16 N.L.R.B. 355 (N.L.R.B. 1939)

In the Matter Of JEFFERSON LAKE OIL COMPANY, INCORPORATED and
SULPHUR WORKERS LOCAL UNION No. 21195
Case No. C-1067.-Decided October 2 , 1939
Sulphur Mining-Interference, Restraint, and Coercion: disclosure of identity
of union members, effort to secure ; engendering fear of loss of employment
for union membership or activity ; expressed preference for unaffiliated labor
organization ; inducements granted for repudiation of outside union ; espionage ;
wage increase offered to discourage union activity ; individual contracts, effort
to impose departmental collective bargaining unit-Company-Dominated Union:
contract with, abrogated ; coercion to join, and attend meetings of ; dis-
crimination in favor of, discharge for refusal to join ; recognition as rep-
resentative of employees; soliciting members on company time and property,
not controlling where same privilege granted outside union ; sponsoring and
fostering the growth of ; responsibility for activities of supervisory employees ;
threat of discharge for failure to join; disestablished, as agency for collective
bargaining-Evidence: mere statement by counsel of disestablishment of com-
pany-dominated union, absent evidence, insufficient to base finding-Collective
Bargaining: charges of failure to, withdrawn-Discrimination: discharges, for
union membership and activity ; for refusal to join and otherwise evidence
interest in unaffiliated union ; refusal to reinstate following non-discriminatory
lay-off; charges of, in regard to 'hire and tenure, not sustained as to eight
employees-Reinstatement Ordered: discharged employees ; employees laid off ;
reinstatement to positions for which qualified ; application for, not prerequisite
to order requiring, in view of employer practice negativing necessity ; dis-
placement of newly hired employees by employees discriminatorily discharged
and refused reemployment ; reduction of -staff after reinstatement order com-
plied with, if necessary ; preferential. list-Back Pay: awarded ; no indicia to
determine order of reinstatement ; proportionately distributed among all dis-
criminatorily discharged employees, although immediate employment for all
unavailable ; measured by earnings of new employees ; no deduction in, on
account of unemployment compensation benefits paid to employees.
Mr. L. N. D. Wells, Jr., for the Board.
Mr. E. Howard McCaleb and Mr. Eugene H. Walet, Jr., of New
Orleans, La., and Mr. Kenneth McCalla, of Houston, Tex., for the
respondent.
Mr. Harry Brownstein, of counsel to the Board.
16 N. L. R. B., No. 40.
355
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed 1 by Sulphur
Workers Union No., 21195, herein called the Union,- the National
Labor Relations Board, herein called the Board, by the Regional
Director for the Sixteenth Region (Fort Worth, texas), issued its
complaint, dated March 25, 1938, against Jefferson Lake Oil Com-
pany, Incorporated,' herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),
(3), and (5) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. A copy of the com-
plaint and the notice of hearing thereon were duly served upon the
respondent and the Union.4
In respect to the unfair labor practice, the complaint alleged, in
substance, (1) that the respondent dominated and interfered with
the formation and administration of a labor organization known
as the Employees Independent Protective Association, herein called
the Association, and contributed financial and/or other support to
it; (2) that the respondent discharged and refused to reinstate 51
named employees for the reason that they joined and assisted the
Union and engaged in concerted activities for the purpose of col-
lective bargaining and other mutual aid and protection; (3) that
the respondent had, since November 10, 1937, refused to bargain col-
lectively with the Union as the exclusive representative of its
employees in an appropriate unit, consisting of employees engaged
in the production and handling of sulphur, excepting those in official,
I The respondent contends that the charges cannot support the Board's complaint since
there was no proof that the individuals signing the charges for the Union were "authorized
and empowered to file the charge on behalf of the individuals stated in the charge." Such
authority is not necessary . Article II, Section 1, of National Labor Relations Board Rules
and Regulations-Series 1, as amended , provided that a charge "may be made by any
person or labor organization ." These rules and regulations were complied with here.
2 The original charge referred to the Union as Federal Labor Union of Freeport, Texas.
The amended charges thereafter filed referred to the Union both as the Sulphur Worker,-,
Union No. 21195 , which is the correct designation , and Sulphur Workers Local Union 211.95.
a Also referred to as Jefferson Lake Oil Company, Inc.
4 On November 22, 1937, the Union filed a petition for investigation and certification
of representatives pursuant to Section 9 (c) of the Act. On March 7, 1938 , the Board
ordered an investigation and authorized the Regional Director to conduct it and to provide
for an appropriate hearing upon due notice , and further ordered that the two cases be
consolidated for the purposes of hearing . On April 18, 1.938 , the Board , deeming it
necessary in order to effectuate the purposes of the Act, ordered the severance of the
representation case from the case here being considered. The representation case is
therefore not involved in the present proceeding.
J EFFERSON LAKE OIL COMPANY, INCORPORATED 357
supervisory, or clerical capacities, although a majority of such em-
ployees had chosen the Union as their duly designated representative
for the purpose of collective bargaining; and (4) that the respondent
had, by these and other acts, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed by Section 7
of the Act.
Pursuant to notice of hearing, and notice of postponement of hear-
ing, duly served upon the respondent and the Union, a hearing was
held in Brazoria, Texas, from April 18 to,23, inclusive, and April 25
and 26, 1938, before Joseph S. Kiernan; the Trial Examiner duly desig-
nated by the Board. The Board and the respondent were represented
by counsel and 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 coln-
mencement of the hearing, the respondent filed an exception to the
jurisdiction of the Board denying that the respondent's operations
affect interstate commerce within the meaning of the Act, and an
answer denying that the respondent had engaged in or was engaging
in unfair labor practices as alleged," and asserting that all the allega-
tions in the complaint, save for the alleged discriminatory discharges
and refusals to reinstate, were previously compromised and settled. At
the close of the Board's case, the Board moved to amend the complaint
in respect to the dates when certain unfair labor practices were alleged
to have been committed by the respondent. The motion was granted.
During the course of the hearing, upon the respondent's declaration
that it would bargain collectively with the Union as the exclusive rep-
resentative of the respondent's employees within the appropriate unit,
the Union withdrew the charge it had filed referring thereto. The
Board's attorney, pursuant to instructions from, and acting for, the
Regional Director for the Sixteenth Region, thereupon dismissed the
allegations of the complaint pertaining to the respondent's refusal to
bargain collectively with the Union. We hereby approve the with-
drawal of the charge and affirm the action of the Regional Director.
At the close of the entire case, the Board moved to amend the com-
plaint by including within its scope an alleged successor to the Asso-
ciation. The motion was denied. During the course of the hearing,
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence. The Board has reviewed all the rulings
6 Although the Association was not served with the complaint , notice of hearing, and
notice of postponement of hearing herein , opportunity to Intervene was given it by the
Trial Examiner during the course of the hearing. The Association , however, did not
intervene.
6 The answer was orally broadened In scope to include the denial of all the unfair labor
practices charged . The written answer denied only the allegations of discriminatory
discharges and refusals to reinstate.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Trial Examiner and finds that no prejudical errors were com-
mitted. The rulings are hereby affirmed.
On November 28, 1938, the Trial Examiner filed his Intermediate
Report, a copy of which was duly served on all parties, finding that
the respondent had engaged in unfair labor practice affecting com-
merce, within the meaning of Section 8 (1), (2), and ( 3) and Section
2 (6) and ( 7) of the Act, and recommending that the respondent
cease and desist therefrom and take certain specified affirmative action
to effectuate the policies of the Act. The Trial Examiner found that
there was no evidence to support the complaint that the respondent
had refused to bargain collectively with the Union , and recommended
the dismissal of that portion of the complaint without prejudice.
Exceptions to the Intermediate Report were thereafter filed by the re-
spondent . The respondent requested opportunity to submit briefs or
.present oral argument to the Board on the exceptions . Permission
to file briefs was granted by the Board to all parties. The respondent
thereafter filed a brief in support of its exceptions . The Board has
considered the. exceptions to the Intermediate Report, and , in so far
as they are inconsistent with the findings, conclusions , and order set
forth below , finds no merit in them.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent , a Louisiana corporation having its principal office
in New Orleans, . Louisiana , is engaged chiefly in the production, sale,
and distribution of sulphur . The sulphur is produced at Clemons
Dome in Brazoria. County, Texas. The respondent also carries on
oil operations in Louisiana . It is , however, with the respondent's
sulphur operations in Texas that this proceeding is concerned.
The respondent first ' began shipments of sulphur in September
1937. From September 1937 to April 13, 1938, the respondent sold
and shipped 13,800 tons of sulphur to purchasers outside the State
of Texas, and shipped 68 ,266 tons of sulphur to destinations within
the State of Texas. Of the intrastate shipments , 74.7 per cent, or
51,008 tons, were shipped to the Texas Gulf Sulphur Company in
consideration for a leasehold interest in sulphur-producing land. All
of this sulphur was in turn sold and shipped by the Texas Gulf
Sulphur Company to purchasers in other States and foreign coun-
tries. From May 1937 , when the respondent commenced the produc-
tion of sulphur , to. April 18 , 1938, the respondent purchased $19,629.70
worth of chemicals for use in producing sulphur , $14,417.37 of which
JEFFERSON LAKE OIL COMPANY, INCORPORATED 359
was for purchases from concerns outside the State of Texas. During
the.same period, total pipe purchases amounted to $140,017.13, of
which $109 ,522.22 represented purchases from concerns outside the
State of Texas.
II. THE ORGANIZATION INVOLVED
Sulphur Workers Union No. 21195 is a labor organization affiliated
with the American Federation of Labor, herein called the A. F. of L.,
admitting into membership employees of the respondent as well as
.employees of another sulphur company in Freeport, Texas.
Employees Independent Protective Association is a labor organiza-
tion admitting into membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. The respondent's initial effort to hinder the formation
and growth of the Union
In September 1937 the A. F. of L. sent a labor organizer to
• Freeport, Texas. When rumors of this organizer's presence reached
Harold Jaquet and Frank Bell, respectively the respondent's assistant
superintendent and general field foreman, they so informed the re-
spondent's general superintendent, Harvey Wilson. About Septem-
ber 15 Wilson called Pat Barry, an assistant field foreman, into his
office, stated that he understood that the respondent's employees were
forming ia union, and asked Barry to urge the employees to "hold
off a little while . . . until the Company could financially be able
to meet their demands." Pursuant to Wilson's request, Barry in-
dividually discussed with about 70 per cent of the respondent's field
employees the postponement of union organization, and at the same
time elicited information concerning the desires of the workers to
be represented by a nationally affiliated union or "a union or a club
.of their own." In the latter part of September, Barry reported to
Wilson that what he had stated to the respondent's employees prob-
ably "hadn't done any good."
On October 8, 1937, Jaquet learned from several employees that
a labor organization planned a public meeting that evening in Free-
port. That afternoon, he and Bell called numerous employees to
the office and questioned them concerning the forthcoming meeting
and the extent of unionization among the respondent's employees.
Jaquet suggested to one of these employees, George Thomas, a yard
foreman, who expressed his intent of attending the meeting, that
the respondent would appreciate a report to Bell with respect to it.
247333-40-Vol. 16--24
360 DECISIO \S OF 1AT:1O AL LABOR RELATIONS BOARD
Jaquet also told the employees that the company "would not tolerate
a union, and if the men insisted on organizing one, we would all be
out of jobs ..."
Later that day, Jaquet, who reports "particular accidents" to
Wilson "as soon as it happens," communicated with Wilson, then
in New Orleans, by telephone, and advised him, among other things,
of the meeting. Wilson instructed Jaquet to ascertain what labor
organization was sponsoring the meeting and which of the respond-
ent's employees would attend.
The A. F. of L. held the public meeting on October 8, as planned.
The following morning, the' respondent's general superintendent,
supervisors, and foremen, questioned a number of employees con-
cerning the meeting and their interest in labor organizations. Jaquet
and Bell again interrogated Thomas. They were particularly inter-
ested in learning who the speakers were, what was said, and whether
the union organizer in his talks had mentioned the name of the
respondent. Jaquet also wanted to know which of the respondent's
employees had joined the Union, but Thomas refused to make such
a disclosure. Wilson, having returned from New Orleans, called
L. Zeller, ' an employee, into his office, and, by his own testimony,
stated, "I told him I heard he was interested in the union. He said he
was, and I asked him what it was all about . . ." Along similar lines,
L. V. Lebeuf, chief engineer in charge of the power plant and super-
visor over the machine and electrical departments, questioned Charles
Hearn, maintenance foreman under his supervision. Henry Anding,
pipe-line foreman, similarly questioned O. O. Evans, an employee
whom he supervised. Lebeuf added, in speaking to O. J. Stoutes,
an employee, that "if you boys don't get right, there's going to be
a change." About the same time, Arthur Arrington, garage foreman,
questioned Ed Lonis and Fred Duval, tractor and truck driver,
respectively, accompanying his inquiries with the remark that if
the Union successfully organized the plant, the respondent would
cease operations and all employees would lose their jobs.
At an A. F. of L. meeting on October 12, 1937, a committee of
seven persons was selected to negotiate a contract with the respond-
ent. The following day, before the committee had formulated its
demands and itself requested a conference, three employee members
of the committee, namely, A. B. Gladney, J. L. Eason, and Zeller, were
called into the respondent's offices where were present Wilson, Eugene
Walet, the respondent's attorney and a member of the board of direc-
tors, and Alfred Mayer, the respondent's executive vice president and
general -manager, who had recently arrived from New Orleans.
There the employee representatives, in a 11/2-hour conference, were
questioned concerning their grievances, were told that the respondent
.TEFFP;RSO\ LAl' E 011. COKPAN , INCORPORATED 361
was in financial difficulty. "was going to do what was right," and
would like to settle possible strikes "without any trouble." Eason did
riot know why he and the other two employees happened to be chosen
for this conference by the respondent, and Mayer himself testified that
lie did not know who suggested their being called. In view of the
respondent's diligent and extensive inquiries into activities of the
Union, the peculiar coincidence of Gladney, Eason, and Zeller being
singled out for separate attention : by' the respondent-can be explained
only by the fact that the respondent had been informed earlier of
-their selection as members of the contract negotiating committee, and
had summoned them for the purpose of thwarting union progress in
its incipiency. We so find.
2. The "Employees' Group" contract
Since June or July 1937, Wilson had repeatedly but unsuccessfully
requested Mayer to increase wages of the employees. Sometime
between October 9, when Wilson talked to Zeller concerning the labor
difficulties at the plant, and October 13,.Wilson again urged a ivage
increase. Mayer this time responded." For a period of 3 or 4 days
after October 13, 1937, the respondent, acting through Mayer, Wilson,
Walet, and Lebeuf, sent for its employees singly and in departmental
groups. The employees were then proffered an employment contract
covering wages, hours, and working conditions, which Mayer exhorted
the employees to sign. The contract was drafted by Walet, the
respondent's attorney, without participation by the Union or any of
the respondent's employees. The contract, however, was prefaced by
a "whereas" clause that the particular departmental group concerned
had arrived at an agreement with the respondent with respect to
wages, hours of labor, and working conditions. The contract pro-
vided for a general increase in wages of 10 per cent, but with greater
increases in a few individual cases. It provided that the appropriate
unit for purposes of collective bargaining should be a departmental
unit-there, appear to have been about 15 departments-and that col-
lective bargaining for the employees in the department was to proceed
"individually and as a group." It further provided that the agree-
ment was to remain in full force and effect until the respondent had
' Mayer also testified that he selected Eason , Gladney, and Zeller at this time to the
exclusion of any other employee probably because he thought that they were entitled to
an increase in wages of more than 10 per cent which , as will later appear , he gave to most
of the employees . In view of the fact that there is no showing that these three employees
did receive more than the regular 10-per cent increase, and were not, in any event, given
or promised the increase on this day , and further, that these employees were not in the
same department , and the raises given were generally made to departmental groups at
one time , we cannot credit Mayer 's testimony in this respect.
BBarry also suggested to Mayer,that "if we could increase the wages a little." the
employees might form a "club or union of their own . .
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
improved its financial and industrial position "and saw fit to make
adjustments" or until 60-day written notice by either party had been
given to the other.°
All of the respondent's employees signed the contract. Thomas
signed the contract in apprehension of the loss of his job, because
"you, yourself (Walet) told me that that contract must be signed
that evening, so you could get away back to New Orleans." When
Hearn asked Lebeuf if it was necessary to sign the contract, Lebeuf
replied "it was necessary for a man to stay on the right of the com-
pany if he wanted to work out there." Another employee signed be-
cause E. P. Landry, his foreman, told him "it would be a good idea
to sign it."
During the time when the employees were present in the respond-
ent's office, Mayer spoke to them and, according to Wilson, whose
testimony we accept as true, stated :
Generally he explained to them that the company was in a tight
financial position . . . and it was very difficult to get hold of
0 It was stipulated by the parties that the contract below set forth is the form which
was used for each departmental group, each contract specifying the rate of pay and hours
of work for the particular department involved. The entire contract reads as follows : .
AGREEMENT BETWEEN EMPLOYEES GROUP (DRILLERS) OF THE JEFFERSON LAKE OIL
CO.. INC., AND THE JEFFERSON LAKE OIL CO., INC.
This agreement made and entered into by and between Jefferson Lake Oil Co., Inc.,
hereinafter called "Company" and the Employees. employed and known as "Drillers",
of the Jefferson Lake Oil Co., Inc., individually and collectively, and hereinafter
called "Drillers."
Witnesseth :-
That whereas the "Drillers" have shown that they represent a majority of the
employees in that division trade or group employed by the Company as drillers,
being the total number of drillers so employed by the "Company."
And whereas "Drillers" and "Company" have arrived at an agreement with
respect to wages, hours of labor and other working conditions.
Now therefore it is agreed between the parties hereto as follows
(1) "Company" recognizes "Drillers" as a group or division, individually and
collectively, to bargain, individually and as a group, as to wages, hours, and other
working conditions.
(2) "Company" agrees to pay and "Drillers" do hereby agree and accept the
rate of One Dollar and Ten Cents ($1.10) per hour wages, and a forty-eight (48)
hour working week.
(3) "Drillers" shall at all times have the right, individually or as a group to
present grievances to "Company" through its designated officer or representative.
(4) This agreement shall be and remain in force and effect until such time as
"Company" shall have improved Its position comparatively with other companies
in the sulphur industry, financially and industrially, and see fit to make adjust-
ments or until either or any party hereto gives sixty days written notice to the
other parties.
(5) The present rates of pay and working hours shall continue in effect, subject
to adjustments herein provided.
Thus done and signed by the parties hereto, in originals, this 16th day of
October, 1937.
JEFFERSON LAKE OIL CO. INC.,
By (Signed) A. A. l1IAYER, Executive Vice-President.
EMPLOYEES' GROUP OF THE 'JEFFERSON LAKE OIL CO.,
INC., "DRILLERS",
By , individually.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 363
money, and that he wanted to do as good for the men as he was
financially able to, and even though it was a strain he was going
to give them the 10 per cent increase . . . The general nature
of a conversation was, he was going to do as good for the men
as he could, but that he was limited. He was seeking a way to
pacify them and get them contented. Satisfied with their work-
ing conditions.
Although most of. the employees were granted a wage increase of
10 per cent, the wages of Thomas, several days later elected vice
president of the Union, were increased by 50 per cent. As Thomas
left the office, Wilson, stating that he was trying to be neutral and
that he was on the "spot," entreated Thomas to use his influence with
the employees to straighten out the labor difficulty at the plant.
3. Other acts of interference
. Despite the consummation of the "Employees' Group" contracts,
the Union was able to maintain its ranks. Other incidents occurred
thereafter which are reflective of the respondent's attitude toward the
Union. Lebeuf cautioned Elvest Pelletier, an employee, that since,
he had been given an increase in pay, he had "better get on the right
side of the fence." To Hearn, Lebeuf suggested that if he, without
the participation of the Union presented a list of employee demands
on a "piece of paper," the respondent would "fix you up" on it. To
another employee under his supervision whom he had approached,
Lebeuf stated that if the Union successfully organized the respond-
ent's employees, the Union would make demands which could not be
met and the respondent would -be forced to shut down. Anding re-
minded another employee of the "union troubles" then extant at
Houston, Texas, and added that the respondent would never recog-
nize the Union-"they will either shut down or lay you off." Bischoff
stated to an employee that he (Bischoff) had the power to hire and
discharge and that he (the employee) was "working for the coin-
pany, not against it." Bell warned Thomas that should the respond-
ent recognize the Union, the respondent would be unable to compete
with a rival sulphur company and would cease operations. Wilson
stated to an employee that the respondent was ready to test the
Union's economic strength and in the event of a shut-down those.
employees who were "loyal to their job and all," would be transferred
to other sulphur-producing leases where there were no union activities.
4. Conclusion with respect to interference, restraint, and coercion
The facts above set forth reveal with compelling clarity the respond-
ent's interference with its employees' right to self-organization and
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to bargain freely through representatives of their own choosing. At
the outset, when a report of a labor-organizational movement circu-
lated, the respondent sent out one of its foremen as an emissary to
thwart the movement in its infancy. The respondent intensified its
anti=union activities when it was apprised of the labor meeting in
Freeport on October 8. Immediately preceding and following this
meeting, the respondent, by a pervasive examination of its employees,
inaugurated a program designed to intimidate its employees and .to
enlighten itself on matters which, under the Act, it should have taken
no concern. Wilson participated along with others of high rank
in the respondent's employ. Even before returning to Brazoria from
New Orleans, Wilson had been advised of the meeting in a telephone
conversation with Jaquet. Wilson's instructions to Jaquet were in
general conformity with steps already taken by him and Bell, and
which were, in themselves, unfair labor practices. Thus employees
were questioned as to union sympathies,10 were told that the fruition of
unionism would mean the loss of their jobs," and were asked to
engage in acts of espionage on behalf of the respondent 12
When the respondent discovered that the Union was preparing to
negotiate a contract with it for its workers, the respondent, without
waiting for union proposals to be presented, ferreted out employees
selected by the Union to represent the Union in the negotiations and
sought to forestall future activity by promises of palliatives. -
Using the "Employees' Group" contract as an instrument, the re-
spondent then administered what it apparently hoped to be a coup
de grace. We find that the "Employees' Group," contract, proffered
to ^ individual employees at this "time, and under the circumstances
10 Matter of The Boss Manufacturing Com.pa .ny.and . International Glove Workers' Union
of. America, Local No. 85, 3 N. L. R. B. 400; Matter of Trenton Garment Company and
International Ladies' Garment Workers Union, Local 278, 4N. L. R. B. 1186 ; Matter of
Semet: Solvey Company, and Detroit Coke Oven Employees Association and International
Union, United Automobile Workers of America, Local 174, 7 N. L. R. B. 511.
nMatter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the
District Council Office Equipment Workers, 2 N. L. R. B. 626, aff' d. National Labor Rela-
tions Board v. Remington Rand, Inc., 94 F. (2d) 862, Cert. den. 304 U. S. 576; Matter
of Leo L. Loney, individually, doing business as Tapered Roller Bearing Corporation and
International Association of Machinists , District No. 15, 3 N. L. R. B. 938 ; Matter of
Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No.
502, 6 N. L. R. B. 171 ; aff'd. as mod . National Labor Relations Board v. Stackpole Carbon
Company„308 U. S. 605; Matter of The Serrick Corporation and Internati onal Union.
United Automobile Workers of America. Local No. 459. 8 N. L. It. B. 621; Matter of Emsco
Derrick and Equipment Company (D ,( B Division) and Steel Workers Organizing Com-
mittee. 11 N. L. R. B. 79.
12Matte• of Metropolitan Engineering Company and ,lfetropalitan Device Corporation
and United Electrical and Radio Workers of America, Local No. 1203 . 4 N. L. R. B. 542 ;
Matter of The Boss Manufacturing Company and International Glove Workers ' Union of
America, Local ' No. 85, 3 N. L. R. B. 400 ; Matter of Friedman-Harry Marks Clothing
Company, Inc. and Amalgamated Clothing Workers of America, 1 N. L. R. B. 411, aff'd.
National Labor. Relations Board v . Friedman-Harry Marks Clothing Company, 301 U. S.
58.
JEFFERSON' LAKE OIL COMPANY, INCORPORATED 36.5
mentioned, was deliberately designed to destroy the Union and fore-
close its employees from exercising the right to self-organization and
collective bargaining guaranteed to them under the Act.'8 Statements
made by Mayer contemporaneously with the signing of the contracts
clearly evidence this purpose.
Notwithstanding the prefatory statement that the contract was
a consummation of a bilateral accord between the respondent and its
employees, the contract was neither the result of mutual negotiation
carried on in good faith nor the expression of a free choice on the part
of the employees.
In view of the timing of the wage increases , belatedly granted after
previous abortive efforts to obtain it and immediately preceding the
Union's first effort at collective bargaining, and in view of the respond-
ent's open hostility toward the Union, we conclude that the wage in-
crease was awarded by the respondent in anticipation of a similar
demand being made by the Union , was calculated to act as an induce-
ment to the employees to sign'the individual contracts with a minimum
of protest and to pacify the employees into facile submission to the
employer's will, and, as a logical incident thereto, to subvert the
Union itself.'
13Matter of Williams Manufacturing Company, Portsmouth , Ohio, and United Shoe
Workers of America , Portsmouth, Ohio , 6 N. L. R. B. 135; Matter of National Licorice
Coanpany and Bakery and. Confectionery IVorker.s International Union of .4 nerk:a. Local
Union 405, Greater New York and Vicinity, 7 N. L. R. B. 537, aff'd. as mod . National
Labor Relations Board v. National Licorice Connpanll. 60 S. Ct. 569: Matter of Newark Rivet
Works and Unity Lodge No. 420. etc.. at al .. 1) N. L. R. B. 498.
14 Wilson testified that he had requested Mayer since June or July 1937 to grant a
wage .-Increase to the. employees . .Mayer, promised an. Increase as soon as the respondent
comnienced^tlie shipment of sulphur.' Shipments began about September 15. 1937. Mayer
testified that he was unable to grant the increase until about the middle of October
because of his absence from New Orleans . He returned , however, in October, after ship-
ments had begun. He was in New Orleans on or before October S. In any event, in view
of the fact that Wilson again suggested a wage increase to him shortly after October 9.
and before October 13, during the height of union activity, and it was upon this request
that Mayer finally acted , and in view of the other circumstances mentioned above, we
reaffirm our finding above in regard to the moving consideration for the wage increase.
Matter of Ronni . Parfum, Inc.. and Ey -Teb Sales Corp . and United Mine Workers of
America. District No. 50, Chemical Division , successor to Chemical Workers Local Industrial
Union No. 33, affiliated with C. 1. 0., 8 N. L. It. B. 323, aff'd. National Labor Relations
Board v . Ronni Parfum Inc.. 104 F. (2d) 1017 (C. C. A. 2d) ; Matter of The Falk Corporation
and Amalgamated Association ' of Iron, Steel and Tin Workers of North America, Lodge
1.728, 6 N. L. R. B. 654. aff'd. National Labor Relations Board v. Falk Corporation 102 F.
(26) 383 C.SC. A. 7th ; Matter of'National Licorice Company and Bal:ery.and Confectionery
Workers International Union of America , Local Union 405, Greater New York and Vicinity.
7 N. L. It. B. 537, aff 'd. as mod . National Labor Relations Board v . National Licorice
Company, ee supra.; Matter of Hercules-Cauiphell Body Co.. Inc. and United Automobile
Workers of America. Local 3'118, 7 N. L. R. B. 431; Matter of American Potash cf Chem-
ical Corporation. :in(] Borax , t Potash Workers' Union No. 20181. 3 N. L. It. B. 140, aff'd.
National Labor Relations Board v. American Potash and Chemical Corp., 98 F. (2d) 488;
Matter of Jackson Daily A'ews. Inc.. and Jackson Printing Pre.e.cmcn and As sistants Union
No. 211. 9 N. L. R. B. 120; Matter of Tideurnter Iron, f ,Steel Company Inc. and American
Federation of Labor. Passaic County. New Jersey District. 9 N. L. R. B. 624.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In foisting upon its employees the departmental -unit provision
contained in the "Employees ' Group" contract , the respondent, under
the circumstances here present , could have intended but a single self-
evident consequence . Whatever its ultimate purpose in seeking to
establish at its plant a great number of comparatively small collective
bargaining units, the respondent 's immediate intent was to demolish
the Union by imposing upon its employees bargaining units of the
respondents ' own determination , entirely in disregard of appropriate-
ness or employee choice in the matter . The employees were given
no voice whatsoever in the determination of the most effective mech-
anism to protect their own interests . Thus the employee 's right to
self-organization was flouted.
Particularly illuminating as to the effect of the respondent's con-
duct on its employees is the testimony of Adolph Davis, a witness
called on behalf of the respondent :
Q. (By respondent 's attorney .) What made you change from
the A. F. of L . to the Independent Union?
A. Well, I had already signed a contract with the Company
after I joined the A. F. of L. Therefore , I figured I didn't need
a bargaining agency to represent me any more with the said
Jefferson Lake Oil Company.
Q. (By Board attorney.) Then when you found out you were
in there (the Union) and it was formed for the purpose of col-
lective bargaining, and you found out under this contract that
you did not need any collective bargaining, you could get on
all right for yourself, you decided to drop out ; is that it?
A. That's it.
We find that, by enlisting the aid of individual employees to
engage in acts of espionage on other employees and make reports to
it, by warning and threatening its employees that successful union-
ization would cause the plant to shut down and the employees to lose
their jobs, by urging employees to use their influence on other em-
ployees to smooth out employee unrest and dissatisfaction , by ques-
tioning employees to elicit information concerning the union affilia-
tion of its employees , by endeavoring to induce the Union, on October
13, to forestall expected negotiations on a contract between itself
and the Union, by its use of the "Employees' Group" contracts and by
the acts done and statements made in connection therewith, the
respondent has interfered with, restrained , and coerced its employees
in the exercise of the right to self-organization , to form, join, and
assist labor organizations, to bargain collectively through representa-
JEFFERSON LAKE OII, COMPANY, INCORPORATED 367
'tiv'es of their own choosing , and to engage in concerted activities for
=the "purpose of collecting bargaining and other mutual aid and
protection.
B. The Associations
The idea of forming the Association originated with Gilbert Ebarb,
a. driller in charge of three employees, about October 1, 1937. He
.engaged the services of an attorney, held a preliminary organizational
.meeting at his home, and completed organization of the Association
about October 8. Ebarb was elected. president, Henry Anding, fore-
man of the pipe-line gang, vice president, E. C. Arceneaux, secretary,
and W. C. Lewis, treasurer. Membership cards were printed and
.personally paid for by Arthur Arrington, garage foreman, without
reimbursement from the Association. He testified that he was moved
to do so possibly because of the esteem in which he held the
Association.
About October 8, Wilson, upon Ebarb's request, granted Ebarb 2
or 3 weeks leave of absence from employment, without pay. A sub-
stantial part of this time Ebarb spent at the respondent's plant urging
employees to withdraw from the Union and to become members of
,the Association, and occasionally adding that such was the respond-
ent's desire. He admitted speaking to all employees who would talk
to him.15 Wilson was informed of Ebarb's activity by Jaquet. On
several occasions, Ebarb referred employees to Wilson when they
hesitated about becoming members of the Association. In response
to Ebarb's invitation, one employee, at least, did confer with Wilson,
,who spoke to him of an employee's "loyalty" to his job, and then
proceeded to disparage the Union and threaten a plant shut-down in
the event the Union successfully achieved its demands. This employee
later became a member of the Association. He testified, "I figured
if I did not, I might be laid off or fired." As will later appear, also -
active on behalf of the Association were other employees in a super-
visory capacity, whose activity, as in the case of Ebarb's, was not
disavowed by Wilson. Other evidence already considered reveals
Wilson's antagonism toward the Union. We find that Wilson had
notice of Ebarb's conduct with reference to the Association, and
overtly gave approval to it. We further find that the employees had
knowledge of such approval and believed Ebarb to be expressing the
wishes of the respondent in this respect. Independent of this, how-
1s Ebarb testified that in soliciting employees, he told them "that we, each and every
one would have the right to a say-so in it, in the bargaining part of it, and the dues
that we would pay, we would benefit it by an insurance of our own making and kind."
Three employees testified, however, that Ebarb told them that if they did not "sign up"
with the Association, they would lose their jobs. Ebarb did not specifically deny their
testimony , which we find is true.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, Ebarb's statements and conduct , as we will later more fully
consider , are nevertheless attributable to the respondent , which is
responsible for the activities of its officials and supervisors.
Many other of the respondent 's supervisory employees , five by their
own admission , solicited members for the Association or otherwise
expressed their preference for it . The following besides Ebarb, were
active in this respect : Anding, Arrington , Lebeuf, and Bischoff, whose
supervisory status we have already mentioned ; John Perkins, fore-
man in charge of the salvage and rig-building crew ; H. C. Grace,
purchasing agent and foreman in charge of the warehouse and plant
site; Dewey Wilson,' an operator in charge of a sulphur station and
subsequently a foreman over a gang of negro laborers ; Joe Schwebel,
a supervisor over a crew of workmen , and Randolph Prell , shipping
foreman 17
Anding admitted that he "talked to everybody " to join the Associa-
tion. To a group of employees under his supervision , he stated, on
October 21 , that by November 1, they might lose their jobs unless
they became members of the Association . He warned another em-
ployee, a member of the Union, that he was on the "wrong side" and
that by affiliating with the Association , he would be on the "right
side" and be doing "what the company wanted us to do. " To another
union member who hesitated to join the Association , Anding declared
that the respondent was "not going to accept no union, " and added
that he would be "walking around without a job" if he did not join
the Association and attend its meetings . To two other employees
who were temporarily laid off, Anding declared that they must sign
Association membership cards before returning to work. Neither
signed and neither returned to work. Anding categorically denied
having told any employee that he would have to join the Association
to keep his job. In view of the consistency of employees ' testimony
to the contrary , however, much of which is corroborated , and And-
ing's own admission that he encouraged membership in the Associa-
tion, we find that these incidents-occurred as testified to by the various
employees.
An employee testified that Perkins told him and other employees
that Jaquet had said that "everybody had to come to the (Associa-
tion ) meetings or lose their job." Perkins did not testify . Jaquet
denied having told anybody that they would have to join or refrain
10 Not to he confused with Harvey Wilson, plant superintendent. Hereafter Dewey
Wilson will be referred to by his full name, and Harvey Wilson, as heretofore, only by his
eurname.
17 The respondent, in its brief, admits that among those forming and sponsoring the
Association were Ebarb, Anding, and Arrington. The respondent goes on to state, how-
ever, that uncorroborated statements are testified to by the claimant and rebutted wholly
or partially by the men to whom they are attributed. We are thus making separate find-
ings with respect to these persons.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 369
from joining any particular labor organization to retain his job.
He did not specifically deny having made such a statement to Perkins,
although opportunity to do so was afforded. He was alleged to have
made a remark of similar import to another supervisory employee 18
Jaquet had, from the outset, shown antagonism toward the Union.
We find that Jaquet made the statement attributed to him.
There is testimony that Bischoff promised an employee a wage in-
crease if he would "get on the other side, the right side . . ." and
that he threatened discharge to another employee who did not "line
up" and drop out of the Union. Although Bischoff did not deny
making these statements attributed to him, he testified that he did not
discuss labor organization with anyone. His testimony is contra-
dicted by still other evidence in the record. We find that these inci-
dents occurred as above set forth.
Arrington likewise warned employees of dismissal if they did not
become Association members.19 Arrington testified that he was active
in the Association, solicited employees wherever he happened to be,
and signed up between 25 and 30 members. He did not specifically
deny using coercion in securing Association memberships, but testified
that when he distributed membership cards, "I told-them they could
sign it or not sign it. I' left it with those remarks." We do not
credit Arrington's indirect denial in view of the consistent testimony
to the contrary of numerous witnesses. We find that he engaged in
solicitation as described above.
Prell was delegated by the Association to solicit the respondent's
colored employees. For this purpose, Prell made a visit to the homes
of many of them on the evening of October 16. Generally his
method of securing memberships followed the same pattern as em-
ployed by other supervisors and foremen already considered, namely,
threatening employees with the loss of work unless they became Asso-
18 A witness testified without contradiction that when Prell solicited him for member-
ship , Prell stated that Jaquet told him ( Prell ) that those who refused , would be discharged.
10 One witness , for example , testified as follows :
Q. You know Mr. Arthur Arrington?
A. Yes, sir ; I know him.
Q. Has he ever talked to you about a union?
A. Yes, sir ; he did.
Q. When was that?
A. That was the 14th of October or the 18th, I believe.
Q. Where were you when you talked to Mr. Arrington?
A. Well , I was in the field and all the boys around the field, he sent for us to
come up there next to the office.
Q. Who sent for you?
A. I guess , Mr. Arthur-that is who I saw when I got up there.
Q. What happened when you got up there?
A. Well, he had some cards for all the fellows to sign.
Q. What did he say?
A. He said, if we wanted the job to sign the cards , and if we didn't sign the
cards, we would lose our jobs.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciation members. For example, to some, he stated, "if you don't
sign, you won't have a job long; the Mexicans and the white folks
will have it." To another employee, who was temporarily laid off,
Prell promised his return to work if he enrolled in the Association.
This employee returned to work about 2 days after he joined the
Association. To another, he attributed intimidating remarks as orig-
inally emanating from Jaquet.21 At one point in his testimony,
Prell stated that he did not remember what his "selling line" was
that "sold" the Association to the colored employees, while at an-
other point he testified that he simply gave them membership cards
for the Association, explained that he believed that the Association
was a better organization than the Union, that he was a member of
the Association, and that he was enrolling employees for it. "I told
them the cards were there and if the boys wanted to sign them, we
would like to have them. If they didn't want to sign them, it was
just up to them." 21 Further testimony by Prell is enlightening :
"I think those negroes I had working for me, all of them signed."
In view of the consistent testimony of numerous witnesses which con-
tradicts Prell's general denial of coercion and Prell's uncertainty as
to the nature of. his conversations, we find that the incidents occurred
as testified to by the various employees.
On November 3, 1937, the Association asked Wilson for a collec-
tive bargaining conference, but was referred to Mayer as the proper
authority for such matters. Shortly thereafter, a conference was
arranged, but it was adjourned at the outset because the Association
was unable to show proof of majority. On November 8, the Union
asked Wilson for a collective bargaining conference, and was like-
wise referred to Mayer. On November 10 a conference was at-
tempted, but failed of completion because the Union, as in the case
of the Association earlier, could not prove that it represented a ma-
jority of the respondent's employees. On November 15, at the Asso-
ciation's instigation, another conference was held between the
Association and the respondent. Signatures of Association members
10 The statement Jaquet was alleged to have made was that employees would be dis-
charged unless they joined the Association. Neither Prell nor Jaquet specifically denied
this allegation , although Jaquet generally denied telling anyone that he would be dis-
charged for joining or failing to join any labor organization.
u Prell further testified as to a conversation with George Spiller , a colored employee :
Q. Do you recall any part of that conversation with him?
A. Yes, sir ; I do.
Q. Will you state it briefly?
A. I went out there and saw some of these negroes and asked them if they wanted
to join our union. ( The Association .) This negro told me that he didn't know, said
that he joined-said he might , he would like to but said "Mr. Randolph, I have
known you a long time . I would like to join it," but said, "I belong to the other
one." I said , " It doesn't make any difference , you can belong to this one too, if you
want to." He said "All right , sir." He said, "how many of the rest of them
(have joined )"? This is negro talk now , just like I am telling It. I said, "Quite
a few." He said , "all right." He signed a card . . .
JEFFERSON LAKE OIL COMPANY, INCORPORATED • 371'
were checked with the respondent's pay roll, and when the respondent
determined that the 'Association represented between 126 to 132 em-
ployees-a majority-the Association and the respondent proceeded
to negotiate for a contract. A contract concerning wages, hours,
and working conditions, and. recognizing the Association as the ex-
elusive representative of the respondent's employees for the purpose
of collective bargaining,, was consummated that same day.
The respondent contends that the acts and. statements of its super-
Visor-k- employees are not binding upon it. We do not agree. The
respondent cannot, under the circumstances, escape responsibility for
the conduct of its supervisors or foremen. A supervisory employee.
acts as an agent of the employer, and his acts are,necessarily those.
of the employer unless . effectively disavowed.22 Employees are in
constant association with supervisory employees from whom they
take orders and learn the company policy. In the instant case,
those to whom the employees looked for an expression of the re-
spondent's policy found, .not impartiality, but an attitude,of marked
favoritism toward the Association: and distinct hostility toward the
Union. The respondent's ' responsibility is not altered or .extin-
guished, as the respondent further contends; because the supervisory.
employees may not have the, power to hire or discharge.23 Moreover,,
the acts and statements of•Wilson and Jaquet, heretofore noted, con
22 Matter of Eagle Manufacturing. Company and Steel Workers Organizing Committee,
6 N. L. R. B. 492. aff'd. as mod. National Labor Relations Board Y. Eagle Manufacturing
Company, 99 F. (2d) 930; Matter of Virginia Ferry Corporation and Masters, Mates-and
Pilots of America, No. 9, at at., 8 N. L. R. B. 730, aff'd. as mod. Virginia Ferry Corporation
v. National Labor Relations Board, 101 F. (2d) 103; Matter of Swift & Company and.
Amalgamated Meat Cutters and Butcher 1Workmen of North America, Local No. 641, at al.,
7 N. L. R. B. 269, aff'd. as mod. Swift & Company V. National Labor Relations Board,
C. C. A. 4th, 106 F. (2d) 87 ; Matter of C. C. A. Lund Company and Novelty Workers Union,
etc., 6 N. L. R. 'B. 423; aff'd. as mod: National Labor Relations Board v. Christian A.'
Lund, etc., 103 F. (2d) 815; Matter of The Cudahy Packing Conipany and Packinghouse
Workers, etc., 5 N. L' R. B. 472, aff'd. as mod., The Cudahy Packing Company v. National
Labor Relations Board, et al., 102 F. (2d) 745;•Matter of Em.sco Derrick & Equipment
Company (D & B Division) and Steel Workers Organizing, Committee, 11 N. L. R. B. 79;
Matter of M. Lowenstein & Sons, Inc., and Bookkeepers'. Stenographers' and Accountants'
Union,' Local No. 16, United Office. and Professional Workers of America, C. 1. 0. et al.,
6 N. L. R. B. 216; Matter of The Serrick Corporation and International Union, United
Automobile Workers of America, Local No. 459, 8 N. L. P. B. 621; Matter of Tennessee
Copper Company and A. F. of L. Federal Union No. 21164, 9 N. L. R. B. 11.7; Matter of
Baer if Wilde Company and Swank Products ' Inc. and International Workers Union,
Local 18, 9 N. L. R. B. 420; Matter of T. W. Hepler and International Ladies' Garment
Workers Union, 7 N. L. R. B. 255; Matter of Central Truck Lines,,Inc. and Brotherhood
of Teamsters, Chauffeurs, Stablemen and Helpers of America, 3 N. L. R. P.. 317. It is
undisputed that the supervisors or foremen above mentioned possessed distinct super-
visory responsibilties, such as laying out, directing, and inspecting work, transmitting
orders to employees, and maintaining discipline. Likewise, employees regarded them as
their overseers. '' '
23 There is evidence in' the record, however, and we find, that practically all of the
employees whom.the respondent designates as supervisors in its brief, and who were active,
as above related, on beh'alf'of the Association, do have the power to'hire 'and discharge',
or the right' to make recormricndations'tiierefor' which are usually followed by the respond-
ent. As above stated, however, this is not determinative.
372 -DECISIONS OF NATIONAL LABOR RELATIONS I30ARD
cerning whose authority to bind the respondent no question is raised,
plainly pointed out the respondent's anti-union policy which the,
supervisory employees followed.24
We have mentioned that the solicitation of employees to become
members of the Association often occurred during working hours and
on company property. Our decision in this case, however, is not
based upon or influenced bythis fact. The respondent's rules did not
forbid solicitation by anyone for membership in any labor organiza-
tion. Indeed, there is evidence, and we find, that solicitation for the
Union likewise occurred during working hours and on company prop-
erty. Moreover, two of the union solicitors, Hearn and Thomas, were
employees of a supervisory status. If the treatment accorded two
labor organizations is equal, the treatment accorded to one cannot be
condemned or condoned any more than the treatment accorded to its
rival. In this case, however, circumstances appeared which visibly
affected any picture of impartiality on the part of the respondent.
These circumstances have already been enumerated in part. Prac-
tically all of the respondent's supervisors and foremen with the ex-
ception of Hearn: and- Thomas, .engaged in : conduct,. solicitation or
otherwise, on behalf of the Association. What is more important,
however, is that the respondent lent support to and openly encouraged
the activities of those who favored the Association. It allied itself
with the Association, and those who solicited on behalf of the Associa-
tion did so with impunity. On the other hand, the respondent dis-
avowed the activities of those supervisory employees who favored the
Union. This was done, not only by statements and conduct of Mayer,
Wilson, Jtiquet; and:Lebeuf, which have already. been.-noted, but.was
rendered more effective and conclusive by the discriminatory dis-
charges of Hearn; Thomas, and a liiunber of other' employees because
of their union membership and activity." By such conduct, the re-
spondent interfered with the freedom of the employees in choosing
their representative. That employees realized which organization
the respondent itself supported is shown by the following testimony
of an employee :
Q. (By counsel for the respondent.) How did you know, if
your did not discuss labor questions with him, what he meant by
getting on the "right side"?
24 Matter of Heller Brothers Company of Newcomerstown and International Brotherhood
of Blacksmiths, Drop Forgers , and Helpers, 7 N. L. R. B. 646; Matter of Swift & Company
and United Automobile Workers of America, Local No. 265, et al., 7 N. L. R. B. 287';
Matter of Emsco Derrick & Equipment Company (D & B Division ) and Steel Workers
Organizing Committee, 11 N. L. R. B . 79: Matter of Virginia Ferry Corporation
and Masters, Mates and Pilots of America , No. 9 et al., 8 N. L. R . B. 730, aff'd . as mod.
Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103.
21 See Subsection C, infra.
JEFFERSON LANE OIL COMPANY, INCORPORATED 373
A. Well that is what everybody out there called the "right
side," is that Independent Protective Association; if you are not
on that side, you are on the wrong side.
Q. In other words, it is generally discussed out there that that
is the right side, the Independent Protective Association?
A." By all of those that belonged to .it;. yes, sir.
The respondent urged at the hearing that it had already disestab-
lished the Association and disaffirmed the contract of November 15,
1937, consummated with it. It was stated by counsel for the re-
spondent, and denied by counsel for the Board, that in April 1938, as
part of a compromise, the respondent agreed to disestablish the Asso-
ciation and disaffirm the contract. However, neither counsel testified
and there is no competent evidence in the record from which we can
conclude that the respondent did, in fact, withdraw recognition from
and disestablish the Association, and cease giving effect to the con-
tract of November 15, 1937. We cannot, therefore, uphold the re-
spondent's contention.
We find that the respondent has dominated and interfered with
the formation and administration of the Association, and has con-
tributed support to it, and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
C. The lay-offs and discharges
The complaint herein alleged that the respondent discharged and
refused to ,reinstate 51 named employees for the reason that they
joined and assisted the Union and engaged in concerted activities for
the ptirpose``df collective bargaining and'other,nintnal aid and protec-
tion. The respondent admits the dismissals, but asserts that 11 em-
ployees were discharged for cause, and 40 employees were laid off
because "it did not need the total number of men then employed to
efficiently continue its operations ..." These defenses will subse-
quently be considered.26
n The respondent also insists that aside from the reduction In work at the plant, the
lay-offs and discharges were in addition necessitated by a retrenchment program. For
the purpose of proving a straitened financial condition, the respondent offered evidence to
show ' that it:hadmade ' loans ' to'carry on its operations ; that- dividends on Its cumulative
preferred stock were unpaid ; and that it had to forego the taking of a discount on
purchases not paid in time. It also introduced into evidence an exhibit showing a list
of accounts receivable, accounts payable, and cash in bank.
We find that the lay-offs , discharges , and refusals to reinstate were not in any way
motivated by, and did not occur as a consequence of, the respondent 's retrenchment pro-
gram. The money which the respondent had borrowed , and the dividends which accumu-
lated , occurred earlier during a transitional period of reorganization when the respondent
was contracting its business activities in Louisiana , and expanding its operations in Texas,
before shipments of sulphur had actually begun and income derived therefrom received.
The purchases on which discount was not availed of by the respondent were a small
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent further asserts that on November 1, 1937, the pay-
roll date preceding the dismissals, about 195 of the respondent's 207
employees were members of the Union, and that in the dismissal of
employees, union members must necessarily have been affected; fur-
ther, that it had no knowledge at the time of the lay-off s and dis-
charges, that any of the dismissed employees were union members.
The respondent's contentions in these respects are not sustained by
the record. Apart from the fact that the Union did not have the
number of members the respondent claimed it had, the manner in
which the dismissals occurred, as will hereafter be related, showed a
marked preference for Association members and a deliberate plan,
to oust union members. As for the respondent's knowledge of its
employees' labor affiliations, the record shows that practically every
employee who was laid off or discharged by the respondent was
approached by one or more of the respondent's supervisory employees
and his affiliation with and sympathy for the Union or the Asso-
ciation discussed. In addition, meetings of the colored division 27 of
the Association were attended by Prell, who was thus fully apprised
not only of what occurred at the meetings, but of the employees who
attended as well. Prell testified that his attendance was prompted
by his desire to help the members "get in line." Furthermore, we
have noted that the respondent on several occasions sought out em-
ployees to inform it of the union affiliations of its employees. In-
deed, Wilson admitted to Barry that he had "received reports" that
he (Barry) was a member of the Union. The record thus reveals
the respondent's knowledge of the labor organization affiliations of
the employees.
We shall now consider the respondent's contention that a reduc-
tion in work was responsible for the lay-offs of the 40 employees
above mentioned.
Percentage of the respondent ' s total purchases . The exhibit , though obviously inadequate,
did not of itself show a poor financial condition. It howed a total of cash in bank and
accounts receivable far greater than the total of accounts payable.
Furthermore , wages of all employees were increased in October 1937 , about a month
before the beginning of the lay-offs and discharges . Mayer testified that he had several
months prior to October advised Wilson that wages would be increased only "as soon
as the Company was in a financial position " to do so. On January 22, 1938, the respond-
ent's president directed a. communication to stockholders extolling the management for
the "Company's success" and the "favorable outlook which the future holds." Moreover,
it is apparent that the respondent relaxed the rigidity of any retrenchment program
when the respondent contemporaneously and subsequently hired other employees to re-
place, in part , the employees who were laid off and discharged. This will be considered
later in more detail. By our order in this case, subsequently set forth, we are not imposing
upon the respondent any expenses, absent unfair labor practices, which it did not itself
undertake by its own action.
27 The Association had two divisions , one composed of the respondent 's colored employees
and the other composed of the respondent's white employees.
JEFFERSON LAKE OIL COMPANY, INCORPORATED .375
1. Lay-offs and discharges for reasons other than "for cause"
After having been originally engaged solely in oil production in
Louisiana, the respondent, in 1936,, broadened the scope of its activi-
ties to include the mining of sulphur in Texas. Preparations for
constructing a sulphur plant in Texas were commenced on Septem-
ber 19, 1936. Full improvement of the property to be utilized and
exploited by the respondent became necessary before production could
begin. Much of this work was done by independent contractors,
but a-considerable amount was performed by employees of the
respondent. As a consequence, the respondent had in its employ a
number of employees who were not engaged in the actual production
of sulphur. Although construction of the plant was completed in
April 1937, and mining for sulphur began in May 1937, the respond-
ent found it necessary to continue the services of many of these
employees.
On September 2, 1937, Mayer wrote to Wilson, inter alia, as fol-
lows : ". . . for the present, I would request that you eliminate all
labor in and around the yard for the purpose of improving the
property. . . . In other words, limit your activities to those opera-
tions which are directly connected with the production of sulphur
and abstain from any improvements or embellishments." Wilson
replied by letter on September 22, that "all the suggestions you made
had already been carried out." The respondent had in the mean-
time decreased the number of employees on its pay roll from 233 on
August 31, to 206 on September 16.21 . This apparently was the
respondent's initial effort to eliminate the services of those employees
who were engaged, in work not directly connected with sulphur
production. .
On November 1, 1937, the i:espondent had in its employ 207 em-
ployees. The respondent insists that on about November 11, further
extraneous. work had been completed, and further reduction in per-
sonnel was in order. Wilson testified that despite the reduction in
force which had already been effected, it was not until the first part
of. November that the , respondent was "generally catching up
the odds and ends . . . were pretty well caught up, they got every-
thing in ..pretty tip-top shape, so it was a question of
every-day operation." He further testified that about October 15,
1937, the employees were "getting to the point where they were un-
necessary" and that he "knew there was a lay-off ahead." We credit
this testimony. In accordance with Wilson's testimony, and other
evidence in the record, we find that a portion of the work not directly
2s The number of the respondent 's employees set forth throughout this decision does not
include office employees.
247888-40-col. ]6=-25
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connected with sulphur production had been completed about Novem-
ber 11, and that therefore there were a ;lumber of employees whose
services the respondent no longer required. In making this finding
we are persuaded by the fact that on January 16, 1938, and there-
after, the respondent stabilized the number of employees at 179, and
we are not unmindful of the numerous adjustments, many of them
unforeseen, which are necessitated by business undergoing reorgani-
zation and beginning a new venture.
The respondent dismissed 40 employees between November 10 and
15, inclusive. Many of these employees, when dismissed, were told
that the respondent was "reducing forces." However, a great num-
ber of them, during the month preceding the termination of their
employment, had been warned by supervisors and foremen that they
would be discharged or laid off if they did not join the Association
or withdraw from the Union. We have considered such remarks
under Section III A and B, supra. We shall have occasion to refer
to them again when discussing individual lay-offs and discharges.
In the hire and dismissal of employees, the respondent followed
no rules of seniority. Decisions were purportedly based upon ability.
The respondent hired colored employees as common laborers. Their
work was of a, different character than the work for which the
respondent hired white employees, and the wages they received were
smaller. For reasons hereafter apparent, the two types of work,
and the employees who performed each, . must be considered
separately.
a. Discrimination of employees other than "common laborers"
The employment of 22 employees who were hired by the respond-
ent for work not classified as common labor was terminated between
November 10 and November 15, 1937, inclusive. Their names appear
on Appendix A herein.29 Practically all of these employees were
employed, at least a part of the time,30 in the field.31 The respond-
ent concedes their efficiency and in individual cases expressed
particular satisfaction with their work. Beginning on October 24,
1937, and extending through November 24, 1937, covering a period
21 For reasons hereinafter stated, Appendix A excludes the names of R. N. Brady, Harry
Skotnik, Joe Skotnik, Frank Skotnik, and G. E. Thomas , who were released between
November 10 and November 15, and includes the name of R. V. Ward, released prior
thereto.
80 There were 12 employees in Hearn's gang, for example , who also had duties in the
power plant.
31 The respondent 's operations are divided into two main categories : ( 1) field operations,
which embraced employees employed in the carpenter shop , garage , sulphur stations, vat,
shipping department , pipe-line gang, well drilling , salvage, and rig-building crews, ware-
house , and general field traffic ; and (2 ) other operations , which embraced employees
employed in the machine and blacksmith shops, powerhouse, and electrical department.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 37.7
during which the above 22 employees were dismissed, the respondent
hired 11 new employees. Two others were hired on December 11
and 17, The names of these employees, some of whom previously
had been employed by the respondent, were set forth on an exhibit
introduced in evidence as "white men recently employed," 32 and are
.set forth in Appendix D herein. None of the new employees who
were then in the respondent's employ were dismissed in November
when the discharges above mentioned occurred. At least 11 of the 13
new employees were members of the Association,33 some joining the
Association before beginning to work for the respondent.
In response to a question as to why the respondent hired new em-
ployees while discharging employees already in its employ, Wilson
stated that the respondent "had too many men in the field and not
enough in the machine shop, and the fellows in the field were. not used
to working in the machine shop." However, the evidence shows, and.
we find, that nine of the new employees were used for work in the%
field.34 Only one of the new employees devoted his time exclusively
to the machine shop,85 and the other three divided their time between
the machine shop, blacksmith shop, and power plant.3'
From the record, we find that the employees discharged by the
respondent were qualified to do the work for which the 13 new em-
ployees Were hired. For example, new employees were hired for
work as night watchmen, truck drivers, mechanics, workers in the
machine shop, power plant, blacksmith shop, pipe- line gang, rig-
building crew, and salvage crew. As we shall later observe when
discussing individual cases of employees discharged, much of this
Work had been previously performed by the old employees, and none
of it could not have been adequately undertaken by them. Bell, who
was in active 'charge of sulphur production, admitted that although
the new staff was efficient, he "wouldn't say they were any more
efficient" than the staff which he previously had.
We now consider individually the cases of alleged discrimination.
G. E. Thomas. Thomas was hired by the respondent on April 6,
1937. He was employed first as a mechanic in the garage, subse-
quently transferred to the field as an assistant yard foreman, and
This exhibit contained a list of 20 employees . Six of them , -though classified as
"recently employed ," were hired by the respondent prior to October 15, 1937, before the.
respondent became aware that a Jay-off was forthcoming . A seventh, although rehired
later, had been absent due to Illness. They are therefore not considered in this decision.
11 The record does not show the affiliation of the other two employees.
3A These employees were Edwin Johnson, W . W. Arnold, W. H. Lavender , W. S. Jones,.
E. A. West, J. M. Schwebel , J. D. Sloan, F . L. Franck, J. D. Marshall.
v This employee was Henry Hudec.
se These employees were D. S. Morphew , H. F. West, and Erven Leblanc . Wilson himself
admitted that the new employees did not work In the machine shop , but that, "two of
them were employed in the machine shop, (and ) one of them in the power plant to sub-
stitute for a man who did go in the machine shop."
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
finally, in the latter part of May 1937, promoted to yard foreman
where he continued until his discharge on November 11. His duties
as yard foreman consisted of supervising or "bossing" a group of
6 to 63 negro laborers, servicing and supplying equipment to the
various departments in the field, and taking care of general field
traffic. Thomas joined the Union on October 8, and was later elected
vice president.
On October 8, 1937, as previously set forth under Section III, A,
,supra, Jaquet and Bell queried Thomas about the labor meeting to
be held that evening in Freeport. When Jaquet asked him to re-
turn the -following morning with information of what took place,
Thomas replied that the respondent paid "for the work I did on
the job, and that this meeting was an open meeting down there,
. . and if they wanted to know what went on down there, I
suggested that they go down themselves." On the morning of Octo-
ber 9, when Thomas was recalled for questioning by the same persons,
he remained unamenable.
On October 20 Thomas was given a 50-per cent increase in wages
because of a favorable work record. At the same time Wilson urged
him to exercise his influence to quiet the labor disturbance then
extant at the plant.
About October 27 Bell detained Thomas to inquire whether his
wage increase was satisfactory and whether he was soliciting em-
ployees to become members of the Union. Thomas replied that he had
joined the Union, but had solicited no one. Bell then warned :
"Thomas, you are a good man here and doing your work splendidly,
,and I would like to keep you -here, but you are going to have to be
awful careful."
On November 11, 1937, Jaquet told Thomas to check in his equip-
ment, that his work was satisfactory, but that the respondent was
conducting an "economical campaign," and that he and all but one
of the six employees then under his direct supervision were "slated"
to be dismissed. All the employees in Thomas' crew, including the
one who remained, were members of the Union.
When Thomas was discharged, his duties were assumed by Dewey
Wilson. Wilson testified that in addition to taking over Thomas'
work, Dewey Wilson supervised the sulphur operators, which Bell
had found it necessary to do himself while Thomas was employed.
Bell testified that Dewey Wilson had undertaken the additional
work, but that his job was similar to Thomas'. Although Dewey
Wilson stated that he worked around the sulphur station, he could
not remember anything specific he had done, or when he had last
been there. "The fact of the business (is)," he admitted, "I have not
had any trouble since I have been on the job; didn't have to do any-
JEFFERSON LAKE OIL COMPANY, INCORPORATED 379
thing." Oscar Wilson, a sulphur-station operator over whom Dewey
Wilson allegedly had supervision, and a brother of Dewey Wilson,
testified that Dewey Wilson had no supervisory authority over any-
one in the sulphur station-that he had no knowledge of it and re-
ceived no orders to that effect. Dewey Wilson had no previous
experience in "bossing" a gang of colored laborers. Originally a
member of the Union, he later withdrew. He joined the Association
previous to his promotion to the vacancy created by Thomas' dis-
charge, and he became active in its behalf.
We find that Thomas was superseded by Dewey Wilson; that the
duties performed by each were identical ; and that in any event,
Dewey Wilson was assigned to no task which Thomas was not like-
wise qualified to perform. We find further that although there may
have been a reduction in work about the plant, such reduction did
not affect the work which Thomas had been doing; that the job as
general foreman over common laborers later assumed by Dewey
Wilson remained intact and as vital to the respondent's business as
before. In view of Thomas' satisfactory work record, his member-
ship and activity in the Union, and the respondent's hostile attitude
toward the Union which it vented upon Thomas by threats and
warnings, we are convinced that Thomas would not have been dis-
charged but for his union membership and activity. At the time
of the hearing, Thomas was unemployed.
C. A. Hearn. Hearn was hired by the respondent on April 1,
1937, as a maintenance foreman. Immediately preceding April 1, he
had been employed by an independent contractor installing boilers
in the respondent's plant. He was under the supervision of Lebeuf
and any "watch" engineer who was in charge of a shift at the power
plant. His duties consisted of construction work on partially com-
pleted structures, and maintenance work on all buildings about the
plant, including the office, warehouse, blacksmith shop, machine
shop, lime house, and power plant. We find that Hearn did work
generally associated with the operations carri€d on in the machine
shop.37 Hearn supervised from 15 to 30 employees. When first
employed, he earned 60 cents an hour; his wages were increased to
70 cents in September, and 77 cents in October.
Hearn joined the Union on October 6, 1937, and was a member of
its board of trustees. On October 9 Lebeuf questioned Hearn about
his union membership and the labor meeting the previous evening.
87 Hearn was under the immediate supervision of Lebeuf , who was in charge of the
machine shop . He testified that his maintenance work covered all buildings , including
the machine shop. In a letter to Mayer from Wilson, the latter wrote that the machine
shop handles all repairs for all departments of the mine . The evidence is clear that such
were among Hearn's duties.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearn replied that he had already joined the Union and that almost
all of the respondent's employees had attended the labor meeting
the previous evening. Lebeuf stated that he was "in a position
where he couldn't talk very much about it." Previous to signing the
"Employees' Group" contract, Hearn had been warned by Lebeuf
that to refuse. might ,cost him his job. Thereafter, he was impor-
tuned to join the Association, "line up" the respondent's employees,
and individually to present a list of employee grievances to the re-
spondent. Hearn replied to the latter suggestion that he had already
delegated such authority to the Union. He did not join the Associa-
tion nor is there any suggestion in the record that he attempted to
influence others to do so.
On November 11 Hearn and 10 employees under his supervision"
were dismissed. Lebeuf stated to him at this time that all were good
workers, but that the respondent was "on a little economical pro-
gram, and they saw fit to lay a bunch of you men off." When Hearn
challenged the reason for his discharge, and protested that "you
(Lebeuf) have been telling me for a month that if I didn't get out
of this union (the Union) and get into the company union (the As-
sociation) I would be laid off," Lebeuf nodded his head affirmatively.
Hearn testified that the following morning Lebeuf stated that "he
didn't much blame us" when told that charges of unfair labor prac-'
tices might be filed against the respondent. Lebeuf, although stating
that he retained men in the respondent's employ upon a basis of their
ability, testified that he did not remember the conversations he had
with Hearn concerning his discharge, and did not deny that these
incidents, as well as other incidents attributed to him, occurred as
alleged.
Wilson Waguespeck, an employee, testified that after Hearn was
discharged, Bischoff stated to him : "If some of the boys around this
plant don't get.right, they are going to get it too. I have cautioned
Charlie Hearn and his gang. I have cautioned them to get on the
right side or it would not have happened. They would not do it and
there you are:" Bischoff did not deny having made the statement
to Waguespeck although he testified that he did not talk to any one
about labor organizations. Still another employee, however, testi-
fied to Bischoff's solicitation on behalf of the Association. We find
that Bischoff made the statement attributed to him by Waguespeck.
Of the four employees in Hearn's gang retained by the respondent,
three were Union members. A fourth, not a member, had been 3
days in the respondent's employ. All later became members of the
Association, the three Union members having withdrawn from the
Union.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 381
Lebeuf testified that the work for which Hearn was responsible
had been consolidated with the machine shop under Bischoff's super-
vision and was carried on by four employees. Lebeuf's testimony
in this regard is without contradiction. These four employees
worked in the power plant and machine shop. Two of them were
hired on November 6, and a third, Henry Hudec, on November 20.
Hudec, previously had been employed by the respondent. When he
left in June 1937, Wilson promised him a job on his return- "if there
will be an opening here. . ." Wilson testified that although Hudec
was also a burner and welder, he otherwise' "may be doing" what
Hearn did at the power plant. Hudec joined the Association 2 or 3
days before he returned to work. His duties at first consisted of air-
compressor installation and completion of air lines in one of the
buildings. It was not until 2 or 3 weeks later that Hudec devoted
full time to the machine shop. At the time of the hearing, Hearn
was unemployed.
0. J. Stoutess, Elvest Pelletier. Stoutes and Pelletier were em-
ployees in Hearn's gang who were discharged on November 11,
together with Hearn. Both were members of the Union, having
joined on October 6 and 8 respectively.
Stoutes had been in the respondent's employ since 1933, having
worked for the respondent while it was carrying on oil operations
in Louisiana, and with the exception of two' interruptions in the
interim when he'quit the respondent's employ, worked continuously
until his discharge. His work for ' the respondent in Texas began
on-April 5, 1937. In Louisiana and in Texas he was employed as a
tinsmith, insulator, and carpenter. In April 1937 he was earning
55 cents an hour. On October 16, he was given a raise of 11 cents-
more, than the usual 10-percent wage increase given to other em-
ployees-when he signed the "Employees' Group" contract.
On October 10 Lebeuf, in discussing unionization at the plant,
told Stoutes that "if you boys don't. get right, there is going to be
a change." Again on November 5, in referring to certain conver-
sations Stoutes had with other workmen, Lebeuf warned : "Stoutes,
if you like your God damn job, keep your God damn mouth. shut.88
After his discharge, Stoutes applied for work at an adjacent sul-
phur company and was asked for a recommendation from the re-
spondent. Lebeuf refused to give Stoutes it written recommendation,
89 we previously have had occasion to consider Lebeuf's general denial to these state-
ments, and we found , under all the circumstances, that he made such statements as alleged.
In so far as the findings previously made are applicable to the discussion of the lay-offs
and discharges presently being considered in this section , whether they concerned Lebeuf
or any other person employed by the respondent , they will be here considered without again
setting forth all the evidence upon which the finding was finally made. Thus, for example,
we are not here setting forth .Lebeuf's denial, since it has already been considered, and a
finding already made in regard to it.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but promised to recommend him over the telephone. The prospective
employer called Lebeuf, and upon conclusion of the conversation, told
Stoutes: "Well, I can put you on the job, but first do you think it
is right for a man to run a job or the officials of the company?" He
told Stoutes that if he withdrew from the Union he could-go to
work. Stoutes previously had said nothing to him concerning his
union membership. Stoutes testified that he did not accept employ-
ment because it would have meant withdrawal from the Union. We
conclude that Lebeuf informed the prospective employer of Stoutes'
union membership and of the alleged labor difficulties with the Union.
Pelletier was hired in February 1.937. While in Hearn's gang, he
was generally used in the power plant. He started at a wage of 25
cents an hour but was earning 44 cents an hour when discharged.
We have earlier referred to statements made to him on October 16
by both Lebeuf and Bischoff ; by the former, Pelletier was warned
"to get on the right side of the fence"; by the latter, he was reminded
that he was "working for this company; not against it." Pelletier
remained in the Union.. At the time of the hearing, Stoutes and
Pelletier were unemployed.
J. H. Goolsby. Goolsby started to work for the respondent in
March 1937, and with the exception of a single lay-off, worked con-
tinuously until his discharge on November 11. At the time of his
discharge, he was employed in the salvage crew under Bernard Pat-
ton. Prior thereto, he had worked in the machine shop, pipe-line
gang, and rig-building crew. He had received two wage. increases
from the respondent, from 40 cents to 55 cents to. 61 cents hourly.
Goolsby joined the Union on October 9. He affiliated' with'''the`
Association on October 20 when Ebarb told hini that otherwise there
would be a "lay-off coming." He retained his membership in the
Union, however, paid no Association dues, and attended but one of
its numerous meetings.
On November 11 Bell told Goolsby that the respondent was reduc-
ing its forces, and discharged him over his protest that he was the
oldest employee in the crew in point of service with the respondent.
Bell testified that the respondent eliminated the functions of the
salvage crew and transferred its employees to other work. As will
subsequently be. more fully considered, five employees in the pipe-
line gang were, released at this time. Anding, foreman of the pipe-
line gang, was given sole authority to select the employees from the
discontinued salvage crew in order to replenish his own crew.
Although the professed basis for. selection was efficiency and ability,
Goolsby was not transferred, although ranking in seniority, experi-
enced in pipe-line work, and possessed of a satisfactory work record.
Goolsby was also experienced in the machine shop and the respondent
JEFFERSON LAKE OIL COMPANY, INCORPORATED 383
admittedly needed employees experienced in that type of work. The
three employees who were retained by the respondent from the sal-
vage crew resigned from the Union, to which' they belonged, and
became members of the Association. At the time of the hearing,
Goolsby was unemployed.
Edwin Dore. Dore had been in the respondent's employ since
1933, although not continuously. He worked as a pipe-line worker,
rig builder, and driller's- helper. In the latter capacity he earned
76 cents hourly, in the other capacities, 61 cents.
Dore joined the Union on October 6. Thereafter he was cautioned
by both Perkins and Ebarb that unless he joined the Association and
attended its meetings, he would be discharged. Dore did not join
the Association.
On November 11 Dore was discharged. He was replaced by
Patton, ex-foreman of the salvage crew. Bell testified that Patton
was an extra driller and that Dore had no such experience. How-
ever, Dore was familiar with rig building and pipe-line work, and
was not transferred to such work, notwithstanding the apparent need
for such help.
It appears that Dore was the only driller's helper who was dis-
missed. There is no evidence as to the union affiliation of other
employees in a capacity similar to his. At the time of the hearing,
Dore was unemployed.
J. K. Helton, J. E. Brooks, Haywood Watson, H. T. Britt, 0. 0.
Evans. All of these employees except Evans, who devoted his time
exclusively to work in the pipe-line gang under Anding, divided
their time between duties in the pipe-line gang and duties with the
respondent elsewhere in the field. Thus Helton and Brooks were
also vat men, Watson a line walker, and Britt a rig builder. Prac-
tically all, however, in addition to the `above work on which they
were employed at the time of their discharges, had worked in other
capacities in the field. All were members of the Union, having joined
on October 6 and 8, 1937.
Helton was hired by the respondent on February 4, 1937. He was
earning 65 cents an hour at the time of his discharge on November 11,
having received two increases during his tenure. On October 16, he
was solicited by Ebarb to join the Association, and on October 20,
he was given an Association card by Anding and told to sign if he
desired to continue his employment. Helton refused in both in-
stances. On November 5, when Helton asked Anding why certain
officials were present, Anding replied "they are seeing that you are
lined up right."
Brooks was hired by the respondent on February 1, 1937. When
be signed the "Employees' Group" contract on October 16, his wages
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were increased from 40 cents to 55 cents for vat work, and from
50 cents to 65 cents for pipe-line work, which was more than the
usual 10-per cent increase that the respondent granted to its em-
ployees. He was later promoted to yard foreman over a group of
common laborers at a wage of 75 cents an hour, but he was removed
from his work several days before his discharge on November 14.
The cause for this removal is not disclosed in the record, although it
appears that it was merely the result of the respondent's frequent
interchange and transfer of employees.
As in the case of Helton, Brooks was similarly approached to join
the Association. Although he refused when solicited by Ebarb, he
joined when urged by Anding. Brooks testified that immediately
preceding the close of the workday on November 11, Anding asked
him to attend the Association meeting the following evening, and
that when he refused, Anding replied, "Okeh, you will go just like
the rest of them." Anding did not deny having made this statement.
Other employees testified that Anding made like remarks to them as
We credit Brooks' testimony. On November 14 Anding told Brooks
that the respondent was cutting its force and that his services were
no longer, needed.'
Watson commenced working for the respondent in January 1937
at an hourly wage rate of 40 cents.. His wage was increased to 45
cents, and again to 55 cents on October 16. Anding employed over-
tures similar'to, those which he used on other employees under his
supervision to induce Watson to become an Association member.
Watson signed after having first refused. He attended one meeting,
and paid no dues. He was discharged on November 10.
Britt began his employment with the respondent on July 1, 1937.
On October 20, 1937, he was laid off. Shortly before November
1, Arrington told him that before he returned to work he would first
•have to become a member of the Association. Britt thereupon signed
a membership card, and returned to work on November 1. Britt at-
tended one meeting of the Association, but also attended Union meet-
ings. He was discharged on November 12. At the time of his dis-
charge, he was earning about $25 a week.
From February to April 1937, Evans was employed in construct-
ing the respondent's power plant. In May he was reemployed, and
with intermittent lay-offs, worked until he was discharged on No-
vember 12. ' Evans worked in the power plant and rig-building crew
previous to working in the pipe-line gang. His earnings were 55
cents hourly.
One of Evans' lay-offs occurred on October 12. On October 10,
Anding was overheard pointing out Evans to others as a union mein-
39 Evidence to this effect was presented by Gordan and Goolsby.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 385
ber. On October 20 Schwebel, a supervisor, told Evans that he
(Schwebel) and Ebarb had been delegated by Wilson to secure em-
ployee memberships into the Association, and that if he joined the
Association, he would be recalled sooner . Evans joined and re-
turned to work on November 8. Evans testified that on November
11, Anding, upon learning from him that he was a fully paid-up
member of the Union, stated to him that he was on the "wrong side,"
that he should get on the "right side," and "do like the company
wanted us to do." Anding denied this testimony, but in view of con-
sistent testimony of similar import by many other employees, we can-
not give credence to the denial.
Helton, Brooks, Watson, Britt, and Evans were union members.
Although several had joined the Association, under the circumstances
related above, they still retained their membership in the Union.
The two employees who remained in the pipe-line crew after they
were discharged were members of the Association. The four other
employees who were then transferred to the pipe-line crew, if they
already had not done so, became members of the Association. It is
significant that Anding, active in the Association and vice president
of the organization, was given the authority to retain the employees
that he wished in his gang, even to selecting others from another
group. Of the six employees who finally composed the pipe-line
gang, one had. been last hired on October 28, another on November
2, and 'a third on November 4. They were employees classified as
"recently hired" by the respondent.
We also note the fact that of the employees who regularly com-
.prised,the pipe-line gang, four were dismissed and their places taken
by employees who were ordinarily occupied with other duties. Bell
testified that employees were selected and retained on a basis of
ability. There was no evidence, however, of any dissatisfaction
whatsoever with the work of the discharged employees and there is
no evidence that the discharged employees were not fully as qualified
as those employed in their stead. Moreover, Bell apparently bad
followed a policy of retaining employees for particular work when
they were already regularly employed in such work .40
At the time of the hearing, Brooks, Watson, and Evans were
unemployed, Britt was employed by Brazoria County at $3 a day,
and Helton was renting a 15-acre farm on which he raised garden
products and corn.
T. J. Gordan, H. S. Goolsby. Gordan was hired on January 14,
1937, as a carpenter, and promoted to carpenter foreman on October 1.
"In the case of Dore, Patton replaced Dore as a driller's helper. Bell testified that
Patton was a regular driller , and Dore was not, and that he made it a practice to place
the regulars first.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Previously he had been engaged in construction work on buildings
of the respondent. He was given a wage increase from 50 to 60 cents
an hour on October 1, and on October 16 was given an additional in-
crease to 75 cents.
Gordan became a member of the Union about October 9. There-
after Anding told him that the respondent would shut down and lay
off its employees before it would recognize any union. On Novem-
ber 10 Anding told him to join the Association and attend its meet-
ings. When Gordan stated that he already belonged to the Union,
and "it wouldn't look right to belong to two . . .," Anding added
that if he did not he would be "walking around without a job."
When Gordan was discharged on November 11, Jaquet told him
that the respondent was cutting down expenses, but that he was a
good worker and would be recalled in not more than 2 or 3 days.
In Wilson's letter to Mayer on September 22, he stated that the three
carpenters were "extremely busy" and that the respondent "will
probably have to continue with this number." At the time of his
discharge, Gordan was in the midst of constructing a garage and
carpenter shop. The buildings were later completed by other em-
ployees. Gordan had been assisted by H. N. Goolsby and Julius
Fossil, who were members of both the Union and the Association.
Goolsby was employed in the pipe-line gang under Anding from
April 29, to November 5, 1937, when he was transferred to assist
Gordan in carpentry work. There he continued until his discharge
on November 11. He received 55 cents an hour as a pipe-line worker,
and 60 cents an hour as a carpenter.
Goolsby became a member of the Union on October 9. On Octo-
ber 20 he also joined the Association when Anding, under whom he
was then employed, urged him and others to join the Association
in order to protect their jobs. Goolsby attended two Association
meetings on , the two successive nights following his affiliation.
Thereafter he did not attend. On November 10 Anding warned him
that since he was a member of the Association, he had better attend
its meetings.41 Goolsby refused, and on November 11 Bell dismissed
him with the explanation that the respondent was reducing person-
nel. In December Anding told Goolsby that he was a good hand
and that he could be returned to work if he signed an Association
membership card. Goolsby refused because of his union member-
ship. At the time of the hearing, Gordan and Goolsby were
unemployed.
Ed Lonis. Loris had been with the company since April 17, 1937,
as a tractor driver. Previous to being employed by the respondent,
he had 7 years experience driving tractors and working around drill-
41 Similar statements were attributed to Anding by Gordan and Brooks.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 387
jug rigs. He started with the respondent at an hourly wage of 50
cents, was later given an increase to 55 cents, and finally was in-
creased to 65 cents when the "Employees' Group" contracts were
sighed.
Lonis became a; member of the Union on October 11. About a
week later, he became a member of the Association when Arrington
stated that such affiliation would be necessary to hold his job. Lonis
attended two Association meetings and, according to Anding, was
selected on the bargaining committee of the Association. The extent
of his activity on the committee, if any, is not disclosed. Lonis
thereafter apparently became inactive, for throughout October, Ar-
rington warned Louis that if he did not attend Association meetings,
he would be discharged.
Lonis testified that on November 11, after Arrington unsuccess-
fully attempted during working hours to persuade him to attend an
Association meeting, Arrington visited him at his home and stated:
"Ed, I want to talk to you as a friend. I don't want to see you lose.
your job. You are a good driver, the best I have ever had down,
there. I want you to stay, but if you don't drop that A. F. of L. and
come and join this and go along with us, they are going to fire you.
I know what I am talking about." Lonis remained adamant. Ar-
rington did not deny the visit, but testified that he simply stated,
"Well, Ed, I would like to see you come back to another meeting."
When Lonis refused, he testified further, he simply bade him good-
night and departed. Lonis was discharged on the following day.
We find in accordance with Lonis' testimony. Several days later
Arrington took occasion to remark to another employee that if he did
not attend Association meetings, he would "go like Mr. Lonis did."
The respondent had in its employ, previous to Lonis' discharge,
nine tractor drivers. But four were retained, one of whom was a
relief man. All four were members of the Association.
At the time of the hearing, Lonis worked part of the time in a
small grocery store which was owned and operated by his wife..
Woodrow Hash,aw. Hashaw was hired on September 15, 1937,
and discharged on November 15. He was employed as a blasting
helper, earning 55 cents an hour. He became a member of the
Union on October 8, and of the Association on October 16, when
Arrington counseled that if he did not do so, he might be discharged.
He attended but one meeting of the Association, however, and paid
no dues to the organization. Three employees doing similar work
who were members of the Association were retained by the respond-
ent. At the time of the hearing, Hashaw was temporarily em-
ployed by another company.
Oliver Romero. Romero worked for the respondent in Louisiana
from 1934 to 1936, and was then transferred to the respondent's Texas
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant. He was employed as an electrician helper. At the time of
his discharge on November 11, he was earning 70 cents an hour, hav-
ing received in the interim, two 10-cent hourly increases in wages.
Romero joined the Union on October 8, 1937. On November 4,
when Lebeuf overheard Romero discussing labor organizations with
another employee, and upon inquiry, learned that he was a member
of the Union, Lebeuf declared that if the Union "pulled through,"
Romero would probably lose his job. On November 11, Romero's
foreman, who observed Wilson, Lebeuf, and Jaquet about the
premises, counseled Romero that they were not "walking around
-here for nothing. The axe is going to fall today. I don't mean
you are going to be laid off, but I believe it is the right time to get
on the other side if you like your job." Romero was discharged by
Lebeuf the same day. He had not become a member of the Associa-
tion. The respondent retained in its employ as an electrician helper
one Pete Matukas, who likewise was a union member. At the time
of the hearing, Romero was unemployed.
.
Fred Duval. Duval had been employed by the respondent as a
truck driver since January 3, 1937. At the time of his discharge on
November 12, he was earning 50 cents an hour, having been earlier
given a 10-cent hourly increase in pay.
Duval joined the Union on October 8. On October 10 Arrington
questioned him about his membership and stated that if the Union
successfully organized the respondent's employees, a shut-down would
result. Duval testified that on October 17 Arrington again approached
him with an Association membership card and stated, "You better
go on and sign, or you- might lose your job out here." Arrington de-
nied this testimony specifically. In the light of other evidence re-
flecting upon Arrington's union activities, we cannot credit his denial.
Duval joined the Association on October 17. After he joined the
Association, Duval became inactive and attended but one of its meet-
ings previous to his discharge. On November 5 Grace told him "'it
was his job if he didn't sign an Association membership card." On
November '12 Duval was discharged. The truck. previously driven by
him was parked, and used only when a particular demand for it
arose.42 ,
In the first part of December, after having refused on another oc-
casion, Duval reafl'iliated with the Association and paid his dues, be-
cause, he testified, Arrington assured him that it was only through
such course that he could return to work. He was not, however, re-
employed. At the time of the hearing, Duval was unemployed.
*'Duval testified that his truck was continued in use after his discharge, and was
regularly driven by other employees . Arrington and Wilson , however, denied this.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 389
Cleomere Leleux. Leleux had been first employed by the respond-
ent in Louisiana in the machine shop and blacksmith shop. He was
reemployed by the respondent on June 14, 1937, first as a worker in
the repair gang, and subsequently as a fireman on a sulphur-loading
machine, with a view to making him an operator as soon as he learned
the trade. He earned 61 cents an hour. When he left the respond-
ent's employ in Louisiana, he was given a letter of recommendation to
potential employers.
Leleux joined the Union on October 8,'1937. A few days later,
Prell .approached him and stated that he thought it was "best" to sign
an Association membership card, and "cooperate" with the respondent,
but Leleux refused. Leleux joined the Association on October 16,
however, when A. Landry, an employee who later replaced him, issued
Association membership cards and warned that the employees "had
better get right or else." Leleux paid no Association dues and at-
tended no meetings.
On November 15 the respondent discontinued the use of the con-
veyor on. which Leleilx was working and discharged him. The hoist
operator was transferred to a second conveyor as a fireman, replacing
Odet Leblanc, an Association member, who was in turn transferred to
field employment. Thereafter, the respondent apparently again
placed two hoists in operation, for Leblanc was returned to his former
position as fireman, and Landry took over Leleux's former post.
Landry had been previously employed by the respondent in Loui-
siana as a hoist operator. The respondent introduced evidence to
show that in addition to his work as a fireman, Landry was also able
to construct railroad spurs which were constantly being relocated on
the premises, and could act as a relief operator if the necessity arose.
At the time of the hearing, Leleux was unemployed.
R. V. Ward. With the exception of a single lay-off in June, Ward
had been in the respondent's employ since March 1, 1937, as a line-
walker and worker in the pipe-line gang. Shortly before his lay-off
on October 12, 1937, his wages had been increased from 40 cents to 50
cents an hour.
Ward became a member of the Union on October 9,1937. Although
Ward testified that he did not tell Anding that he was a member of
the Union until after his lay-off, further testimony showed that on
October 10, 2 days before his lay-off, Anding referred to him as a
union member. After Ward had been laid off, Anding stated to him
that in order to return to work, he would first have to become a
member of the Association. Ward refused, and was not thereafter
recalled for work.
Other employees who were not members of the Union were laid off
at the same time as Ward. Some of them, however, were thereafter
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reemployed. - Those reemployed were members of the Association.
We believe the evidence affords insufficient basis for a finding that
Ward was laid off because of his union membership or activity. It
appears, however, that when work became available, he was. not given
consideration for reinstatement because of his refusal to withdraw
from the Union and become a. member of the Association. The impo-
sition of this illegal condition precedent to reemployment relieved
Ward of making formal application for reinstatement.43 Since his
lay-off Ward has not been regularly employed.
b. Conclusions with respect to discrimination of employees other than
"common laborers"
The respondent has urged that the dismissals of the employees
listed in Appendix A, whose individual cases we have just considered,
was necessitated by a reduction in available work. We have found
that on about November 1, 1937, the respondent was beginning to
complete work not necessary to the actual production 'of sulphur, and
decided, about 2 weeks previous thereto, that a reduction in the number
of its employees was inevitable. We have found also that after such
decision had been made the respondent hired, and continued to hire
after November 15 when the discharges were completed, new employees
for work which was substantially identical to that performed by old
employees, or which they were qualified properly to perform. The
conclusion is inescapable that although the amount of work at this
time may have decreased, it had not, as respondent contends, declined
to such an extent as to require. the dismissal of 21 employees. Other-
wise no occasion would have been presented for an increase in the
respondent's staff of 13 new employees. Where work had lessened
to the extent that the elimination of eight employees was proper, 21
employees were eliminated.44 Under such circumstances, particularly
when old employees are satisfactory workers, as they were here, the
discharge of old employees and the practically contemporaneous hiring
of new employees to do the same or similar work,. as was done here,
raises a strong inference that the discharges were discriminatory.
43 Matter of Carlisle Lumber Company and Lumber & Sawmill lVorkcrs' Union, Local
2511, Onalaska, Washington, and Associated Employees of Onalaska , Inc., Intervenor,
2 N. L. it. B. 248, National Labor Relations Board v. Carlisle Lumber Co ., 94 F. (2d) 138,
cert. den. 304 U. S. 575; Matter of The Grace Company and United Garment Workers
of America, Local No. 47, 7 N. L. R. B. 766; Matter of Jacob A. Hunkele trading as Tri-
State Towel Service of the Independent Towel Supply Company and Local No. /i0 United
Laundry Workers Union, et al., 7 N. L. R. B. 1276.
4E We have found that although there was a reduction in work about the respondent's
plant, it in no way concerned the work which had been performed by Thomas. His job
continued without diminution, and was taken over, in toto, by Dewey Wilson. The
respondent's defense of work reduction is equally inapplicable in Thomas' case. In arriv-
ing at these results, we have included the cases of the Skotniks and Brady, who were
released along with the others at this time, but with respect to whom unfair labor practice
charges are dismissed.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 391
Viewed in ,the light of the respondent's manifest hostility toward the
Union and its members, it is apparent that the respondent sought to
rid itself of those employees who had become union sympathizers,
while at the same time replenishing its personnel with employees who
were not in its employ at the height of union activity and who, in its
opinion, were untainted by union influence. Indeed, some of the new
employees had joined -the Association even before being hired by the
respondent. We conclude that the respondent in discharging and
refusing to reinstate the employees listed in Appendix A, was guided
by anti-union bias.
The dismissals herein were referred to by the respondent both as
lay-offs and discharges. Many employees were told that they were
laid off. However, all the parties to the proceeding, including the
respondent, frequently referred to these dismissals, not as lay-offs,
but as discharges. Many of the employees testifying considered that
they were discharged. The evidence indicates, particularly in view
of a permanent reduction in available work at the respondent's plant,
the need for fewer employees and the desire of the respondent to rid
itself of union members, that these employees were discharged, not
merely laid off. We find accordingly. In any event, however,
whether the employees were laid off or discharged is immaterial, since
either, under the circumstances, is discriminatory.46
We find that by discharging and refusing to reinstate Thomas and
the employees listed in Appendix A,46 the respondent has discriminated
against its employees with respect to hire and tenure of employment,
thereby discouraging membership in the Union, encouraging mem-
bership in the Association, and interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in
Section 7.of the Act.
c. Discrimination against employees working as "common laborers"
Between November 11 and November 14, 1937, inclusive, the respond-
ent laid off 17 employees who were employed as common laborers, all
but one of whom worked in the field. These employees are named
in Appendix B herein. The respondent likewise contends that their
lay-offs were due to a decline in available work. It does not contend
that their work was unsatisfactory. The respondent paid these
workers 30 cents an hour. All who had been in the respondent's
45 Matter of Precision Castings Company, Inc . and Iron Molders Union of North America,
Local 80. 8 N . L. R. B. 879.
46Brady and the Slotniks did not testify. All were under Hearn's supervision at the
time of Hearn's discharge . Brady was later reemployed by the respondent. Other than
the general facts surrounding the lay-offs and discharges of Hearn and the employees
:n his gang, no evidence bearing upon the termination of their employment was presented.
Under the circumstances, the charge of unfair labor practices in so far as it relates to the
Skotniks and Brady will be dismissed.
247383-40-vol. 10--26
392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employ when the "Employees' Group" contracts were signed received
wage increases of 10 per cent.
Between December 9, 1937, and January 15, 1938, inclusive, the
respondent hired for common labor 22 new employees, many of whom
had been previously in the respondent's employ. None, however,
whom the respondent laid off in November were called back by the
respondent for reemployment. The work for which the new em-
ployees were hired was substantially similar to the work performed
by the employees in the November lay-off, and was work for which
the latter were adequately qualified.
The new employees were hired through James Randon, office boy.
Whenever the need for common labor arose, the respondent directed
Bandon to secure them.47 Randon selected them from a reservoir
of employees who were ever ready to come to work at the respond-
ent's call. It was not the respondent's practice to require these
persons themselves to apply at the respondent's plant for work. The
workers thus remained at home awaiting calls for employment.
When Randon commenced hiring employees, Sandy Bryant, an
employee who had been laid off in November, observed him in the
neighborhood and asked if the "respondent needed any more hands."
Randon replied that the respondent "wanted some more men out
in the field ... but they didn't want no union men-they were not
hiring no union men." Randon testified that. he did not call back the
employees who were laid off in November because he thought "they
might feel that by getting them, that they would have to join it,
(the Association) and they would hold me responsible." Only one
of the employees whom Randon selected was a member of the Union.
He was not, however, one of those who were laid off in November.
Randon, who joined the Union in the forepart of October 1937, later
withdrew from that organization and became a member of the Asso-
ciation in the early part of November 1937. He was active in solicit-,
ing employees to affiliate with the Association.
We now. consider individually the employees who were laid off.
James Chandler, Osby Johnson, Malachi Jammer, Samiuel Alston,
Jefferson Woodward. These men were employees under Thomas'
supervision. All but Johnson started to work for the respondent
in February 1937, and with the exception of Woodward, who was
thrice laid off during the interim, worked continuously until their
lay-offs on November 11, 1937. Johnson had been employed by
the respondent since April 5, 1937. All became members of the
Union on October 11, 1937.
About October 16 Prell visited Jammer and Alston at their homes
with Association membership cards and told them that unless they
47 Randon testified that whenever Wilson wished help, "he sent me after them ." Wilson
testified that Randon was told to "go out and get" the workers.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 393
withdrew from the Union and became members of the Association,
they would lose their jobs. Neither, however, joined the Associa-
tion. Johnson and Chandler did not join the Association, but Wood-
ward joined when told by Arrington that otherwise he would lose
his job. Chandler, Johnson, Alston, and Woodward have not re-
ceived employment elsewhere since their lay-offs. Jammer works
on a farm for his board and lodging.
Clarence Woodward, Aaron Helm, A. M. Thompson, Charley
Thompson, Samuel Moore. These men were laborers in Hearn's
crew who were laid off on November 11. All became members of
the Union about October 11, 1937.
Helm commenced working for the respondent on January 12, 1937,
and worked continuously until November 11. Woodward was first
employed on October 1, 1937. The others worked for the respondent
for several months in 1936, were laid off, and were not again re-
employed until October 1, 1937.
Woodward and Helm testified concerning Prell's visit to their
homes about October 20 ' for the purpose of soliciting them to join
the Association, to which visit reference has already been made.
To each remarks patently coercive in character were made to induce
them to sign membership cards in the Association .48 Helm did not
join the Association. Woodward became a member that evening,
but the following morning asked that his membership be withdrawn
when he learned that most of the other employees had not joined.-
It appears that neither Moore nor the Thompsons became members
of the Association. Clarence Woodward, Helm, and A. M. Thomp-
son have not received employment elsewhere since their lay-offs.
Charley Thompson and Moore have been engaged in farming.
William Robertson. Robertson had been employed by the re-
spondent since January 5, 1937, first as a laborer in the fields and
then as a laborer in the warehouse. He joined the Union on October
11. Thereafter, he became a member of the Association when so-
licited by Arrington and told that other employees had likewise
done so but he attended none of its meetings. He was laid off on
November 11.
. Robertson's job was to clean up and store. fittings which had been
salvaged. At the time of his lay-off, most of the fittings on which
Robertson was employed had been stored. The little work remain-
" Woodward testified as follows : "He (Prell) had a little yellow card in his hand and
I said, 'for what ?' and he said , 'for this company union .' I said, 'How come all this
happened this evening since I left there-I just left there?' He said , ' I am telling you
for your own good' ; he said 'All the other boys have signed,' so I said , 'All right,' I said
I would sign it , so I signed it." Helm testified as follows : ". . . He (Prell) said be
heard us boys had joined the American Federation and we was on the wrong side and if
I didn't sign this card he was carrying around that night , I would be fired off my job and
he said I worked pretty well around the plant but if I didn't sign the card he had, I
would be fired off my job."
394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing to be done was completed by employees who were temporarily
disabled from performing their regular duties. Robertson has not
been regularly employed since his lay-off.
Lee Lipkins, Sherman Johnson, Sandy Bryant, Morgan Bivens,
Anderson Good. Lipkins, Johnson, Bryant, Bivens, and Good were
employees working under Dewey Wilson's supervision. Some of them
previously had worked for Thomas when he was yard foreman.
Lipkins and Bryant had been in the respondent's employ, with several
interruptions due to lay-offs, since September 1936. Johnson, Good,
and Bivens had worked continuously for the respondent since Janu-
ary and July 1937, and September 1936, respectively. Their lay-offs
occurred on November 13 and 14.
All became members of the Union on October 11. They were
thereafter approached by Prell and Arrington to become members
of the Association. The soliciting methods employed by them has
heretofore been described, and were not in these instances, altered.
None became a member of the Association. Lipkins, Johnson, and
Bivens have not been employed since their lay-offs. Bryant and
Good have been engaged in farming.
John Jordan. Jordan was a laborer in the electrical department.
He started to work for the respondent on September 1, 1936, and
joined the Union on October 11, 1937. Thereafter he was ap-
proached by both Ebarb and Anding to join the Association. And-
ing told him, on November 9, that unless he did so, he would be
out of a job. He was laid off on November 11. The respondent
retained for work similar to Jordan's one Arthur Mack an Associa-
tion member, who was not employed in this capacity until subsequent
to September 22, 1937.49 Jordan has not been regularly employed
since his lay-off.
d. Conclusions with respect to the discrimination against employees
working as "common laborers"
The respondent's contention of completion of work previously
performed by common laborers is more tenable than its same con-
tention with respect to the work of employees not designated as
common laborers. The evidence shows that much of the work col-
lateral to sulphur production was common labor and had been
finished on November 11. Then followed the lay-offs in November
of the employees listed in Appendix B. We attribute the lay-off
of the employees listed in Appendix B to a decrease of work previ-
49 Jordan had always been used in the electrical department. In Wilson's letter of
September 22, 1937, he stated that there was but one colored helper in the electrical depart-
ment. Since two were employed on November 11 when Jordan was discharged, it is
apparent that Mack was not placed in this department until sometime after September 22.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 395
ously performed by them, and we find that their lay-offs in Novem-
ber did not constitute discrimination within the meaning of the Act.-I0
Those laid off retained their status as employees within the mean-
ing of the Act."1 Although laid off, the employees had a reasonable
expectation of being recalled for work with the respondent when
work in the future became available. Indeed, these employees con-
tinuously held themselves in readiness to come to work for the re-
spondent when the need for common labor arose. The respondent,
in turn, instituted the practice of seeking them out, rather than
requiring any application for work as a condition precedent to re-
employment.
Although the employees listed in Appendix B were properly laid
off, the record is clear, and we find, that the respondent refused to
reemploy these employees because of their membership in the Union
and their failure to display sufficient interest in the Association.
On December 9, 1937, the respondent commenced hiring new em-
ployees as common laborers. Not a single employee who had previ-
ously worked for the respondent as a common laborer and who was
laid. off in November was hired by the respondent in December 1937
and January 1938. Although Wilson testified that he told Randon,
through whom he hired common laborers, to hire strong and willing
men and said nothing concerning their union, sympathies, we find
that Randon was guided in the selection of employees according to
their affiliation with a labor organization. He announced that the
respondent was not reemploying union members, and he refused to
rehire them. By the acts and statements of Randon, the respondent
is bound. ,
60After their lay-offs and discharges, all of the respondent's employees, including those
not employed as common laborers , as well as common laborers , filed claims for unemploy-
ment compensation benefits with the Texas Unemployment Compensation Commission. On
the application forms, many of the employees explained their separation from employment
as resulting from it "general reduction in force" or "general lay-off." Since no employee
complained that he was laid off or discharged. because of bis,union.membership or activity,
the respondent contends that this is an admission precluding a finding of discrimination
in lay-offs and discharges.
Aside from the fact that we find that the respondent did not discriminate in the lay-offs
of the employees listed in Appendix B, but in the refusal to rehire them, the respondent's
contention is without merit. When the applications for compensation were made, the
employees first apprised the Commission that although the respondent stated that they
were released because of a pay-roll reduction, they themselves were of the opinion that
they were released because of their union membership and activity. The explanation
assigned on the application form was given only after the employees were informed by the
Commission's agent that such statement would create less objection by the respondent to
their receiving the compensation benefits and that it would in no Ray prejudice their
position with respect to the unfair labor practice charges already filed with the Board.
Furthermore, the Commission's agent, called as a witness, testified that the "only thing
that could be put on the form was that the man was laid off on account of reduction
in force."
11 Matter of North Whittier Heights Citrus Association and Citrus Packing House Workers
Union, Local No. 21091, 10 N. L. R. B. 1269; Matter of Alaska Packers Association and
Alaska Cannery Workers Union, Local No. 5, Committee for Industrial Organization, etc.
et at., 7 N. L. R. 13. 141; Matter of Merrimack Manufacturing Company and American
Federation of Labor, 9 N. L. R. B. 173.
396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, because of their union membership and their failure to
show sufficient interest in the Association, the respondent no longer
considered as reemployable the employees listed in Appendix B, and
destroyed their status as "reemployables." Such discrimination
discourages union membership.
We find that at the time of the hearing, the men listed in Appendix
B had not obtained regular or substantially equivalent employment
elsewhere. Because of the respondent's practice of notifying these
employees, it was not necessary for those employees to make formal
application for reinstatement with the respondent.52
We find that by refusing to reemploy the employees listed in Ap-
pendix B, the respondent has discriminated against its employees
with respect to hire and tenure of employment, thereby discouraging
membership in the Union, encouraging membership in the Associa-
tion, and interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Discharges alleged by the respondent to have been made "for
cause"
Hose Kelly. Kelly started to work for the respondent on Septem-
ber 10, 1936, when the respondent first began to construct its plant
in Texas. With three interruptions due to lay-offs, Kelly worked
until he was discharged on November 14, 1937. He was employed
principally as a gardener, but also assisted the porter in general work
about the office. At the beginning of his employment with the re-
spondent he was earning 18 cents an hour and at the time of his
discharge he was earning 30 cents an hour.
Kelly joined the Union on October 11. On October 16 Prell handed
him an Association membership card to sign and stated, "If you
don't sign, you won't have a job long; the Mexicans and the white
folks will have it." Although at this time Kelly did not join the
Association, he became a member a few days later upon Grace's
solicitation. Kelly retained his membership in the Union, however,
attending all the union meetings and refusing to attend any of the
Association meetings. On November 11 Grace warned Kelly that
the "big shots" knew about his "blowing about the union" and pointed
out the fact that other employees were being laid off and that since
he did his work well, he did not want to lay him off also. On Novem-
ber 14 Kelly was discharged.
52 Matter of Atlanta Woolen Mills and Local No . 2307, United Textile Workers o f America,
1 N. L. R. B. 316 ; Matter of Aluminum Products Company, Metal Rolling and Stamping
Company, Lamont Stamping Corporation , Banner Stamping Company , and Stainless Steel
Products Company and Aluminum Workers Union No. 19064 and Aluminum Workers Union
No. 19078, 7 N. L. R. B. 1219.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 397
Grace testified that Kelly frequently loafed on the job, and that
he was laid off 5 days in September in the hope that he might be
cured of loafing. He testified further that he hesitated about letting
him go because Kelly was a "pretty old man," and he wished to keep
him "as long as we could." Grace admitted, however, that Kelly
maintained a good flower garden and that his work was done satis-
factorily. In view of the respondent's warning to him to renounce
the Union, we do not believe that loafing was the real reason for
Kelly's discharge. At the time of the hearing, Kelly was unemployed.
We find that the respondent discharged Kelly because of his union
membership and activity, thereby discouraging membership in the
Union and interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
Willie Thompson. Thompson was employed by the respondent in
July 1937, as a common laborer in the field and around the sulphur
vats. He was earning 30 cents an hour at the time of his discharge
on November 11.
Thompson joined the Union on October 11. On October 26, upon
Arrington's solicitation, he also joined the Association and later
became the president of the colored division of that organization.
On November 7 Thompson failed to attend a division meeting.
Prell, who frequently attended division meetings, noticed his absence,
and the following day questioned him about it. Three days later
Thompson was discharged.
Prell testified that Thompson was laid off for loafing. However, it
does not appear that Thompson had ever been admonished concern-
ing his work, and when he was discharged no reason was given for
his dismissal. Several days later, Prell told Thompson that he was
released because he was "talking against the company union for the
other side . . ." At the time of the hearing, Willie Thompson was
unemployed.
We find that the respondent discharged Thompson because of his
union membership and activity and because of his failure to evince
sufficient interest in the affairs of the Association, thereby discourag-
ing membership in the union, and interfering with, restraining,
and coercng its employees in the exercise of the rights guaranteed by
Section 7 of the Act.
George Mariast. Mariast was hired by the respondent on Septem-
ber 7, 1932, having been transferred to Texas from Louisiana when
the respondent expanded its operations in 1936. He was employed
as a driller and driller's assistant at a wage of $8.80 daily. He be-
came a member of the Union on October 5.
Mariast was discharged on November 17, about the time that the
respondent dismissed a number of its other. employees allegedly
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of work reduction. The respondent asserts that Mariast was
discharged for directing derogatory remarks at Jaquet, the respond-
ent's assistant superintendent.
On November 15, Mariast was in charge of operating a derrick,
assisted by George Spiller, Rick Rockenbaugh, and Henry Guidry.
When two members of Mariast's crew commenced- arguing whether
an automobile which had' stopped about a quarter of a mile away
belonged to Jaquet, at a moment when the derrick required attention,
Mariast allegedly referred to Jaquet in obscene terms. On Novem-
ber 17 Wilson told Mariast that he had, a "100 per cent a ecord," but
that for cursing Jaquet, he was discharged. Mariast denied the
charge and requested, without success, that he be confronted by his
accusers.
The record does not reveal how the respondent was first apprised
of the incident of November 15. Rockenbaugh, an Association mem-
ber, testified that Wilson called him into the office and asked, "Did I
know anything about anybody talking about anybody . . . that would
cuss anybody about anything." Thereafter, it appears that Ebarb,
founder of the Association, secured a statement from Rockenbaugh
and Spiller, a union member, that Mariast had, in fact, cursed-J.aquet.
Spiller testified that he at first refused to sign the statement on the
ground that he had not heard what Mariast had said, but signed it
when Ebarb added, "Well, later on, 'it might help protect your job
if you would sign it." Why Ebarb should have taken such an inter-
est in an affair with which he should have had no concern, was not
explained in the record. Mariast denied uttering the epithet
attributed to him.
Bell testified that profanity was "very common" among the re-
spondent's employees, and that he knew of no one who was discharged
for the use of it, or for cursing a superior. It is plain that the
respondent seized upon a pretext to discharge Mariast because of his
union affiliation. At the time of the hearing, Mariast was
unemployed.
We find that the respondent discharged Mariast because of his
union membership and activity, thereby discouraging membership
in the Union and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act.
Bill Knowles. Knowles was hired by the respondent on April
23, 1937, and at the time of his discharge on December 10, 1937, was
earning 55 cents an hour. He became a member of the Union on
October 9, 1937.
Knowles was a "bleed water" tender whose duties required him
to look after the proper functioning of the "bleed water" pumps
JEFFERSON LAKE OIL COMPANY, INCORPORATED 399
connected with the reservoir. Defective pumps were to be reported,
though not repaired, by him. Knowles described the incident lead-
ing up to his discharge as follows : On about December 8, after
reporting to Lebeuf that the reservoir was high, and being told to
open up.-the pump and clean it out, he did so, and reported back to
Lebeuf that the pump was "0. K." On December 10 Lebeuf exam-
ined the pumps, noticed that the propellers in the pump were "eaten
up," and stated, "it looks like you ought to know when a pump is
worn out, Bill." On the afternoon of December 10, Lebeuf told
Knowles that he would have to let him go and get a man of more
experience. Lebeuf testified that Knowles was discharged because
of "lack of knowledge to recognize the defective pump."
The record affords insufficient basis for a finding that the respond-
ent has discriminated against Knowles in regard to ' his hire and
tenure of employment. We shall accordingly dismiss the allegations
of the complaint in so far as they relate to Knowles.
Sidney Fletcher,- Abe Mack, Frank Lipken, and Ben Mack. These
employees began to work for the respondent in the latter part of
1936 and- early' in 1937 as common laborers. When they were dis-
charged on December 13, 1937, they were digging mud pits under
the immediate supervision of John Dollery. Each earned 30 cents
an hour. All became members of the Union on October 11.
About October 16 Prell told Fletcher that if he did not become
a member of the Association, he would be discharged.. At about the
same time, Dollery made remarks of similar import to Ben Mack.
Fletcher testified, without contradiction, that in the latter part of
October, Dewey Wilson warned them to attend Association meetings
if' they wished to, retain their jobs. None of these employees became
members of the Association, however, and it appears that none at-
tended Association meetings.
On December 12 Ambrose Goodwin, a member of the Association,
pointed out these four employees to Dollery as being members of the
Union. On December 13 they were discharged.
Dewey Wilson testified that he discharged Fletcher, Abe and Ben
Mack, and Frank Lipken because he could not get them to do their
work. He testified that on December 13 lie warned them twice about
loafing, and that a third time, when he observed that they were still
"killing time," he discharged them. Although Dewey Wilson stated
that he "had to be on those men all the time," he could not remember
any instance previous to December 13 when he had. warned them
regarding their conduct. Dollery, who was in immediate charge of
the four employees, had never complained to.Dewey Wilson con-
cerning their work. At the time of the hearing, Fletcher, Abe and
Ben Mack, and Lipken were unemployed.
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent discharged Fletcher, Abe Mack, Lip-.
ken, and Ben Mack because of their union membership and activity,
and failure to evince -sufficient interest in the affairs of the Associa-
tion, thereby discouraging membership in the Union and interfering
with, restraining, and coercing its employees in the exercise of the
rights guaranteed by Section 7 of the Act.
George Spiller and Henderson Johnson. Johnson commenced
working for the respondent in April 1937, and Spiller in July 1937.
Both were employed in the field as common laborers, digging ditches,
slush pits, and working about the sulphur vat. At the time of their
discharge on December 14, 1937, they were earning 30 cents an hour:
Both became members of the Union on October 11.
On October 16 Prell enrolled them in the Association. A few days
later, however, Spiller withdrew from membership.
On December 14 Prell stated to them that they were loafing on the
job, and discharged them forthwith. Prell testified, without denial,
that he had warned them before concerning their idleness,-but that
they did not improve in their work.
- The record does not show that the respondent has discriminated
against Spiller -and Johnson in regard to their hire and tenure of
employment. We shall . accordingly dismiss the allegations of the
complaint in so far as they relate to Spiller and Johnson.
George Bivens. Bivens began to work for the respondent in No-
vember 1936.. At the time of his discharge on January 23, 1938, he
was a helper on a tractor, under Dewey Wilson's supervision. His
earnings were 30 cents hourly. He joined the Union on October 11,
1937. -
In October 1937 Arrington approached him and stated that in
order to retain his job with-the respondent, it would be necessary for
him to become a member of the Association. Bivens, however, re-
fused to join. On the evening of January 22, George Potvin, a
member of the Association and driver of the tractor on which Bivens
was assigned as helper, reported to Dewey Wilson that he did not
want Bivens with him any longer because Bivens failed to get off
the tractor to do his work, and that "he made it hard on the other
boys." On January 23, 1938, Dewey Wilson told Bivens to "go
home." Bivens testified that he never refused to get off the tractor,
but "when there was enough for two of us, I would get down and,
do it, but when there was not, one of us would stay on there."
The record does not show that the respondent has discriminated
against Bivens in regard to his hire and tenure of employment. We
shall accordingly dismiss the allegations of the complaint in so far
as they relate to Bivens.
' JEFFERSON LAKE.OIL' COMPANY, INCORPORATED 401
IV.' THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON • COMMERCE
We find that the activities of the respondent set forth in. Section
III, A, B; and C, 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 burdening and
obstructing commerce and the free flow of commerce.
• THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order that it cease and desist therefrom and that
it take certain affirmative action which will effectuate the policies of
the Act.
We have found that the respondent- has dominated and interfered-
wit h the formation'and administration of the Association and has
contributed support to it. Its continued- existence is a consequence
of a violation of the Act.58 In order to effectuate the policies of the-
Act and free the employees of the respondent from such domination
and interference, and the effects thereof, which constitute a continu-
ing obstacle to the exercise by employees of the rights guaranteed
them by the Act, we will order the respondent to withdraw all recog-
nition from and completely disestablish the Association as repre-
sentative of the respondent's employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or conditions of work. It follows
that the respondent must cease giving effect to its contract of Novem-
ber 16, 1937, with the Association, any renewals or extensions thereof,
and any new contract concerning grievances, labor disputes, rates of
pay, wages, hours of employment, or conditions of work which it
may have made with the Association.
We'have found that the respondent has engaged in unfair labor
practices by discharging Thomas. We shall order the respondent to
offer him immediate reinstatement to his former position and to
make him whole for any loss of pay he may have suffered by reason
of his discharge, by payment to him of a sum equal to the amount
53 Matter of Pennsylvania Greyhound Lines, Inc ., etc., and Local Division No. 1063 of the
Amalgamated Association of Street , Electric Railway and Motor Coach Employees of
America, 1 N. L. R. B. 1, aff 'd., National Labor Relations Board v. Pennsylvania Greyhound
Lines, Inc ., 303 U. S. 261 ; Matter of Stackpole Carbon Company and United Electrical &
Radio Workers of America, Local No. 502, 6 N. L. R. B. 171, aff'd. , National Labor Rela-
tions Board v . Stackpole Carbon Co., 308 U . S. 605. Cf. Matter of Consolidated Edison
Company of New York , Inc., etc . et al., and United Electrical and Radio Workers of America
affiliated with the Committee for Industrial Organization, 4 N. L. R . B. 71, aff 'd. as mod.
Consolidated Edison Co . et al . V. National Labor Relations Board et al ., 305 U. S. 197.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which he normally. would have earned as wages from the date of his
discharge to the date of the respondent's offer of reinstatement, less
his net earnings during said period.5'
We, have also found that the respondent has engaged in unfair
labor practices in discriminatorily discharging and refusing to rein-
state the employees listed in Appendix A. As to these employees,
the record shows that all the positions formerly held by them -may
not be immediately available due to a reduction in work at the time
that they were discharged and ref used reinstatement. The record
further shows, however, that other positions were available at the
respondent's plant for which these employees were qualified and for
which the respondent needed employees. These positions were as-
signed to the employees listed in Appendix D, whom the respondent
hired on October 24, 1937, and thereafter. We have found that such
available work for which the respondent hired the employees listed
in Appendix D would have been assigned to an appropriate number
of the employees listed in Appendix A had it not been for their union
membership and activity and their lack of interest in the Association.
To effectuate the policies of the Act, in so far as possible, the
respondent will be required to reinstate the employees listed in-Ap-
pendix A to such positions as they would now be occupying, if the
respondent had not discriminated against them. We will therefore
order the respondent, in so far as possible, to offer to the employees
listed in Appendix A reinstatement to their former or substantially
equivalent positions, or, if no such positions be available, then to any
positions for which they may be qualified. The offer of reinstatement
shall be without prejudice to their former rights `and privileges.
Such reinstatement shall be effected in the following manner : All
of. the employees listed in Appendix D, and any other employees not
listed thereon who have been hired after October 23, 1937, and who,
as in. the case of the employees listed in Appendix D,. occupy the
former positions of the employees listed in Appendix A, or sub-
stantially equivalent positions or positions for which they may be
qualified,55 shall be dismissed if necessary to provide employment for
those to be offered and who accept reinstatement. If thereupon, by
reason of a reduction in force, there is not sufficient employment
54 By "net earnings " is meant earnings less expenses, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working 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 Sawmill Workers Union , Local 2590, 8 N. L. R. B. 440 . Monies
received for work performed upon Federal , State , county, municipal , or other work -relief
projects are not considered as earnings , but as provided below in the Order, shall be de-
ducted from the sum due the employee, and the amount thereof shall be paid over to the
appropriate fiscal agency of the Federal, State, county, municipal, or other government or
governments which supplied the funds for said work -relief projects.
16 These employees will be referred to hereafter as new employees.
JEFFERSON LAKE OIL COMPANY, INCORPORATED 403
immediately available for the remaining employees, including those
to be offered reinstatement, all available positions shall be distributed
among such remaining employees in accordance with the respondent's
usual method of reducing its force, without discrimination against
any employee because of his union membership or activites, follow-
ing a, system as has heretofore been applied in the conduct of the
respondent's business. Those employees remaining after such dis-
tribution, for whom no employment is immediately available, as well
as those employees who are reinstated, not to substantially equivalent
positions, but to :positions for which they may be qualified, shall be
,placed-upon a 'preferential• -listprepared' in accordance with the
principles set forth in the preceding sentence, and shall thereafter
be reemployed in their former or substantially equivalent positions,
as such employment becomes available and before other persons are
hired for such work.
We have found that as of the time the employees listed in Appendix
A. were discharged and refused reinstatement, the amount of work
available at the respondent's plant had decreased, and that, as a
consequence, some curtailment in the respondent's force was expedi-
ent. The record does not indicate that the respondent followed any
plan of seniority in retaining and rehiring its employees, and it is
otherwise impossible to determine from the record which employees
the respondent would have retained - in its employ had it not been
governed by anti-union and pro-Association considerations in dis-
charging and refusing to reinstate them. Under these circumstances,
and since several employees may be equally qualified for a single
position, which only one• may obtain, to •dward back pay only to those
employees who are reinstated immediately according to the terms of
our order, to the exclusion of those employees who are not reinstated
because of the lack of immediate available employment, would result
in a disparity of treatment of employees of the same class which the
circumstances do not warrant and which our order should avoid in
so far as it is possible. We are of the opinion that the purposes of
the Act can most equitably be accomplished if the employees who
are not immediately reinstated,. but who 'will be placed on e a• prefer-
ential . list for reinstatement ..,v'hen.,employment . becomes: available,
should share back pay together with those employees who- are imme-
diately reinstated.
We shall therefore order that back pay be distributed among all
the employees listed in Appendix A. The amount to be distributed
shall be measured by the earnings received by the new employees 5U
from the time, after October 23, 1937, that each was hired by the
respondent until the offer of reinstatement as herein ordered. As
16 See footnote 55.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
back pay, each* employee listed in Appendix A shall receive that pro-
portion of the entire amount to be distributed which his hourly wage
At the time{ of the discrimination against him bears to the sum of
the hourly wages of all the employees who are named in Appendix
A at the time of the discrimination against. them. After such indi-
vidual apportionment is made, each claimant's net earnings, as here=
tofore defined,.are to be deducted individually from the sum credited
to the particular claimant.
We have found that the respondent, by refusing to reinstate the
employees listed in Appendix B, has discouraged membership in a
labor organization and has thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act. We have also found that on December 9, 1937,
and thereafter, the respondent hired 22 employees to the exclusion
of the 17 employees listed in Appendix B. Because it appears that
all the employees listed in Appendix B could have been reinstated by
the respondent at a time commencing on December 9, 1937, the con-
siderations which impelled us to modify our usual back-pay order
with respect to the employees listed in Appendix A are here lacking.
Therefore, our usual grder will be appropriate. In order to remedy
the effects of the unfair labor practices with respect to the employees
listed in Appendix B, we shall order the respondent to reinstate such
employees in the following manner : All common laborers hired on or
after December 9, 1937, irrespective of the fact that they may have
previously been in the respondent's employ, shall, if necessary to
provide. employment for those to be offered reinstatement, be dis--
missed. ' If, thereupon, by reason of a reduction in force there is not
sufficient employment available for the remaining employees, includ=
ing those to be offered reinstatement, all available positions shall be
distributed among such remaining employees in accordance with the
respondent's usual method of reducing its force, without discrimina-
tion'against any employee because of his union affiliation or activities.
Those employees remaining after such distribution, for whom no em-
ployment is immediately available, shall be placed upon a preferential
list prepared in accordance with the principles set forth in the pre-
ceding sentence, and shall thereafter, in accordance with such, list, be
offered employment in their former or substantially equivalent posi-
tions, as such employment becomes available and before other persons
are - hired for such work.
We shall also order the respondent to make the employees listed in
Appendix B whole for any loss of pay they have suffered by reason
of the respondent's refusal to reinstate them by payment to each of
them of a sum equal to the amount which he normally would have
earned as wages from the date of the respondent's refusal to reinstate:
JEFFERSON LAKE OIL COMPANY, INCORPORATED ' 405
.him, to the date of offer of reinstatement, less his net earnings 67
during said period. _
We have found that the respondent has engaged in unfair labor
practices by discharging the employees listed in Appendix C. We
shall order the respondent to offer them immediate reinstatement to
their former positions and to make them whole for any loss of pay
they may have suffered by reason of their discharges, by payment
to. each of them of a suin equal to the amount which each normally
would have earned as wages from the date of his discharge to the
date of the respondent's offer of reinstatement, less the net earnings
of each during said period.58
The Trial Examiner in his Intermediate Report recommended that
the respondent deduct from back pay, and pay over to the Texas
Unemployment Compensation Commission, the total amount of the
benefits paid by the Commission to the employees who were dis-
criminated against. To this recommendation the respondent 'ex-
cepted. In accordance with our decision in Matter of Pennsylvania
Furnace and Iron Company and Lodge No. 1328, International Asso-
ciation of Machinists,59 and for the reasons therein stated, no deduc-
tion from back pay will be made on account of unemployment com-
pensation benefits.
Upon the basis of the above findings of fact and upon the entire
record' in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Sulphur Workers Union No. 21195 and Employees Independent
Protective Association are labor organizations within the meaning of
Section 2 (5) of the Act.
2. By dominating and interfering. with the formation and adminis-
tration of Employees Independent Protective Association and con-
tributing support thereto, the respondent has engaged in and is engag-
ing in unfair.labor practices, within the meaning of Section 8 (2) of
the Act.
3. By discriminating in regard to the hire and tenure of G. E.
Thomas and the employees listed in Appendices A, B, and C, thereby
.discouraging membership in Sulphur Workers Union No. 21195 and
.encouraging membership in the Employees Independent Protective
.Association, -the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its-employees in
the exercise of the rights guaranteed by Section 7 of the Act, the re-
69 See footnote 54.
51 See footnote 54.
19 13 N. L . R. B. 49.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD '
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
6. The respondent has not discriminated and is not discriminating
in regard to the hire and tenure of the employees listed in Appendix
E, and has not engaged in and is not engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act, with regard
to them.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
Jefferson Lake Oil Company, Inc., and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Dominating or interfering with the administration of Em-
ployees Independent Protective Association, or with the formation
or administration of any other labor organization of its employees,
and from contributing support to Employees Independent Protective
Association or any other labor organization of its employees;
(b) Recognizing Employees Independent Protective Association as
the representative of any of its employees for the purpose of dealing
with the respondent concerning grievances, labor disputes, rates of
pay,,wages, hours: of, employment', or_^other conditions,,.of;.emp]oyri ent
(c) Giving effect to its contract of November 15, 1937, with Em-
ployees Independent Protective Association, any renewal or extension
thereof, or any new contract concerning grievances, labor disputes,
rates of pay, wages, hours of employment, or other conditions of em-
ployment, which it may have made with Employees Independent
Protective Association subsequent to November 15, 1937;
(d) Discouraging membership in Sulphur Workers Union No.
21195, or anyother:labor organization of its employees, by discharging
or refusing to°reinstate°any of'its employees,'or in any Other'inahner
discriminating in regard to their hire and tenure of employment or
any term or condition of employment because of their membership or
activity in Sulphur Workers Union No. 21195, or any other labor
organization of its employees ;
(e) Giving effect to the individual contracts of employment herein
found to have been executed or any renewal thereof ;
(f) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self -organization, to form,
JEFFERSON LAKE OIL COMPANY, INCORPORATED 407
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 and other mutual aid
or protection, as guaranteed in Section 7 of the National Labor
Relations Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw all recognition from Employees Independent Pro-
tective Association as a representative of its employees for the pur-.
pose of dealing with the respondent concerning 'grievances, labor .dis-
putes, rates of pay, wages, hours of employment, or other conditions
of employment ;
(b) Offer to G. E. Thomas immediate and full reinstatement to his
former position, without prejudice. to his former rights and. privi-
leges ; '
(c) Offer to those employees listed in Appendices A, B, and C,.
immediate and full reinstatement to their former or substantially'
equivalent positions, or to positions for which they are qualified in
the manner set forth in the section entitled "Remedy", above, placing
those employees for whom* employment is-not immediately available
and those who although reinstated are reinstated not to substantially
equivalent positions but to positions for which they are qualified,
upon a preferential list in the manner set forth in said section;
(d) Make-whole G: E. Thomas for any loss of pay he has-suffered
by reason of his discrinzinatory discharge by payment td hiih of a
sum of money equal to' that which he normally would have earned as
wages from the date 6f,-his discharge to the date he is'offered rein-
statement, less hik net earnings during that period, provided, how-
ever, that the respondent' shall deduct from the amount otherwise due
him, monies received by Thomas during said period for work per-
formed upon Federal, State, county, municipal, or other work=relief
projects, and pay: over the amount, so deducted to the appropriate
fiscal agency of the Federal, State, county,, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects ;
'(e) Make whole the, employees listed in Appendices A, B, and-. C,
for any loss of pay they may have suffered by reason of their respec-
tive discharges. and refusals. to reinstate, by payment to each of -them
of a sum of money equal to.an, amount determined in the manner' set
forth in the section entitled "The Remedy," above, provided, how-
ever, that the respondent shall deduct from the amount otherwise due
them, monies received by them during said periods for' work per-
formed upon Federal, State, county, municipal, or other work-relief
247383-40-vol. 16--27
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
projects, and pay: over the amount, so deducted, to the appropriate
fiscal agency of the Federal, State, county, municipal, or other gov-
ernment or governments which supplied the funds for said work-
relief projects;
(f) Immediately post notices to its employees in conspicuous places
throughout its plants and maintain such notices for a period of at
least sixty (60) consecutive days from the date of posting, ' stating ,
that the respondent will cease and desist in the manner set .forth
in 1. (a), (b), (c), (d), (e), and (f) and that it will take the affirma-
tive action set forth in 2 (a), (b), (c),. (d), and (e) of this Order;
(g). Notify the Regional Director for the Sixteenth Region . in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-.
missed in so far as it alleges with regard to the persons named in
Appendix E that the respondent has engaged in and is engaging in
unfair labor practices, within the meaning of Section 8 (3) of the Act.
'IT; IS FURTHER ORDERED that the complaint be, and it hereby is, dis-,
missed in so ,far as it alleges that the respondent has engaged in and
is engaging in unfair labor practices within the meaning-of Section 8.
(5) of the Act.
H. T. Britt
J. E. Brooks
Edwin Dore
Fred Duval
O. O. Evans
H. S. Goolsby
J. M. Goolsby
T. J. Gordan
C. A. Hearn
Samuel Alston
Morgan Bivens
Sandy Bryant
James Chandler
Anderson Good
Aaron Helm
Malachi Jammers
Osby Johnson
Sherman Johnson
APPENDIX A
Woodrow Hashaw
J. K. Helton
Cleomere Leleux
Ed Lonis
Elvest Pelletier
Oliver Romero
O. J. Stoutes
R. V. Ward
Haywood Watson
APPENDIX B
John Jordan
Lee Lipkins
Samuel Moore
A. M. Thompson
Charley Thompson
William Robertson
Clarence Woodward
Jefferson Woodward
JEFFERSON LAKE OIL COMPANY, INCORPORATED
Sidney Fletcher
Mose Kelly
Frank Lipken
Abe Mack
W. W. Arnold
F. L. Franek
Henry Hudec
Edwin Johnson
W. S. Jones
W. H. Lavender
Erven Leblanc
George Bivens
R. N. Brady
Henderson Johnson
Bill Knowles
APPENDIX C
Ben Mack
George Mariast
Willie Thompson
APPENDIX D
J. D. Marshall
D. S. Morphew
J. M. Schwebel
J. D. Sloan
E. A. West
H. F. West
APPENDIX E
Frank Skotnik
Harry Skotnik
Joe Skotnik
George Spiller
409
MR. WrLLIAM M. LEisExsox took no part in the consideration of
the above Decision and Order.