Shell Oil Co.

National Labor Relations Board - Board DecisionsNov 30, 1970

186 N.L.R.B. 941 (N.L.R.B. 1970)

SHELL OIL COMPANY Shell Oil Company and Warren J. Weitzel. Case 20-CA-5619 November 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On June 4, 1970, Trial Examiner George Christen- sen issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative acrion, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that Respondent had not engaged in certain other unfair labor practices. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's brief and in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, with the following modifications. We do not adopt the inference drawn by the Trial Examiner that it appears likely that the survey work performed during the strike period was scheduled more for the purpose of enticing Weitzel into the plant or, failing that, to support the denial of his subsequent request for reinstatement, as the record does not support this inference. Further, the finding of the Trial Examiner that, a few days subsequent to Weitzel's January 24 talk with Dutton, Michaud was assigned to perform 2 days of survey work and, on the strength thereof, was formally reclassified to Weitzel's job is not supported by the record, and we do not adopt that finding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Shell Oil Company, Marti- nez, California, its officers, agents, successors, and 186 NLRB No. 134 941 assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' In in. 9 of the Trial Examiner 's Decision concerning Weitzel's sick leave pay appears the date January 3, 1969 This date should read January 13, 1969 In sec F and sec H,3, of his Decision , the Trial Examiner states that Archuletta worked 3 days in surveying and Michaud worked 2 The record evidence shows that Michaud worked 3 days and Archuletta 2 days TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Trial Examiner: On June 3, 1969,1 Warren J. Weitzel filed a charge which resulted in the issuance on September 30 of a complaint alleging that Shell Oil Company (Respondent)2 violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended (Act), by discharging Weitzel either for refusing to cross picket lines established by Martinez Local No. 1-5 and Oil, Chemical and Atomic Workers International Union, AFL-CIO, Local 1-5's parent organization (Unions), or for refusing to perform work normally performed by members of the Unions employed by the Respondent during the period such member-employees were out on strike, or both. The Respondent has admitted receipt of the charge, the correctness of the jurisdictional and labor organization allegations of the complaint, that Jack B. Pitts was its engineering office manager, Robert F. Dutton its chief engineer, and Glenn L. Crabtree its personnel representa- tive at all times pertinent,3 that the Unions were the recognized collective-bargaining agent of its production and maintenance employees at all pertinent times, and that the Unions engaged in a strike and conducted picketing activities between January 44 and March 16. The Respondent notes that Weitzel was not employed within the bargaining unit represented by the Unions and contends that (I) Weitzel was retired, not discharged; (2) Respondent was legally entitled to discharge Weitzel for refusing to cross the Unions' picket lines to perform the strikers' work; and (3) Weitzel's discharge was justified by Respondent's business needs. The issues are (1) whether Weitzel was discharged by the Respondent for refusing to cross the Unions' picket lines to perform work normally performed by bargaining unit employees; (2) if so, whether such discharge was unlawful, and (3) whether Respondent's discharge of Weitzel was justified by the needs of its business. A hearing was held at San Francisco, California, on January 13, 1970, at which all parties appeared before counsel and were afforded full opportunity to adduce evidence, examine and cross-examine witnesses , present argument and to file briefs. Briefs have been submitted by i Add 1969 to all further date references wherein the year is not stated 2 All the events described in this Decision occurred at the Martinez, California. refinery and are limited to that location ' In the course of the hearing the parties stipulated that Dutton and Pitts were supervisors and agents of Respondent acting on its behalf at all times pertinent , while conceding that Crabtree was its personnel clerk and agent primarily for handling claims for sick leave pay and hospital and surgical benefits . Respondent denied that Crabtree was a supervisor 4 With the consent of all parties paragraph VII of the complaint was amended from January 3 to January 4 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel and the Respondent. Based on his review of the entire record,5 observation of the witnesses and perusal of the briefs, I make the following: FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION The jurisdictional facts, the qualification of the Respon- dent as an employer engaged in commerce in operations affecting commerce, and the Unions as labor organizations within the meaning of Section 2(2), (5), (6), and (7) of the Act is conceded by all parties. I therefore so find and conclude. II. THE UNFAIR LABOR PRACTICE6 A. Background Weitzel was originally employed by the Respondent in 1937 and worked continuously for it thereafter except for breaks due to military service, illness, etc. For the 6 years preceding January 1 he was employed as a surveyor. In December 1968, there were three men on the survey team: Jack Kennerson, chief surveyor, Weitzel, surveyor, and Clifton Fernera, rodman. Ferriera actually was classified as a mechanic helper and worked in the plant maintenance department when not called to assist the two surveyors; he was in the bargaining unit represented by the Unions and a member thereof. Kennerson and Weitzel were not within the bargaining unit represented by the Unions.? They were in the engineering department and spent all of their time on survey work. On Tuesday, December 24, 1968, the manager of the engineering department, Jack Pitts, called a meeting of engineering department employees in his office. None of the employees in that department were in the bargaining unit represented by the Unions. Pitts informed his audience that the currently effective contract between the Respon- dent and the Unions expired on December 31, 1968; the Unions might strike the plant on or shortly after January 1 in support of their demands for a new contract; and if a strike occurred, those present would be expected to report and to perform whatever work they were assigned. Each person was handed a slip of paper containing a name and telephone number and a building designation and instruct- ed to report to the person named at the building designated, and to telephone the named person if unable to report. Weitzel's slip directed him to report to R. Anderson at field engineering. Field engineering encompassed the mainte- nance shops, which were normally staffed by employees within the bargaining unit represented by the Unions. Pitts also stated that 12-hour shifts would be worked and that it might be necessary to live in the plant during the strike. 5 [Certain errors in the transcript have been noted and corrected ] 6 Only one witness testified for each side, Weitzel for the General Counsel and Pitts for the Respondent Their testimony was uncontradicted in most areas , corroborative in others, and contradictory only in minor details I credit Weitzel's testimony where any conflicts occurred on the basis of my observation of his demeanor, the precision of his recollection, B. The Strike and Weltzel's Illness Wednesday, December 25, 1968, was a holiday. Weitzel worked Thursday and Friday, December 26 and 27, 1968. He was not scheduled to work on Saturday and Sunday, December 28 and 29, 1968.8 He became ill on the latter day and called in sick both on Monday, December 30, 1968, and on Tuesday, December 31, 1968, advising his supervisor (Harry Thompson) on the latter date that he did not know how long he would be out ill. He was off work through the balance of the week; i.e., through Friday, January 3. The Union called a strike and began picketing the refinery on Saturday, January 4. Weitzel remained off work due to illness during the first week of the strike. Sometime during that week Anderson telephoned Weitzel's wife and advised her to tell Weitzel to come to work when he was able, prepared to stay at the plant. On Friday of that week (January 10) Weitzel's doctor informed him he could return to work the following Monday, January 13. Weitzel telephoned Crabtree, Res- pondent's personnel department employee who handled sick leave claims and related matters, and informed Crabtree the doctor had certified him fit to return to work on January 13. Crabtree informed Weitzel there was a strike on and suggested that Weitzel come in the Carmel gate and report to Anderson at the machine shop. C. Weitzel's Reluctance To Report for Work and Reasons Therefor Weitzel, though still not feeling completely recovered from his illness (he felt weak), went to the refinery gate as instructed on Monday, January 13, hoping the strike was over and that he would not have to work more than 8 hours at his regular job. His hopes dashed at seeing pickets outside the gate, he returned home. Crabtree subsequently telephoned and asked why he, had not reported. Weitzel informed Crabtree he did not feel up to working a 12-hour shift and that he did not want to cross the picket line. He stated either factor was sufficient to deter him from coming in to work, but that he might come in if his work was limited to his usual functions as a surveyor. Crabtree replied that Weitzel was assigned to work as a machinist. Weitzel rejoined that he would not work as a strikebreaker. On Tuesday, January 14, Weitzel again went to the plant gate and, seeing pickets present, returned home. Pitts subsequently telephoned him and asked him why he had not reported to work. Weitzel stated he did not want to cross the picket line. Pitts informed him that all the nonbargaining unit employees were crossing. Weitzel remained reluctant. Pitts suggested that Weitzel apply for retirement if he did not want to work. Weitzel stated he did not want to retire, that the Respondent would have to take and the substantial corroboration of most of his testimony. I While Weitzel was a member of the Unions throughout the period here involved, there is no evidence that Respondent knew this 8 Weitzel was regularly scheduled for a 5-day, Monday through Friday workweek. SHELL OIL COMPANY the initiative if it wanted to retire him. Pitts said the Respondent did not want that. On Wednesday, January 15, Weitzel went to see his doctor, complaining that he still did not feel strong enough to work. His doctor agreed to certify his inability to work through Friday, January 17. Weitzel telephoned this information to Pitts. On Friday, January 17, Weitzel took a form to the doctor for his signature certifying to Weitzel's disability through that date and left it with the nurse. He subsequently informed Crabtree by telephone of his continued disability through January 17.9 Crabtree commented that they would see Weitzel on the following Monday (January 20). Weitzel responded that this was not necessarily true, if there was a picket line at the gate on January 20 he would not be in, that he was not going to work as a strikebreaker. D. Weitzel's Refusal To Report for Work Each day the following week (from Monday, January 20, through Friday, January 24) Weitzel went to the gate and, observing pickets there, returned home. On the latter date Respondent's chief engineer, Robert Dutton, telephoned Weitzel. He informed Weitzel there was survey work to perform and requested that Weitzel report on Monday, January 27. Weitzel asked if he would only be assigned survey work. Dutton replied that there was survey work to do and he wanted Weitzel to report on Monday to do it, but that Weitzel also would be expected to do anything else he was ordered to do and that the Respondent intended to assign Weitzel to work as a machinist. Dutton also told Weitzel that if he did not report, the Company was going to retire him. E. Weitzel's Termination Weitzel did not report to the refinery on Monday, January 27, after seeing pickets at the gate, nor did he report on Tuesday or Wednesday, January 28 and 29, for the same reason. On the latter date, Roberts of Respon- dent's industrial relations department telephoned Weitzel, informed Weitzel he had been instructed to process Weitzel as a retiree, and secured Weitzel's preferences as to various retirement options open to him under the retirement plan. In the course of the conversation Weitzel made it clear that he did not want to retire and that, as far as he was concerned, it was a discharge. Roberts said Weitzel could call it whatever he wished, the Respondent considered Weitzel's termination a company-initiated retirement. About February 10, Weitzel received an application for retirement from the Respondent for his signature. He signed and returned it along with a letter stating he was not waiving his legal rights to reinstatement to hisjob, that his retirement was under protest, and that he was executing the application only to protect whatever rights he had under the retirement plan. About February 25, Weitzel received a copy of a letter addressed to Robert L. Condon, an attorney, signed by C. P. Wilson, Respondent's manager of employee relations. 9 Weitzel received full pay for the 3 weeks of December 30, 1968, through January 3, 1969, as sick leave pay 10 The surveyor job carries a higher rate of pay 943 Apparently in response to an inquiry, the letter stated that a permanent replacement had been placed in Weitzel's job and therefore there was no bar to immediate commence- ment of Weitzel's pension payments. F. Work Performed During the Strike Pitts was the only witness called to testify with any knowledge of work performed during the strike period. He testified that on February 16 Robert Michaud was promoted from the position of junior draftsman, the classification in which he was employed by the Respondent prior thereto (including a period of unknown duration prior to the commencement of the strike), to the position of surveyor (Weitzel had been the sole incumbent in that position for the 6 previous years).i° He further testified that during the 10-week strike period, Michaud worked a total of 2 days on survey work and that during the balance of the 10-week strike period Michaud performed bargaining unit work normally performed by the absent strikers. He stated that 5 days of survey work was performed during the 10- week strike period, with a contract draftsman ii named Archuletta assisting Kennerson on the 3 days Michaud did not assist him. Kennerson (the sole member of the survey team who worked through the strike) and a substantial portion of the engineering department (including Michaud and Archuletta) performed bargaining unit work almost exclusively during the strike time because, as Pitts noted, the need for performance of those duties to continue the refinery's operations during the strike was greater than the need for performance of their regular jobs. Pitts testified the only survey work performed during the strike consisted of securing several elevations and fixing several benchmarks requested by the California Bureau of Reclamation in order to plan a proposed 60-inch pipe line across the refinery property to bring water from the Sacramento River to the Martinez reservoir. While characterizing the requested data as "critical" in his direct testimony, Pitts conceded that at the time of the hearing (January 13, 1970) the survey work on the proposed crossing still had not been completed. As noted heretofore, survey work normally was per- formed by three men, two surveyors and a rodman, with the former operating the surveying instruments (transit, level, etc.). recording data, and making the necessary calcula- tions, while the latter simply held a calibrated rod for sighting purposes or held one end of a measuring chain. On the 2 days during the strike period that Michaud worked with Kennerson securing data, Kennerson performed the skilled surveyor functions and Michaud the unskilled rodman functions. Michaud during part of this 2-day period also assisted Kennerson in making calculations from the data collected. Pitts further testified that Michaud's permanent replace- ment as a junior draftsman was hired about a month after the strike ended and that a contract draftsman did whatever drafting work Michaud might otherwise have done during the strike period and thereafter until the permanent replacement was hired. He testified that Michaud was it The refinery had independent contractors working in i ts engineering department at various times and for various periods , who are not employees 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assigned to full- time performance of surveyor duties after the strike ended. G. Weitzel's Application for Reinstatement Immediately after the strike ended (Sunday, March 16), Weitzel went to the refinery and told the plant guard he wanted to see the personnel manager (J. P. Wilson). The guard communicated Weitzel's request to the personnel office and informed Weitzel the office stated he would have to make an appointment. Weitzel returned home and telephoned Wilson's assistant , Roberts. He told Roberts he was ready to return to hisjob as a surveyor inasmuch as the strike had ended. Roberts replied there was nothing he could do. Weitzel asked Roberts to inform Wilson of his readiness to return to work, and to ask Wilson to telephone him. Roberts promised to deliver Weitzel's message to Wilson. Wilson did not telephone Weitzel. Weitzel wrote and mailed a letter to Wilson stating he had not been able to reach Wilson by telephone and informing Wilson of his readiness to return to work. Weitzel did not receive any response to his letter. H. Discussion and Concluding Findings 1. Weitzel was discharged The record establishes that Respondent discharged Weitzel on January 29, after an earlier warning and threat of such action if Weitzel persisted in his refusal to come to work. On January 14, Pitts, the manager of Respondent's engineering office, intimated that Weitzel had better apply for retirement if he persisted in refusing to report for work because of his reluctance to cross the Unions' picket lines and perform machinist work (in addition to his earlier comments to Crabtree, which I find and conclude were reported to Dutton,12 Weitzel directly advised Pitts at this time that this was his reason for not reporting); on January 24, Dutton, Respondent's chief engineer, took a stronger line, telling Weitzel he was going to be involuntarily retired if he persisted further; on January 29, Roberts, Respon- dent 's industrial relations department representative, informed Weitzel his "retirement" was official, whatever Weitzel wanted to call it. Robert's designation of the action as a "company-initiated retirement" does not alter the character of the action 13 -it was a discharge, and I so find. 2. The discharge was unlawful The next question is whether such discharge is an unlawful discriminatory discharge. I find and conclude that it is. Weitzel refused to comply with Respondent's orders to 12 On January 13 Weitzel informed Crabtree he might come in to work if he were assured he would only be required to perform survey work and that he would not work as a machinist (the job he was assigned for the strike period ) as that would make him a strikebreaker On January 24 Dutton tried the strategy of telling Weitzel he was wanted at the plant to perform survey work in order to persuade him to come into the plant (the strategy failed when Weitzel asked Dutton if he would be required also to perform other work, if he came in ) I deduce from the foregoing that Dutton knew Wietzel 's objections to coming which Weitzel had communicated to Crabtree. 13 Cone Bros Contracting Co, 135 NLRB 108, affd 317 F 2d 3, (C A 5), report for work during the strike because he did not want to cross the Unions' picket line to perform the strikers' work and communicated that position to the Respondent.14 He thereby joined in and supported the strike. After several efforts to get Weitzel to abandon the strikers' cause and report to work, first by persuasion and then by threat (see the preceding paragraph), the Respondent carried out its threat and discharged him. It is clear that he was discharged in reprisal for his refusal to go through the Unions' picket lines to perform, inter alia, work normally performed by the striking production and maintenance employees and I so find and conclude. The Respondent contends that it was legally entitled to discharge Weitzel for that reason, inasmuch as he was not a bargaining unit employee at the time he was discharged, citing N.L.R.B. v. Illinois Bell Tel Co., 189 F.2d 124 (C.A. 7), cert. denied 342 U.S. 885 (1951). In a very recent decision, however, N.L.R.B. v. Southern Greyhound Lines, 426 F.2d 1299 (C.A. 5), the court enforced an NLRB order finding discriminatory the discharge of a secretary who refused to report for work because of her scruples against crossing a picket line established by the production and maintenance employees at her place of employment. To a similar effect, N.L.R.B. v. John Stepp's Friendly Fora Inc., 338 F.2d 833; (C.A. 9), N.L.R.B. v; West Coast Casket Co., 205 F.2d 902; (C.A. 9), Truck Drivers Local 413 v. N. L. R. B., 364 F.2d 682, (C.A.D.C.), cert. denied 379 U.S. 916; Truck Drivers Local 728 v. N.L.R.B., 364 F.2d 682. (C.A.D.C.). In these cases the courts have ruled that any employee who as a matter of principle refuses to cross a picket line of a union which does not represent him nevertheless is entitled as a striker to the same protections under the Act as the employees represented by the striking union and that one of the most important protections the Act affords a striker is a bar to his discharge for participating in a strike. The prevailing authority, then, in the Ninth Circuit, at the Board,15 and at the District of Columbia Circuit, then, supports a contrary view to that expressed by the Seventh Circuit, and controls here. Based on the foregoing, I find and conclude that, inasmuch as Weitzel was discharged by the Respondent on January 29 because of his refusal to cross the Unions' picket lines at the refinery to perform work normally done by the striking employees represented by the Unions, such discharge had the necessary effect of interfering with, restraining, and coercing Weitzel in the exercise of his rights under Section 7 of the Act to assist his fellow union members and to join them in concerted activities for their mutual aid and protection and thus violated Section 8(a)(1) of the Act. In the absence of proof that the Respondent knew of Weitzel's union membership, however, I further find that Weitzel was not discharged in order to discourage cert denied 375 U S 945 i4 See findings re Pitts and Dutton above. Even Respondent's unawareness that Weitzel's refusal to report was based on his sympathetic identification with the bargaining unit employees ' cause would not deny his right to protection under the Act as a striker Texas Foundries, Inc, 101 NLRB 1642, reversed on other grounds 211 F.2d 791 (C.A 5), Home Beneficial Life Ins Co v N L R B, 159 F 2d 280 (C A 4), cert. denied 232 U S 758, Cooper Thermometer Co, 154 NLRB 502, fn 12 15 Cf Lenkurt El Co, Inc, 177 NLRB No . 87; Nuodex Div of Tenneco Chemicals , Inc, 176 NLRB No 79, Difco Lab, inc, 172 NLRB No. 235; Cooper Thermometer Co, 154 N LRB 502. SHELL OIL COMPANY 945 his retention of union membership and therefore that no violation of Section 8(a)(3) occurred. 3. Respondent' s business needs did not require Weitzel's discharge The Respondent contends that Michaud permanently replaced Weitzel prior to Weitzel 's application for re instate- ment and therefore Weitzel has no right to reinstatement to his job , relying on the doctrines established in N. L. R. B. v. MacKay Radio & Tel. Co., 304, U.S. 333, N.L R B. v. Rockaway News Supply Co, Inc., 345 U.S. and decisions of the lower courts and the Board consonant therewith. The cases in question involved different circumstances and are readily distinguishable ; while the right of an employer is recognized to continue operating his business during a strike by recruiting replacements for striking employees and to continue such replacements in his employ rather than displacing them on a subsequent offer by the strikers to return to work, they do not involve a discharge for engaging in protected activities at the dischargee 's place of employment and a highly suspect "replacement" situation. The cases just cited all involved situations wherein the employers involved had to secure persons during the strike for the performance of work which had to be performed if they were to stay in business during the strike period. In this case Weitzel, commencing on January 17, refused to report for work because of his scruples against crossing the Unions ' picket lines to take over the job of a brother unionist (he was a union member) on strike against the Respondent He was informed that he was needed, not to perform survey work but to perform production and maintenance work. As Pitt conceded in this case , during the strike the Respondent wanted Weitzel , Mechaud , Kennerson , Archu- letts, and many other engineering department employees in the plant in order to perform the production and maintenance work, not engineering department work. This is clearly evidenced by the fact Michaud, Weitzel's alleged replacement , only devoted 2 days during the 10-week strike period to survey work and spent the other 48 workdays of the strike period (discounting weekends) on production and maintenance work. The lowgrade importance of survey work performed as contrasted with production and maintenance work performance during the strike period is also manifested by the fact a total of only 5 out of the 50 workdays during the strike period were devoted to survey work, on a job which still was not completed a year after the strike commenced . It also appears likely that the survey work performed during the strike period was scheduled more for the purpose of enticing Weitzel into the plant or, failing that, to support the denial of his subsequent request for reinstatement . Prior to January 24, Weitzel was uniformly advised that his presence at the plant was required in order to perform machinist work. He indicated he would not work as a strikebreaker but might come in if he was assigned his normal survey work. On January 24, Dutton announced that Weitzel was needed to perform survey work and ordered him to come in and do it. When he still refused to come in after ascertaining that Dutton's order was a pretext to get him into the plant (Dutton in response to his inquiry stated he would be expected to perform whatever work he was assigned on reporting and that he was assigned to machinist work ), Dutton told him he was going to be discharged (and he was , a few days later). A few days subsequent to Weitzel 's January 24 talk with Dutton , Michaud was assigned to perform 2 days of survey work and, on the strength thereof , was formally reclassified to Weitzel 's job . Michaud did not really assume full performance of surveyorjob duties, however, until after the strike ended and after Weitzel applied for reinstate- ment These facts fail to demonstrate a sufficient business need for surveyor work during the strike period sufficient to over-balance protection of Weitzel 's Section 7 rights under the Act , but rather fortify my earlier finding and conclusion that Weitzel was discharged in retaliation for his aid to the strikers ' cause and to support the further finding and conclusion that the Respondent 's alleged economic need to replace Weitzel was pretextual. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce in a business affecting commerce and the Unions are labor organizations within the meaning of Section 2(2), (5), (6), and (7) of the Act. 2. The Respondent discharged Weitzel for assisting the Respondent 's production and maintenance workers in their strike against the Respondent and thereby violated Section 8(a)(1) of the Act. 3. The above unfair labor practice affects commerce as defined in Section 2 (6) and (7) of the Act. 4. The Respondent did not violate Section 8(a)(3) of the Act. THE REMEDY Having found that the Respondent has committed an unfair labor practice , I shall recommend that the Respon- dent be ordered to cease and desist therefrom , to post notices as specified hereafter, to offer Weitzel reinstatement to his former position, and to make him whole for any loss of earnings he suffered by reason of his discriminatory discharge for a period dating from the date he uncondition- ally applied for reinstatement (March 17, 1969) to the date he is offered reinstatement by the Respondent, calculated in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER The Respondent , its officers , agents, successors, and assigns, shall- 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees for engaging in activities on behalf of Martinez Local No. 1-5 and its parent organization , Oil, Chemical and Atomic Workers International Union , AFL-CIO, or any other labor organization. (b) Refusing to reinstate pursuant to their unconditional request employees who support the above-named or other 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor organizations in disputes between those organizations and the Respondent. (c) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Offer to Warren J. Weitzel immediate and full reinstatement to his former job or, if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole financially in the manner set forth in The Remedy for any loss in earnings he has suffered because of the discrimination against him. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, pension records, personnel records and reports, and all other records necessary or appropriate for the purpose of ascertaining the backpay due under this Order. (c) Post at its Martinez, California, premises copies of the attached notice marked "Appendix." 16 Immediately upon receipt of copies of the notice on forms furnished by the Regional Director for Region 20 the Respondent shall cause copies to be signed by an authorized representative and posted and maintained in conspicuous places, including all places where notices to employees are customarily placed, for 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.17 The complaint allegation of 8(a)(3) violation shall be dismissed. Dated By NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board found that we violated the law and ordered us to post this notice ; we intend to carry out its order and do the following: WE WILL NOT discharge or otherwise discriminate against you for supporting or assisting Martinez Local 1-5, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other union. WE WILL NOT refuse upon your unconditional request to reinstate you to your former job because you support Martinez Local 1-5, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization engaged in a dispute with us. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to assist Martinez Local 1-5, Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, or exercise any other employee right set forth in Section 7 of the National Labor Relations Act, as amended. Since the Board ruled that we discharged Warren J. Weitzel for assisting the Union named above by refusing to cross its picket lines and perform work of its members who were out on strike and thereby violated the Act. WE WILL offer him his old job back and give him backpay for any financial losses he suffered in the interim. 16 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order , and all objections thereto shall be deemed waived for all purposes in the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " it In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX SHELL OIL COMPANY (Employer) (Representative ) (Title) THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, 13050 Federal Building, Box 36047, 450 Golden Gate Avenue, San Francisco, California 94102, Telephone 556-0335.