National Labor Relations Bd. v. Continental Oil Co., 2242.

• Citation: 121 F.2d 120
• Decision Date: 23 June 1941
• Docket Number: No. 2242.,2242.
• Parties: NATIONAL LABOR RELATIONS BOARD v. CONTINENTAL OIL CO.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

121 F.2d 120 (1941)

NATIONAL LABOR RELATIONS BOARD v. CONTINENTAL OIL CO.

No. 2242.

Circuit Court of Appeals, Tenth Circuit.

June 23, 1941.

Bernard R. Bralove, of Washington, D. C. (Robert B. Watts, Laurence A. Knapp, Ernest A. Gross, Morris P. Glushien, Owsley Vose, and Malcolm S. Mason, all of Washington, D. C., on the brief), for petitioner.

William H. Zwick, of Ponca City, Okl., for respondent.

Before BRATTON, HUXMAN, and MURRAH, Circuit Judges.

HUXMAN, Circuit Judge.

The National Labor Relations Board seeks enforcement of an order directing respondent, Continental Oil Company, a corporation, to cease and desist from the unfair labor practices of which the Board had found it guilty, and to take such affirmative action as was ordered by the Board. The order directed respondent to:

1. Cease and desist from:

"(a) Dominating or interfering with the administration of Continental Employes Union of Ponca City Area, or with the formation or administration of any other labor organization of its employees, and from contributing financial and other support to the Continental Employes Union of Ponca City Area, or any other labor organization of its employees;

"(b) Giving effect to any check-off or other arrangements or agreements which it has made with the Continental Employes Union of Ponca City Area;

"(c) In any other manner interfering with, restraining, or coercing its employes in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act.

"2. Take the following affirmative action which the Board finds will effectuate the policies of the Act:

"(a) Withdraw all recognition from the Continental Employes Union of Ponca City Area as a representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment, and completely disestablish the Continental Employes Union of Ponca City Area as such representative;

"(b) Reimburse the employees who were members of the Continental Employes Union of Ponca City Area for the dues which have been deducted from said employees' wages on behalf of said Continental Union;

"(c) Post immediately in conspicuous places in each department of its plant, and maintain for a period of at least sixty (60) consecutive days, notices to its employees stating that the respondent will cease and desist in the manner set forth in 1(a), (b), and (c) and that it will take the affirmative action set forth in 2(a) and (b) of this Order;

"(d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply therewith.

"And It Is Further Ordered, that the complaint, in so far as it alleges that the respondent has engaged in unfair labor practices within the meaning of Section 8(3) of the Act, be, and it hereby is, dismissed."

The validity of the order is challenged by respondent. Respondent maintains and operates oil and gas refineries in many states. This proceeding involves its plant at Ponca City, Oklahoma. The evidence introduced at the hearing tended to establish these facts: In 1933 respondent organized the Management-Employee Cooperative Council as a medium for dealing with its employees. Respondent and the employees had equal representation on the council. Decisions of the council were appealable only to the company's own officials. All costs and expenses of the council were borne by respondent.

The council was maintained until shortly after the decision by the Supreme Court sustaining the validity of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq. Five days thereafter, Walter Miller, vice president of the company, issued and posted the following statement on the bulletin board:

"To: Employees Interested in and Members of the Ponca City Management Employee Cooperative Council.

"I have been asked whether our present Council Plan conforms to the National Labor Relations Act (generally known as the Wagner Act).

"I have made a study of the Act and find some revisions in the Council Plan are necessary, but in my opinion revisions can be made in the existing plan which will bring it completely within the scope of all the requirements of the Act, and enable the continuance of collective bargaining substantially as has been the case in the past few years.

"Walter Miller "Vice-President."

About the same time, Ralph H. Townsend, a former council representative, consulted with L. S. Van Nest, personnel supervisor of respondent, with respect to what the employees were "going to do about a bargaining agency." Van Nest called his attention to an article in a trade magazine describing the establishment of the "Security League" by the employees of the Humble Oil Company. Townsend thereupon drafted an anti-union petition. A short time thereafter he presided over a meeting of some twenty employees in the conference room of respondent's plant. He announced that the decision of the Supreme Court had outlawed the council but that "they made it compulsory for us to have some kind of a bargaining agency." Van Nest attended this meeting at the request of Townsend and brought with him the magazine article which had caused Townsend to draft the anti-union petition. Van Nest discussed the Wagner Act, and raised a question both as to the propriety of his presence at the meeting and as to the legality of holding the meeting in the plant. The magazine article was read and a discussion ensued with respect to the petition, in which Van Nest took part. After some revision, the employees signed the petition and copies of it were placed in the open working desks of the head operators in each department. The petition as revised expressed the employees' desire to maintain relations with the company as they had in the past, and declared their determination not to be influenced by any outside organization.

Thereafter, on April 18, respondent called a meeting of the council, at which H. G. Osborn, plant manager, announced that the management was withdrawing its representatives from any further participation in the council and that respondent would no longer recognize it as a bargaining agency. He stated that respondent's decision in this matter was prompted by the decision of the Supreme Court. He further stated that "The council is yours from now on. It is your baby and in your laps." He, together with the management representatives, thereupon withdrew from the meeting. The employee representatives, however, requested Osborn to remain in the building within call so that they might ask him questions, and he did so. After a three or four hour conference, the employee representatives decided to hold a general meeting the next day at the American Legion Hut near the plant, and notified the employees accordingly. Van Nest opened that meeting with a statement of the position of the company respecting the council. The meeting was poorly attended and a further meeting was called for April 21. Notices were posted throughout the plant and Van Nest arranged for the use of the company's machine shop for the meeting and had the division superintendent let all the men off from work so that they could attend the meeting. He opened the meeting by stating that although the council would have to be done away with, it would continue to function "until we get something else." He stated that the act "made it compulsory for us to have some kind of a collective bargaining agency," and that a plan had been worked out. One of the employees outlined a plan for a new independent union. Motions were adopted that the elected representatives of the old cooperative council continue in their work in that capacity until the by-laws of the new union were set up and that such representatives draft a new constitution with the assistance of two men appointed by them from each department of the plant. An employee who moved that the additional two men be elected by the employees instead of appointed by the council representatives was promptly ruled out of order by Van Nest. The drafting committee met in the plant conference room on April 22, 23 and 24, during working hours, and were paid full salaries for the time spent.

This committee prepared the constitution and by-laws creating the Continental Union, herein called Continental. When the constitution and by-laws were drafted, they were first submitted to respondent's vice president, Miller, and one of its legal advisors, and at the suggestion of the latter, their arrangement was revised. From April 30 to May 3 an election was conducted among respondent's employees upon the question of designating Continental as the bargaining representative. The employees were given an opportunity to vote yes or no upon the question of whether they desired to select Continental as bargaining representative. The ballots were mimeographed by respondent and the election tellers were designated by the old council representatives. The employees voted in favor of Continental. On May 7, the old council representatives requested Miller to recognize Continental, and he did so within an hour. On the same day respondent posted notices on its bulletin boards announcing such recognition and stating that, "This takes the place of the Management-Employees Cooperative Council which has functioned since 1933, but which can no longer be kept up because of certain provisions in the Act." Respondent stated that it felt that the objectives of the council would be continued in Continental.

From this the Board found and concluded that respondent had dominated and interfered with the formation and administration of Continental; that it had...