Humble Oil & Refining Co. v. National Labor R. Board

• Decision Date: 24 June 1940
• Docket Number: No. 9323.,9323.
• Citation: 113 F.2d 85
• Parties: HUMBLE OIL & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Fifth Circuit

113 F.2d 85 (1940)

HUMBLE OIL & REFINING CO. v. NATIONAL LABOR RELATIONS BOARD.

No. 9323.

Circuit Court of Appeals, Fifth Circuit.

June 24, 1940.

Winfred J. Barnes, J. Q. Weatherly, Hines H. Baker, and E. E. Townes, all of Houston, Tex., for petitioner.

Charles Fahy, Gen. Counsel, National Labor Relations Board, and Robert B. Watts, Associate Gen. Counsel, National Labor Relations Board, both of Washington, D. C., and Warren Woods, Regional Atty., National Labor Relations Board, of Atlanta, Ga., for respondent.

John H. Crooker, Carl G. Stearns, and W. A. Combs, all of Houston, Tex., for interveners.

Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.

SIBLEY, Circuit Judge.

This case arises under Section 10(e) and (f) of the National Labor Relations Act, 29 U.S.C.A. § 160(e, f), on petitions by the Humble Oil & Refining Company, which we will call Humble, and by Employees Federation of the Humble Oil & Refining Company, Baytown Refinery, and Employees Federation of the Humble Oil & Refining Company Ingleside Refinery, which we will call the Federations, to set aside in whole or in part an order of the Labor Relations Board issued October 18, 1939. The order in substance is that Humble cease and desist from dominating or interfering with the Federations and from contributing support thereto; and from interfering with, restraining or coercing its employees in the exercise of their right to seek organization as guaranteed in Section 7 of the Act, 29 U.S.C.A. § 157; and from giving effect to the contracts made with the respective Federations on August 12 and 18, 1937; and as affirmative action that Humble withdraw all recognition of the Federations and post notices accordingly. The Board in its answer asks enforcement.

The charges were preferred by Oil Workers International Union, Locals No. 333 and No. 316, affiliated with the Committee for Industrial Organization, which had respectively been established at the Baytown and Ingleside Refineries since sometime in 1935. Humble contends that since 1920 it has consistently followed a policy of non-discrimination as respects union affiliations, and seeks to defend its good name against unjust conviction of any unfair labor practice. The Federations, which are unaffiliated with any national organization, were served with notice by the Board, were allowed to answer the complaint, employed their own counsel, and very actively defended themselves before the Examiner and the Board, as they have before this court. They contend that the Board was not authorized under the law and the evidence to put the Federations to death over their protest in view of the fact abundantly proved that from the organization of each Federation to the date of the order a large majority of the 3,600 employees at the Baytown Refinery and of the 670 employees at Ingleside Refinery have been members thereof, and about two-thirds of each group have voted for the Federations as their bargaining representatives.

Since 1920 at Baytown, and at Ingleside since the establishment of the refinery there, all the non-supervisory employees have been treated as the bargaining unit. No one suggests that the unit ought to be otherwise. Under Section 7 of the Act the employees have "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing." By Section 9(a) "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer." Subsection 9(b) gives the Board the right to fix the unit in each case, but as stated there is here no dispute about the proper units. 29 U.S. C.A. § 159(a, b). The Board has expressly found that each of the four contestants is a labor organization, and that each admits to its membership the same classes of employees. So long as a majority of the employees in each plant freely choose to belong to or be represented by the Federations they are the bargaining representatives and the contracts they make cannot be ignored. Minority groups may separately present their grievances, but must submit to bargain through the majority representatives. The Board is without power to order otherwise.

But the choice of the majority must be a free choice as respects the employer. Section 8, 29 U.S.C.A. § 158, states things he may not do, and Section 10 gives the Board power to order him to cease and desist. Among other things, the employer may not "interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 157." He may not "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it." The first-quoted words refer especially to individual employees, though they may apply also to organizations. The last-quoted words refer only to labor organizations and are the presently important ones. "Dominate" is a strong word, meaning to master, to rule, to control. "Interfere with" is a weaker and more extensive term, and may include any substantial intermeddling. It is fairly intended that an employer shall take no part in the original formation of a labor organization, or in the subsequent administration of its affairs, either by opposition or by any kind of support. If he does, a cease-and-desist order may be issued, and in some cases the Board may, as has been held, disestablish the organization. The Board cannot, however, prevent the same employees, acting freely and of their own choice, from immediately again organizing themselves, and establishing if they wish the same constitution, and selecting the same persons to lead them. This is so because the Board is not made either guardian or ruler over the employees, but is only empowered to deliver them from restraint at the hands of the employer when it exists. If employer interference has been slight, and not coercive or oppressive, suppression of a majority organization whose members are not complaining of interference would be an extreme step. If the Board should order it under Section 10(c) as "affirmative action which will effectuate the policies of this Act", it may be a question whether the court should hold such action not calculated to effectuate the act's true policies. In the present case, however, the contention of the Federations is simply that Humble did not dominate or interfere with their formation, nor subsequently with their administration.

The two complaints, consolidated for trial, each charged that Humble on or about April 23, 1937, in the case of Baytown, and April 30, 1937, in the case of Ingleside, had dominated and interfered with the formation, enlistment of members, and the administration of each Federation, and did contribute support by encouraging solicitation of members by foremen, by allowing meetings on company time, by discouraging membership in the Union, and by permitting solicitation of membership on company property and time; and that these things still continued, and were unfair labor practices under Section 8(1) and (2). The issues were joined on these charges.

It is proved without controversy that for many years prior to 1937 the employees at each refinery had been organized for bargaining under a written plan called the Joint Conference Agreement proposed originally by Humble, under which the employees at each refinery annually elected their own representatives in groups designated by the plant superintendents, and these representatives met monthly with representatives of the management to bargain or adjust grievances; they had made many agreements, and had adjusted all grievances without any threat of a strike; but in September, 1936, the Union at Baytown, though having a membership never more than one-fourth of the employees, insisted on being recognized as the bargaining agent and asked wage raises, and on refusal threatened a strike. There was great local excitement, and serious prospect of violence between the would-be strikers and those who wished to work. A letter to the employees about the situation was written on September 3, 1936, by Weiss, the executive vice-president of Humble, stating the company's policy and suggesting outside influences behind the strike, and promising an open shop. Another letter was later written by Weiss to the Commissioner of Conciliation who was handling the matter, stating that Humble's established policy was that no employee should be discriminated against because of Union membership, that if the strike was called off no member would be discharged because of his membership or his voting to strike, and that Humble would gladly forget the unhappy incident. The strike was called off September 17. In February of 1937 the Unions began intensive membership drives in both refineries. The opposition organized what was called the Security League which distributed anti-union literature. The editor of the Humble Bee, a publication supported by Humble, wrote articles which praised the existing set-up. On April 12, 1937, the Supreme Court decided the case of National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352, which established the jurisdiction of the Board over manufacturing plants whose raw materials or finished products move in interstate commerce. This court had decided to the contrary a year before, following the decision in Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L. Ed. 1160. Nobody involved here had theretofore supposed the National Labor Relations Act applied to these...