Standard Oil Co.

National Labor Relations Board - Board Decisions

Feb 15, 1943

47 N.L.R.B. 517 (N.L.R.B. 1943)

III the Matter Of STANDARD OIL COMPANY, AN OHIO CORPORATION,
SOHIO PIPE LINE CORPORATION, LATONIA REFINING CORPORATION and
OIL WORKERS INTERNATIONAL UNION' (CIO), AND OIL WORKERS
INTERNATIONAL UNION, LOCAL. 346 (CIO) and ASSOCIATION OF
PETROLEUM WORKERS OF THE STANDARD OIL COMPANY OF OHIO
Case No. C-2420.Decided February 15, 19,¢3
Jurisdiction : oil producing and refining industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: encouraging membership in "inside" organi-
zation and discouraging membership in affiliated organization
Company-Dontiinated Unions : employee representation plan formed and sup-
ported by employer prior to Act and continuing thereafter without disappro-
val by employer; successor organization formed in the absence of cleavage
from predecessor dominated plan, and supported by financial aid and grant
of virtual recognition although formal recognition was withheld-prior certi-
fication of organization, found not to preclude finding of domination.
Discrimination: charges of, dismissed.
Remedial Orders : cease and desist unfair labor practices, successor dominated
organization disestablished, and contracts therewith abrogated.
DECISION
AND
ORDER
On November 16, 1942,,the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that Standard Oil
Company; an Ohio Corporation, Sohio Pipe Line Corporation, and
Latonia Refining Corporation, herein called the respondents, had
engaged in and were engaging in certain unfair labor practices and
recommending that they cease and desist therefrom and take certain
affirmative action'as set out in the copy of the Intermediate Report
attached hereto. Thereafter the respondents, Association of Petro-
leum Workers of the Standard Oil Company of Ohio, herein called
the Association, Oil Workers International Union (CIO), and Oil
Workers International Union, Local 346 (CIO), herein jointly called
the Union, filed exceptions to the Intermediate Report and briefs
in support of the exceptions. Oral argument, in which the respond-
ents, the Association, and the Union participated, was had before the
Board on January 21, 1943. The Board has considered the rulings
47 N. L. R. B., No. 74.
517
518 DEC'TSSON'S OF NATIONAL LABOR RELATIONS BOARD
of the Trial Examiner at the hearing and finds that no prejudicial'
error was committed. The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and the briefs,
and the entire record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial -Examiner.'
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondents, Standard Oil Company,
an Ohio Corporation, Sohio Pipe Line Corporation, and Latonia
Refining Corporation, their officers, agents, successors, and assigns,
shall:
1. Cease and desist, from : -
(a) Dominating or interfering with the administration of Asso-
ciation of Petroleum Workers of the Standard Oil Company of Ohio,
or -with the formation or administration of any- other labor organiza-
tion and--'from contributing financial or other support to' the said
labor organization or to any other labor organization;
(b) Recognizing the Association of Petroleum Workers of the
Standard Oil Company of Ohio, as the representative of any of their
employees for the purpose of dealing with the respondents concerning
grievances; labor disputes, wages, rates of pay, hours of employment,
,'or other conditions of employment;/ -
(c) Giving effect to each and every contract with the Association of
Petroleum Workers of the Standard Oil Company of Ohio or any
chapter thereof, or to any modification, extension; supplement, or
renewal thereof, or to any superseding contract with it;
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations; to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining, or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take' the following affirmative action, which the Board finds
will effectuate the policies, of the Act :
(a) Withdraw all recognition from and completely disestablish
Association of Petroleum Workers of the Standard Oil Company of
Ohio, as the representative of any of their employees for the purpose
-of dealing with the respondents concerning grievances, labor dis-
r
I At page , 31, line 5, of the Intermediate Report the Trial Examiner inadvertently set
forth the date October 1941. We find the date to be October 1940 Another inadver-
tence appears at page 37, line 8, of the Intermediate Report in the date September 5, 1942.'
This date we find to be Septembei 5, 1941.
1)
STANDARD OIL COMPANY, AN OHIO CORPORATION, 519
pates, wages, rates of pay, hours 'of employment, or other conditions
of employment at all of their plants and operations;
(b) Post immediately, in conspicuous places throughout their
various plants and operations, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to their
employees stating: (1) that the respondents will not engage in the
conduct from which it is ordered that they cease and desist ' in
paragraphs -1 (a), (b), (c) and (d) of this %Orde (2) that the
respondents will take the affirmative action set forth in paragraph
2 (a) of this Order; and (3) that the respondents' employees are free
to become or remain members of Oil Workers International Union,
affiliated with the Congress of Industrial Organizations, and Oil
Workers International Union, Local 346, affiliated with the Congress
of• Industrial Organizations, and that the respondents will not dis-
criminate against any employee because of membership in or activity`
on behalf of these organizations;
(c) Notify the Regional Director for the Eighth Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondents have taken to comply herewith.
AND IT FURTHER ORDERED that the eop_!plalnt be dismissed insofar
as it alleges that the respondent, Standard Oil Company, an Ohio
Corporation, has engaged in unfair labor practices by discharging
William Philpott on or about May 1, 1941.
INTERMEDIATE REPORT
Mr. Max 11'. Johnstone, for the Board •
McAfee, Grossman,iHarming ct Newcomer; by Maurice F. Henning and James
R Tr,tschlei, of Cleveland, Ohio, for the respondents
Lowell Gocitich, and B J. Rickey, of Toledo, Ohio, for the Union.
R C Ragan, of Toledo, Ohio, for the Association.
STATEMENT OF THE CASE
Upon a second amended charge, duly filed on August 5, 1942,-by Oil Workers
International Union (CIO) and Oil Workers International Union, Local 346
(CIO) herein jointly called the Union, the National Labor Relations Board,
berem• called the Board, by the Regional Director for the Eighth Region
(Cleveland, Ohio), issued its amended complaint' dated August 8, 1942, against
Standard Oil Company, an Ohio corporation, Sohio Pipe Line Corporation, and
Latonia Refining Corporation, herein jointly called the respondents, and sev-
erally, the respondent Standard, the respondent Sohio, and the respondent
Latonia, alleging that the respondents had engaged in and were engaging in
unfair labor practices within the ineaning of Section 8 (1), (2), and (3) and
'Section 2 (6), and (7) of the National Labor Relations Act, 49 Stat• 449, herein
called the- Act Copies of the amended complaint, accompanied by notice of
hearing, were duly served upon the respondents, the Union and Association
1 The original complaint was issued July 27, 1942, upon an amended charge duly filed by
the Union on July 23, 19-12.
1
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Petroleum Workers of the Standard Oil Company of Ohio, heiein called the
Association.
In respect to the unfair labor practices, the amended complaint as further _
amended at the hearing, alleged in substance that (1) in 1933 the respondent
Standard established among employees throughout its system the Sohio Council
Plan, a labor organization, and dominated and furnished active support to the
said labor organization during its entire existence, (2) in April 1937, established
the Association, and thereafter through its officers and agents and through its
subsidiaries, the respondent Sohio and the respondent Latonia, maintained and
dominated, and furnished' support to said Association ; (3) encouraged member-
ship in the Association and discouraged membership in the Union through various
acts and statements of its supervisory off,-ials; (4) discharged William Philpott
on or about May 1, 1941, because of concerted or union activity The respondents
filed an- answer denying that they had engaged in any of the alleged `unfair
labor practices though admitting that certain bargaining contracts were executed
by,the respondents and the Association following the, certification of the Asso-
ciation by the Board as a result of pertain elections. The Association during
the course of .the hearing filed an answer denying that the Association was
formed, dominated or assisted by the respondents
Pursuant to notice, a hearing was held fioin September 3, 1942, through Sep-
tember 30, 1942, at Cleveland, Ohio, and at Toledo, Ohio, before the undersigned,
the Trial Examiner duly designated by the Acting Chief Trial Examiner. All
parties were represented by counsel and participated in the hearing. Full oppor-,
tunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties
At the opening of the hearing, a petition) filed prior to the hearing by the
Association with the Regional Director and the Board, for a stay of the pro-'
ceeding, was denied, as was the Association's motion to dismiss the complaint.
A motion by the respondents to dismiss the complaint was also denied During
the presentation of the Board's case, on motion of counsel for the Board, a
number of amendments to the complaint were allowed over the objections of the
respondents and the Association The parties were advised that if they were
unduly surprised by the introduction of matters thus newly alleged in the com-
plaint, they might apply for a continuance at the close of the Board's case
Pursuant thereto, on motion of ^lie respondents, a continuance was granted from
September 15, 1942, to September 21, 1942
At the close of the Board's case the undersigned granted without objection a
motion by the respondents to dismiss an allegation of the complaint that Ladd,
a supervisor of the respondent Standard, called a member of the Union a deroga-
tory name. The undersigned denied other motions of the respondents 'to dismiss
the complaint in its entirety and in part, and also denied similar motions of the
Association. At the close of the hearing the respondents renewed a motion previ-
ously made and upon which ruling was reserved to strike all testimony of R D.
Hershman, an Association witness, relating to a Suggestion Committee. Ruling
was reserved on the motion/and it is hereby granted. At the close of the hearing,
both the respondents and the Association renewed their respective motions to
dismiss the complaint in its entirety, and in the alternative, to dismiss certain
specified allegations of the complaint. Ruling was reserved thereon and the
motions are hereby denied except as they are otherwise disposed of under
the recommendations of this Report. Near the conclusion of the hearing, the
undersigned granted, without objection, a motion by counsel for the Board to
conform the pleadings to the proof. At the conclusion of the hearing, the
parties were afforded an opportunity to argue orally before, and to file briefs
STANDARD OIL COMPANY, AN OHIO CORPORATION 521
1
with, the undersigned. Oral argument was presented by counsel for the
Board, the respondents,and' the Association The respondents, the Association
and the Union thereafter filed briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF-FACT
I THE BUSINESS OF TIIE RFSPONDENTS
Standard Oil Company, an Ohio Corporation, was incorporated about 1870.
Its principal offices are located at Cleveland, Ohio. It is engaged in all branches
of the oil industry, including producing, transporting, refining and marketing
of gasoline, oil, kerosene, motor oils and industrial lubricants, asphalt, road
and fuel oil. It opeiates refineries at Cleveland, Ohio, Toledo, Ohio, Lima,
Ohio, and through a subsidiary, the Latonia Refining Corporation, at Latonia,
Kentucky. I
Latonia Refining Corporation is an Ohio corporation and a wholly owned
subsidiary,of the respondent Standard It operates a refinery for the process-
ing of gasoline at Latonia, Kentucky.-
In the year 1941, the respondents Standard and Latonia produced and mar-
keted' refinery products of a value in excess of $76,740,000. Approximately 8
percent in value of finished products produced and marketed by the respondent
Standard, were shipped outside the State of Ohio. Of the $9,576,000 in value
of finished products produced and marketed by the'respondent Latonia during
the same period, approximately 100 percent were disposed of outside the State
of Kentucky.
Sohio Pipe Line Corporation is a Delaware corporation, and is a wholly
owned subsidiary of the respondent Standard. It operates main trunk pipe
lines from Salem, Illinois, eastward to Lima, Ohio, and from Mt. Pleasant,
Michigan, to Toledo, Ohio, for the transportation of crude oil. During the year
1941, it transported in its main trunk lines approximately 43,276,000 barrels
of crude oil. 76 percent of such crude oil was transported across State lines.'
The respondents adini0that they are engaged in commerce within the meaning
of the Act.
II. THE ORGANIZATIONS INVOLVED
Oil Workers International Union is a labor organization affiliated with the
Congress of ^Industiial Organizations, admitting to membership employees of
the petroleum industry Local 346 of Oil Workers International Union admits
to membership employees of the Petroleum industry in the vicinity of Todelo,
Ohio.
Association of Petroleum Workers of the Standard Oil Company of Ohio, is
an unaffiliated labor organization admitting to membership employees of the
respondents Standard, Sohio and Latonia.
III. THE UNFAIR LABOR PRACTICES
A. Sohio Council Plan
In 1933 the respondent Standard-established throughout its system of opera-
tions the Sohio Council flan, called herein the Plan. The object of the Plan,
as stated in its constitution (which was "Accepted by the Non-Supervisory
2 These findings are based on a stipulation entered into between counsel for the Board'
and counsel for the respondents
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees d *, * by Secret Ballot during the month of July, 1933") was
to provide a method whereby employees and management might "discuss all prob-
lems of mutual interest, such as * * fl manufacturing and marketing
problems ; working conditions, including wages and hours ; safety; sanitation ;
social and athletic functions; educational, programs ; sick benefits'; insurance;
pensions, etc "
Under the Plan Unit Councils were set up in all divisions of the respondent's
operations. These Unit Councils were comprised of representatives elected
annually by the employees, respectively, of the various units and a not greater
number of representatives of management who were appointed by the respon-
dent's president. The constitution provided for the establishment of 24 unit
councils and at least 22 functioned under tile Plan. The chairman of each
Unit Council was appointed by the respondent's president, and the chairman
thus appointed designated a secretary whose duty it was to keep minutes of
Unit Council meetings. Neither the chairman nor the secretary thus appointed
could vote in the proceedings of the Unit Councils The elected representatives
of each unit appointed a vice-chairman who acted as chairman in the regular
chairman's absence and who was entitled to vote on all occasions. All em-
ployees of the respondent except executives, supervisors and their immediate
staffs, and outside salesmen, were eligible as voters and as representatives
under the Plan
In addition to the Unit Councils, the Plan provided also for a Central Council
which was comprised of the vice chairmen of the Unit Councils and "a not
greater number of management representatives appointed by the President"
of the respondent. The Central Council had one. regular meeting each year
and additional meetings on petition of the representatives of the Unit Councils
or at the "discretion" of the respondent's president. The chairman of the
Central Council was designated by the respondent's president,
Regular meetings of the Unit Councils were held every two months for the
purpose of considering and making recommendations on questions relating to
working conditions, wages and hours, and "similar matters of mutual interest
to the employees and to the Company." A somewhat elaborate procedure
was set up whereby employee grievances which could not be satisfactorily
adjusted with the respective supervisors or department heads, were first referred
to the Unit Councils and thereafter, if necessary , through the Unit Council to
the Central Council` Further provision was made for arbitration in the event
of a, deadlock in the Central Council There is no evidence that arbitration
was resorted to at any time during the existence of the Plan
On March 14, 1935, the Plan was amended. The amended Plan stated that
its purpose was "to provide for the employees of The Standard Oil/Company
(an Ohio Corporation ) and of its subsidiary companies ' a means of organ-
izing and bargaining collectively with the Company through repiesentatives
of their own choosing, to be selected as provided in the following Plan. The
representatives so selected shall be fully authorized to deal, discuss and bargain
.with the Company regarding wages, hours, working conditions and any other
matters of mutual interest and to negotiate and enter into agreements with the
Company with respect thereto
"It was stipulated that the respondent Latonia was incorporated in 1938 and the re-
spondent Sohio in 1937. However, since the amended Plan of March, 1935, makes refer-
ences to the "subsidiary companies" of the respondent it appears that the respondents
Latonia and Sohio were functioning as'separate enlities as of that date, though perhaps.
unincorpoiated.
STANDARD OIL COMPANY, AN OHIO CORPORATION 523
The plan as amended further provided, inter alia, that the personnel of the
Unit Councils should consist solely of representatives elected by the employees of
the respective units ° The representatives thus designated chose from among
their number a chairman, 'a vice chairman, and a secretary. The Central Council
of the Plan as amended, was comprised of the chairman'of the Unit Councils who
chose from their number a chairman, a vice chairman, and, a sec etary of the
Central Council. The Plan as amended also broadened the functions of the
Unit Councils which were now authorized to bargain with the management and
make agreements with respect to employees of their respective jurisdictions, and
further provided that the bargaining powers thus vested in the Unit Council
"may be exercised by such Unit Council dealing separately with, or dealing
jointly with the Company, together with one or more of the other Unit Councils,
or, by a majority vote of the members of such Unit Council, may be delegated to
the Sohio Central Council or to a special committee composed of not less than
three members of the Sohio Central Council designated by such Unit Council, in
whole or in part and upon such conditions or with such restrictions as to exercise
thereof as may be imposed by such vote."
Under the Plan as thus constituted, the Unit Councils were semiautonomous
bodies, with full authority to bargain and make agreements for employees of
their respective jurisdictions It appears from the minutes of the Central Council
and from the testimony of the witnesses, that in its practical working, the Unit
Council held original jurisdiction of matters of purely local interest, but that
where'satisfactory adjustments could not be secured through the Unit Councils,
such matters were referred to the Central Council for further attemps at settle-
ment. The Central Council also appears to nave exercised bargaining rights on
matters of the respondents' general or overall policy affecting entire divisions of
the respondents' operations, or matters common to all the respondents' employees.
Participation of employees in the Plan was voluntary, no formal membership
being -provided and no clues collected The, respondents Standard and Latoma
provided meeting places, for both the Unit and Central Councils of company
premises and company time; paid the traveling expenses of representatives attend-
ing meetings of the Central'Council; bore all incidental expense of the operation
of the Plan such as stenographic services, stationery, mimeographing and postage.
Elections of Council representatives were held on company propel ty and company
time. No deduction was made in the wage of representatives for time spent in
attending meetings of the Councils. In short, the respondents bore the entire
expense involved in the operation of the Plan. ,
The Plan functioned continuously front the date of its formation by the
respondent Standard in 1933 until a date in April, 1937, subsequent to the decisions
of the Supreme Court upholding the constitutionality of the Act
B 77ac Association
1. Its inception
On April 8, 1937, the regular annual meeting of the Central Council of the
Plan was convened in Cleveland This meeting was attended by the chairmen
of 22 Unit Councils which had been established under the Plan Following
the adoption of a motion to have a "Working Agreement drawn up by the
1 ,
I The Plan as amended provided for Unit Councils for "each of the Silos Divisions, for
each of the Refineries , for the Cleveland\Automotive Shop, for the Home Office, for the Sales
Accounting Office, and for the Lithograph Call Factory and the Print Shop combined "
The number of representatives composing the Unit Councils varied according to the size of
the unit , each unit being divided into voting districts. -
524, . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Council," there was an election of officers, H II McCowen, chairman of
the Latonia '(Kentucky) Refinery Unit Council, was elected chairman of the
Central Council "by, acclamation." 1\IcCowen had previously served as chair-
man of the ni:uiiifacturing division of the Central Council and as its'vice chair-
man' G. L. Hilton, chairman of the Number 2 Refinery (Cleveland) Unit Coun-
cil was elected vice-president, and K C. Schumacher, chairman of the Home
Office Unit Council, was elected secretary. ' Following the election of officers
the Central Council was addressed by W. P. Edmunds, the respondents' manager
of industrial relations," and A M. Maxwell, a vice president of the respondent
Standard. Edmunds again addressed the Central Council on the-following day.
The minutes of,this meeting give very little detail of statements made by
Edmunds and Maxwell, but several witnesses testified and Edmunds admitted,
that the future of the Plan in the event the Act was held to be constitutional,
was discussed at one or both of these meetings. According to Edmunds, in
reply to questions, he stated that he 'had no debate" in his own mind, "that
if that [the Act] were upheld by the Supreme Court, that the Sohio Council
was entirely out." Charles Mendick, a Board witness who attended the April
8, 9 meetings as chairman of the NuniberiI Refinery (Cleveland) Unit Council,
testified that Edmunds advised the Central Council that in the event the Act
was held to be constitutional, they should "get the boys together" and the com-
pany would "kick in about $50,000 " Edmunds denied the statements attributed
to him by Mendick, and witnesses for the Association who attended the April
S. 9 meetings, also denied that Ediuunds made these statements In view of
the lack,of corroboration of Mendick's testimony and the cautious policy which
marked the respondents' attitude on the Plan during this period, the under-
signed is persuaded and finds that Edmunds did not make the statements
attributed to him by Mendick
It is clear, however, from all the testimony, that there was much concern
over the future of_the Plan evidenced in the meeting of April 8, 9, and that both
the respondents and the council chairman-expressed the opinion that the Plan
as it was then constituted could not continue to function if the Act was declared
constitutional. It is entirely likely that alternatives to the Plan which would
meet the requirements of the Act were discussed at this meeting, but, in the
opinion of the undersigned, the evidence fails to establish that at this time
Edmunds expressly directed or encouraged the Central Council to form a successor
organization
On April 12, 1937, the Supreme Court's decisions removed all doubt of the
Act's constitutionality. Nevertheless,' the Plan did not cease thereupon to
function although its illegality under the Act was freely admitted by the
respondents . The minutes of the April 8, 9, meeting were mailed to the unit
chairmen under date of April 21, with a covering letter over the signature of
Schumacher , as secretary , which requested the unit chairmen to advise the
aMcCowen resigned from the Association in April, 1939, and thereafter was promoted
to a position in the respondents ' industrial relations divisions , and as a representative of
management met with the Association.
"Edmunds when questioned whether his position as manager of industrial relations ex-
tended to the respondents Latonia and Sohio, testified : "Yes, I wouldn't know whether
they were separate. The Latonia Refinery is like any other refinery so far as I am con-
cerned, and the Pipe Line [Sohio] the same" The undersigned on the basis of this and
other testimony fonds that labor relations of the respondents, Standard , Latonia and Sohio,
were centrally controlled and directed through the respondent Standard All findings on
issues of support and domination of the Plan and of the Association are therefore made
with reference to each of the respondents, whether specifically named as such or not,
except sub-section 5 of this Report which relates solely to the Toledo Refinery of the
respondent Standard.
STANDARD OIL COMPANY AN OHIO CORPORATION 525
secretary of any, changes due to elections "so that a new corrected list of unit
chairmen may be sent to all unit councils ," and closed with the following
sentence : "For this secretary to operate efficiently it will be important that
any errors or omissions are called to' hs attention."
On or about April 19, McCo1wen visited the Number I refinery, Cleveland
and, according to his testimony, called on E. A. Brown, superintendent, of the
refinery and conferred with him on a list of grievances concerning employees
of that refinery. McCowen testified that the representatives of this unit had
been having some difficulty with Brown, and that "the Council wasn't getting
anywhere." After meeting with Brown and representatives, of the Plan of
the local unit, McCowen attempted during lunch recess to discuss certain
matters with the men. McCowen testified : ". . . I undertook to try to tell
them that I was representing the Council and that I was there for the purpose of
trying to get things smoothed out." McCowen further testified : "I said : The
Council hasn't been functioning out here and I am trying to see what will
function." The, men refused to listen to McCoven on' their own time, and
Brown gave him permission to address the men' at the close of the lunch
recess on company time Brown was present but did not participate in these
discussions . Following his attempts to address the employees, McCowen and
the representatives met with Brown and negotiated an agreement covering
the employees of the unit This agreement, which was dated April 19, 1937,
was headed: -
At the meeting this day between the undersigned, recognized representa-
tives of the employees of No I Works Refinery, The Standard Oil Com-
pany (Ohio), and the management, the following agreement has been
entered into effective immediately :
The agreement covered a variety of subjects including such matters, as sen-
iority, staring time for work, quitting time, clean-up work in process 'depart-
ments, and individual grievances It was 'signed by McCowen and the unit
representatives under the Plan, and by E A. Brown.
There is conflict in the testimony concerning the tenor of McCowen's remarks
to the employees McCowen denied that he discussed the Association. Mirko
Debevic, a Board witness and an employee of the Number I.refinery, testified,
however, that MCCowen and-Al Euse, the latter a representative under the
Plan, spoke to the employees about a new organization; "they were trying
to point out to the boys to start this new-I mean this Association of Petro-
leum Workers. They didn't name it with that, name, but they said to start
this new group" According to Deebevic, ". . . Al Euse and -McCowen and
the boys got into a severe argument there on the things; in other words, the
boys wanted to join the Oil Workers International Union and they were talking
about this other organization ; they said they had enough of, it, because, they
had plenty experience with the Sohio Council and they didn't want to have
the same thing continued."
In view of McCowen's admission that his remarks caused so much confusion
that he "couldn't get anywhere", his testimony that lie told the men, "The Council
hasn't been functioning out here and I am trying to see what will function," and
the convincing character of Debevic's testimony, the undersigned finds that
McCowen visited the Number I Refinery for the pur lose of persuading the men
to go along with the new organization which leaders of the Plan were then con-
sidering as a successor to the Plan, and that he encountered opposition due to the
fact that certain of the men had at that time decided to affiliate with the Union
Debevie's testimony concerning the Union is corroborated by the fact that a
charter was issued the employees of this refinery by the Union on April 23.
I
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On1April 20, Brown was removed as superintendent, of the Number I Refinery
lind'was tiansferred'to work as' a construction 'engineer 'in a division of the
respondents' operations remote from the Number I Refinery ' The 'respondents
dduce the fact of Brown's removal as evidence of disapproval of his action in
1,cimitting Council Representatives to, address the employees on company time
add the'ir' reement which 'he approved with these same representatives: There is
ilo evidence, however,'that the respondents published the cause of Brown's removal
to the employees of the Number I Refinery either orally or in-writing, abrogated
the agreement he had made with Council representatives, or otherwise publicly
disavowed his aforesaid acts. -
On April 21, there was a meeting of the Council Units of the Cleveland area,
in Cleveland Seien Unit chairmen were present at this meeting, including
McCowen, chairman of the Central Council, who called the meeting to order.
As stated in Schumacher's report of the meeting, addressed to all unit chairmen
of the Plan, this meeting was held "for the purpose of discussing and suggesting
changes in the Sohio Council plan." The two major' subjects discussed at this
meeting were "financial support and the name of the council." The following
motions were adopted at this meeting:
1. "That suggestion be made to each unit council to have the unit council
secretaries act as temporary treasurers."
2. ",Suggest that the Sohio Council Plan be adopted as a basis for a new
plan."
3. "Suggest that the words, Standard Oil, Sohio and Council be omitted
from the name of the new plan."
'During the course of the April 21 meeting, McCowen received a telephone mes-
sage "to the effect that the company was withdrawing their financial support to
the plan " It is further stated in the minutes' that the chairman "wished to
emphasize the fact that these motions were merely suggestions to the various
.unit councils and hoped that they would be viewed in this manner " ,
Ui,der (late of April 22, Maxwell who in addition to being a vice president of
,the respondent Standard was director of sales, addressed a letter to McCowen, in
which he stated, inter alia, that the Act having been declared constitutional and
the company wishing to abide "strictly by the letter" of the Act,
Hereafter, any and all,actiiities of the Council Plan or any other labor
organization in our company must be financed entirely by the members if
the law is to be complied with. This means that meetings of the Unit Councils
and the-Central Council and any other activities of your organization will,
hereafter have to be conducted on your own time and not on the company's
tinge, except,that meetings of your representatives with the management may
continue to be conducted upon the company's time.
This letter 7 purporting to withdraw the respondents' financial support of the
Plan, "or any other labor organization in our company," did not in any other
respect require the abandonment of the Plan as a functioning organization It,
in fact, contemplated the Plan's continuance; the inference being' plain that the'
respondents would continue to meet with the Plan's representatives. That.the
letter was so understood by the Council Unit chairmen, is,evidenced ^y a letter
which M.Cowen on April 26 addressed to all unit chairmen of the Plan, and in
7 The respondents also introduced several newspaper clippings in evidence These
ai titles appealed in The Cleveland Press, Toledo Blade and The Enquirer of Cincinnati,
Ohio on April 29, 30, and April 30 respectively. The general tenor of these articles was
that the respondents were withdrawing financial support from the Plan or otherwise
abandoning it
STANDARD OIL COMPANY, AN OHIO CORPORATION 527
which he enclosed copies of the Maxwell• letter of April 22. The McCowen
letter stated
As far as I am, able to learn from a study of the, Wagner Net, the only
effect the Wagner Labor Act has on the Sohio Council Plan is-stated in this
letter [the Maxwell letter].
The McCowen letter of April 26 suggested methods by which the expense of the
Plan could be borne by its employee members and further stated:'
It will probably be better to amend the Council Plan to meet the present
conditions such as providing for the handling of funds .. I firmly beli eve
the fundamental principles of collective bargaining are`now contained in•the
Sohio Council Plan and that it will not be difficult to amend the details to
meet any serious objections.
On April 28, 29, there were further meetings of the Central Council At the
April 28 iveetmg, copies of Maxwell's letter of April 22 were passed to each, of
the unit chairmen present As stated in • the minutes of this meeting, ' a "Vote
was taken to secure viewpoint of members whether to continue with Council
Plan " Motions were adopted that "funds, for each unit be handled by a,member
designated by the unit councils affected," and "that a new name be given the
Plan." Several names were proposed and voted on with the result that the name
chosen was, "Association of Petroleum Workers of the Standard Oil Company
of Ohio " A motion was then passed by unanimous vote that membership cards
in the Association "be printed immediately for distribution before the adjourn-
ment of conference
Edmunds and William A. McAfee, the latter a member of the firm of the
respondents' general counsel, addressed the meeting of April 28 Edmunds testi-
fied- that he was questioned about the effect of the Act` on the Plan and that he
stated "the Sohio Council Plan was entirely out as far as Management was
concerned " Edmunds further testified that he was "asked about clues" and that
he replied "that wasn't the Company's business, that it wasn't for the Company
to discuss or even look at" McAfee testified that he gave a brief outline of the
major portions of the Wagner Act. Both Edmunds and McAfee, denied that
there was discussion of revision of the Plan to meet the requirements of the
vAct, or of a new organization to supersede the Plan, in their presence, or that
they offered any advice with reference to such matters. McCowan testified
conceuung the meeting of April 28: "that was the main purpose of the meeting,
to advise them that the Sohio Council was finished. That the Company could
not, and would not, contribute to the support of the Council in any way"
McCowiun further testified that Edmunds in his remarks stated that the Plan
was "done for, it was finished " Other association witnesses testified similarly
It is clear, however, that the rernarks-of neither Edmunds nor McAfee con-
veyed to the Central Council the understanding that the Plan could not continue
,to function with a few minor, changes such as the proposed change in name,
and despite the respondents' withdrawal of financial support This is evidenced
by the fact that the meeting of the Central Council was continued on the follow-
ing clay, and by a letter addressed ,by McCowen to Maxwell under date of
April 29.
The minutes of the April 29 meeting disclose that Maxwell's letter to McCowen
of April 22, afforded the basis for further discussion A motion _was then car-
ried unanimously that McCowen "be given authority to answer "I the letter of
Mr Maxwell's with the letter just drafted and read" Following discussion it
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was decided to elect "a treasurer of the Central Association"' and A. H.
Humphrey, chairman of the Sales Accounting Office Unit of the Plan, was elected
treasurer. There followed a discussion of dues, and it was -suggested that
monthly dues to be set by the local units should riot.exceed^50 cents a month
for each employee. A motion was then passed that a per capifa tax of 5 cents
for each employee member be assessed as, a contribution by the respective
units to the "Central Association", the dues to become affective May 1. The
minutes further state that membership cards were passed out to each member.
Unit designations were "suggested" by numbering from 1 to 22 the various
opei,ations of the respondents which were then represented by unit chairmen
under the flan. The units thus numbered were identical with units existing
under the Plan
The letter addressed to Maxwell by McCowen as approved in the meeting of
April 29, stated.
This will acknowledge receipt of your letter of April 22nd referring to
payment of certain expenses in connection with the operation of the Sohio
Council Plan.
We, too,`wish and intend to abide strictly` by the letter and spirit of the
Wagner Act so therefore have arranged for expenses through collection of
dues.'
Further, in accordance with the Wagner Labor Act, Section 9, you will
recognize that this organization is the exclusive representation of all the
employees of the Standard Oil Company of Ohio and of its subsidiary
companies for the purpose of collective bargaining
The McCowen letter continued by requesting a bargaining conference and
suggested, subjects for discussion at such a conference, including such matters
as: Seniority right of employees, grants of vacations with pay, a 10 percent
increase in all wages and salaries, elimination or reduction of Sunday work.
Regarding the letter-of April 29, McCowen testified: "I realized I kind of got
ahead- of myself with all the- enthusiasm about the organization in the room
there, and the men seemed to think it was in the bag; we were going to have it,
so I just told Mr Maxwell, or referred to it as existing. We were so sure that
we were going to organize." McCowen further testified: "The main thing was
to put him [Maxwell] on notice that we, as employes, were going to
try to have some form of collective bargaining and to acknowledge receipt of
this letter that-he had sent us' * * *" '
Thistesfimonv. given some 5 years subsequent to the event, is not consistent
with and has not the probative weight of the letter written at the time of the y
event This letter indicates clearly that by "arranging for expenses through col-
lection of dues, the council chairman considered that the Plan, or the "Associa-
tion',' as it was now called, conformed to the requirements of the Act The
letter treats the-organization as it was then constituted as a fait acconipit and
requests a bargaining conference on a series of definitely stated subjects
On June X10, llcCowen as acting chairman of the Association addressed a
letter to W T Holliday, the respondent's president. This letter stated that the
employees had organized under the name of The Association of Petroleum
Workers of the Standard Oil Company of Ohio for the purpose of collective
bargaining, and that their chosen representatives desires to meet with repre-
s Thus the minutes of the April 29 meeting of the Central Council refer to the Asso-
ciation as distinguished fiom the Plan
V Italics supplied by the undersigned
1
STANDARD OIL COMPANY, AN OHIO CORPORATION 529
sentatives of management for the purpose of negotiating an agreement on ten
stated subjects . These "subjects " were almost identical with the topics pro-
posed for discussion-in McCowen's prior letter of April 29., On June 15, George L.
Hilton, asrCliairman ofhthe Number 2-Refinefy •'( Cleveland ) Unit of ' the Ass(
ciation, - addressed a letter to Holliday requesting a conference and recognition
of the Association as exclusive bargaining representatives of employees of the
Number 2 refinery . On June 17, Holliday replied to Hilton's letter suggesting
that inasmuch as McCowen had' requested a meeting with representatives of the
entire Association , that meetings with "local chapters of that association" be
- ,,held in abeyance until after the general meeting. "Undoubtedly," Holliday
wrote, "at that general meeting the matter of local meetings will be considered "
McCowen as acting chairman of the Association sent a memorandum "TO ALL
CHAPTER CHAIRMEN" of the Association, advising them that Holliday had
agreed to "meet with all chairmen of chapters that are organized at the Hotel
Cleveland on Thursday, June 24th * * *" The inemoranduni further stated :
These chairmen will meet without management at the Hotel Cleveland on
Wednesday; June 23d, at 9 A. M, in the preparation for the joint confer-
ence the following day.
Pursuant to this memorandum the first formal meeting of the Association
was held,in Cleveland on June 23, 1937.
2. Formation of chapters
The organizational structure of the Association proposed in the meeting of
the Central Council on April 28, 29, 1937, was substantially adhered to and
followed closely the structure of the Plain The units which had been represented
by Unit Councils under the flan, weie represented in the Association by Chap-
ters, and, the Association was successful in setting up chapters throughout'the
operations of the respondents Standard, Sohio, and Latonia 10 The chapters of
the Association thus established represented the various divisions and operations
of the respondents, and each was a semi-autonomous body. Each chapter chose
from its members its own officei s which consisted of a chairman, a vice chairman,
and a secretary-treasurer; assessed and collected its own clues which varied in
amount but in no instance exceeded 50 cents a month. Each chapter had its'
own bargaining commit tee composed of the officers of the chapters and, at times,
of representatives of different operations in the same unit, in addition to the
officers It was the function of these ban gaining committees to meat with the
department heads of their respective units for the purpose of negotiation on
grievances and matters of local rather than system-wide application
In addition to the chapteis, theie was constituted a Central Chapter which
perfoimed functions almost identical with the Central Council under 'the Plan.
The Central Chapter was composed of the chairman of the various local chap-
ters who elected a chairman, a vice chairman, and a secretary-treasurer from
among their number, as cfiicers of the Central Chapter. Matters on which the
local chapters were unable to reach an agreement with the respective depart-
10 The undersigned credits the testimony of Association witnesses that the Home Office
unit of the Plan lvas at no time organized asva chapter of the Association It further
appears that the service station employees of the Cu3ahoga County unit of the Plan, while
iepresented in the earlier meetings of'time Association, eventually "seceded" from the
Association and set up its own organization which was called, The Association of Petro-
leum workers, Inc Since this organization theieafter functioned as a separate entity
and no allegation in'olving it appears in the complaint, the undersigned makes no findings
cenceining The Association of'Petroleum workers, Inc Chapter 13 ceased to function
in 1939, and Chapter 15 in 1041
513024-43-vol 47-34
530 DECISIONS 'OF NATIONAL LABOR' RELATIONS^ BOARD
ment heads were'referred through the chapter' chairmen to the Central Chapter
for further negotiations with the management. The Central Chapter also nego-
tiated on matters of system-wide scope. The Central Chapter was supported by
a 5-ceiit monthly per capita tax fi'oni each member of the Association in con
for mity with the pcoposal'adolited at'the,'April 20, 1937', meeting of the Central
Council of the Plan. '
A niaiorit,y of the chapters'of the Asssociiition were formed in May-aitd June
1937. ' The Association offefed testimony purporting to show that the chapters
.were oganized as separate bodies and independently of, d ' central or concerted
plan, and represented spontaneous 'actiori by employees of the various units who
desired a representative for collective bargaining."
The undersigned is convinced, howen er, upon consideration of all the testimony,
that the chapters which were formed in 'the spring and' summer of 1937 were
formed pursuant to plans formulated by unit chairmen in the April, 1937 meetings
of the Central Council under the Plan âicCowen testified that following the
meeting of April 29, he visited numeions unit chairmen throughout the respond-
ents' operations -anti assisted them in.the preliminary organization of the various
chapters of the Association. "I know I tried to contact them all," he testified,
`,now, whether I was successful or not, I couldn't say " He also testified, "It was
my purpose at that time to try to develop a state-wide organization for the
employees of The Standard Oil Company of Ohio" and "I used every opportunity
available to talk to all of the employees " He denied, however, that any of this
activity took place on company time or at company expense, and his testimony
in this respect is credited -
Inasmuch as the formation of the chapters followed a more or less uniform
pattern, it is needless to review in detail the particulars of the formation of
each of the chapters upon which evidence was receiv'ed 12 The organization of
Chapter No. 20 at the Toledo refinery of the respondent Standard is most fully
revealed by the record, and is the archetype of a majority of the chapters in their
organizational aspects.
Newton Buckle, ivho attended the April 28, 29 meeting of the Central Council
of the Plan as unit chairman of the Toledo refinery, testified that at that meeting
I
J
11 Michael Clemens testified that Chaptei 2 was formed in March 1941 following organ-
izatio:il activity by,an "outside" union Accoiding to Clemens the idea of an independent
union oiiginaled pith him and he sponsoied the foimation of the oiganzation which later
became Chapter 2 Clemens, further testdied' "* * we didn't know how to go
about organizing what we called the union, so therefore the sugnestion I made was to get
in contact with Mr Hilton, to get a little help on this, to get it going * *- * Mi 'Hilton
told me at the time we of ganized that our chapter cculd be known as Chapter 2 " Clemens
also admitted that Hilton, ,,lie was at the time secretaiv-treasurer of the Central Chapter
.ot the Association, came fioni Cleieland to Canton, Ohio, for the purpose of helping
organize Chapter 2, and that membership cards in the Association were supplied by the
Central Chapter for the first meeting Albeit Wasdell-testified that Chaptei 4 was started
as an independent oigamzation following oiganiiational efforts of an "outside" union.
According to WVasdell lie had never heard of the Association at the time, and the oigan-
-izational movement sprung iron a suggestion'of Joe Baitunek, a fellow employee, who
i emarked • "Why not start up an independent oi ganization "" However, shortly after
.st.siting to organize, the employees of this unit decided to of liafe with the Association
and there was in fact no formal oigamzation until February, 1938, when Chapter 4 was
formed with the assistance of the Central Chaptei of the Association ' It appears from
the foregoing that while Chapters 2 and 4 and perhaps other chapters may have been free
of company domination in their inception, they soon became identified with the Central
Chaptei and therefore must'be considered in the light of the total situation involving the
Association.
11 Certain minutes of Chapters 1, 2, 4, 6, 7, 12, 16, 18, 19, 20 of the Association were
received in evidence and it was stipulated by the parties that these minutes were repte-'
.sentative of all chapters of the Association
STANDARD OIL COMPANY ^ AN OHIO CORPORATION 531
it was decided to "go back to our respective divisions and sort of-sound out the
employes." Shortly after returning to Toledo from the meeting of the,Central
-Council in Cleveland, Bickle and other representatives of the Toledo unit, were
.summoned to a meeting with J R Middleton who was at that time superintendent
of the Toledo refinery. At this meeting, Middleton read or discussed a letter which
he had received from Edmunds under date of May 6, 1937. This letter stated :
The company will, not pay any expenses connected with the conducting of
any labor organization. No travelling expenses will be paid No employees
will receive pay for time spent 'in union activities. No clerical work will be
done for a union organization nor will such organizations be permitted to
use company buildings for their meetings.
The only time the company will pay union representatives their wages for
work connected with the union is when, risen representing, such organizations
are meeting With management. This combined meeting with management
must never be used as a subterfuge to reimburse employees for work done
for their union. Traveling expenses of union representatives attending such
combined meetings will not be paid by the-company.13
Middleton testified that lie called this meeting with the unit representatives
of the Pfan to explain the company's attitude as expressed in the Edmunds
letter. Harvey Failor, who was one of the representatives present at this con-
terence, testified that Middleton stated that the Plan was "out" and that the
men should form a new, organization, and gave them permission to canvass for
remembers, Middleton denied that lie discussed the formation of a new organiza-
tion with the Plan representatives on this occasion or gave them permission to
solicit membership on company property. Buckle and Lindsey` Shields, the
latter also a unit representative under the flan, made similar denials of the
Failor testimony. However, it is not denied that on, the same day of the
meeting of the representatives with Middleton, they began the circulation of
Association petitions inside the respondent's plant during.working hours, at the
same time collecting dues for the new organization.. In view of this circum-
stance and -Middleton' s admission that his recollection of the meeting with the
representatives was vague and uncertain, the undersigned is convinced and
finds that Middleton encouraged the unit representatives to organize Chapter 20
of the Association and at least impliedly gave them permission to carry on their
organizational activity on company premises during working hours This con-
clusion is strengthened by the fact that L',ckle, Failor and Shields openly circu-
lated the Association petitions in the company's .plant and that Middleton, who
must be assumed to have had knowledge of this activity through the respondent's
supervisors, permitted it to continue uninterruptedly'" Bickle testified and
11 Under date of May 2,193T, Edmunds addressed a memoiandum to 0 L Brown, assist-
ant treasurer, winch stated inter alum "The Sohio Council Plan became non-existent on
April 29, 1937 Beginning April 30, the company will not-pay any expenses connected
with the conduct of any labor organization " Thine is no evidence that the contents of
this letter were cmmmin,rated by Brown to any employee or cioun of r,niulovees-
11 It is the respondents' position that these was no rule prohibiting solicitation of union
memberships and collection of dues on company premises during working hours, and that
the Union was accoided and exercised the sonic privilege in this respect as did the Asso-
ciation Theie is small basis for conipatison, however, since there is no evidence of organ-
izational activity by the Union at the time the Association was formed except in the
Nunibei 1 refinery at Cleveland where Local 3`05 was foinied in April 1937 Local 316
of the Union appeals to have been foinied at the Toledo refinery in 19-10 or 1941, possibly
earlier, but these is no evidence of its activity prior to 1940 The undersigned is of the
opinion and finds that memberships in these locals of the Union were solicited and duds
collected on company prenn5es during working hours Ilowever, the testimony of both
Slendick and Debevic snakes it clear that Local 395 was om ganized in opposition to a con-
532 DECISIONS OF NATIONAL LABOR RELATIONS: BOARD
Middleton indicated that during or after the circulation of Association peti-
tions , Middleton inquired of Bickle concerning his progress in forming this
chapter of the Association.
The 'petitions ' thus circulated at" the Toledo refinery ' were-blank sheets of
ledger paper . Dues of 25 cents were collected from each employee who signed
the petition at the time of the signing Approximately 200 names out of a
total of some 314 employees eligible for membership in the Association, were
secured on the petitions prior to the first meeting of Chapter 20 on May 24.
It was the testimony of Bickle, Failor and Shields that in inviting the men to
sign the Association petition, they advised them that the Plan was "out" and
that they were forming a new organization , and the undersigned finds
accordingly:
The first meeting of Chapter 20 was publicized by a bulletin posted on the
respondent's bulletin board. This bulletin was headed :
MEETING OF THE MEMBERS OF THE ASSOCIATION OF PETROLEUM
WORKERS OF THE STANDARD OIL CO. OF OHIO. CHAPTER NO.
20 * * * is
and stated that the meeting was for the purpose of electing officers. The
meeting was held at Dunberger Post Hall, off company property, but the bulle-
tin stated that men who were on duty on the 4 to 12 p. in. shift might vote
at the clock office "on the way in" Because of this arrangement for voting
on company property, Middleton had the bulletins removed and notified Bickle
in writing of this action Employees on the 4 to 12 p. in shift did not vote
in the clock office, but did vote on company premises which lay outside the
plant proper and a short distance from a public road. Since this property lay
outside the company gates and was commonly used,for public purposes, the
undersigned attributes little significance to the isolated fact of this balloting
on premises which technically-at least belonged to the respondent.
Bickle presided at the meeting of May, 24 in Dunberger Post Hall as "tem-
poruiy chairman" and during the election of officers. The election resulted in
Bickic being chosen chairman, Failor, vice chairman ; and Shields, 'secretary-
treasurer Only those employees who had signed the Association petitions or
membership cards, the latter having been printed pursuant to action taken in
the April 28 meeting of the Plan, were eligible to vote in the election.''
tinuance of the Plan in any guise and therefore their organizational activity on company
premises could not have represented in the minds of the employees the respondent's ap-
proval , the same is true of the organizational activity of Local 346 Furthermore, there
is no evidence that any of the organizational activity of the Union on the respondents'
premises, was carried on openly and in such manner that the respondents' appioval and
consent night reasonably be inferred. It-also appears from the testimony of respondents'
witnesses and the undersigned finds that the respondents' policy prohibited the circulation
of petitions on company premises, except in non-controversial matters, unless the said pe-
titions weie fist appioved by the respondents' officers. These findings relate only to the
period prior to Board elections and betore any union had been certified by the Board as
b.u gaining representative
The undersigned does not credit the testimony of Bickle and Similar, testimony of other
Association witnesses, that at the time of the organization of the various chapters in May
and June, 1937, no plans had been made for the affiliation of the chapters with a Central
Chapter which would be representative of the entire operations of the respondents The
minutes of the April 22, and April 28, 29 meetings of the Central Council of the Plan,
make it clear beyond doubt that the entire fiainework of the Association was designed\in
those meetings which in fact afforded the impetus for the organization of the chapters.
16 It appears that in the organizational meetings of sonic of the chapters , all non-super-
visory employees irrespective of their affiliation with the Association, were invited to
attend and participate in the election of officers Oral C. Haught testified that he thought
STANDARD OIL COMPANY, AN OHIO CORPORATION 533
Following the election of officers, a letter was addressed to Middleton, by Bickle,
Failor and Shields, as chairman, vice chairman and secretary-treasurer, re-
spectively, which stated :
The undersigned being the duly elected and accredited Officers of the
recently organized Association of Petroleum Workers of The Standard Oil
Co. of Ohio ; Chapter No 20, with a membership of two hundred twenty-five
(225) of the Toledo Refinery Employees Respectfully request to, 15e duly'
and officially recognized as the sole bargaining agents for your employees
on wages, hours and working conditions of and or'any other matters in-
volving the interest or well being of the employees. -
Middleton replied to this letter stating that he had no authority to extend
recognition to the Association, and that he was referring the matter to G- W.
Hanneken, the respondent's general manager of, manufacturing. Subsequent
developments in bargaining negotiations will be discussed in sub-section 3 iiztra
of this report.
The organization of other chapters formed at or about the same time, followed
with minor variations, the pattern of the Toledo chapter The Unit chairmen
under the Plan returning to their respective units after the meeting of the
Central Council on April 28, 29, assisted in most instances by the chairmen
of the Central Council, solicited Association membership and collected dues,
without hindrance from management, on company property during working
hours McCowen testified that the method of organizing the chapters of the
Association was discussed in the April 28, 29 meetings of the Central Council,
and that petitions were then decided upon as an appropriate device for securing
membership signatures : "It was proposed that those petitions be used generally../',
Testifying concerning his own activity in organizing the Latonia chapter of the
Association, McCowen stated : I circulated a petition authorizing me,
as a temporary officer, to undertake to organize and I believe they authorized me
to * * * represent them in meetings with other employees of the Company
and try to develop some such organization." It appears that in some of the chap-
ters membership cards which were distributed among.the unit chairmen of the
Plan pursuant to the meetings of the Central Council on April 28, 29, were used
instead of petitions. Following the circulation of the petitions or cards, meet-
ings were called by officers of the Unit Councils under the Plan, respectively,
and these officers presided as temporary chairmen 'at-these meetings which
were held for the purpose of electing officers of the Association In most in-
stances, the officers of the Unit Councils were elected officers of Association
chapters" Following the election of officers, a request was made of the local
management for recognition of the Association as sole bargaining representa-
tive of all non-supervisory employees of the respective unit
Seventeen chapters thus organized, were represented by their respective
chairmen at the first meeting of the Central Chapter of the Association on
all employees below the rank of supervisor were permitted to vote in the election df officers
of Chapter 21 Roy Mai shall testified that the organization meeting of Chapter 19 was
open to all non-supervisory employees Testimony of Association witnesses also indi-
cated that organizational meetings of Chapters 7 and 12 were open to all non-supervisory
employees, though the testimony of R D Hershman and 0 R. Coleman, who testified
respectively concerning the organization of these two chapters, wasp vague and uncertain
on this point.
"It was stipulated that at the organizational meeting of Chapter 16, that instead of an
election of officers a motion was passed to have the officers and representatives of this unit
of the Plan act as temporary officers of Chapter 16 until all election was subsequently
held Pursuant to this motion, officers and representatives of the Plan, acted in similar
capacity in representing Chapter 16 until Marcli 24,,1933, when an election was held.
534 DECISIONS- OF NATIONAL -LABOR RELATIONS. -BOARD
June 23, 24, 25, 1987 Of these 17 chapter chairmen, 14 were Unit Coulicit
chairmen under the Plan " , I -
3 Negotiations with management 19
McCowen called the June 23 meeting of the Central Chapter to order and pre-
sided as its "acting Chairman " The first order 'of business was the election
-of officers McCowen was elected chairman of the Central Chapter, 0 C
Dittman, vice-chairman, and G L 'Hilton, secretary-treasurer. The minutes
of the June 23 meeting'state :
Mr. Holiday's letter was read, calling a joint meeting June 24th, at
Cleveland Hotel.
A motion was made that the A. P. of W meet as a Central body. Motion
passed unanimously. L '
The minutes of this meeting further reveal that "Per capita tax was due and
paid by several of the chapters at this time; others promising to send in their
checks at once Number of paid members indicate a very strong majority
throughout the State of Ohio " -
The meeting of June 23 was addressed by Edmunds who "entered the meeting
to discuss the pension plan, which he said was in the process of modification
and nothing definite could be slated at this time." Questions concerning service
station employees were formulated at this meeting to be addressed to A. A.
Starihbaugh and Gene Bourquin, department heads of the respondents, on the
following day
- The meeting of June 24 was presided over by Dittman The minutes state
that "Mr. McCowen left the meeting at this, time to confer with Mr. Holliday
and to report back to this body the result of his interview." Stambaugh and
Bouiquin attended this meeting to discuss the questions which had been
formulated on the previous day concerning service station employees. Holliday
also attended this meeting, for a discussion of some 10 subjects suggested by
the Association These subjects, as listed in the minutes, were substantially
the same as subjects proposed for negotiations in McCowen's letter of April
29 to Maxwell, and in a similar letter addressed by McCowen to Holliday on
-June 10.
At the meeting of June 25, McCowen, as representative of the refinery divi-
sions of the respondents' operations, C Bowers, as representative of the, bulk,
plants, and H. L. Kelley, as representative of the service stations, were author-
ized by motion to "meet with Mr. Holliday'to aid in drafting a statement of
policy." ' The minutes state : "The letter on statement of policy was read by
Mr Holliday which was the result of this meeting." The minutes also state
that "the question of 10% raise was again discussed with Mr. Holliday-and
19 Although-16 chairmen attended on June 23, L L Webster attended the June 24 meet-
ing thus constituting 17 chapter chaamen -
19 The meetings of the Central Chapter followed the same general procedure as had been
observed in meetings of the Central Council The unit chairmen would meet in separate
groups representing different divisions of the respondents' operations to consider problems,
of group interest, and would confer with the respective department or division heads,-
theieattei reporting back to the central body, McCowen testifying on this procedure,
stated • " . . Manufactui ing Division would meet with Mi 1-lannel:en and the Sales De-
partment people would meet with All Stambaugh, or anyone lie designated " 0 R Cole-
man, chairman of Chapter 7, testified "Well, our preliminary meetings were held as an
entire group Then if there was any special matters came up pertaining to the,sales group
or the manufacturing group they would separate and discuss their question separately "
Coleinan'furthei testified, "Yes, Di Edmunds we would usually have him in (luring our
pielmunary meetings
STANDARD OIL COMPANY, AN OHIO CORPORATION ;- 535
he made the --following statement : A 10% horizontal raise would. not be given
at this time "
Under,date of June 25, 1937, the respondents issued a mimeographed state-
ment or bulletin over the signature of W. 'T. Holliday. This statement was
headed:
Pursuant-to conferences with the representatives of the Association of
Petroleum Workers of The Standard Oil Company of Ohio, the Standard
Oil Company announces the following policies.
The subjects covered by the bulletin were : Seniority, vacations, service
station salesmen, meetings, working hours, use of bulletin boards. With refer-
ence to "Meetings" the bulletin stated :
Regular monthly meetings will be held between the representatives of
the local chapters of the Association . . . and the manager of the unit in
which the members of said chapter work, and other meetings will be held
from time to time on the request of either the, said representatives or
of the manager;
Annual meetings will be held between the chairmen of the local chapters
of the Association . . . and representatives of the management of the
company, and special meetings will be held at the request of the General
Chairman of the said Association or at the request of the company's
management.
The record does not reveal the full extent of the publication and circulation
of the above statement but since it was an official pronouncement of company
policy, it is a reasonable assumption and the undersigned finds that it was
published throughout the respondents' system of operations Edmunds testified
that the aforesaid statement of policy resulted from conferences between Asso-
ciation and management representatives and that the policies thus announced
applied to the respondents' entire system of operations. It is strongly indica-
tive of the state of mind of botif the respondents and the Association that this
pronouncement of company policy should define the order of meetings between
representatives of the Association and of management. That the order of
such meetings thus stated was adhered to is borne out by the entire record.
Association minutes reveal that the Association's constitution was adopted
at a special meeting of the Central Chapter on November 18, 19371 The con-
stitution thus adopted conformed in all mayor respects to the pioposals and
suggestions made at the April 28. 29 meetings of 'the Central Council of the
Plan, and adopted the structure of the Plan, with the single important differ-
ence that, the Association provided its own system of finance through the collec-
tion oedues from its members Whether the constitution thus adopted by the
Central Chapter was formally ratified by all the chapters cannot be ascertained
from the mecord, but the chapter chairmen constituted the Central Chapter and
the chapter operated in accordance with its provisions Chapter 6 adopted
its own constitution but maintained its affiliation with the Central Chapter
according to provisions of the constitution adopted by the Central Chapter.
Special meetings of the Central Chapter were held on December 3, 1937, and
on February 9, 10, 1938. The minutes of these meetings record conferences
between Association and management representatives on proposals of the Asso-
elation which involved such natters as pensions, bonuses, and wages, in addition
to individual grievances. On April 21, 22, 1938, there was an annual' meeting
of the Central Chapter, and at this meeting McCowen "mentioned numerous
things that had been accomplished throughout the state in the different chapters
536 DEiCISIONS OF NATIONAL LABOR RELATION, BOARD
and especially the $50,000 which this Association was successful in getting the
service station men. Also the privilege for the men in the refineries being
able to work overtime if the company has the work equivalent to the time
lost by those that lose time by being off the six (6), holidays." An election of
officers was held with the result-that McCowen was reelected chairman of the
Central Chapter, Hilton was reelected secretary-treasurer, and, Harold Kelly
was elected vice chairman. The minutes of this meeting also refer to discussion
on the "subject of the working agreement" and state that "it was agreed that
H. H. McCowen do such preliminary work and appoint a committee to develop
a proposed agreement -and this to be submitted to various chapters for final
action." 20
The minutes of the April 22 meeting report that a joint conference with Holli-
day, Hanneken and Edmunds, officials of the respondents, was held on the
subject of recognition of the Association as sole bargaining agent and that
Holliday stated "that when the National Labor Board designated the exclusive
bargaining agent, he would govern himself by their decision."
The minutes of the October 24, 1938, meeting of the Central Chapter again
refer to Association efforts to secure recognition as sole bargaining representa-
tive. The minutes state that McCowen advised Holliday that the Association
had "a unit in each department of the Company also that the organization has
been steadily gaining in strength and each individual unit is on a good financial
basis " The minutes continue :
Mr. Holliday stated that the position of the Company was in no way
altered since his last meeting with the officers of the Association The
Company adheres strictly to the letter and spirit of the Wagner Act. The
power to determine the correct .bargaining agency for its employees does
not rest with the company but with the National Labor Relations'Board.
The Labor Board has not so far designated any organization as the bargain-
ing agent for the employees and because of this, the company cannot enter
into a written agreement for collective bargaining with the Association.
-It was also stated by Mr. Holliday that otlier organizations had made de-
mands for a written agreement' and that he had replied to them in exactly
the same words used replying to the Association 2i
It is clear therefrom and ,also from the testimony of the witnesses, that the
respondents refused at all times to extend formal recognition to the Association
as sole bargaining representative, or to enter into a written contract with it,
unless the Association were first certified by the Board. Nevertheless, the
respondents' representatives continued to meet with representatives of the
Association for'the 'purpose of negotiating on problems affecting all employees
of the respondents as well as problems of individual and group grievances.
Thus; the minutes of the October 25, 1938 meeting state that representatives of
the manufacturing department met with Hanneken for the purpose of dis-
cussing "an increase in rate of pay for engineers on combination unit," and
that "Service Station pay days were discussed and we are assured by Mr.
Bourquin that something will be done about this in the near future." Ques-
tions of seniority and wages were discussed in this and subsequent meetings,
and on April 28, 1939, the respondents issued a statement of policy which was
20It is interesting to note that the Central Council meeting of April 8, 1937, voted to
have a "Working Agreement drawn up by the Central Council "
2113olliday doubtless had retetence to Local 395 of the Union which requested recog-
nition as sole bargaining representative of Number 1 Refinery (Cleveland) on May 28, 1937.
There is no evidence of any other labor oiganization seeking recognition during this period.
STANDARD OIL COMPANY, AN OHIO CORPORATION 537
similar in most respects to the one issued in 1937, and which by its own
wording was issued "Pursuant to conference with the representatives of the
Association of Petroleum Workers of The Standard Oil Company of Ohio."
The following excerpt from the testimony of O. R. Coleman, Association witness,
who as chairman of Chapter 7 of the Association, attended meetings of the
Central Chapter in 1939 and subsequently, is illustrative of the scope of
negotiations between the Central Chapter and the respondents:
Q Now, on those occasions when you would meet with Management at
those Central Chlipter meetings would you deal with problems and policies
covering all of the employees throughout the system of The Standard Oil
Company of Ohio?
A. Yes, it, I think, affected everyone in the employ of the company.
Q Yes, and that would probably include Latonia Refining Corporation
and also the Sohio Pipe Line Corporation?
A. That is right.
The record of meetings between officers of the local chapters and theirre-
spective department heads, reveals the same character of negotiations as oc-
curred in meetings between representatives of the Central Chapter and manage-
ment, though'in the local chapters the said negotiations were limited in scope
to employees of their respective jurisdictions 22 As stated by Edmunds in his
testimony: ". . . there are certain questions regarding wages and hours that
would be settled inside of the local unit. The broader ones would come to the
Home Office."
Minutes of the Central Chapter of October 5, 1939, state :
It was found that the majority of Chapters are holding monthly meetings
with Refinery Superintendents and Division Managers. After a canvass of
all the chairmen, it was found that they were not having any difficulty in
getting meetings with Refinery Superintendents and Division Managers and
it was found that in most cases, the chairmen were able to take care of their
local problems in the majority of the cases very satisfactorily.
The chapters were without exception refused formal recognition as sole bargain-
ing representatives of their respective jurisdictions and no written agreements
were effectuated between the chapters and department heads but, as in the case
of the Central Chapter, actual recognition was granted them and their represent-
atives met regularly with department heads and negotiated on all the major
topics which constitute the subject matter of collective-bargaining. The true
character of the recognition thus granted, the various chapters is illustrated by,
a letter which Middleton, as superintendent of the Toledo refinery, addressed to
G. W. Hanneken, the respondents' vice president and head of manufacturing,
under date of August 31, 1938:
You will possibly recall that several months ago (actually on June 7, 1937)
I wrote you saying that Chapter No. 20 of the Association of Petroleum
Workers of The Standard Oil Company of Ohio had asked that their organiza-
21 That the respondents did not observe the same latitude in discussions with grievance
committees of the Union, is indicated by the testimony of F J Sanders who became super-
intendent of the Toledo Refinery in September 1939. Sandeis whom the undersigned found
to be an entirely credible wit^ess, stated that at a meeting with a committee of Local 346
of the Union in the summer of 1941, he refused to discuss a change in shift schedules be-
cause he regarded that as "one of the fundamentals of collective bargaining." The under-
-signed finds that the respondents restricted the subject matter of discussion with coin-
mittees of the Union to much narrower scope than observed in confeiences betw1 en man-
agement and the Association.
r
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion be recognized as the sole haigainniig agent for the employees at this plant.
Mr. Bickle has made the same request again and I have been able to reply to
him only, as I did before-that it is not within the limit of my authority to
acknowledge the Association of Petroleum Workersas ' the sole bargaining
agent for - the Toledo Refinery employees
He has made the point , however, that while recognition has never been
given publicly , the fact is that his Association includes the majority of the
plant employees and unofficially at least has been the spokesman for the
employees as a whole on matters of wages, seniority , etc - While I certainly
do not presume to offer any advice on this, it seems to me only fair to
recognize officially, what is accepted in practice.
4. Financial support
The respondents through the .letter of April 22 -addressed by Vice-president
Maxwell to McCowen, and later memoranda addressed by Edmunds to supervisory
_personnel, purported to withdraw financial support from the Plan or other labor
organization with certain qualifications self-evident from a reading of the various
memoranda. However, as has been stated in this report, subsequent to the
Supreme Court's decisions sustaining the constitutionality of the Act, meetings
of the Central Council weie held in Cleveland on April 22 and April 28, 29, and
it is not disputed that the respondents bore the entire expense of the meetings,
,including the travelling and per diem expense of council chairmen who attended
the meetings. Since these meetings were concerned almost exclusively, with
devising changes in the Plan to meet the supposed requirements of the Act, and
in fact resulted in a tentative organization of the Association which was adhered
to in later meetings, it is clear that the respondents' financial support of these
meetings was-violative of the Act and'aniounted to financial contribution to the
Association. Nor (lid the respondents thereafter withdraw all financial support
-of the Association. - • I -
A careful reading,of all memoranda by.-the respondents on withholding of
financial support, reveals that provision was made for meetings with manage-
ment on company time. The respondents contend that it was their general
•policy, applicable to all labor groups, to make whole employees for time lost-
from their, respective jobs in coiiferring,with management on grievances In
-practice, however, the respondents in their support of the Association, far
exceeded the policy thus stated. Thus, no deduction was made in the wages or
salaries of chapter chairman for time lost from their respective jobs in attending
-meetings of the Central Chapter though these meetings usually lasted from 2 to
3 days and weie customarily held in Cleveland which was one or more days
travel distance from some of the respondents' operations where the respective
chairmen were employed. And while minutes of-each meeting of the Central
Chapter received in evidence reveal that conferences were held between Asso-
ciation and management representatives, it is quite clear that these conferences
with management did not consume the entire time of such meetings. 'It is obvi-
ous, therefore, that such financial assistance does not come under the sanction of
Sect ion 8 (2) of the Act which provides that "ari employer shall not be prohibited
from permitting employees to confer with him during working hours withoutbloss
of time or pay " Further, as has already been noted, these conferences were
by no means limited to the subject matter of mere grievances In addition to
paying the wages and salaries of 'chapter chairmen for time lost from jobs in
-attending meetings of the Central Chapter, the respondents admit that on occa-
sion they summoned groups of chapter chairmen to Cleveland for the purpose of
conferences, and that on such occasions,.ihe respondents bore the entire expense
STANDARD OIL COMPANY, AN OHIO_,^CORPORATION 539
of such meetings, including the traveling and other expense of the chapter
chairmen.'
The undersigned finds that the respondents while withdrawing the major
portion (if the financial support accorded the Plan, continued to contribute to
-the support of the Association by paying the uu.tges or salaiies of its representa-
tives for time lost from their respective jobs when attending meetings of the
-Central Chapter, and by bearing-the entire expense of certain meetings of the
Central Chapter which were called at the request of management
C. The Toledo Refinery
Acts and conduct amounting to interference, coercion and restraint, and
domination and support of Chapter 20 of the Association, by the respondent
Standard at its Toledo, Ohio, Refinery, are alleged. All findings in this section
of the Report relate solely to the Toledo refinery.
Beginning on a date prior to the formation of Chapter 20, the respondent
Standard has maintained at its Toledo refinery a system of promotions represented
by an "Extra Board " The purpose of the Extra Board is to enable new employees.
who start as common or "Yard" laborers to seek advancement in departments of
their own choice. The new employee having chosen the department in which
he wishes to advance, has'his name listed on the Extra Board, and a system of
seniority prevails in the advancement of men whose names are thus registered.
It is alleged that the respondent Standard favored the Association by giving it
virtual control of the Extra Board. -
Middleton, superintendent, of the refinery until 1939 when lie was succeeded
by F. J. Sanders, testified that dissatisfaction, arose among employees concerning
the operation of the Extra Board and that the employees would go to Bickle,
as their "representative," with their complaints Middleton directed Bickle to
see what lie could do about "straightening them out," and at Middleton's direction
Bickle called a meeting of the yard men. This meeting took place inside the plant
during working hours Sylvester DeCant, a Board witness, who attended this
meeting , testified that 40 to 50 employees were pres i ent and that "/3 of them were
men who had been hired within 6 to 9 months. Bickle testified that the meeting
occurred in 1938 and that it involved some 38 men The testimony was somewhat
confused as to the exact nature of the discussion which took place at the meeting,
but it appears that the problem of seniority was uppermost, some of the men
contending for seniority on a departmental basis Bickle testified that the discus-
sion involved both Association and non-Association members and that lie "wanted
to know their wishes, what they were bitching'. bout " Pursuant to this meeting
Bickle conferred with officers of the respondent and certain seniority and other
records were checked. What changes, if any, were effectuated as a result of this
meeting, are not clear. It appears, however, that dissatisfaction with the opera-
tion of the Extra Board continued and the contract negotiated between Chapter 20
and the respondent, following certification of Chapter 20 pursuant to an election
conducted by the Board on August 4, 1941, provided a large measure of control
of the Extra Board by Chapter 20.
"There is no evidence that representatives of the Union, prior to certification, ever
niet with representatives of management on company time, but if it be assumed that such
meetings were held, it does not appear that such meetings bore comparison either in scope
or purpose to the bargaining conferences between representatives of the Association and
'management The record affords no basis for comparison between the Union and ineet-
ings of the Central Chapter of the'Association, since evidence of union organization relates
solely to the Number I Cleveland and Toledo refinei ies It is idle to speculate on what
the respondents' policy may have been had the Union been organized on a scale coni-
niensurate with the Association.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Obviously, the matter of the Extra Board was of vital concern to new employees
since it determined the course of their advancement The unmistakable effect
on the minds of these men of Middleton's action in authorizing Bickle, chairman of
Chapter 20, to call and conduct the meeting in 1938 on company tine and property,
was that the Association had the support and approval of management. Middle-
ton's action-in this respect was entirely consistent with his viewpoint expressed in
his August, 1938 memorandum to Hanneken, that the Association was the actual
though unofficial bargaining representative of Toledo refinery employees. That
no opposing union was active at the time of the meeting, in no way gave license to
management thus to sponsor and support the Association.'
The record does not, however, in the opinion of the undersigned support the
Board's allegation that the Extra board was discriminatorily administered by
advancing Association nienibers while holding members of the Union back. While
the contract of August 1941 between the Association and the respondent, as
stated, gave the Association a large measure of control of the Extra Board,
this was entirely legitimate if the contract itself was valid. This involves the
larger problem of the Association's legitimacy at the time the contract was
executed
Much testimony was received on the subject of the allegation that, applicants
f6r employment were referred to Association officers before hiring. Laverne
Bezeau, a Board witness, testified that in October 1911, in seeking employment
at the Toledo Refinery,i he was instructed by Henry Ladd, chief clerk, to talk
with R. C Douglass, an Association officer and cost clerk for the respondent. Ac-
cording to Bezeau, Douglass asked him if he had ever belonged to the Union and
Bezeau answered that he had in a prior place ofemployment where the Union
had a closed-shop agreement. Douglass also talked to Bezeau about the Asso-
ciation and told hum that the Association had won an election for a bargaining
representative. Pursuant to Douglass' instructions, Bezeau filled out a new
application for employment, and' Douglass masked an "A" in the corner of they
application blank According to Bezeau, Douglass then took him into Ladd's
office and told Ladd that he was all right Ladd sent Bezeau to be interviewed
by Wallace Bergen, assistant superintendent, and thereafter Bezeau returned
to Ladd's office where Ladd asked him if he was acquainted with any of the
present employees of the respondent and advised him that they had to be careful
in hiring new men because there had been trouble between the Union and the
Association and "they wouldn't like to have that go any further." Bezeau'was
then assigned to a job Res Brown, a Board witness, who was employed during
October 1941, as a telephone operator, testified that he was instructed by Bergen
and Ladd to refer applicants for employment to Douglass, and that pursuant
to these instructions, he sent a number of applicants to Douglass in the fall of\
1941. Clarence Ossege, a cost clerk, whose office was opposite Douglass', testi-
fled that in the fall of 1941, he eras in Douglass' office on one occasion when
Ladd brought a man into the office and told Douglass, "I just wanted to be sure
that you saw this man before he goes to work " Ossege further testified that
he had seen Douglass interview applicants for employment in his office, and
other officials of the Association talking with applicants at the entrance to
the refinery offices. He also testifiedvthat he had,observed the telephone operator
refer applicants to Douglass Clyde Rowley, a supervisor, testified that he ad-
vised Johii II South, an employee under his supervision, that he should see
Douglass about getting a job for his son The Rowley testimony substantially
corroborated South's testimony on the same subject. This occurred in the fall
of 1941.
It appears from all the testimony and the undersigned finds that Bergen
was in charge of hiring at the Toledo Refinery, and Ladd as chief,clerk,'was
STANDARD OIL COMPANY, AN OHIO CORPORATION 541
nominally in charge of receiving applications for employment . Applicants for
employment also, on occasion, received application blanks from the telephone
'operator at the entrance to the refinery offices Bergen and Ladd denied that
'they had ever referred applicants to Douglass or had instructed Brown to refer
applicants to Douglass Douglass also denied that applicants for employment
were referred to him , admitting , however, that persons had sought his recom-
mendation for employment and that such persons had at times been sent to his
office by the telephone operator pursuant to his instructions and that he had
on occasion assisted employees in tilling out their application blanks Ile also
admitted that he marked an "A" on the application blanks of persons he was
recommending for employment but testified that B2zeau had already been hired
when he talked to him. When questioned why he placed an "A " on application
blanks , he stated " . . When we recommend men I don ' t want to lose track of
them ... I think I have the ability to talk to those men and try to make them
see that 'they should belong to the organization " He further testified on this
subject, that the "A" would mean that he "had talked to that one fellow," and
that thereafter if he was questioned by the Association committee , he could
tell them that he had "contacted " this particular employee. Douglass also
testified that he was accustomed to looking over applications for employment
in Ladd's office , but that this was done without Ladd's permission though Ladd
had seen him while he was thus engaged -
The- undersigned is convinced and finds that applicants for employment,
during the fall of 1941, were on occasion referred to Douglass , that he dis-
cussed the Association with such applicants both before and after hiring, and
that this was done wiih the knowledge and approval of Ladd. The under-
signed further finds that both the Association and the Union recommended
employees for employment during this period , and the record does not disclose
that any applicant was rejected because ,of union affiliation ; it is also clear
that not all persons recommended by the Association were employed . Never-
theless, the effect on the minds of applicants who were thus referred to
Douglass and who were the beneficiaries of his praise of the Association, was
undeniably that the Association had the "inside track" with management
There is no evidence , however, that the respondent had engaged in this or
like conduct prior to ' the election and certification of the Association as bar-
gaining representative.,
It is alleged that the respondent discriminated against the Union by giving
the Association preferred treatment in the placement of the latter 's bulletins
on- the ' respondent's bulletin boards It appears from all the testimony and
the undersigned finds , that both the Association and the Union were permitted
by the respondent to post their respective bulletins inside the respondent's
plant, provided the said bulletins were first approved by the respondent.
There is no showing that the Union was discriminated against in the matter
of having its bulletins approved . Prior to any request by the Union for the
posting of its bulletins at the Toledo Refinery , the Association had been given
the use of a bulletin board inside the respondent 's clock house which stands
near the entrance of the refinery . This bulletin board was placed against the
wall directly over the time clock where the men 'checked in for work,' and
the men passing into the plant would normally pass directly in front of the
bulletin board . In December ,- 1940, a committee representing the Union called
on Superintendent Sanders and requested permission to use a bulletin board
in the clock house This permission was granted and after that date and
until certification of the Association , the Union posted its notices on the
bulletin board `' assigned to it. The bulletin board assigned to the Union,
542 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD
however, was not- as advantageously situated as the one assigned to'the use
of the Association, since it was not adjacent to the time clock but was set
well within the interior of the clock house and thus the employees did not
pass directly before it when entering the respondent's plant However, the
,clock house occupied a floor space of no more than 18 by 20 feet, had no par-
titions or dividing walls, and employes entering it at any time with very little
inconvenience could view the Union's bulletins. Sanders testified that lie re-
fused the Union's request for the use of the same bulletin board as had been,
previously used by the Association, because he thought there might be trouble
if both organizations used the same board, and offered to place a bulletin board
directly over this one for use, of the Union, but the Union rejected the offer,
apparently because a second bulletin board thus placed would be well above
eye level. Sanders further testified that he. offered the Union a bulletin board
to be placed over a second time clock which would be situated on the opposite
side of the clock house where employees would check out when leaving the
plant, but that before this was accomplished the election intervened. There-
after, pursuant to contract, the Association had the exclusive privilege of
posting bulletins While as stated, above, the Union was assigned a less ad-
vantageous bulletin board than the Association, it does not appear unreason-
able that the respondent refused to assign it the use of the same bulletin
board which had been used over a considerable period of time-by the Associa-
tion, and the undersigned is convinced and finds that the respondent made
all reasonable effort to meet the wishes of the Union in the matter Excluding
the Union from use of bulletin boards subsequent to the election, was; of course,
discriminatory if the' Association was not a legitimate labor organization
There was testimony of William A Gower and Harry Ranes, that officers of
the Association were-given permission to drive their cars into the premises of
the Toledo refinery while off duty, although the respondent had a rule forbidding
such practice Gower testified that on one occasion Harold Kieig, an officer of
the Association, drove his car inside the plant, and that later on the same
occasion, lie saw Kreig collecting. Association dues. Middleton corroborated the
testimony of the Board's witnesses on the existence of the rule and admitted
that on occasion he granted permission to officers of the Association to drive their,
cars into the plant while not on duty for the,purpose of meeting with representa-
tives of management with regard, to grievances. The undersigned accordingly .
finds that,the respondent contrary to its rule, permitted officers of the Association
to drive their cars into the plant when off duty for the purpose of conferring with
management, and while the undersigned does not credit Middleton's testimony
that such conferences were limited to employee grievances, in any event, the
said action manifested to employees the respondent's approval of the Association
and constituted illegal recognition and support of the Association.
W. H. Crabtree, a Board witness who was employed by the respondent as a
watchman, testified that in June or July, 1941, while on duty in the respondent's
clock house, he overheard H H Chapman, a supervisory official, instruct Wallace
Bergen, assistant superintendent of the refinery, to discharge employees affiliated
with the Union. According to Crabtree, Bernard Horn, a supervisor, was in the
clock house at the time this conversation occurred between Bergen and Chapman
Crabtree testified that although Chapman and Bergen conversed for about 30
minutes, the only part of the conversation that- he overheard related to the
discharge of union members Chapman, Bergen and Horn all denied that the
alleged conversation occurred. The undersigned believes it unlikely, considering
the small enclosure' of the clock house, that in an extended conversation between -
Chapman and Bergen, Crabtree would have been able to hear only such portions
STANDARD OIL COMPANY, AN OHIO CORPORATION 1 543,
of the conversation as related to discharge of union members, or that Chapman
would. have made such a statement in Crabtree ' s presence . The undersigned
does not credit Crabtree's testimony and finds that Chapman did not make the
remarks attributed to him.
W F. Houlton testified\that Ralph Bradford made statements in the summer
of 1941 to the effect that if the Union was successful , there would -be strikes
because "That 's about the first procedure they go through ." According to Houl-
ton, Bradford also` argued with him in favor of the Association , and urged hun
instead of paying $2 or more for dues , to get in the Association by paying 25
cents, and asked , "Why pay more ?" Houlton testified that Bradford made
these and similar remarks in support of the Association and in derogation to the
Union generally , to groups of men. Bernard L. Paule testified that when he
expressed his dissatisfaction with the Association because in his opinion it was
"company dominated ," Bradford tried to convince him that he should pay up
his back dues in the Association , stating, "Well, wouldn ' t you rather pay a
quarter a month than •$2.00 a month if some other union got in here?" Paule
further testified that on the day of the Board election , he told Bradford , "Well,
Ralph , it looks like we are wi nning . . ." and Bradford replied , "If you do, there
is going to be plenty of head busting around here." On another occasion, Brad-
ford tried to show Paule the "bad points" of the Union and stated "that as far
as the Association being in here , they would never have any strikes, and if we
got'the CIO, they would have one strike right after the other, there would be a
lot of days they wouldn ' t work, and all that stuff." Paule also testified that
he had a conversation with Bradford after the Board election in which Bradford
spoke of labor difficulties on the West Coast and when advised by Paule that,
an A F of L. union was involved there , stated , "Well, that just shiows you
how-.they operate ," and "It is a big graft ." Both Paule and Bradford testified
that they were on friendly terms, and Bradford stated that- their families visited
back and forth.
Bradford who joined the Association when it was formed and continued as
a member until April , 1941 , admitted that he madelsubstantially the statements
attributed to -him by Houlton and Paule , but testified that in so doing he was
merely expressing a personal opinion, and that the statements were made when
be was acting as chief operator of a combination unit . As, such chief operator
he was in charge of operations but had no authority to hire or , discharge or to
discipline employees of lesser rank who worked with him on the combination unit
However , in addition to his duties as chief operator , Bradford also served on
occasion as foreman of the night shift and when serving in this capacity was
foreman over the entire refinery , As shift foreman breaker , or substitute foreman,
he acted as foreman only when a regular foreman was ill or on vacation, and
served mainly in this capacity during the summer vacation periods . The under-,
signed is convinced and finds that by virtue of his position of shift foreman
breaker , Bradford was regarded by the ' employees as a supervisor and as a
representative of management and that his anti -union statements , in view of the
total situation of respondent 's interference with and support of the Association,
are attributable to the respondent '
W: S Draper who also allegedly made anti -union statements occupied a position
analogous to that of Bradford , serving as shift foreman breaker in the barrel
house and as foreman of the barrel house when due to extra orders a night shift
was added to normal operations . When not thus acting as a foreman he was a
barrel filler and in the latter capacity had no supervisory functions Merle Carr,
a Board witness , testified that prior to the Board election in 1941, Draper stated :
"I just told your brother that I hoped anybody that joined the CIO lost everything
'544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had." Charles Lauman, a Board witness, testified that Draper made a
similar remark to him,applying an opprobrious' epithet to employees who joined
the Union and stating that he hoped everyone who joined the Union would "lose
everything he's got " , Lauman was uncertain of the date when Draper made the
alleged statements but thought it was in 1942. Lauman also testified concerning
an incident when he was rebuked by Wallace Bergen for being outside his own
place of work for the purpose of discussing ^fthe Union with two employees of the
barrel house. The undersigned finds that Bergen instructed Lauman' not to
interfere with production and that there was nothing improper in his action in
doing so, or in Draper's action in reporting the incident to Bergen. Draper did not
testify but it was shown that he was a member of the Association and attended
Association meetings 2i The testimony of Carr and Lauman is, undisputed and
is credited, and the undersigned finds that Draper expressed his disapproval of the
Union in terms attributed to him by Carr and Lauman, and that because of his,
position as shift, foreman breaker, or substitute foreman, and his position on occa-
sion as foreman of the night shift, the employees regarded him as supervisory and,
as representative of management and that his anti-union statements in view of the
total situation of the respondent's interference with, and support of the Associa-
tion, are attributable to the respondent. / '
Robert Bede, a Board witness, testified that in Ju'y 1942, while he was
working in the respondent's paint shop he had a conversation with Lawrence
Ames, paint shop foreman, during the course of which Ames stated that he
thought "we was doing the wrong thing by joining the CIO, because if we
-would get the CIO in that everything would go to contracting, that we would
see the smallest paint gang in the Standard that we had ever seen before "
Ames denied the -statement attributed to him by Bede but testified that Bede
asked him what he thought about Bede's joining the CIO and that he replied,
"You see what the Pure Oil has got over here They contract their painting."
Ames further testified that he was made foreman of the paint shop in A;.ril
1942, and in response to a leading question by counsel for the Board, stated that
the conversation with Bede occurred prior to April 1942 and at a time when,
-he was merely acting foreman in the absence of the regular foreman who was
at that time ill. The undersigned is convinced and finds that Ames made
substantially the statement attributed to him by Bede and at a time when he'
-was a regular foreman, and that his statement is therefore attributable to the
respondent In the light of Ames' own testimony, his statement to Bede was
_a thin'y disguised threat directed against, the Union.
The undersigned finds that the following allegations of the Board's complaint'
are not supported by credible testimony :
That Ladd, a supervisor, told members of the Union that any employee who
_joined the Union would not have 'a job with Standard;
That Sanders, the respondent's superintendent, caused an increase of the
Association's Grievance Committee, in August, 19.41;
That C. O. Rowley, Marcus P\ Davis and Ladd, supervisors, asked employees
to solicit membership in the Association and pay dues to the Association ;
21 It was also alleged that Frank Buchele, Lester Rought, and Harry West, supervisors
of the respondent, attended meetings of the Association. The undersigned credits
P.uchele's testunony, coiioborated by 'his wife, that the only time he attended an Associa-
tion meeting was on the occasion of a fish fry, and that he did not attend a regular or
business meeting of the Association. The undersigned credits Rought's testimony that
he attended only one meeting of the Association-that meeting which was held in conjunction
with the fish fiy. The undersigned finds that Harry West does not occupy a supervisory,
p-position or one from which employees might reasonably infer that he,represents management,
and therefore his attendance of Association meetings is immateiial.
STANDARD OIL COMPANY1 AN OHIO CORPORATION 545
That Standard permitted officers of the Association to utilize the time; services
and equipment and supplies of its clerical staff, for Association business in May,
1937.
D. Board elections; the unfair labor practice charge of September 5, 1941
Pursuant td a petition for certification filed by Local 395 of the Union on
March 12, 1941, following a hearing- thereon, the Board on June 9, 1941, issued
its Decision and Direction of Election." , Pursuant thereto an election was held
on June '30, 1941, for certain employees of the respondents' Number 1 (Cleve-
land) refinery which the Board had found constituted an appropriate unit, both
the Union and the Association appearing on the ballot. It was the position of .
both the respondents and the Association before the Board, that all employees
throughout the respondents' refineries, with the exception of certain classifica-
tions, should be included in a single appropriate unit, but as has been noted, the
Board rejected this contention, and found for the unit proposed by the petitioner.
As a result of the election, the Union was certified as bargaining representa-
tive for emp'oyees of the Number 1 Refinery, and a contract was entered into
between' the respondent Standard and the Union. It is the position of the
Association that Chapter 15 become non-existent following the certification of
the Union.
Pursuant to a petition for certification filed by Local 346 of the Union on
July 11, 1941, a consent election agreement was entered into between the Union,
the Association, and the respondent Standard and approved by the Board's
Regional Director, for employees of'the respondent's Toledo Refinery. An elec-
tion was thereafter held on August 4, 1941, both the Union and the Association,
appearing on the ballot, with the result that a majority of the ballots, cast
favored the Association. The Association was duly certified by the Board's
Regional Director as -collective bargaining -representative for employees of the
Toledo Refinery, and a contract was executed between the Association and the
respondent on August 28, 1941, for employees of this refinery.
Consent elections were thereafter held among employees of the respondents'
Solar Refinery (Lima, Ohio), Latonia Refinery (Latonia, Kentucky), and Num-
ber '2 Refinery (Cleveland, Ohio). Each of these elections was conducted under
the supervision of the Board and in each the particular Chapter of the Asso-
ciation involved Was certified as the collective bargaining representative. The
Union was notified of the elections to be held at Solar Refinery and Number 2
Refinery and was given an opportunity to participate therein but declined, and
the Association was the sole labor organization appearing on the ballot of these
places. The consent election agreement pursuant to which an election was held
at the Latonia Refinery, was executed by the respondent, the Association, and
the American Federation of Labor. There is no evidence of Union interest in
the Latonia Refinery election The elections at the Latonia, Solar and Number 2
refineries-were held on August 13, 1941; October 21, 1941; and October 22, 1941,
respectively, and following the certification of the Association in each instance,
contracts were executed by the respondent and the respective chapters of the
Association Pursuant to an agreement entered into between the respondent
Latonia and Chapter 18 of the Association, the Board's Regional Director for
the Ninth Region conducted a check of Association authorization cards against
names of employees in the appropriate unit agreed upon. The aforesaid card
count disclosed an Association majority and the respondent Latonia thereafter
executed a contract with Chapter 18 of the Association.
23 32 N L R B. 437
513024-43-vol 47-35
546 DEICiSIONS OF NATIONAL LABOR RELATIONS, -BOARD
Thereafter, petitions for certification were filed by several other chapters of
the Association, but were dismissed by the Board upon the filing on November
3, 1941, of the original charge in this proceeding.
An earlier charge alleging company domination of the Association was filed
on September 5, 1941, by Cleveland Industrial Union Council, an association of
affiliates of the Congress of Industrial Organizations of the Cleveland, Ohio area.
This charge was investigated by the Board's Regional Office during which cer-
tain records of the Association were made available to the Board's Field Ex-
aminer. However, no complaint was issued thereon; and on September 27, 1941,
withdrawal of the charge was requested The following sentence appears in the
letter requesting withdrawal: °
Withdrawal is requested because we have been unable up to this time to,
develop sufficiently substantial evidence to support the allegation
The Board granted the request for,the withdrawal of the charge and no further
action was taken thereon.
E. The alleged discriminatory discharge of William Philpott
William Philpott was_ employed by the respondent in 1936 as a still cleaner
and worked continuously thereafter, in various jobs, until May-1, 1941, when
he was discharged. According to Philpott, whose testimony in this respect was
undisputed, dissatisfaction arose among the still men in April 1941 clue to the
overcharging of the stills. Philpott was designated by the employees of this
department to report the condition to Superintendent F. J Sanders, and pursuant
thereto Philpott made an appointment with Sanders. Accompanied by another
employee, Pete Traymun, Philpott saw Sanders on' or about April 24, and re-
ported on the condition of the stills. Philpott testified that Sanders said he
would investigate the matter and take action if necessary, and that some im-
provenient resulted from the interview
A few days after interviewing Sanders in behalf of the still men, Philpott
was called to the office of Henry J. Ladd, chief clerk of the respondent, who
'advised him that his wages had been garnisheed by a creditor. Thereafter,
Philpott was questioned concerning the garnishment of his wages by Wallace
Bergen, assistant superintendent; and Sanders His discharge followed
Philpott admitted that his wages had been garnisheed on prior occasions, and,
that prior to his conversation with Sanders relative to the stills, he had been
warned by Ladd and Sanders that if new garnishments on his wages issued he
would be discharged 'These earlier conversations with Ladd and Sanders oc-
curred in October 1940, and while the testimony pertaining thereto was some-
what confused, it appears that Philpott owed a sum _of money to a certain
creditor who from time to time caused his wages to be garnisheed Philpott
testified that he was given some assurance that his discharge would not result
from further garnishment actions by this same creditor, but that any new
garnishment of his wages would result in- his discharge. Sanders also testified
that he considered the successive garnishments by a single creditor an "exten-
uating circumstance," but that the garnishment upon which the discharge was
based was a new matter and issued only .a few days prior to Philpott's dis-
charge Following-Phil pott's discharge, a committee of the Union conferred
with Sanders reliitive• to his reinstatement and Philpott was reinstated July
14, 1941.
Philpott admitted and it is clear'from all the testimony, that his action in
interviewing Sanders relative to the condition of the stills in April 1941, was not
STANDARD OIL COMPANY, , AN OHIO CORPORATION 547.
instigated by either the Union or the Association, but represented concerted
action by the employees of the still department. There is no evidence that
Traynum, who accompanied him in his interview with Sanders, was in any
way discriminated against thereafter. Furthermore, it is undisputed that in
October of the preceding year, Philpott was warned that he would be discharged
if new garnishments of his wages were issued. In October, 1941 a committee
of the Association requested management to give Philpott "another chance"
and at that time, Philpott was advised iii writing by the management:
At the Petroleum Workers' request, we have reconsidered your case, and
are giving you another chance However, in the event that you receive
another garnishee or make another assignment of wages, we will be forced
to take action.
Certain witnesses for the Board testified that their wages were garnisheed
and they were not discharged, but it was not shown that any of'these employees
suffered as many garnishments, in a corresponding period of time, as Philpott.
The contract that was negotiated between the Association and ' management
in August 1941, provided that 3 or more, garnishments within a, 12-month period
would subject the employee to discharge, and at least one employee, a member
,of the Association, was discharged pursuant to this provision. It was stipulated
that Philpott's wages .had been garnisheed 5 times in the 12-month period
preceding his\ discharge '
Upon consideration of the entire testimony,. the undersigned is convinced
and finds that Philpott was not discharged because of union or concerted activity,
but for cause.
.CONCLUDING FINDINGS
The Sohio Council Plan functioned as a labor organization from 1933 when
it was formed by the respondent Standard, until April 29, 1937, and was similar
in organizational structure and purpose to other employee representation plans
which were widespread in industry prior to the Act. It was established through-
out the operations of the respondent Standard and its subsidiaries, the resporid-
ent Sohio and the respondent Latonia, whose labor policies were centrally con-
trolled and directed liy the respondent Standard. On the basis of the respond-
ents' admissions and the entire record, the undersigned finds that the Plan
was a labor organization, formed, supported and dominated by the respondents.'
The next focus of inquiry is whether the respondents took such measures as are
required by the Act to disband the Plan and so completely to dissipate the
effects of their- domination as to restore to their employees the freedom in self-
organization contemplated by the Act. The independence or bona fides of the
Association is but another facet of the same' problem since its alleged sue-
cessorship to the Plan must be determined in large measure in the light of the
respondents' fulfillment of the requirements of the Act in disestablishing the
Plan.
The undersigned is convinced and finds, upon consideration of the enure
record, that while subsequent to the Supreme Court's decisions on April 12, 19:17,
sustaining the constitutionality of the Act, the respondents withdrew a sub-
stantial measure of their financial support of the Plan, they at no time
unequivocally withdrew from participation in the Plan or required its dis-
establishment It appears from the Maxwell letter to McCowen of April 22,
and from McCowen's response to that letter in his memoranda to Unit Council
chairmen of the Plan, that by withdrawing their main, financial support of
the Plan and'forbidding meetings on company time and property, the respond-
ents considered that they were meeting the requirements of the Act and
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the council chairmen of the Plan shared this opinion. However much
this may bespeak the good, faith of the respondents and council chairmen
who were instrumental in organizing the Association, good faith is not a sub-'
stitute for the respondents' responsibility under the Act. "* * * the test,
ivh'ether a challenged organization is employer controlled, is not an objective
one but rather subjective, from the standpoint of employees." 26 Furthermore,
financial support is but one of numerous means by which employer approval
of a labor organization may be manifested to employees.
It is clear that the statements of officers of the respondents at the Aprilj
8, 9, 28 and 29 'meetings of the Central Council of the Plan did not amount
to oral disestablishment of the Plan but actually conveyed to the council
chairmen the meaning and understanding that by arranging for collection of
dues from its employee members so as to become self -supporting and by
effectuating a few minor changes such as a change in name, the Plan might
continue to function as a labor organization. The fact that on April 29, 1937,
following the statements of Edmunds and McAfee the Central Council met and
laid the organizational groundwork of the Association, convincingly bespeaks
the true character and effect' of the Edmunds and McAfee statements.
McCowen's letter of the same date in' which' he requested recognition of the
Association as exclusive bargaining representative of all employees, is similarly'
revealing of the state of mind of council chairmen after hearing Edmunds and
McAfee.
'As further evidence of their disestablishment of the Plan, the respondents
rely on inter-office communications addressed by Edmunds to Middleton and
Brown. While the memorandum to Brown, assistant treasurer of the respond.
ent Standard, contains the categorical statement : "The Sohio Council Plan
became non-existent on April 29, 1937," it is otherwise merely an instruction
to Brown, a financial officer, that the company would no longer contribute
financial support to "any labor organization." The memorandum to Middleton
which was communicated by him only to local representatives of the Plan made
no mention of the Plan and it, too, was merely a statement of company policy
on the withholding of certain financial support from labor organizations. News-,
paper articles stating that the respondents were disbanding the Plan have little
or no probative force in establishing the fact of disestablishment in the
absence of corroborative testimony or at least a showing that the said news-
paper articles were brought to the attention of the employees in the sense
of an official pronouncement of company policy. No such showing was made,
there being no. testimony from which one might infer that employees of the
respondents, generally, saw or read the aforesaid newspaper reports.
There is in fact no evidence that the respondents at any time published to their
employees, either orally or in writing, that they were disestablishing the
Plan or withdrawing their support therefrom, unless the testimony of employee
representatives of the Plan that in soliciting membership for the Association,
they advised employees of their respective units that the Plan was "out", can
pass for such evidence However, if the representatives of the Plan be thus
regarded as agents of the respondents in advising employees of the Plan's
disestablishment, it must be borne in mind that according 'to the testimony of
these same representatives, at the time they were publishing such information
they were also soliciting membership in the Association. Since this solicitation
was carried on openly on company property during working hours, the employees
could hardly be expected to distinguish between these representatives when acting
qua agents of the respondents in announcing the demise of the Plan and when
-20 N. L. B B . v. Thompson Products , lnc, (C C. A 6 ), No. 9129, decided August 28, 1942'
STANDARD OIL COMPANY, AN OHIO CORPORATION 549
acting qua agents of the Association in forming a new organization. It is entirely
reasonable to conclude and the undersigned finds that employees thus approached
.by representatives of the company dominated Plan, understood that in their
efforts to form the Association, the said representatives were acting with the
knowledge, consent and, approval of the respondents.
If the employees would have just cause to believe that solicitors professedly
for a labor organization were acting for and on behalf of the management, the
Board would be justified in concluding that they did not have the complete
and unhampered freedom of choice which the Act contemplates.`
In any event, even assuming that the employees were duly advised that the
Plan was defunct, the respondents' conduct, in the light of the circumstances, was
such as to cause them to believe that the Association had evolved from the Plan :
The theory is that in cases such as this, where an unaffiliated union seems to
the employees at large to have evolved out of an earlier joint organization of
employer and employees, the Board may take it as datum, in the absence of
satisfactory evidence to the contrary, that the employees will suppose that
the company approved the new, as it did the old, and that their choice is for
that reason not as free as the statute demands 28
The respondents' contention that in 1937 the requirements of disestablishment
of an employer dominated labor organization had not been fully defined by-the
Board or the courts obviously does not constitute a defense. "It is idle to argue
that the acts of the respondent were justified because committed during the earlier
days of the operation of the Labor Act and before the great body of law now
existing had been developed." 26
Not only did the respondents fail in their duty to publish to their employees the
Plan's disestablishment and thus remove the taint of four years of company
domination , restoring to the employees their freedom of self-organization, but
there was in fact no actual break or breathing spell between' the functioning of
the Plan and the formation of the Association.
The effects of employer coercion, inherent in the establishment and mainte-
nance of a company-dominated organization, can be dispelled only by the
re-creation of conditions in which genuinely free choice can be exercised. To
this end it is essential,, if an ostensibly new organization is set up, that there
be "a complete break between the two unions and a disestablishment of the
objectionable union," and that the employees be "effectively and unmistake-
ably informed of such action." 80
The last meetings of the Central Council of the Plan on April 22 and April 28, 29,
1937, the entire expense of which was borne by the respondents' were actually also,
the first meetings of the Association, for it was at these meetings that the name
of the Association was proposed, its chapters designated, and its schedule of dues
-determined, as well as its organizational structure. The minutes of the April
29, 1937 meeting of the Plan refer to the election of a treasurer of the "Central
Association", and the chairman, of the Central Council was at 'this meeting
21 N. L. R. B. V. International Ass'n of Machinists , 311 U. S. 72; N. L. R. B. v. Link-
Belt Co., 311 U. S. 584.
2Westinghouse Electric & Mfg. Co. v. N. L. R. B , 112 F. (2d) 657 (C. C. A. 2) (aff'd
per curiam 312 U. S 600 , enf'g as niod : Matter of Westinghouse Electric it Mfg. Co. and
United Electrical Radio it Machine Workers of America , etc.; 18 N. L. R . B. 300).
29 N. L. R. B. v. Thompson Products, Inc., (C. C. A. , 6) No. 9129, decided August 28, 1942.
90 Matter of Standard Oil Company , Standard Oil Company of New Jersey and Congress
of Industrial Organizations, 43 N L. R. B. 12, decided August 12, 1942.
550 DECISIONS 'OP NATIONAL LABOR RELATIONS BOARD
authorized to demand recognition of the Association as exclusive bargaining repre-
sentative. Thus, one searches the record in vain for any evidence of a pause or
breathing spell between the demise of the Plan and the birth of the Association.
The organization of the, various chapters of the Association shows a similar
lack of definite cleavage between the Plan and the Association As has been
noted, at the same time representatives of the Plan were advising employees
of their respective units that the Plan was "out", they were securing membership
,signatures and collecting dues for the Association. Thecorganizational meetings
of the Chapters resulted in most instances in the election of the same men as
officers of the Chapters as had served as officers of the Unit Councils under the
Plan.' Within the relatively short period of from April 29 to June 23, at least
It is apparent therefore and the undersigned finds that the respondents con-
tributed financial support to the Association.
The respondents consistently withheld formal or official recognition of the
is hardly to be distinguished from meetings of the Central Council of the Plan,
'except that the entire expenses of the chapter chairmen in attending the meeting
were no longer-borne by the respondents. However, while all regular neetings
of the Association were held off company property and at-Association expense,
no deduction was made in the wages or salaries of Association representatives
for time lost from their respective jobs when attending meetings of the Central
Chapter. There were also meetings of certain of the chapter chairmen com-
prising the Central Chapter which were held at the request of management, and
on such occasions the respondents bore the entire expense of the said meetings.
It is apparent therefore and the undersigned finds that the respondents con-
tributed financal support to the Association.
The respondents consistently withheld formal or official recognition of the
Association and refused to execute a written contract with it, unless the Asso-
ciation` were first certified as bargaining representative by the Board, but begin-
,niiig with the first meeting of the Central Chapter, the respondents' representa-
tives met regularly with representatives of the Association, in the same manner
as they had met with representatives of the Plan, for the purpose of negotiations
-on all issues which normally constitute the subject matter of collective bargain-
ing. These negotiations were normally based on proposals regarding hours,
wages, seniority and kindred subjects advanced by the Association, and the
'respondents accepted or rejected the proposals after expressing the viewpoint of
'management, or advanced counter proposals of their own. Thus, on June 24,
-1937, the respondents issued a statement of policy affecting their entire operations
which, admittedly, was the result of negotiations between the respondents and
the Association. Meetings of representatives of the various chapters with their
,respective department heads, followed the same general pattern.
The undersigned finds no merit in the respondents' contention that these
conferences with Association representatives were restricted to matters of em-
ployee grievances: The record is replete with evidence that wages, hours,
seniority and kindred subjects of collective bargaining affecting all employees of
the respondents regardless of their union or non-union affiliation, were dealt with
in these meetings of management and Association representatives. Obviously,
under the guise of conferring.on'employee grievances, management may `not
extend virtual recognition and support to a labor organization Wits'f own choice,
thus defeating 'the true fundtion of ,collective bargaining by employees through
representatives of their own choice."
$' See Matter of North American ' Aviation, Inc. and United Automobile, Aircraft and
Agricultural Implement Woikers of America, Local 887,. C. 1. 0., 44 N. L. R. B -604,
decided September 29, 1942.
STANDARD OIL COMPANY, AN OHIO CORPORATION 551-
The undersigned finds, that the respondents withheld the shadow but not the
substance of recognition from the Association, and that Middleton in his
.memorandum of August 31, 1938, bespoke the actual situation then existing
throughout the respondents' operations when he wrote, ". . . it seems to me
only fair to recognize officially, what is accepted in practice." The undersigned
further finds that the respondents' contention that its policy of meeting with
employees or "grievance" committees applied to all labor organizations alike,
is fairly academic, since there is no evidence of organizational activity on the
part of any labor organization other than the Association, during the period
when the Association was formed and began its functioning as unofficial
bargaining representative of all the respondents' employees, except Local 395
of the Union, whose membership was limited to the employees of a single
refinery. It is significant in this connection that Local 395 of the Union was
formed in opposition to a continuance of the Plan, and that fact was known
to the employees While the record does not disclose the character of such
meetings as may have been held between representatives of Local 395 and the
management, if it be assumed that such meetings were held on the same footing
as local meetings with Association representatives, this affords no basis, of
comparison with the system-wide recognition of and bargaining with the Asso-
ciation.
Both the respondents and the Association place strong emphasis -on the fact
that certain elections were conducted by agents of the Board, with both the
Association and the union appearing on the ballot, as a result of which certain
chapters of the Association were certified, and contracts were thereafter executed
on the basis of the said certification. The argument is that . the Board in
conformity with its policy stated in prior decisions," should foreclose itself
from a consideration of evidence of unfair labor practices antedating the afore-
said elections and certifications. ,
The undersigned finds no,analogy in the present situation and; in those cases
where elections were conducted pursuant, to so-called settlement agreements by
the terms of which charges were withdrawn .by the complainant union and the
allegedly company, dominated union was given a place on the ballot. No
semblance of a settlement agreement can be attributed to any of the elections
in which, the Association appeared on the ballot. An affiliated group of the
Union- filed a 'charge against the respondents of company domination of the
Association in September 1941 and thereafter two elections were held with the
Association appearing on the ballot, but that charge was withdrawn without
a formal ,hearing thereon, and the said withdrawal in no , sense represented a
settlement agreement or foreclosed the same union or other affiliates, of the
same union , from filing subsequent charges of the same or similar character.
Furthermore, the Union did not appear on the ballot with the Association in
either of the elections held subsequent to the filing of the charge by an affiliated
group of the Union. But in any event, neither the Board nor the courts have
ever held, in any case, that a union is estopped.from filing a charge of company
domination of an opposing labor organization, because it previously has con-
sented to be represented on the same ballot with such an opposing labor
organization, although it may have had knowledge of the facts later alleged to
constitute company domination, at the time, of its said consent. All of the
31 Wickwire Bros. and ,Amalgamated Ass'n of Iron, Steel & Tin Workers of North America,
Lodge, #1985, through S. W. 0. 'C., affiliated with the C. I. 0 , 16 N. L. R. B. 316 ; Hope
Webbing Co. and Textile Workers Organizing Committee of the C. 1. 0., Local No. 1.,
14 N. L. R B. 55
11
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decisions are to the contrary.33 Representation proceedings under Section 9 of
the Act, and unfair labor practice proceedings under Section 8 of the Act are
obviously separate and distinct, and one does not foreclose the other. The
Circuit Court of Appeals of the Sixth Circuit in a recent decision stated:
It is now urged that since the existence of the Association and the organiza-
tion of the Alliance, together with the latter's recognition as an exclusive
bargaining agency capable of contracting with the respondent, and the execu-
tion of contracts with it, were all circumstances transpiring before the
inauguration or during the proceedings upon the previous complaints, known
to the complaining Union and the Board, the Board is now barred upon
principles of estoppel or by the application of the doctrine of res adjudicate,
from considering the charges of the Union or entering the present complaint.
* * * * * * *
We are, however, obliged to bear in mind that a proceeding under the
National Labor Relations Act is not litigation between private parties even
though the inquisitorial and corrective powers of the Board may not be
invoked without a charge being lodged by individual employees or, an employee
union. It is a proceeding. by a public regulatory body in the public interest.
It is neither punitive nor compensatory but preventative and remedial in its
nature.
if the so-called bargaining agency is in any respect brought forth by
employer domination, or interference, and the contractual relationship with
it is a continuing one, the'effect is a continuing, invasion of employee rights
to bargain collectively through agencies of their own choice without interfer-
ence of any kind by the employer, and the Board is not barred by any principle
of estoppel or the doctrine of res adjudicata. from putting a stop to it3' -
The Board has iii a recent decision 36 indicated that where the union and agents
of the Board, with full knowledge of acts and conduct later alleged as constituting
company domination of a second labor organization, agree to an election with
the allegedly company dominated union appearing on the ballot, and there are no
continuing unfair labor practices following the election, the Board may as a
matter of policy disregard evidence of acts and conduct of company domination
which occurred prior to the election. Again, however, there is little analogy
found in the facts of that case and decision and in the case at hand. At the time
the Board directed an election with both the Union and Association appearing
on the ballot, no charges of unfair labor practices had been filed against the
respondents, and issues of unfair labor practices are not litigated in a representa-
tion proceeding. The charge which was filed by an affiliated group of the Union
on September 5, 1942, was at least partially investigated by the regional office,
but it is impossible to infer that on the basis of such partial investigation the
Board became acquainted with the volume of evidence adduced in the present
proceeding on the subject of the respondents' domination of the Association. As
previously stated the aforesaid charge was withdrawn without formal proceedings
being instituted thereon. No elections were held subsequent to the filing of the
"See N. L R B. v Swift d Company and Neuhof Packing Company, 127 F (2d) 30
(C. C. A. 6), N L R B v Stone, 125 F. (2d) 752 (C C A. 7).
31 N. L. R. B. v. Thompson Products, Inc. (C. C.,A 6) No. 9129, decided August 28, 1942.
33 Matter of Houdaslle-Hershey Corporation and Houde Engineering Corporation and In-
ternational Union, United Automobile, Aircraft and Agricultural Implement Workers of
America (C. I. 0 ), 42 N L R. B. 713, decided July 22, 1942.
'STANDARD `OIL COMPANY, AN OHIO CORPORATION 553
original charge in the present proceeding . The undersigned accordingly is of
the opinion that the-Board should not as a matter of policy foreclose itself\from
a consideration of the entire conduct of the respondents as disclosed in the record
of this proceeding. ,
That certain employees during the more than five years that the Association
has functioned as a labor organization have come to feel a measure of pride
in its accomplishments , and that in the Association they have a labor ,organiza-
tion of their own choice , is not doubted by the undersigned , but this cannot
operate to remove the taint of company domination or absolve the respondents
from their illegal acts.
,The undersigned finds no merit in the . Association 's contention that each of
its chapters should be viewed as a separate labor organization . It is clear
from all the testimony that the various chapters are members of the one body,
and while the members perform certain distinct and characteristic functions,
they also function as members of the central body which is composed of all the
chapters It is conceivable that one of the chapters might secede from the
central body, but when it did so, it would cease to be any part of the Association
and only-then would it constitute a separate and distinct labor organization
This is clearly illustrated in the Association of Petroleum Workers, Inc., which
broke away from the Association and formed its own separate labor organiza-
tion. The undersigned finds that all the chapters of- the Association are inte-
grated in one labor organization and are inseparable for the purposes of this
proceeding.
. On the basis of the foregoing findings of fact and the entire record the under-
signed finds that the respondents did not disestablish the Plan, a labor organi-
zation formed , supported and dominated by the respondents , and, that because
of their failure t6 do so , the imprint of company domination was unmistakably
stamped on the Association from the date of its inception . The undersigned
finds that the Association is a successor labor organization to the Plan , and ifs
formation in fact marked a continuation of the Plan under the guise of a new
labor organization , since there was no pause or breathing spell between the
functioning of the Plan and the functioning of the' Association . The under-
signed further finds that the respondents fostered and supported the Association
by permitting it to circulate membership petitions on company premises during
working hours, by recognizing it and bargaining with it on matters pertaining
to wages, hours and working conditions of all its employees , and by contributing
financial and other support to it.
The undersigned finds that each and every contract executed with the Asso-
ciation and its chapters is invalid because made and executed with a company
dominated labor organization , and that by entering into the aforesaid contracts
with the Association , and by other acts of assistance , pursuant to the said
contracts ,' the respondents gave support and encouragement to the Association
while discouraging membership in the Union.
The undersigned finds that by the aforesaid acts of interference with, domina-
tion and support of the'Association, the respondents interfered with , restrained
and coerced its employees in the exercise of the rights guaranteed in Section 7
of the Act.
The undersigned finds that the respondent Standard , at its Toledo, Refinery,
through the acts and conduct of its supervisors Middleton , Bradford , Draper and
Ames, encouraged membership in the Association and discouraged membership
in the Union , and thereby interfered with, restrained and coerced the employees
of its Toledo Refinery in the exercise of rights guaranteed in Section 7 of the Act.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The undersigned finds that the respondent Standard did not discharge William-
Philpott or otherwise discriminate against him because of union or concerted
activity. -
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents set forth in Section III above, occurring in
connection with the operations described in Section I above, have a close, inti-'
mate, 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.
V. THE REMEDY
Having found that the 'respondents have engaged in unfair labor practices,
the undersigned will recommend that they cease and desist therefrom, and take
certain affirmative action which the undersigned finds necessary to effectuate
the policies of the Act.
It has been found that the respondents dominated and interfered with the
formation and administration of the Plan, and the Association, and contributed
financial and other support to them. The undersigned has found that the Asso-
ciation is a successor labor organization to the Plan, and since the Plan as
distinguished from the Association ceased to function in 1937, no recommenda-
tion will be made concerhing it. The effect and consequence of the respondents'
domination, interference with'and support of the Association, as well as the-
continued recognition of the Association as the bargaining representative of
their employees, constitute a continuing obstacle to the free` exercise by the
employees of their right to self-organization and to bargain collectively through
representatives of their own choosing. Because of the respondents'. illegal con-
duct, the Association is incapable of serving the employees as a genuine col-
lective bargaining agency. Accordingly, the undersigned will recommend that
the respondents disestablish the Association and each of the chapters thereof,
and withdraw all recognition from the Association or any chapter thereof as
the representative of any of their employees, for the purpose of dealing with
them concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or other conditions of employment.
Under the facts found, contracts executed by the respondents with the Asso=
ciation, constitute a part of the unfair labor practices The undersigned will
recommend that the respondents cease and desist from giving, effect to each
and every contract executed with the Association, or any chapter thereof as
well as to any extension, renewal, modification, or supplement thereof and any,
superseding contracts which may now' be in',force. ' Nothing herein shall be
taken to require the 'respondents to vary those wages, hours, seniority, and other'
such substantive features of their relations with the employees themselves,
which the respondents have established in the performance of the contracts
or as the said contracts have been extended, renewed, modified, supplemented
or superseded ,
Upon the foregoing findings of fact, and upon the entire record in the case,
the undersigned makes the following:
CONCLUSIONS OF LAw
1. Oil Workers International Union and Oil Workers International Union,
Local 346, affiliated with the Congress of Industrial Organizations, and Associa-
tion of Petroleum Workers of the Standard Oil Company of Ohio, are labor
6
STANDARD OIL- COMPANY, AN OHIO CORPORATION 555:
organizations, and Sohio Council Plan was a labor organization, within the,
meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and administration of
Sohio Council Plan and Association of Petroleum Workers of the Standard,
Oil Company of Ohio, and contributing financial and other'support to them, the
respondents have engaged in and are engaging in unfair labor practices, within
the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining and coercing their employees in the exer--
cise of the rights guaranteed in Section 7 of the Act, the respondents have
engaged in and are engaging in unfair labor practices, within the meaning of
Section 8 (1) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act. -
5. The respondents have not engaged in unfair labor practices by discriminat-
ing in regard to the hire and tenure of employment of William Philpott.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondents Standard Oil Company, an Ohio Corpo-
ration, Sohio Pipe Line Corporation, and Latonia Refining Corporation, their
officers, agents, successors, and assigns, shall: -
1. Cease and desist from : ,
(a) Dominating or interfering with the administration of Association of Petro-
lemn• Workers of the Standard Oil Company of Ohio, or with the formation or
administration of any other labor organization and from contributing financial
or other support to the said labor organization or to any other labor organization ;
(b) Recognizing the Association of Petroleum workers of the Standard Oil
Company of Ohio, as the representative of any of their employees for the
purpose of dealing with the respondents concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of employment ;
(c) 'Giving effect to each and every contract with the Association of Petro-
leum Workers of the Standard Oil Company of Ohio or any' chapter thereof,
or to any modification, extension, supplement, or renewal thereof, or to any
superseding contract with it;
(d) In any other manner interfering with, restraining, or coercing their
employees in the exercise of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the purpose of
collective bargaining, or other mutual aid or protection, as guaranteed in
Section 7 of the Act.
2. Take the following arTitinative action, which the undersigned finds will
effectuate the policies of the Act: _
(a) Withdraw all recognition from and completely disestablish Association
of Petroleum Workers of the Standard Oil Company of Ohio, as the representa-
tive of any of its employees for the purpose of -dealing with the respondents
concerning grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment at all of their plants and operations;
(b) Post immediately in conspicuous places throughout their various plants
and operations, and maintain for a period of at least sixty (60) consecutive
days from the date of posting, notices to their employees stating: (1) that
the respondents will not engage in the conduct from which it has been recom-
mended that they cease and desist in Paragraph I (a), (b), (c) and (d)' of
these recomendations; (2), that the respondents will take the affirmative action
k556 DECISIONS OFNATIONAL LABOR RELATIONS BOARD
set forth in Paragraph '2 (a) of these recommendations; and (3) that the
respondents' employees are free to become or remain members of Oil Workers
International Union, affiliated with the Congress of Industrial Organizations,
and that the respondents will not discriminate against any employee because
of membership or activity in that organization ;
(c) Notify the Regional Director for the Eighth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondents have taken to comply herewith.
It is further recommended, that, unless on or before ten (10) days from the'
receipt of this Intermediate Report, the respondents notify said Regional Direc-
tor in writing that they will comply with the foregoing recommendations, the-
National Labor Relations Board issue an order requiring the respondents to
take the action aforesaid. i
It is further recommended that the complaint be dismissed ' insofar as it
alleges that the respondent Standard discharge William Philpott because of
union or concerted activity in violation of Section 8 (3).
As provided in Section 33, of Article II of the Rules and Regulations of the
National -Labor Relations Board, Series 2-as amended, effective, October 14,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to any other part of the
record of proceeding (including rulings upon all motions or objections) as it
relies upon, together with the original and four copies of a brief in support
thereof. As further provided in said Section 33, should any party desire per-
mission to argue orally before the Board, request therefor must be made in
writing to the Board within ten (10) days after the date of the order trans-
ferring the case to the Board.
Dated : November 16, 1942.
WILLIAM E. SPENCER,
Trial Examiner.
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