The Pure Oil Co.

National Labor Relations Board - Board Decisions

Dec 16, 1947

75 N.L.R.B. 539 (N.L.R.B. 1947)

In the Matter of THE PURE OIL COMPANY ( HEATH REFINERY) and
OIL WORKERS I` TERNATrION AL UNION (C. I. 0.)
Case No. 8--C-1750.-Decided December 16, 1947
Mr. Richard C. Swander, for the Board.
Messrs. Ben A. Harper and Allen C. Hutcheson, Jr., for the re-
spondent.
Mr. Lindsay P. Walden, of Fort Worth, Tex., and Mr. William V.
Flower, of Toledo, Ohio, for the Union.
DECISION
AND
ORDER
On November 25, 1946, Trial Examiner Sidney L. Feiler issued his
Intermediate Report in the above-entitled proceeding, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent filed ex-
ceptions to the Intermediate Report and a supporting brief. Oral
argument, originally granted, was subsequently cancelled, at which
time the parties were notified of a further opportunity to file a supple-
mental brief or written argument setting forth the matters which
would have been covered in the oral argument. The respondent filed a
written brief in lieu of oral argument.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs of the respondent, and the
entire record in the case, and finds merit in the respondent's exceptions.
1. (a) The Trial Examiner found that the respondent violated Sec-
tion 8 (1) of the Act in that Superintendent McPherson, in a confer-
ence with representatives of the CIO and the Independent sometime
in 1943, orally promulgated a rule prohibiting electioneering on behalf
of unions on company property. At the hearing there was a conflict
in the testimony as to what McPherson said at the conference. Mc-
75 ^T. L. R B., No: 64.
539
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pherson and the two Independent representatives at the conference
testified that the rule, as announced by McPherson, was restricted to
working time of employees. John Hickman, a CIO representative
who was present, testified that McPherson stated that there was to be
no electioneering on company property. Lionel Gartside, the other
CIO representative who attended the conference, did not testify.
As we have repeatedly held, a rule prohibiting union solicitation
on company property violates the Act insofar as it applies to em-
ployees' non-working time. However, because of the following con-
siderations, we are of the opinion that the evidence in this proceeding
does not support the Trial Examiner's finding as to, the scope of the
rule. Although employees engaged in union solicitation in the plant
during non-working time with the knowledge of the respondent, the
evidence does not establish that the rule was ever enforced to ban such
activity. While Hickman testified positively as to the scope of the
rule, we are of the opinion, and find, in view of the qualifying testi-
mony of the other participants in the conference, that Hickman must
have misunderstood the import of what McPherson said. Accord-
ingly, we are of the opinion, and find, that the evidence does not estab-
lish that the rule prohibited solicitation during the employees' non-
working time.
(b) The Trial Examiner found that the respondent violated Sec-
tion 8 (1) of the Act in that Assistant Soperintendent Cooper told
employee Wilson Bradford, in reply to Bradford's inquiry as to
whether his work was satisfactory, that Cooper understood that Brad-
ford was engaged in inviting employees to union meetings and that
management would not permit union activities in the plant. The
Trial Examiner regarded Cooper's statement to Bradford as unlaw-
ful because, in the Trial Examiner's view, Cooper indiscriminately
proscribed Bradford's union activities during non-working as well as
working time. We do not agree. Bradford was speaking to Cooper
about his work, and this discussion occurred during working time.
Bradford had engaged in union activity during working time. In
view of these circumstances, and the further fact that the record does
not disclose any instance of disciplinary action arising from solicita-
tion during non-working time, we are of the opinion that the record
does not warrant the inference that Cooper had reference to Brad-
ford's non-working time.
(c) The Trial Examiner found that the respondent violated Sec-
tion 8 (1) of the Act in that R. B. Ewing, an assistant foreman, asked
employee D. J. McCullough whether employee Lionel Gartside, who
was wearing a union button and who had been talking to McCullough
THE PURE OIL COMPANY 541
during working hours, talked about the Union in their discussion.
The Trial Examiner concluded that such conduct was unlawful be-
cause, in his view, Ewing sought to enforce the respondent's non-
solicitation rule in a discriminatory fashion against only one of two
rival unions in the plant. We do not agree that Ewing acted discrimi-
natorily because there is no evidence that the other labor organization
engaged in solicitation in violation of the respondent's non-solicitation
rule. Inasmuch as the conversation between McCullough and Gart-
side took place during working hours, we regard Ewing's conduct as
no more than an attempt to enforce the respondent's rule banning
union solicitation during working time.
(d) The Trial Examiner found that the respondent violated Section
8 (1) of the Act in that, in February 1946, Supervisor Evans of the
respondent's Motor Transport Division (1) told employee Yates,
"if the Union comes in we will close it down," and (2) questioned em-
ployee Willing concerning a union meeting which Willing attended.
At the hearing the respondent objected to introduction of testimony
upon which these findings are based on the ground that Evans and the
two subordinate employees involved were Motor Transport Repair
Shop personnel and not Heath Refinery personnel, as the record dis-
closes, and that the complaint is limited in its allegations to unfair
labor practices engaged in by Heath Refinery personnel at Newark."
The complaint, in its caption and body, describes the respondent as
"Pure Oil Company (Heath Refinery)." In describing the respond-
ent's business, the complaint refers to the refinery at Newark as "the
Plant." The specific 8 (1) allegations of the complaint are couched
in general language and speak broadly of unfair labor practices of
"the respondent." At the hearing the Trial Examiner overruled the
objection, and in his Intermediate Report he justified his ruling on
the grounds (1) that the allegations in the complaint are not restricted
to the operations of the refinery division, and (2) that the conduct
of a Motor Transport Repair Shop supervisor, although taking place
in a building separate from the Heath Refinery, might affect employees
of the refinery as well. The Trial Examiner concluded that the unfair
labor practices in question infringed "upon the organizational rights
of the refinery employees" because the respondent's employees were
3 The Motor Transport Repair Shop is a part of the respondent's Motor Transport
Division, an autonomous division, being in charge of a vice-president at company head-
quarters in Chicago other than the one in charge of the Refinery Division, and having no
connection in the field with the Refinery Division. The alleged unfair labor practices
discussed in this paragraph were committed in a building at Newark located inside a
fence enclosing the Heath Refinery, but separate from the refinery operations The two
groups of employees were not subject to the same local management and there was no
interchange of employees between the two divisions.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
being organized on a broad basis to include employees of the motor
transport division as well as the refinery employees. However, there
is no evidence in the record to show that the Union sought to organize
the employees on the broad basis indicated by the Trial Examiner.
These isolated statements were separated in point of time from, and
were unrelated to, any other conduct considered in this proceeding.
Under all the circumstances, we are not persuaded that upon a record
such as we have in this case a finding that the respondent violated the
Act should be based solely on these statements.2
2. The Trial Examiner found that the respondent discharged John
Larimore in violation of Section 8'(3) of the Act. The respondent
contended that he was discharged because he falsified entries on his
time card and because of insubordination in refusing to perform a
work assignment. The Trial Examiner found that Larimore had not
been guilty of insubordination and that, although Larimore did not
note his tardiness on his time card, his failure to do so did not motivate
the respondent in discharging him. Rather, the Trial Examiner con-
cluded that the respondent discharged Larimore because of his "mem-
bership in the union." In reaching this conclusion, the Trial Exam-
iner replied upon the following subsidiary findings which he made:
(a) that the respondent did not discharge other employees who failed
lo note tardiness on their time cards; and (b) that the respondent's
supervisors had demonstrated bias against the Union. We are not
convinced that the respondent unlawfully discharged Larimore. He
was guilty of falsification of his time card, as charged . He made the
entries in question in violation of the respondent 's rules . The record
does not establish to our satisfaction that the respondent condoned
any similar violation of comparable character. Nor, in view of our
dismissal of the 8 ( 1) allegations in the complaint , are we persuaded
that the respondent's supervisors demonstrated bias against the Union.
Under the circumstances we are of the opinion, and find, that the rec-
ord does not establish that the respondent discharged Larimore be-
cause of his membership in the Union, as the Trial Examiner found.
Based on the foregoing, we shall dismiss the complaint in its entirety.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the amended complaint issued
herein against The Pure Oil Company (Heath Refinery), Newark,
Ohio, be, and it hereby, is dismissed.
2 See platter of E. I DuPont de Nemours cC Company , 62 N. L R B. 816.
THE PURE OIL COMPANY
INTERMEDIATE REPORT
543
Mi. Ricluvi d C Swan der, for the Board.
Messrs. Ben A Harper and Allen C. Hutcheson, Jr, of Chicago, Ill, for the
respondent.
Mr. Lindsay P. Walden, of Fort Worth, Tex., and Mr. Williamn, V. Flower, of
Toledo, Ohio, for the Union
STATEMENT OF THE CASE
Upon an amended charge duly filed by Oil Workers International Union,
Local 501, of fliated with the Congress of Industrial Organizations , herein called
the Union, the National Labor Relations Board, herein called the Board, by
the Regional Director for the Eighth Region (Cleveland , Ohio ), issued its
complaint , dated June 17, 1946, against The Pure Oil Company ( Heath Refinery),
Newark, Ohio , herein called the respondent, alleging that the respondent had
engaged in and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and ( 3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 49 Stat 449 , herein called the Act. Copies of the complaint,
together with notice of hearing thereon, were duly served upon the respondent
and the Union.
With respect to unfair labor practices the complaint alleges in substance that
from October 1943 the respondent has interfered with, restrained , and coerced
its employees in the exercise of their lights under the Act by urging , persuading
and warning its employees to refrain from joining or retaining membership in the
Union ; prohibiting its employees from engaging in union activity on their own
time, qubstioning its employees concerning the business of the Union ; disparaging
the advantages to be gained by selection of the Union as their bargaining rep-
resentative ; telling its eniplo} ees that the respondent has informers within the
rank of the Union ; threatening its employees with loss of work if the Union
became their bargaining representative ; informing its employees that it did not
desire them to choose the Union as their bargaining representative ; suggesting
to leaders of the Union that they quit their jobs; threatening to close the plant
if the Union were successful in obtaining a majority ; and discriminating against
adherents of the Union in assignment of work shifts. The complaint further
alleges that the respondent , on or about February 24, 1945, discharged J. B.
Larimore and thereafter failed and refused to employ him because of his union
activities.
In its duly filed answer, dated July 1, 1946, the respondent admits certain
jurisdictional allegations in the complaint , denies the commission of any unfair
labor practices , and alleges that Lariinore was discharged for cause.
Pursuant to notice , a hearing was held at Newark, Ohio , between July 1
and 10, 1946 , before the undersigned , Sidney L Feiler, the Trial Examiner
designated by the Chief Trial Examiner . The Board and the respondent were
represented by counsel , the Union by counsel and a representative . Full op-
portunity to be heard, to examine and cross -examine witnesses , and to intro-
duce evidence bearing on the issues was afforded all parties. After the intro-
duction of all the evidence , counsel for the Board moved to conform the pleadings
to the proof as to formal matters . This motion, which was joined in by counsel
for the respondent , was granted as to all pleadings. Counsel for the respond-
ent moved to dismiss the complaint for lack of proof and decision was reserved
thereon The motion is disposed of by the findings, conclusions, and reconi-
mendations herein . Counsel for the Board and the respondent presented oral
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument. Opportunity then was afforded all parties to file briefs. A mem-
orandum was received from counsel for the respondent. A letter, in the nature
of a summation, also was received from the dischargee.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is an Ohio corporation having its principal office and place
of business in Chicago , Illinois . It is engaged in acquiring and developing
oil lands and the production , refining, distribution , sale and transportation
of petroleum and its related products through numerous States of the United
States, including Ohio, Michigan , West Virginia , Texas, and Oklahoma. The
respondent owns and operates a refinery at Newark , Ohio, where it manufac-
tures gasoline , fuel oil, kerosene , oils, gas, and other petroleum products. The
products of the refinery are distributed in approximately 10 States.
In the course and conduct of the respondent 's business and operation of the
refinery at Newark, Ohio , ( known as the Heath Refinery ), during the calendar
year 1945 , crude oil valued in excess of $500,000 was purchased and transported
by the respondent , of which approximately 75 percent was shipped to the re-
finery from points outside the State of Ohio. During the same period, the
respondent manufactured , processed , sold, or transported finished products valued
in excess of $500,000 , of which approximately 20 percent was shipped to points
outside the State of Ohio . The respondent admits that at all times here relevant
it has been engaged in commerce within the meaning of the Act.
H. THE ORGANIZATION INVOLVED
Oil Workers International Union, Local 501, affiliated with the Congress of
Industrial Organizations, is a labor organization admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. History and background
On October 21, 1943, the Union filed a petition with the Board requesting an
investigation and certification of representatives pursuant to Section 9 (c) of
the Act. Pursuant to a stipulation entered into by the respondent, the Union,
and Oil Refinery Employee Independent Association, herein called the Independ-
ent, a Board-conducted election was held on November 5, 1943. The Union filed
objections to the election. After a hearing thereon, the Board issued its Deci-
sion and Order dated June 19, 1944, in which it found that the respondent herein
had engaged in a course of conduct which prevented an expression by its
employees of their free and uncoerced wishes as to representation' The Board
set aside the election and stated that it would direct a new election "at such time
as the Regional Director advises us that circumstances permitting a free choice
among the employees have been restored." On November 4, 1944, the Board
issued a Supplemental Decision and Direction of Election! After noting that
the Regional Director had advised it that a new election could appropriately
156 N. L. R. B. 1531.
2 59 N . L. R. B. 58.
THE PURE OIL COMPANY 545
be conducted, the Board directed that the Regional Director conduct an election
among the respondent's employees in a described unit.
The election was conducted on December 1, 1944. The Union filed objections
to this election also, but withdrew them in January 1945. On January 24, 1945,
the Board certified the Independent as collective bargaining representative for a
unit of production and maintenance employees at the plant.
John R. Larimore, the dischargee in the instant proceeding, was discharged
on February 22, 1945. On February 26, 1945, the Union filed its original charge
alleging that the respondent had been guilty of unfair labor practices. The
Regional Director, on May 13, 1945, advised the parties by letter that the charge
had been investigated, that further proceedings did not seem warranted, and
that he was refusing to issue a complaint. On May `17, 1946, the then Regional
Directors notified the parties by letter that a supplementary investigation had
been conducted, that he had concluded that the issuance of a complaint was justi-
fied, and that appropriate action was being taken. A complaint subsequently was
issued as heretofore related.
B. Interference, restraint, and coercion
1. Introduction
The testimony submitted by the Board in support of its allegations of inter-
ference, restraint, and coercion dealt with the acts and conduct of certain super-
visory employees and the promulgation of certain rules. In several instances
the Board offered testimony of matters occurring prior to the first election, held
on November 5, 1943. Counsel for the Board took the position that he did not
rely on events prior to November 5, 1943, for proof of any independent violations
of the Act, but relied on them solely as background or explanatory material for
later events. Counsel for the respondent contended that testimony as to acts
and conduct prior to the second election held on December 1, 1944, should not be
considered in view of the Regional Director's determination after investigation
that circumstances permitted a free choice among the employees and his recom-
mendation of an election. Counsel for the respondent further contended that
events prior to the hearing on objections to the first election, which hearing was
held on February 15 and 16, 1944, should not be considered. On the other hand,
counsel for the Union argued that except for those issues which were specifically
litigated in the prior hearing all occurrences regardless of their date were mate-
rial and relevant, and should be evaluated in this hearing
The undersigned rejects the contentions of the respondent and holds that the
doctrine of estoppel is not applicable." Testimony as to events occurring after
November 5, 1943, has been considered herein in the making of findings Testi-
mony as to events prior to that date has not been made the basis for any of the
findings herein, but has only been used where necessary to shed light on subsequent
acts and conduct.
2. Specific acts of interference, restraint, and coercion
C. W. Cooper
C. W Cooper, at all times relevant, was assistant superintendent of the re-
finery and next in the chain of supervision after E E McPherson, superintendent.
3 In the interim, between May 13, 1945, and May 17, 1946, there was a change in Regional
Directors
4 Al L R B. V. Phillips Gas cC Oil Company, 141 F (2d) 304 (C C. A. 3).
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilson Bradford, an employee, testified that sometime after the hearing in
February 1944 on the objections to the first election he had a conversation
vtjith Cooper, that he had asked Cooper if his work was satisfactory, that
Cooper had replied that it was, but that he (Cooper) understood that Bradford
was engaging in union activities and inviting men to meetings, and that the
management would not permit union activities in the plant. Bradford testi-
fied further that Cooper told him that lie learned of his activities through "the
grapevine" On cross-examination, Bradford testified that he had talked about
the Union, both on his own time and during working hours, but that Cooper
Aid not indicate whether he was referring to working or non-working time,
or both.
Cooper testified that he had had a conversation with Bradford concerning
his soliciting for the Union. He stated, however, that he had told Bradford
that lie was soliciting on the job and had reminded him that there was a coin-
pany rule prohibiting soliciting on company time. He also testified that when
Bradford asked him the source of his information as to Bradford's union activi-
ties, he had replied that "things like that" were not infrequently brought to
his attention. Cooper testified that he had received his information from the
plant "grapevine" which he defined as plant gossip received from a variety of
sources including foremen and other employees.
The undersigned credits Bradford's testimony and finds that Cooper did not
indicate to Bradford whether he was taking exception to his activities on non-
working or working time or both. Having undertaken to warn Bradford, it
was Cooper's duty to clearly indicate that only Bradford's activities during
working time were the subject of censure and that his activities during non-
working time were not being circumscribed Since he failed to do this, and
Bradford would reasonably understand his admonition to apply to non-working
as well as working time, the undersigned concludes that Cooper's conduct was
violative of the Act. (In this connection see "The no-solicitation rule," dealt
with hereinafter).
While Cooper's own testimony indicates that he learned of Bradford's activi-
ties by way of plant gossip or "grapevine," the evidence does not support the
conclusion that the respondent engaged in surveillance.
Frank Evans
During the hearing the Board offered the testimony of two former employees
who worked at the respondent's motor transport garage and whose testimony
dealt with statements of their alleged supervisor. Counsel for the respondent
objected to the receipt of this testimony on the ground that it was outside the
scope of the complaint.
It was stipulated that the respondent's business is carried on by three sep-
arate divisions; a producing division, a refining division, and a marketing
division ; that each division is headed by a vice-president who is responsible to
the president and that these vice-presidents are not responsible to each other nor
have they any control over each other; that each division functions separately,
hires, disciplines, and controls its own employees, and purchases, manufactures,
and controls all properties used by it, all subject to the direction of the presi-
dent. It was further stipulated that at the Heath Refinery, as at other re-
fineries, there is a superintendent in charge of refinery employees who has no
duties as to employees of any other division. Counsel also stipulated that the
marketing motor transport department is a department of the marketing division
THE PURE OIL COMPANY 547
and is separate from the refining division Finally, it was stipulated that a
marketing motor transport shop was located in a building on the premises where
the refinery also is located although its employees were in the marketing and not
-the refining division.
Counsel for the respondent contended that by the terms of the complaint it
was not required to defend activities other than at the Heath Refinery and
operations there under the supervision of the refinery division. The undersigned
does not so contrue the complaint. The complaint does identify the respondent
as "The Pure Oil Company (Heath Refinery) " However, the allegations of the
complaint are not limited to the operations of the refinery division. The under-
signed overruled the objection and now reaffirms that ruling since the acts and
conduct of officials on the same premises though in a separate building where the
Heath Refiner? is located might well affect employees of the refinery as well.`
Wendel W. Yates testified that he had been employed at the motor transport
shop as a painter. He further stated that lie received his orders from Frank
Evans who also lured new employees. Yates testified that he joined the Union
in January 1946, and that sometime in February Evans said to him, "It the
Union comes in, we will close it down." s
Elmer B. Willing testified that he was employed at the shop as a mechanic
and took his orders from Evans He further testified that he attended a meeting
of the Union at the close of January 1946, or shortly thereafter, that about a
week later Evans came up to him and a conversation took place concerning a
union meeting which Willing described as follows:
I was standing, and lie came over, and he stayed a little bit, and he said,
"You attended a meeting and you blew up and walked out on it."
I said, "What meeting?"
He said, "Well, the one Larimore gave."
I said, "No " I said, "I was there, and I stayed just as the next one."
He said, "I niust have been informed wrong."
I said, "You must have been."
Then he said, "Well, I just wondered who was down there."
1 said, "That is something, Mr. Evans, that I am not going to tell. I like
the boys I work with. And I am not talking."
Willing stated that the conversation ended when he refused to tell Evans who
attended the union meeting.
The testimony of Yates and Willing, which was not denied, is credited. The
undersigned finds that Frank Evans was a supervisory employee. The under-
signed further finds that his conduct in questioning an employee concerning
union meetings and his threat of a shutdown if the Union were successful in its
campaign, were acts of interference and coercion and therefore violative of the
Act. The evidence further shows that employees were not organizing according
to the structure of the respondent's business, but as a unit which included em-
ployees of the motor transport as well as the refinery division, and that violations
of the Act at the motor transport shop therefore infringed upon the organiza-
tional rights of the refinery employees as well.
6 Since counsel for the respondent claimed surprise the undersigned offered counsel the
oppoi tunity to request defei ment of the testimony of witnesses on this point, or a post-
ponement of cross-examination, or additional time later to prepare a defense. Counsel
stated that he would pioceed, but might request additional time later in the hearing No
such request was made
"The shop was closed down March 1, but there is no contention that it was closed for
other than business reasons
766972-48-vol 75 36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. B. Ewtng
At all times here relevant, R. B. Ewing was employed by the respondent as an
assistant operating foreman. Employee Donald J. McCullough testified that in
September 1945 Ewing came up to him while he was with other employees and
said, "Pretty nice fellow, the only thing he wears a button." Ewing, while he
testified on other matters, did not advert to McCullough's testimony which is
credited. McCullough testified that Ewing spoke in a joking tone and the under-
signed finds that Ewing's remark was not in violation of the Act.
McCullough also testified, and the undersigned credits his testimony, that a few
months after the 1944 election and about February 1945 Ewing, saw him talking
to another employee who was wearing a union button and that afterwards Ewing
asked him whether they had been talking about the CIO. As appears in more
detail later there had been oral instructions issued in 1943 against Union solicita-
tion. These instructions had never been rigorously enforced and McCullough
testified, and the undersigned credits his testimony, that he understood there was
no rule against talking about the Union. However, the respondent contended that
the rule was in force and that there was nothing improper in Ewing's attempt to
enforce it Shortly before this incident the Independent had been declared the
winner of the 1944 election. There were two labor organizations in the refinery.
Ewing's singling out the CIO as the object of his check, with no seeming interest
in any activity that might be carried on for the Independent, was indicative of an
attitude of bias and discrimination against adherents of the Union.
This conclusion finds support in the uncontradicted and credited testimony of
employee Wilson Bradford. Bradford had testified at the Board hearing held in
February 1944 and was a known adherent of the Union. He testified that on
May 31, 1946, Ewing asked him what the situation was at the Toledo refinery of
the respondent. (There was labor trouble at this plant.) When Bradford an-
swered that the men probably thought they were being mistreated, Ewing replied
that all the trouble was due to the fact that the CIO was a "bunch of Communists "
The undersigned finds that Ewing's disparagement of the Union and questioning
of McCullough if the latter had engaged in conversation concerning the CIO,
constituted interference with employees' rights guaranteed in Section 7 of the Act.
The no-solicitation rule
Sometime after the 1943 election McPherson called a conference of two repre-
sentatives from each of the two competing labor organizations at the refinery, the
Independent and the Union. McPherson told them that electioneering was being
carried on, that the respondent was finding, itself powerless to stop it, and he
warned the representatives that those activities must cease. The only point of
disagreement among the witnesses is whether McPherson restricted his remarks
to activities during working hours or whether he prohibited union activity any-
time on plant premises. McPherson and the two Independent representatives,
McDonald and Nicholas, all testified that the rule and prohibition were restricted
to the working time of employees. Hickman, one of the Union representatives,
testified that McPherson did not make such a distinction, but prohibited all
electioneering on company property.
All of the witnesses were in agreement that the conference was very short.
There seems to have been the announcement by McPherson and no further dis-
cussion of the rule. The undersigned from his observation of the witnesses
credits Hickman's testimony and finds that the rule as laid down by McPherson
THE PURE OIL COMPANY 549
prohibited union'or so-called electioneering activity on plant premises without
distinction between working and non-working time. This rule was an invasion
of the right of the employees and violative of the Act.'
The rule does not appear to have been enforced rigidly, but on at least one
occasion when Cooper told Bradford of it without distinction between working
and non-working time, it was enforced . The rule, and its enforcement by Cooper
in the Spring of 1944, were both violative of the Act.
Conclusions
The undersigned finds that by the acts and conduct of Cooper, Evans and
Ewing, as afore-mentioned, by the promulgation and enforcement of its no-
solicitation rule, and by the totality of such acts and conduct, the respondent
has interefered with, restrained, and coerced its employees within the meaning of
the Act.
C. Alleged interference, restraint , and coercion
C. W. Cooper
Prior to the election on December 1, 1944, employee Homer D. Helser went
hunting with Cooper. Helser fixed the time as sometime in November 1944.
On that occasion , Helser testified , they had a discussion concerning the coming
election . Helser's testimony on this point is as follows:
As near as I can recall, on the hunting trip he wanted to know if there
was any influence which I would use to help the matter in not having a
Union. And I said, "Well, I don't know, exactly." I didn't bear out as
to how I stood with it at all, either for or against the Union ._ That is the
way it happened. And he said that he felt that it would further labor
trouble-if any labor trouble happened out at the Heath Refinery it wouldn't
be good out at the plant. And he would like to see the Company operating.
That is his exact words , as near as I can recall.
Cooper admitted that he and Helser had discussed the coming election. How-
ever, lie denied that he had told Heiser to try to avoid having a Union at the
refinery. He maintained that he had told Heiser to use his influence to avoid
labor trouble at the plant, and that he would hate to see a plant shut-down that
might evolve from labor difficulties.
The testimony herein indicates that while the employees participating in the
1944 election had a choice between the Union, the Independent, and no Union,
actually the contest was between the two labor organizations Only 3 of the
157 valid ballots were cast in favor of no union representation. Helser's testi-
mony as to what was actually said is not clear. The undersigned credits
Cooper's testimony and finds that his statements in this instance were not
violative of the Act.
Riley E. Roof, an employee, testified that in November 1944 and prior to the
second election held on December 8, 1944, he went hunting with Cooper, that
on this occasion Cooper asked him what he thought of the "political situation."
Roof, inferring that Cooper was alluding to the coming election at the plant,
' N. L R B v Peyton Packing Co ., 142 F. ( 2d) 1009 ( C C. A. 5 ), enforcing 49 N L. R. B.
828, cert den 323 U S . 730; Republic Aviation Corporation v. N. L. R. B., 324 U S. 793,
affirming 142 F ( 2d) 193 ( C C. A 2 ), enforcing 51 N L . R B. 1186 , N. L. R. B.
v Le Tourneau Company of Georgia , 324 U. S . 793, reversing 143 F. ( 2d) 67 (C. C. A. 5),
setting aside 54 N L R. B 1253
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he did not know how the men would vote Cooper then said to huu,
Roof testified, "Well, what do you think that they will gain by making a change,
or having the CIO come in?" Root replied that he could not answer that question
either.
Cooper admitted that Roof's testimony was correct and that the conversation
had occurred as stated He further testified that his purpose in questioning
Root was to find out what the employees wanted and that he was not seeking
to find out Roof's sympathies nor was he trying to influence his vote
In view of the environment in which the statements were made as well as
tenor of the statements themselves the undersigned is not persuaded that Cooper's
conduct on this occasion amounted to a violation of the Act.
Employee William L Wetzel testified that about a month before the 1944
election he was summoned to Cooper's office and that in a conversation that then
ensued Cooper told him that it the C. I. O. won the election he, Cooper, would
lose his job Cooper denied this testimony. He testified that he believed lie
had a conversation with Wetzel concerning a pending change in Wetzel's work
assignment, that during the conversation Wetzel remarked that he was a Union
man, and Cooper replied that lie should vote as lie saw fit.
Wetzel could not remember anything about the conversation other than the
remark he related nor could he recall any of the surrounding circumstances
.The undersigned credits Cooper's testimony
P. E. AcPherson
E E McPherson, at all times relevant, was superintendent of the refinery
and in charge of operations. Employee Louis M Stargell testified that some
time before the 1944 election he met McPherson and that the latter said to him,
"Lou, remember there is an election coming up," to which Stargell replied,
"Okay, Gene, I will take care of that." McPherson could not recall this incident,
but did not deny that it took place. Stargell's testimony is credited
Stargell further testified that prior to the first election, McPherson had re-
minded him of the pending election and further told him, "We don't want the
CIO in here, so you know wwliat to do" Stargell's testimony as to this incident
is credited.
Counsel for the Board did not contend that the 1943 conversation constituted
an independent violation of the Act. However, he did contend that it explained
the later remark and revealed an underlying purpose to urge Stargell to vote
against the Union. McPherson's remark in 1944 was no more than a reminder of
the coming election In the state of the record the undersigned rejects the con-
tention of the Board and finds that McPherson's conduct in this instance was
not violative,of the Act
John E. Hickman had been employed by the respondent for 19 years The
evidence indicates that Hickman had taken a prominent part in affairs in the
Union for some time. He testified that in October 1945 he had had an argument
with another employee, Rodinizer, over the latter's failure or refusal to attend a
meeting of the Union and that during that discussion Hickman called Rodinizer a
yellow dog. Approximately a week later, Hickman continued, McPherson sum-
moned him to his office and, in the presence of 8 or 10 employees who Hickman
judged were representatives of the Independent, told him that Rodniizer had
complained that Hickman had called him a god-damned yellow dog Hickman
admitted that the incident had occurred, but denied that he had used profanity.
McPherson then remarked that it was not'very nice talk and sent him back to
work.
THE PURE OIL COMPANY 551
Several weeks later, Hickman testified, McPherson spoke to him again about
the incident and claimed that he had used profane language Hickman replied
that he did not like having had to appear before a group of the men. McPherson
then asked him, Hickman stated, what he was going to do about it and when
Hickman replied that he could do nothing, McPherson said, "You were going to
quit here awhile back . . You can still quit if you want to "
McPherson testified that the Itodmizer incident had been presented by the
grievance committee of the Independent which then had a contract with the
respondent, that after making an investigation he had concluded that Hickman
had used profanity, and that when he had told hum so Hickman became angry.
It was then McPherson testified that he had told Hickman lie could quit if he
wanted to do so.
The Board contended that McPherson made his suggestion in an effort to get
rid of a known Union leader. However, it is not denied that in February 1945,
when Larimore was discharged, Hickman had told DlcPhen son that he was
quitting, but remained when McPherson suggested that he continue. Such action
is incompatible with any design to force Hickman to resign. The testimony
indicates that at the time McPherson told Hickman he could quit if lie wanted
to, both men were angry, and were saying things that they would not have
said in calmer moments. The undersigned finds that McPherson's conduct was not
in violation of the Act.
"Red" Armstrong
Hickman testified that sometime in April 1945, he had a conversation with
another employee whom he identified as "Red" Armstrong He described the
conversation as follows :
Well, he and I happened to be in the storeroom at the same time And he
referred to my button, and said: "What are you wearing that button for?"
I said, "Because I pay two dollars a month to wear it in the first place, and
in the second place, I am not afraid to wear it " And he mentioned in regard
to the marking on it, "What is those markings?" It had a few stripes on it.
I said, "I don't know, sir." He said, "You better find out what you are wear-
ing before you wear it." [Hickman was wearing a union button at this tune.]
This testimony, which was not contradicted, is credited.
The respondent while not challenging testimony of the conversation itself
urged that Armstrong did not have such status that the respondent would be
bound by his statements. It appears from McPherson's credited testimony that
Armstrong is an assistant chief clerk handling personnel and other special assign-
ments. An important part of his job is to interview applicants for positions,
obtain written applications, and investigate them. While he does not make the
-final decisions on the hiirng of employees, it was and is part of his duty and he
does make recommendations which are given weight.
The undersigned finds that Armstrong was part of the managerial hierarchy.
There is no testimony that Armstrong made any remarks about the Union other
than those attributed to him by Hickman. The undersigned finds that those re-
marks were not violative of the Act.
J. L. Sullivan
Homer Helser was employed as a guard prior to the election held in December
1944. He testified that about 2 days before the election Sullivan telephoned
him at the plant and asked him to visit Sullivan at the latter's home on his way
from work. When Helser refused the invitation on the ground that it was late
at night and he would lose too much time making the visit, Sullivan replied, ac-
A
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Heiser, "That is so . . . I just wanted you to know how I felt on
what is coming up in a couple of days now." Heiser testified that he understood
that Sullivan was referring to the election. Heiser did not visit Sullivan and
there is no evidence that Sullivan and Heiser actually did have a discussion con-
cerning the election. Sullivan testified but did not deny Helser's testimony as to
the conversation, and that testimony is credited.
Extensive testimony was adduced on the disputed question as to whether Sulli-
van had supervisory status. The undersigned finds it unnecessary to resolve the
conflict in testimony on this point, since, assuming that Sullivan had supervisory
Status, the undersigned is nevertheless convinced that there is nothing in his
telephone conversation with Helser which is violative of the Act.
The alleged discrimination in assignments
J. B. Fluharty was employed as a welder at the refinery. He testified that in
July 1945 he was a union member and joined a Union picket line for 2 days
and one night, that he was seen on that line by supervisory officials, and that
thereafter until the following February he received no overtime calls except for
one occasion, whereas other welders received more calls during the same period.
It was agreed by the witnesses for the Board and the respondent that the re-
spondent's policy as to overtime work for welders was to distribute that work
as equally as practicable.
E A. Hall was Fluharty's supervisor during the period and denied that there
had been any discrimination against him. He testified that when occasions for
overtime work occurred the work was distributed equally as far as possible. The
respondent presented a chart as to the four welders in its employ showing their
regular earnings and amounts earned from overtime and emergency calls for
the period July 1945 to February 1946 It was stipulated that the chart was
a correct record for the period covered.
The chart records the overtime and emergency call record for the four welders
as follows :
Overtime Emergencycalls Total
Fluharty----------------------------------------------------- $61 48 0 $61 48
Little----------------------------------------------------------- '71' 70 $1'7'.94 89 64
Corbin--------------------------------------------------------- 99 84 42 73 142 57
Reynolds------------------------------------------------------- 114 84 62 15 176.99
It was further stipulated that Fluharty lost 1351/2 hours during this period
because of sickness and accident. However 8 of those hours were lost before .
July 1945, and an additional 4 hours were lost in January 1946 The corrected
figure pertaining to this period is therefore 1311/2 hours. This loss of time by
Fluharty was substantially more than that lost by the other welders.
The chart shows that Fluharty did receive $61.48 in overtime payments, with
Reynolds receiving the top payment of $114 84 As for payments for emergency
calls, Fluharty received nothing as against the top payment to Reynolds of $62.15.
As to this item, the respondent points to the fact that Fluharty was off duty by
reason of sickness and accident on 2 days when Reynolds earned half of his
total compensation for emergency calls. Hall testified that while an attempt
was made to equalize the earnings of the welders differences did occur by reason
THE PURE OIL COMPANY 553
of the fact that sometimes one or more of the men could not be reached when the
respondent attempted to communicate with them.
The chart shows that Fluharty did participate in overtime work. The under-
signed credits Hall's testimony and concludes that the difference between
Fluharty's extra earnings and those of the other welders were due primarily to
his unavailability when such work arose by reason of sickness, accident, or other
causes, and further finds that there was no plan to discriminate against him
because of his union activities.
Fluharty further testified that in November 1945 he had an accident, that when
he returned to work he told Hall that his doctor had told him not to do any lifting
or strenuous work, but that Hall assigned him to work where he had to lift steel
and do some climbing He further stated that at that time two welders were
assigned to easier work at the maintenance shop where there was no lifting or
climbing to do. Hall testified that he knew Fluharty had to do light work and
that he assigned Fluharty and another welder to an extensive job on which
there was no rush, and that Fluharty was not expected to work more than he
could. He further testified that men in the shop were expected to deal with all
emergency repair work regardless of its nature.
Fluharty admitted that he had never complained to Hall or requested a change
in assignment The undersigned credits Hall's testimony and finds that there
was no discrimination against Fluharty in his work assignments.
In the Fall of 1945 there was some labor unrest at the refinery and strikes
occurred in the oil industry For a time the respondent kept some men on a
24-hour shift at the refinery Employee Homer Heiser testified that he noticed
that only non-union men were given these assignments He also testified that
he did not know the size of the crew assigned nor everyone who worked on that
shift.
McPherson testified that men were assigned to extra shift work and that Hall
and another supervisor were told by him to select the necessary number of men,
but were given no further instructions. Hall testified he selected one man in
each department for the extra work and that lie made the selection at random
without regard to the union affiliation of any of the men.
The evidence as to the union affiliation or lack of it of the men assigned to
full-time duty was vague and indefinite
The undersigned finds that the evidence does not establish any discrimination
against union members in the assignment of this overtime work.
D. The discriminatory discharge of John B Larimore
1 Larimore's employment history
John B. Larimore was first employed by the respondent in 1928 and continued
in its employ until his discharge on February 22, 1945. His first job was that of
maintenance man. During the next 17 years he received promotions and wage
increases , working successively as electrician helper, electrician second class, and
electrician first class. At the time of his discharge he was receiving the top pay
for his classification.
In the summer of 1943, Larimore went to Boston, Massachusetts, for a course
of study relating to his work. While there is disagreement among the wit-
nesses as to whether Larimore was sent to Boston at his own request of whether
the respondent suggested the program, it is not disputed that the respondent paid
Larimore's expenses.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McPherson and other supervisors characterized Larimore's work as fair up
to 1943, and it is clear that the respondent had no serious fault to find with him
prior to that time, in fact, his record of steady advancement over the 15-year
period establishes that his work was satisfactory
2. Larimore's union activities
Larimore testified that when he returned from Boston in the fall of 1943 lie
found that the Union was organizing at the refinery and he joined He further
testified that he attended meetings, spoke to others about the Union, and signed
up more members than anyone else. In 1944, Larimore continued, he became
president of the local union and held that post for most of the year. He also
testified as a Boaid witness at the hearing held in Febru.ny 1944 on objections
to the 1943 election. At some union meetings in 1944, Larinore stated, he advo-
cated a strike in support of strikes at other plants owned by the respondent.
Later in his testimony he admitted that the strikes at other plants had occurred
in 1945, but maintained that the question of a strike had been discussed by the
inen since 1943 In any case, there is no proof that the inter-union discussion of a
strike was ever brought to the attention of management.
The undersigned credits Lariniore's testimony as to the nature and extent of
his union activities and finds that he had taken an active intei est in the Union
since the Fall of 1943 and had been its official leader at the plant in 1944 While
there is testimony that other einployees played important parts in the activities
of the Union, the testimony indicates that Larimore had a dominant role and
maintained liaison with the national leaders of the Union.
3 Larimore's wo.k record in recent years
Several of Larimoie's supeivisois testified that for some time prior to his
discharge they were dissatisfied with his work performance Since Larimore did
electrical work lie was assigned to the maintenance division as distinguished
from the operating division. His chief was E A Hall, general maintenance fore-
man Hall testified that in the last 2 years of his employment, Larimore was
inclined to loaf and talk too much
Carroll E. White, assistant operating foreman, was Larimore's supervisor on
those occasions when he worked on night shift. White testified that he received
complaints from Paul Kerr, the only other electrician regularly doing the same
work as Larimore, that Larimore was not doing enough work. White also testified
that he received a complaint fiom in operating employee, Robertson, that lie
needed more service from the instrument man on duty. These complaints, White
stated, were received in September or October 1944. He then checked Larimore's
work closely and concluded that he was not giving full time to his work, repri-
manded him, and several weeks later reported the results of his check to Assistant
Plant Superintendent Cooper. He denied that lie made his check because of any
anti-union bias, but stated that he believed Larimore to be a member of the Union.
Robertson denied making any complaint to White about the work of the instrument
men His testimony is credited Kerr also denied making any complaint to
White about Larimore's work but his testimony was evasive and marked by lapses
of memory at important points. No weight is given to his testimony. However,
it should be noted that Kerr, at the period in question, had no clear way of know-
ing which of the work orders he received were left over by Larimore for Kerr
and which were requests received after Larimore's shift, and therefore it is
unlikely that lie would have made a specific complaint against Larimore.
THE PURE OIL COMPANY 555
On a date which Laiiiuore fixed as July 20, 1944, Refinery Superintendent
McPherson summoned Larimore to his office and, in the presence of Cooper, told
him that he had been reported loafing and that that situation could not continue.
Larimore testified that the incident took place, but further testified that imme-
diately prior to the interview Hall had told him that his work was satisfactory,
that when he relayed this information to McPherson, Hall was summoned; that
when Hall arrived Cooper suggested to Hall that there was a difference between
work and workmanship and that Hall assented. His testimony is credited
Larimore admitted that it was his practice to talk to other employees, both on
and off duty. However, he denied that he engaged in this activity to the detriment
of his own work or that of other employees. He also testified that there had
been no checking of his activities before he joined the Union, but that after he
Joined a close watch was kept over him He testified that on one occasion in
August 1944 he was told that Assistant Operating Foreman Bryant Ewing was
looking for hun, that when he spoke with Ewing the latter told him that he had
not wished to use the public address system to call him, but wished to find him
himself, perhaps asleep.' He also testified to other instances when employees
Stiff and Piper checked with him to make sure he had woik orders.' Other em-
ployees testified that while they also talked on occasion while working they were
not similarly checked.
The undersigned finds that Larimore did some talking during working hours
and consequently did waste time. However, although it is not possible to make
any exact comparisons, other employees were also engaging in similar conduct.
Undoubtedly as the election came near such talking increased. The undersigned
is convinced that Larimore was subject to a stricter scrutiny than other employees
and does not credit the denials that such action was not attributable to I:arimore's
activity and position in the Union Ewing and White both testified that they
knew of his union membership and the undersigned further finds that they knew
or had reason to know his position of leadership therein.
This awareness of Larimore's special position and the special treatment
accorded him carried up the line to top management On October 16, 1944, Gen-
ei al Maintenance Foreman Hall sent a letter to Keri, Larimore and Mason. the
only tbiee employees doing electiical work, stating that a copy of an enclosed
memorandum concerning work conduct, schedules, and responsibilities had been
posted in the Instrument Shop and that they were to acquaint themselves with it
and sign and return a receipt that they had read and understood the instructions
The memorandum, which was admitted in evidence, purports to be issued to clarify
prior instructions. It sets forth the shifts to be worked and detailed regulations
governing working time. Larimore testified that he, Kerr, and Mason refused to
sign the requested receipt because they were not given an explanation as to
why it was issued.
Hall testified that the purpose of the inemoi anduni was to improve efficiency
and have a better mutual understanding as to duties and responsibilities of the
8 Ewing testified that lie knew Larimore belonged to the Union, but did not know how
active Laiimome was The Board, in its decision on the objections to the first election,
i 'lied, in part, on anti-union statements made by Ewing Theme also are findings in this
report on activities of Ewing in violation of the Act
° Stiff and Piper were in the category of A-400 shift breaker Their principal duty was
to substitute for operating employees who were unavailable They did vote in the
December 1944 election However, as part of their duties they assisted opeiatmg foremen
by transmitting orders to other employees, including maintenance men such as Larimore
The undersigned finds that in the performance of this duty they had minor supervisory
roles and that Larimore reasonably believed them to be supervisors.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
electricians." He also stated that receipts were required in order to establish
that the employees had read and understood the memorandum. McPherson tes-
tified that the letter was aimed at correcting misunderstandings as to work and
to prevent loafing. Cooper testified to the same effect.
Larimore testified that when he attempted to discuss the letter and memoran-
dum with Hall the latter refused to do so. Hall's version was that he told Lari-
more that the meaning was plain, but did not discuss the matter further with
Larimore because it might lead to "labor complications" and that he was afraid
that Larimore "would try to bring into the conversation something in respect to
the Union." He further stated that he suspected that Larnnore had something
to do with the Union, but denied that he knew of Larimore's leadership in the
Union. This denial is not credited
After the conversation with Larimore, Hall communicated with his superiors
and the three employees were called before McPherson and Cooper and the latter
read then the memorandum No discussion was had as to its underlying purpose
and the employees still refused to sign receipts.
On November 9, 1944, McPherson sent a letter to the Regional Director in which
he stated:
Due to unusual circumstances with which you are familiar surrounding
the labor situation in our plant, and due to our desire to be strictly honest
and fair in all matters, I feel that it is advisable to bring your attention to
a matter dealing with the Electricians in our plant. A copy of a letter which
it has been necessary to address to all three Electricians is being inclosed
NNith this letter so that you may be familiar with the matter in case further
action becomes necessary on our part.
McPherson also testified as to his purpose in sending the letter to the Regional
Director and in the issuance of the memorandum. He testified that he was not
certain that Larimore was the leader of the Union group, but that it was well
known that he was quite active, that he had been having trouble with Larimore;
and wanted the Board to know of the situation at the plant and did not want
any misunderstanding of his effort to be fair It is apparent from McPherson's
testimony that Hall's memorandum was aimed primarily at Larimore and that
the letter to the Regional Director was prompted by that fact. While the evi-
dence indicated that there had been occasions in the past when letters concern-
ing working conditions had been sent to the maintenance division or the oper-
ating division or both, this is the only instance where such a step was taken as
to a small unit of employees. At the time the Board was considering the advisa-
bility of ordering an election and it did so order on November 4, 1944. The
various steps taken by the respondent's supervisors again indicated that Lari-
more was being singled out from other employees and the evidence does establish
that this was done primarily because of his leadership in the Union. It is unnec-
essary to decide whether at this particular time this special treatment redounded
to Larimore's advantage, as respondent claimed, for the respondent did not rely
on Lariniore's conduct during this period as a giound for the discharge. Never-
theless, the undersigned finds that at least from October 1944 all of the respond-
ent's supervisory officials who had occasion to work with Larimore knew of his
activity in the Union and kept that in mind in dealing with him.
10 Larimore , Keir, and Mason were electricians and all references to electricians herein
include these three men However, only Larimore and Kerr regulaily worked on various
measuring instruments and references to instrument men refer only to them
THE PURE OIL COMPANY 557
4. The rotating shift
In August 1944 a change was made in the work schedule of the three elec-
tricians. Mason, who was doing general electrical work, was put in the "X"
classification. This change will be discussed later. Kerr and Larimore, who
were doing instrument work, were placed on a rotating shift whereby they
alternated each week on a day and night shift. Prior to this time they had-been
working during the day only. McPherson testified that a rotating shift was
established for the instrument men in order to spread work around the clock
and to have an instrument man on duty all the time so that there would be no
necessity for emergency calls and overtime work. He also maintained that a
rotating shift had been established in another refinery.
Prior to August 1944 no regular rotating shift had been established for instru-
ment men In fact, while rotating shifts had been established for maintenance
men in the past on special occasions, there is little evidence of any plan for
establishing regular rotating shifts. McPherson testified that pipefitters and
welders had gone on rotating shifts for short periods, but he could not point to
the establishment of any rotating shift for other employees for a long period 11
Larimore testified that day work was preferable to night work and that it was
more difficult to perform his duties at night under artificial light. The Board
contends that the rotating shift for instrument men was aimed especially at
Larimore and was designed to keep him away from the daytime workers It
points to the admitted fact that within a few weeks after Larimore's discharge
the rotating shift was terminated.
The respondent denied that it was actuated by other than business reasons in
establishing the rotating shift and in terminating it. McPherson testified that
the rotating shift was discontinued in March 1945 when an operating unit was
shut down and most of the work at the plant was being done during the day. It
was stipulated that the same unit was shut down for a week in November 1944.
Yet no change in the rotating shift was made then. Hall supplied another rea-
son. He maintained that the shift was discontinued as an experiment that had
not worked. Cooper supplied still another reason. He testified that at the time
of the discontinuance of the rotating shift there had been discussion of salary
differentials for night work at other plants and that orders have been received
to discontinue night work, if possible
The establishment of the rotating shift during a period of intense union ac-
tivity at the plant, its discontinuance shortly after Larimore's leaving, and the
variety of reasons assigned for its discontinuance, lead the undersigned to con-
clude that the rotating shift was set up, at least partly, to cut Larimore off from
the day shift of employees for at least half his working time.
At the time that the rotating shift was established the third electrician,
Mason, was put in the "X" classification. This category was established when
the respondent increased its work-week from 40 to 44 hours and later, 48
hours. The 48-hour schedule was put in effect on December 5, 1943. Men
who were surplus in their regular category because of the increase in hours
"Hall testified that while rotating shifts had been established for maintenance men on
special occasions, no regular rotating shift had ever been established for machinists, pipe-
fitters, or welders. He also testified that a night shift had been tried with the labor gang
in 1943 or 1944 and had been dropped when it proved unsatisfactory. His testimony is in
substantial agreement with a memorandum submitted by the respondent purporting to
summarize outstanding examples of rotating shifts.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were placed in the "X" category and in a general pool where they were ex-
pected to do whatever work was available. The respondent maintained that
Mason, the junior man among the electricians, was placed in that group be-
cause lie was surplus The testimony indicates that Mason actually had no
change in duties and continued to work on the day shift after his change in
classification. It was contended that Larimore, as senior man among the
electricians, should have been offered the transfer to "X" category The
undersigned finds no merit in this contention Transfer to the "X" category
technically was indicative of lessened job security and the undersigned con-
cludes that the assignment of a junior man to this category was proper under
the circumstances.
5 The time-card incident
Larimore was discharged on February 22, 1945. The reasons assigned by
the respondent for the discharge were falsification of a time card and insub-
ordination.
The circumstances surrounding the time card incident are not in dispute.
Larimore was scheduled to work the evening shift from 8: 00 p. in to 4: 00
a. in. on the night of February 19. Larimore was out of town and telephoned
his wife and told her to inform the respondent that he would be late
getting to work. The gatehouse log of the respondent contains the following
entry :
Mrs. Larimore called at 8: 20 p ni and said that Barney was out of town
and had missed train connections. Reported to C. White.
Barney reported to work at 9: 10 p. in.
Carroll White was the assistant operating foreman in charge of the evening
shift until midnight. He testified that Mrs Larimore had telephoned him
and told him Larimore would be absent, but his testimony is contradicted by
the log entry.
Larimore did appear foi work at about the time indicated in the log and
did have a conversation with White about his being late. White niade an
entry in the operating office log book, concerning Larimore's lateness. Lari-
,more turned in his time card at the end of his shift, entering 8 hours as the
time worked without any deduction for the time he was late.
Hall testified that the following morning, February 20, he read the log entries
and noticed that Lariniore's time record did not agree with it. Thereupon,
he sent the time card back to White for a report. White testified that Hall
gave him the time card and asked him if he would approve it. Later that
day, White testified, he spoke with Cooper and told him that he would not
approve the time card. Cooper then told White to mail the time card to him
and White did so. White never discussed the time card entry with Larimore
His explanation for this was that Larimore's case was disposed of before
Larimore reported for work
Larimore gave several reasons for marking his card as he did One reason
he gave was that he had made an agreement with Hall whereby if he had to
work overtime for a short while he would not take credit for it, but would take
compensatory time off. Larimore claimed the agreement was in existence for 3
or 4 years and gave certain instances where it operated He testified that in
November 1943 he took an afternoon off to attend the funeral of Kerr's mother,
told his foreman of it the next day, marked his time card for the full 8 hours, and
received no complaint about it. In that same month, he further testified, 'he quit
THE PURE OIL COMPANY 559
work an hour earlier and claimed full time There is no testimony, however,
that this latter incident was ever brought to the attention of a supervisor.
Hall denied that he had made any arrangement with Larimore for compensa-
tory time off. He testified that he believed he excused Larimore for the Kerr
funeral but denied knowledge of any other occasion when Larimore absented
himself without prior arrangement with him pursuant to any prior agreement
He also testified that Larimore was paid for overtime work.
Larimore's testimony as to the purported agreement was vague and, in some
respects, contradictory He could not fix the date of the agreement Nor was he
certain as to its exact terms. He could not clearly fix the point at which his
overtime work became compensable, and when he would not enter it He also
testified that if overtime were authorized or directed lie would enter it regard-
less of the time involved. He would also do the same, lie stated, when he
worked with other men He kept no record to indicate how much uncompensated
overtime he had worked and any time off taken because of it.
Larimore testified that in his 17 years of employment with the respondent he
had been late twice, and had on about three or four occasions taken time off
from work without prior discussion with a foreman and an equal number with
prior discussion and permission. The undersigned concludes from the vague and
unsubstantiated testimony as to the purported agreement and the lack of definite
evidence that it was carried out with the respondent's full knowledge, that the
evidence does not establish that an agreement existed for a balancing off of
short periods of overtime against time off. The undersigned has also considered,
in this connection, Larimore's testimony that in October 1944 he took an hour
off with permission of a foreman and that a deduction was made from his pay
check He (lid not then or at any time seek to set off uncompensated overtime
for the time taken off.
The Board also presented the testimony of several employees who testified that
it was customary at the refinery for employees who were somenhat late to mark
their time cards for the full 8 hours or, at least, that they marked their own time
cards on that basis without any reprimand. However, only Lai more and em-
ployee Homer Helser testified that this custom extended to lateness of as much as
an hour. Neither furnished any specific example other than an instance when
Helser's car froze and he was one-half hour late and marked his card for the full
time after receiving his foreman's permission. There also was testimony that
during a particularly bad snowstorm employees were not held accountable for
lateness McPherson and Cooper testified that no such custom existed and that
instructions had been issued that only time actually worked could be entered
on time cards, but that foremen could file recommendations that there be
payment for non-working time, if they felt that conditions warranted such ac-
tion. The undersigned finds that the evidence, while it is indicative that late-
nesses of a few minutes were not accounted for generally, falls short of estab-
lishing that latenesses of an hour or more were not taken account of on the time
records.
It also appears from the evidence that on occasions some questions would arise
as to time card entries and were settled by discussion between the employees and
the supervisor. An instance of this concerned Carroll White, the assistant foie-
man involved in the time card incident with Larimore, and employee Kenyon
Hunter On June 13, 194. Hunter was 20 minutes late and entered the full 8
hours White checked his card and after discussing it with Hunter, the time was
changed. Hunter received no penalty or reprimand. While this incident occurred
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Larimore's discharge it is relevant in consideration of the issue herein.
White testified that the only reason he settled the question of Hunter's time card
entry directly with that employee and did not do so with Larimore was that
Hunter was on the spot at the time he, White, checked his time card whereas
Larimore was not available when he checked his time card.
6. The flow meter incident
The second alleged ground for Larimore's discharge was insubordination. This
charge related to the so-called flow meter incident. On February 20, 1946, White
who was in charge of the evening shift received a work order. While this order
was not available at the hearing all parties agree that it read "Install top tray
reflux meter for test run at D-3 tower." 32
White testified that after receiving the work order in question he passed by
the proposed installation work prior to Larimore's coming on duty and noticed
that the pipes necessary for the installation of the meter were already in place.
When Larimore arrived, White continued, he handed Larimore the flow meter
woik order together with several others and called his attention to that par-
ticular work order, stating it was to have preference and had to be installed before
i : 30 the next morning. Larimore read the work order, White said, and stated
that the order called for the work of a pipefitter and not an instrument man 13
White replied that there was no pipe work involved, that the meter had to be
installed by the next morning, and that he would furnish Larimore with help in
transporting the meter. The conversation then ended, White testified. He also
testified that Larimore did not refuse to do the work.
Larimore's version differed sharply from White's. He testified that White did
not hand the work order to him, but read it and asked him whether it was his
work or that of a pipefitter, that Larimore replied that it was pipefitters' work,
and that White said he would look over the job and let him know. He never saw
White after that.
White testified that he did not see Larimore or attempt to contact him for the
rest of his shift. Shortly before he went off duty, White testified, he passed by
the place where the installation was to be made, saw that the meter had not yet
32 The respondent in the course of its operations used measuring meters to measure the
flow of liquids or gasses thiough pipes Some of the meters were installed at specific points
permanently , others were moved from point to point as tests were made The installation
of a meter required that it be disconnected from its prior location , the plugging or removal
of the pipes leading from the main pipe line to the meter , the tiansportation of the meter
to the new location, the installation of pipes to the main line pipe, and the connection of
the pipes to the meter
13 Extensive testimony was introduced by all parties as to the duties of instrument men
with particular regard to the moving of flow meters from one point to another Larimore
and Kerr , the two instrument men, testified that it was not part of their duties to move
meters from place to place, but that they calibrated , tested , and hooked up meters once
pipefitters had made preparations for the installation Mason, the other electrician, cor-
roborated their testimony as did pipefitter William Fessler Hall and Cooper testified that
instrument men u ere required to and did move meters from place to place The under-
signed credits the Board's witnesses and finds that pipefitters regularly moved meters from
one installation to another Moreover , all witnesses agreed that there was nothing wrong
in an employee questioning whether a particular job should be performed by him or another
employee, and further , that while there were no job specifications at the plant there were
customary procedures at the refinery whereby work was assigned to particular groups of
employees . No issue was made as to Larimore 's conduct in raising a question about the
work order.
THE PURE OIL COMPANY 561
been installed, and again made some measurements and satisfied himself that
no pipe work was necessary.
At midnight Ewing came on duty replacing White. Ewing testified that when
he went on duty White told him about the work order, that Larimore had said
it required a pipefitter but that he, White, had measured the place of installa-
tion and was satisfied that that was not so At Ewing's suggestion they both
went to the place -and measured it again. Ewing testified that he also in-
spected the meter. During the shift, Ewing testified, he visited the instrument
shop once and saw the work order. At no time did he communicate with Lari-
more. At about 6: 00 he noticed that the work had not been done and told Hall
about it when the latter came on duty.
The actions of White and Ewing in the circumstances were very peculiar.
Both testified that the work order had priority and that that meant it should
be carried out first, both testified that Larimore had not refused to do the work,
but had raised some question about it, and neither went near Larimore for 8
hours to ascertain why he had not started a job which should have been begun
soon after he came on shift. White testified that he did not go near Larimore
because he had given him his instructions and Larimore had plenty of time to
start and complete the work even after White went off duty at midnight. Yet
White had the work order sufficiently in mind to recheck the job location before
he went off duty. Ewing had checked the job with White as he went on duty
and knew of its priority and Larimore's raising of some question about it. He
gave several explanations for his failure to check with Larimore, that he knew
Larimore had the order, that he had other work to do, that he expected Lari-
more to carry out the order, that if Larimore had not done the work for White
he would not do it for him, and that Hall would be on duty in the morning
and he could turn the order over to him.
The undersigned was not impressed by the testimony of White and Ewing.
Their actions were characterized by a species of dealing at arms-length with
Larimore which is not characteristic of employer-employee relations. The under-
signed credits Larimore's testimony and finds that at the conclusion of his talk
with White, the latter had not given him unequivocal instructions to carry out
the work order. It is significant that after this talk White rechecked the job
installation twice and Ewing once and neither took Larimore to that point and
showed him what they had found there Both Ewing and White knew of Lari-
more's union activities. Ewing, in particular, had show evidence of anti-union
bias in the 1943 election as detailed in the Board's decision thereon. As re-
lated in this report, he had evidenced such bias later. The undersigned concludes
that both White and Ewing deliberately refrained from correcting Larimore's
misunderstanding concerning the work order and were motivated therein by
their knowledge of Larimore's union activities and position in the Union.
7. Extent of investigation by the respondent
Hall came on duty on the morning of February 21, learned of the work order
situation, and installed the meter himself. He testified that he talked with
White and Cooper and then decided to recommend Larimore's discharge.
Cooper testified that White, on February 20, had told him of the time card
incident and Larimore's failure to deduct.for his lateness, *and that he, Cooper,
had asked White to mail the time card to him. He received the card on Feb-
ruary 21. Cooper further testified that on the morning of February 21, he
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
learned that Larimore had refused to carry out the work order to move and
install a flow meter . He testified he learned this from White and from a log
book entry .' Cooper stated that , he then checked and found that Hall had in-
stalled the meter. He also testified that lie received the report that Larimore
had refused to do the work and he believed the report after checking it.16
He also said that he was advised by Hall and White that no pipe work was neces-
sary for the installation . Cooper attempted to talk with McPherson that day,
but the latter did not have time for a full discussion and suggested they talk
the next day and that Larimore be assigned to the day shift then so that he
would be available . This was done.
On February 22 McPherson and Cooper conferred again. McPherson testified
that Cooper reported to him that Lai imore had falsified his time card by putting
in more hours than he had worked and also, that lie had refused to do assigned
work McPherson asked Cooper for his recommendation and the latter recom-
mended discharge . McPherson agreed and ordered Cooper to discharge Lai more
At no time prior to the decision on the discharge was Larimore asked about
either the time card or work order incidents . Neither Ewing , White, Hall,
Cooper , nor McPheison afforded Liumiore an opportunity to explain or deny the
charges lodged against him , before reaching a decision
8. The discharge
The discharge itself took very little time. Cooper testified that after his
discussion with McPherson, lie told Hall to bring Larimore to his office. His
testimony as to what took place in his office is as follows :
The WITNESS I asked Mr. Hall to have Mr. Lariinore come to the office
or come to the office with Mr. Lariinore. Mr. Hall did. And they seated
themselves in my office I showed the time card in question to JIr Lary
more. I said, "Is this your time card?"
Mr. SWANDER. I can't hear you.
The WITNESS. I said, "Is this your time card?"
To which he replied, "Yes, it is."
I said, "Barney, on the time card you have indicated that you worked
from eight o'clock until four o'clock, that you worked eight hours?"
And he said, "Yes."
Then I said, "The record shows that you only worked six or an hour and
10 minutes less than the eight hours which you have indicated on the time
card."
And he became very contused and said, "Well, I must have made a mis-
take. It should have been seven hours," or something like that.
I then said, "Well, Barney, you made a serious mistake." I said, "I have
also had it ieported to me that you refused to do a job on the night shift the
other evening "
And he immediately said, "Well, it was pipe fitters' work."
I said, "Barney, your conduct has been-is no longer tolerable. I am going
to have to tender you your discharge," or words to that effect.
Trial Examiner FFILFR. What else was said, if anything?
14 No log book entry to this effect was produced and it appeased that no such entry had
been made.
11 White denied that lie had told Cooper or anyone else that Lasiniore had refused to do
the work.
THE PURE OIL COMPANY 563
The WITNESS. Well, Larimore got mad at that point and said, "You have
been trying to get me," And I can't say that anything else was said. He
left the office in a huff at that time.
Cooper admitted, with reference to the time card, that Larimore may have told
him that Larimore's wife had telephoned the company that Larimore was going to
be tardy.
Larimore testified that Cooper just said to him, "Barney, we are very sorry to
do this, but you are charged with insubordination and falsification. Insubordina-
tion, refusing to do a job ; falsification of your time card on the 19th. We are
going to fire you." He denied that he was asked for his version of the incidents
relied on for his discharge. In any event, it is clear that there was no detailed
discussion of those incidents, especially that of the work order. Larimore was
not asked to relate what happened on that occasion.
Conclusions
The situation that existed at the time of Larimore's discharge was that he had
failed to note his lateness of an hour and 10 minutes on his time card of February
19 and that he had, through a misunderstanding fostered by his foremen White
and Ewing, failed to carry out a work order. There was evidence that questions
of time card entries had arisen before, as they normally would. White himself
gave an illustration where he had adjusted an employee's time card to show
lateness which the employee had not recorded. The label of "falsification" had
not been placed on that employee's conduct. White, Cooper, and McPherson might
perhaps have taken into account Larimore's unchallenged testimony that this was
his second lateness in 17 years. As for the work order incident, an investigation
of the facts would have shown that Larimore had not refused to do the assigned
work and that the conduct of his supervisors was calculated to and did mislead
him. Again, it might be supposed that McPherson and Cooper would have won-
dered why an employee with 17 years of service might suddenly undertake to
disobey orders.
The respondent urges that in any case the actual truth of the charge of refusal
to perform the work order is not determinative here, that the central issue is the
motives of McPherson and Cooper in making the decision to discharge Larimore.
The undersigned is convinced, however, that the truth or falsity of the alleged
causes for the discharge as well as the motive of the supervisors who reported the
incidents leading to the discharge are all factors which must be considered in
evaluating and determining the motives prompting the discharge.
Arbitrary action, a failure to investigate both sides of a case, or at least afford
an employee a full opportunity to defend himself, and the disparity in the
punishment for a misdeed by an employee in comparison to that meted out to
other employees for a similar offense, are all factors which tend to indicate that
a determination to discharge an employee was based on considerations other than
merit.16 This is especially true when an employee has given years of satisfactory
service. Larimore's record is one of steady advancement in pay and responsi-
'°N L. It B. v. Yale & Towne Mfg. Co, 114 F. (2d) 376, 378 (C C A. 2) ; Shell Oil Co,
Inc V N L. R B., 128 F (2d) 206, 207 (C. C A. 5) ; Matter of Illinois Tool Works, 61
N. L R B 1129, 1132, Matter of May Department Stores Company, d/b/a Famous-Barr
Company, 49 N L R. B. 976, 982. The undersigned does not condone Larimore's failure
to make an accurate entry on his time card, but in the determination of the respondent's
motives herein a determining factor is the way this offense was treated when committed
by another as compared with Larimore' s case.
766972- 48-voI 75-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility while in the respondent's employ. The respondent became dissatisfied with
his work only after he had taken an active interest in the Union.
The evidence herein impels the conclusion that both White and Ewing by a
studied failure to take action on their own level of authority allowed a situation
to develop which might furnish an excuse or pretext for a discharge, if their
supervisors sought to take advantage of the situation. The failure of top
management to investigate the work order incident and its elevation of the time
card incident to that of a major violation when it had not been so treated in other
cases are indicative of an effort by the respondent to rid itself of Larimore rather
than do him justice in the circumstances. This treatment finds its explanation
in the union activities of Iarimore. He had taken an active interest in the
Union from the fall of 1943. He was its leader in 1944. While the Union had
suffered a defeat in-the December 1944 election, the official records of the Board
show that the vote was close. It was obvious that the Union would continue
its campaign among the refinery workers. All of the supervisors involved in
Larimore's case knew of his position and activities. McPherson, Cooper, and
Ewing had at some time demonstrated anti-union bias and the undersigned
concludes that that feeling played a part in the determination to discharge Lari-
more. The undersigned finds that the respondent discharged J. B. Larimore
because of his membership in the Union thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and such of them as have been found to be unfair labor
practices tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the respondent has independently violated Section 8 (1}
and (3) of the Act, it will be recommended that the respondent, pursuant to the
mandate of Section 10 (c), cease and desist therefrom. The respondent by its
supervisory personnel interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed under the Act by questioning employees as
to their attitude towards the Union ; threatening employees with discharge if the
Union succeeded in its campaign ; questioning employees as to the conduct,
occurrences and attendance at Union meetings ; disparagement of the Union ;
and by the promulgation and enforcement of a no-solicitation rule which pro-
hibited discussion of union affairs on plant premises during the non-working time
of employees. The respondent also discriminatorily discharged John B. Lari-
more and refused to reinstate him because of his union activities. Such dis-
crimination "goes to the very heart of the Act." 17 As previously mentioned, the
respondent has heretofore been found by the Board to have interfered in the
election held among its employees in 1943 and to have prevented a free expression
of their opinion. Since that time as afore-mentioned, the respondent has con-
11 N. L. R. B. v. Entwistle Mfg Co., 120 F. (2d) 532, 536 (C. C. A. 4). See also N. L. R B.
v Automotive Maintenance Machinery Co., 116 F. (2d) 350, 353 (C C A. 7), where the
Court observed : "No more effective form of intimidation nor one more violative of the-
N. L. R. Act can be conceived than discharge of an employee because he had joined a
11union . . .
THE PURE OIL COMPANY 565
tinned by various acts and statements to interfere with the rights of its employees.
The totality of the respondent's conduct is indicative of "persistent efforts by
varying methods to interfere with the right of self-organization" in circum-
stances which contain "the threat of continuing and varying efforts to attain
the same end in the future." w Because of the respondent's unlawful conduct-and
its underlying purpose, the undersigned is convinced that the unfair labor prac-
tices are persuasively related to the other unfair labor practices proscribed and
that danger of their commission in the future is to be anticipated from the
respondent's conduct in the past. The preventive purposes of the Act will be
thwarted unless the recommended order is coextensive with the threat. In order,
therefore, to make effective the interdependent guarantees of Section 7, to prevent
a -recurrence of unfair labor practices, and thereby minimize industrial strife
which burdens and obstructs commerce, and thus effectuate the policies of the
Act, it will be recommended that the respondent be ordered to cease and desist
from in any manner infringing upon the rights guaranteed in Section 7 of the
Act.
It has been found that the respondent has promulgated and enforced a no-
solicitation rule which is in violation of the Act. It will be recommended that
said rule be rescinded insofar as it does conflict with the Act.
It has been found that the respondent has discriminated in regard to the hire
and tenure of employment of John B. Larimore. It will therefore be recom-
mended that the respondent offer him immediate and full reinstatement to his
former or substantially equivalent position 19 without prejudice to his seniority
and other rights and privileges. It will be further recommended that the re-
spondent make him whole for any loss in pay that he may have suffered by
reason of the respondent's discrimination against him by payment to him of a
sum of money equal to the amount he would have earned as wages from the date
of the discrimination against him to the date of the respondent's offer of rein-
statement, less his net earnings 20 during said period, except that it will be
recommended that the respondent shall not be required to pay back pay for the
period when the Regional Director declined to take action on the charge filed
herein."
Upon the basis of the foregoing findings of fact and the entire record in the
case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Oil Workers International Union, Local 501, affiliated with the Congress of
Industrial Organizations, is a labor organization within the meaning of Section 2
(5) of the Act.
18 N. L. R. B. v. Express Publishing Company, 312 U. S. 426, 438. N. L. R. B. v.
Bradley Lumber Company of Arkansas, 128 F. (2d) 768, 771 (C. C A. 8).
19 In accordance with the Board's consistent interpretation of the term, the expression
"former or substantially equivalent position" is intended to mean "former position wherever
possible, but if such position is no longer in existence, then to a substantially equivalent
position." See Matter of The Chase National Bank of the City of New York, San Juan,
Puero Rico, Branch, 65 N. L. R. B. 827.
20 By "net earnings" is meant earnings less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere See Matter
of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon
Federal, State, county, municipal , or other work-relief projects shall be considered as
earnings. See Republic Steel Corporation v. A , L. R. B., 311 U. S. 7.
21 Matter of American Steel Foundries, 68 N. L. R. B. 514.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. By discriminating in regard to the hire and tenure of employment of John
B. Larimore, thereby discouraging, membership in the Union, respondent has
engaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8 (3) of the Act.
3. By interfering with, restraining and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (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.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, The Pure Oil Company (Heath
Refinery), Newark, Ohio, its officers, agents, successors and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union, Local 501,
affiliated with the Congress of Industrial Organizations, or any other labor organi-
zation of its employees by laying off, discharging or refusing to reinstate any of
its employees and from refusing to employ any member of that Union or in any
other manner discriminating in regard to their hire or tenure of employment or
any term or condition of employment ;
(b) In any other manner interfering with, restraining or coercing its employees
in the exercise of their right to self-organization, to form labor organizations, to
join or assist Oil Workers International Union, Local 501, 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to John B. Larimore, immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other
rights and privileges ;
(b) Make whole John B. Larimore for any loss of pay he may have suffered
by reason of respondent's discrimination against him by payment to him of a
sum of money equal to the amount he would normally have earned as wages
from the date of the discrimination to the date of the respondent's offer of rein-
statement, less his net earnings 22 during said period, except that back pay shall
not be paid for the period May 13, 1945, to May 13, 1946, the said period being
the period during which the Regional Director had refused to take action on
the charge filed ; 23
(c) Rescind immediately its no-solicitation rule insofar as it prohibits union
solicitation on the respondent's premises during the non-working time of its
employees ;
(d) Post immediately at its refinery at Newark, Ohio, copies of the notice at-
tached to the Intermediate Report herein marked "Appendix A." 21 Copies of said
22 See footnote 20, supra.
23 See footnote 21, supra.
24 It has been found that certain unfair labor practices occurred at the respondent's
motor transport garage at Newark, • Ohio. Since there is testimony that said garage was
closed and its functions transferred to another point, the undersigned will not recommend
that there be any posting at that garage.
THE PURE OIL COMPANY 567:
notice, to be furnished by the Regional Director for the Eighth Region, • after
being duly signed by the respondent's representative, shall be posted by the re-
spondent immediately upon receipt thereof, and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that said notices are not altered, defaced or covered
by any other material;
(e) Notify the Regional Director for the Eighth Region in writing within ten
(10) days from the receipt of the Intermediate Report what steps the respondent
has taken to comply herewith.
.
It is further recommended that unless the respondent notifies said Regional
Director in writing within ten (10) days from the receipt of this Intermediate
Report that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 203.39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203 38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington
25, D. C., an original and four copies of a statement in writing setting forth such
exceptions to the Intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon, to-
gether with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original and
four copies of a brief in support of the Intermediate Report. Immediately upon
the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as re-
quired by Section 203.65. As further provided in said Section 203 39, should any
party desire permission to argue orally before the Board, request therefor must
be made in writing to the Board within ten (10) days from the date of service
of the order transferring the case to the Board.
SIDNEY L FEILER,
Trial Examiner.
Dated November 25, 1946.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist OIL WORKERS INTERNATIONAL UNION, LOCAL
501, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage. in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection
WE WILL ob'FER to the employees named below immediate and full rein-
statement to their former or substantially equivalent positions without prej-
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
udice to any seniority or other rights and privileges previously enjoyed, and
make them whole for any loss of pay suffered as a result of the discrimination.
John B. Larimore
WE HEREBY RESCIND the no-solicitation rule insofar as it prohibits union
solicitation on our premises during the non-working time of employees.
All of our employees are free to become or remain members of the above-named
union or any other labor organization. We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
THE PURE OIL COMPANY (HEATH REFINERY),
By ---------------------- --------------------
(Representative) (Title)
Dated---------------------------
This notice must remain posted for 60 days from the date hereof, and must not
be altered, defaced, or covered by any other material.