Shell Oil Co., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1941

34 N.L.R.B. 866 (N.L.R.B. 1941)

In the Matter Of SHELL OIL COMPANY, INCORPORATED and OIL
WORKERS INTERNATIONAL UNION, LOCAL 367
Case No. C-1858.-Decided August 23, 1941
Jurisdiction : oil refining industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: conducting election among supervisory em-
ployees to determine desire for union representation ; conducting ballot among
employees with regard to proposed changes in working hours and method of
pay ; maintenance and discriminatory use of man-study records containing
notations concerning union membership and activity ; statements prejudicial
to and disparaging of union and union members.
Discrimination: employee discharged because of union membership and activity.
Remedial Orders : reinstatement and back pay.
Mr. Paul Nachtman, for the Board.
Mr. Vernon Coe, of Houston , Tex., for the respondent.
Combs d Dixie, by Mr. W. A. Combs and Mr. Chris Dixie, of
Houston , Tex., for the Union.-
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Oil Workers
International Union, Local No. 367, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Sixteenth Region (Fort Worth, Texas),
issued its complaint dated December 3, 1940, against Shell Oil Com-
pany, Incorporated, Houston, Texas, 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, accompanied by notice of hearing, were duly served
upon the respondent and, the Union.
34 N. L. R. B., No. 108.
866
SHELL OIL CO., INC. 867
With respect to the unfair labor practices, the amended complaint,'
alleged in substance: (1) that the respondent discharged W. 0.
Ventura on or about January 15, 1940, because he joined and assisted
the Union, and at all times since has refused to reinstate him; (2)
that by the afore-mentioned acts, by statements prejudicial to and
in disparagement of the Union or union members; by requesting
certain groups of employees on or about February 1, 1938, to ballot
upon the question of whether or not they desired to be represented
by the Union and persuading them to vote against such representa-
tion; by arming its gatemen and patrolmen and causing them to
spy upon members of the Union for the purpose of intimidating
them; by provoking a fight through one of its foremen with an
employee and member of the Union for the purpose of ensnaring and
entrapping said employee into.committing an act in violation of
company rules, thereby giving "artificial" cause for discharge; by
falsely accusing an officer of the Union of running down one of its
patrolmen by automobile and by directing one of its patrolmen to
apply discriminatory tactics to said officer of the Union ; by cir-
culating a statement of labor policies on or about April 8, 1938, and
a bulletin on or about March 7, 1939, for the purpose of discrediting
the Union among its employees ; by threatening members of the
Union; by maintaining personnel cards and/or man-study records
upon which it noted the union membership and/or union activities
of its employees and using said records to threaten and coerce its
employees; and by causing ballots to be furnished to its employees on
or about September 26, 1939, and May 1, 1940, for the purpose of
taking a ' vote on working hours and methods of pay, without con-
sulting the union committee which represented its employees, and
posting a notice of the results of the election of September 26, 1939;
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
In its answer, the respondent admitted the allegations of the com-
plaint concerning the nature and interstate character of its business,
and that on or about the dates mentioned in the complaint it had con-
ducted elections among its employees regarding union preference,
time for lunch, and system of pay, and had circulated bulletins among
its employees with respect to labor policies and working conditions,
but denied that it had committed any alleged unfair labor practices,
and affirmatively averred that it discharged Ventura on January 17,
1940, for the reason that on January 10, 1940, he used abusive language
'On December 16, 1940, the Trial Examiner granted a motion by counsel for the re-
spondent for a bill of particulars and on December 17, granted a continuance of hearing
until January 6 , 1941, at the request of all parties . On January 2, 1941 , the Board issued
its amended complaint , making more specific the alleged violations of Section 8 (1) of the
Act, but otherwise not differing from the original complaint Copies of the amended com-
plaint, accompanied by notice of hearing , were duly served upon all parties.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward a fellow employee and threatened him with physical violence
in violation'of the rules of the respondent; that it procured commis-
sions deputizing its' gatemen and patrolmen for the purpose of pro-
tecting the property of the respondent and the persons of its employees;
that W. D. Wilson, on or about March 7, 1938, attacked L. W. Smith,
foreman, maliciously and pursuant to a prior threat; that one of its
patrolmen reported to P. E. Keegan that James Benson had almost run
over him intentionally; and that F. Olmstead compiled man-study
sheets in the latter part of June 1939 without authorization by the
respondent and also without the knowledge of the respondent, and
without any use being made of such records.
Pursuant to notice, a hearing was commenced on December 16 and
December 17, 1940, at Houston, Texas, before James C. Batten, the
Trial Examiner duly designated by .the Chief Trial Examiner. Fol-
lowing a continuance granted by the Trial Examiner, and pursuant to
further notice, the hearing was resumed from January 6 to 15, 1941,
inclusive, before Webster Powell the Trial Examiner duly designated
by the Chief Trial Examiner. The Board, the respondent, and the
Union were represented by counsel, and all parties participated in the
hearing. Full opportunity to be heard, to examine and cross -examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties.
During the course of the hearing, counsel for the Board moved
to amend the complaint to substitute the name of S. P. Robertson for
S. P. Richardson with reference to the allegation that Richardson made
a statement to an employee prejudicial to the Union. The Trial Ex-
aminer reserved ruling on the motion which he later granted in his
Intermediate Report. The Trial Examiner also reserved ruling on
a motion by the respondent to strike from the record Board Exhibits
Nos. 12 (1) to (52), which he denied in his Intermediate Report.2
At the close of the hearing, counsel for the respondent moved to
dismiss the complaint in its entirety and as to each specific allegation
contained therein. The Trial Examiner reserved ruling and denied
the motions in his Intermediate Report. . At the close of the hearing,
counsel for the Board moved to conform the pleadings to the proof
in minor particulars. The motion was granted by the Trial Examiner.
During the course of the hearing, the Trial Examiner ruled upon other
motions and upon objections to the admission of evidence. The Board
has reviewed the ruling of the Trial Examiner and finds that no prej-
udicial errors were committed. The rulings are hereby affirmed. At
the conclusion of the hearing all parties waived the opportunity to
2 Board Exhibits Nos. 12 ( 1) to (52 ) are the personnel files maintained by L. Olmstead,
general supervisor , and hereinafter referred to in connection With the man -study records
compiled. by him for the employees in the treating department.
SHELL OIL CO., INC. 869
argue orally- before the Trial Examiner. The respondent filed a brief
with the Trial Examiner.
The Trial Examiner thereafter filed his Intermediate Report dated
April 1, 1941, copies of which were duly served upon the parties,
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act. He accordingly recommended that the
respondent cease and desist from engaging in the unfair labor prac-
tices and that it reinstate with back pay W. O. Ventura. He further
found that the respondent's supervisory employees Waser, Robert-
son. Morris, Kennedy, Lewis, Miller, Ayers, Martin, and J. W.
Richardson, had not made statements prejudicial to and in dis-
paragement of the Union or its members, and that the respondent
had not (1) armed its gatemen and patrolmen for the purpose of
intimidating and coercing its employees and caused said gatemen and,
patrolmen to watch and spy upon members of the Union; (2) through
Foreman Smith, provoked a fight with Wilson, a union member;
(3) falsely accused James Benson of running down one of its patrol-
men; (4) directed Patrolman King to discriminate against Benson;
and (5) issued a statement of labor policy to its employees on or
about April 8, 1938, for the purpose of undermining their confi-
dence in the Union. He accordingly recommended that the com-
plaint be dismissed in so far as it alleged that the respondent
had committed unfair labor practices with respect to the foregoing.
Thereafter the respondent and the Union filed exceptions to the
Intermediate Report, and the respondent a brief in support of its
exceptions. On June 3, 1941, pursuant to notice duly served upon
all the parties, a hearing for the purpose of oral -argument was
held before the Board at Washington, D. C. The respondent and
the Union appeared by counsel and participated in the argument.
The Board has considered the brief and the exceptions to the Inter-
mediate Report and, in so far as the exceptions are inconsistent with
the findings, conclusions, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Shell Oil Company, Incorporated, a Virginia corporation, has its
principal place of business in New York City, and is engaged in the
production, refining, and distribution of oil and oil products. It
owns and operates oil refineries and oil-production fields in Texas,
Louisiana, Kansas, Illinois, Indiana, Oklahoma, and New Mexico.
451269-42-vol. 34-56
870 DECISIONS OF NATI6NAL LABOR RELATIONS BOARD
The instant -proceeding 'is concerned only with the respondent's
refinery at Deer Park, a suburb of Houston, Texas, hereinafter re-
ferred to as the Deer Park refinery. The Deer Park refinery has an
operating capacity of 75,000 barrels of crude oil per day, and at the
time of the hearing was operating at 100 per cent capacity. The
crude oil received at the refinery arrives by pipe line. For the 12
months' period ending August 1, 1940, approximately 47 per cent
of the crude oil received at the Deer Park refinery came from pro-
duction fields owned by the respondent in New Mexico and Louisiana.
During the same period approximately 92 per cent of the total out-
put of the Deer Park refinery was shipped to approximately 20
States of the United States and to foreign countries by railroad
tank cars and by ocean-going vessels.
The respondent admits that it is engaged in interstate commerce
within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Oil Workers International Union,' Local 367, is a labor organiza-
tion, affiliated with the Congress of Industrial Organizations, ad=
witting to membership production and maintenance employees at
the Deer Park refinery of the respondent.
M. THE UNFAIR LABOR PRAPTICES
A. Interference, restraint, and coercion
In the latter part of 1935 • the Union was organized among the
respondent's employees. In December 1937, the Union entered into
negotiations with the respondent for the purpose of obtaining a
collective bargaining agreement. A dispute arose, however, con-
cerning the inclusion of certain groups of supervisory employees in
the appropriate unit, with the result that negotiations were
suspended in February 1938, pending a determination of the appro-
priate unit by the Board. Before negotiations were suspended, on
February 1, 1938, the respondent issued a mimeographed memo-
randum to all its employees reading, in part, as follows :
You are aware that we have been engaged for some time in
an attempt to negotiate a contract with Local No. 367 of the Oil
Workers Union. You are also aware that we have thus far
been unable to agree with the union committee on the inclusion
of certain groups of supervisors ...
It has been our belief that at least several of these groups do
not desire to be represented by the union and do not wish to be
covered under the terms of the agreement . . . A Commissioner
SHELL' OIL C0., INC. 871
of Conciliation U. S. Department of Labor, suggested that each
group be allowed to express itself on this matter and offered his
services . . . We finally agreed to this suggestion, but no ballot-
ing was held because the union committee insisted that all
groups should vote as a single unit. We felt,' and still do feel,
that there is no logical reason . . . why the desires of the Labor
Sub-foremen should govern the Stillmen or why the wishes of
Treaters should control the Dock Shift Foremen, etc.
The memorandum further stated that although no election agree-
ment had been reached, the respondent was desirous of ascertaining
whether it was "correct in insisting that a majority of these super-
visors do not wish to be covered by the union agreement," and re-
quested them to cast a secret ballot on the question of whether or
not they desired to be represented by the Union "under the terms
of the contract." Voting took place on February 2, 1938, but the
results of the balloting were not announced. Regardless of the
results of the balloting, however, the conduct of an election under
these circumstances could only have the effect of influencing the
employees involved to vote in accordance with the desires of the
respondent, and thus constituted interference with the employees in
the exercise of their rights under the Act.3
Pursuant to a petition for certification filed by the Union, a hear-
ing was held by' the Board in March 1938, and on November 12, 1938,
the Board issued its decision certifying the Union as the collective
bargaining representative of the respondent's employees in an
appropriate bargaining Unit .4 In its decision, the Board included in
the appropriate unit the employees among whom the respondent
conducted the election' on February 2, 1938. Thereafter bargaining
negotiations were resumed, but no agreement was reached between
the respondent and the Union.
On or about March 7, 1939, the respondent issued another memo-
randum addressed to all employees and dealing with the submission
of grievances. This memorandum was issued by R. H. Waser, the
respondent's manager, and according to his testimony, it was issued
following a discussion with representatives of the Union. Waser
stated at the hearing that A. L. Burrow, president of the Union,
had suggested that all grievances taken up with foremen should be
handled by the foremen within 48 hours after the receipt of the com-
plaint. Accordingly, the memorandum of March 7 embodied a pro-
vision that the foreman should make every effort to give his reply
"as promptly as possible and in any case he should make every
3Matter of Okey Hosiery Company, Incorporated and R. H. Theiling, Receiver and
American Federation of Hosiery Workers, North Carolina District, 22 N. L R. B 792
4 Matter of Shell Petroleum Corporation and Oil Workers International Union, Local
No. 367 , 9 N. L. R B. 831.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effort to give the reply within 48 hours after receiving the com-
plaint, Saturdays and Sundays excluded." No mention of the
Union was made in this memorandum, and the Trial Examiner found
that by this failure to give credit to the Union for the changes made
in its grievance procedure, the respondent sought to discredit and
belittle the Union as the bargaining representative of its employees.
We are unable to agree with the conclusion reached by the Trial
Examiner. We find that with respect to the issuance of the fore-
going memorandum which was primarily an instruction to its
foremen, the respondent committed no unfair labor practice.
During the latter part of 1938, W. T. Riggs, general labor fore-
man and paint foreman, among whose duties it was to interview all
new employees in that department, incorporated in his remarks to
new employees a statement concerning union affiliation. Riggs testi-
fied that he did so because employees often came to him and inquired
about the respondent's labor policy, and that he told new employees,
in substance, that "their employment was not a condition of their
joining or refraining from joining or assisting in any labor organ-
ization." Two Board witnesses, G. L. Matson and Raymond Platzer,
testified, however, that on or about July 7, 1939, they heard Riggs
tell six new employees, in effect, not to "let any of these guys out
here tell you that you have to join their union because you don't."
Riggs denied the remarks attributed to him by Platzer and Matson.
Upon the basis of his observation of the witnesses, the Trial Exam-
iner credited the testimony of Platzer and Matson. We find that
Riggs made the statement substantially as attributed to him by
Platzer and Matson.
During the period from November 1938 to May or June 1939, a
number of the respondent's supervisory employees participated in a
course of study presented by the Sales Analysis Institute, an organ-
ization employed by the respondent to train its supervisory personnel
in methods of handling employees. The course lasted 20 weeks.
Among the subjects treated in the course was the "agitator," and in
this regard one of the written lectures distributed stated that one
of the obstacles the supervisor must overcome is the "agitator" who
seeks to "excite and disturb" conditions, and makes "trouble" in
whatever organization he may be found, whether it be a department
in a plant, an employee association, or a union. During the course,
each participant was also furnished with copies of blank forms
known as "man-study" sheets. According to the testimony of P. E.
Keegan, head of the industrial relations department, who was the
reader for one of the groups taking the course, the man-study sheets
were not intended for general use but were used to teach the super-
visory employees how to overcome personal prejudices and learn a
SHELL OIL CO., INC. 873
more scientific method of evaluating the personalities and compe-
tence of the employees under their supervision. This in turn, accord-'
ing to Keegan, would enable the supervisors to correct weaknesses
,in-the employees under them who appeared to be uncooperative or
incompetent.
During the spring and early summer of 1939, L. Olmstead, general
supervisor in charge of the treating department who took the above-
mentioned training course, maintained a personnel' file in his office
consisting of individual folders on 53 employees.' In connection
'with 52 of these employees, Olmstead had' filled out a "man-study"
record. On 17 of the 52 Olmstead made notations relating to the
individual's union or non-union affiliation and whether or not the
individual was a "strong" union mar. In 11 of the 12 cases in
which the notation appeared that the employee was a union member,
Olmstead also listed the employees as disloyal and/or lacking in
cooperation. In the one remaining case where such notation
appeared the employee was termed cooperative and loyal, but in that
case Olmstead noted that this employee "although president of Local
367, is very conservative and fair to all sides," thereby indicating
that the employee was considered loyal despite his union membership.
In the three other cases where he referred to union affiliation, Olm-
stead answered the query as to their loyalty and cooperativeness by
stating, "Yes, non-union." Shortly after Olmstead left the Deer
Park refinery, several employees, some of whom belonged to the
Union, discovered the personnel files in the desk formerly used by
Olmstead and read the "man-study" sheets which, together with other
documents, were kept in such files.
Olmstead was succeeded by E. B. Ayers, who remained in charge
of the treating department for a period of approximately 3 weeks,
and then was in turn replaced by T. T. McClelland. Ayers testi-
fied that he made no reference to the "man-study", sheets as head
of the treating department, but admitted that he continued to main-
tain the personnel files on the individual employees which had been
assembled by Olmstead. McClelland testified that he had consulted
the personnel file in connection with a 'discussion with Hickman,
an employee, concerning a mistake made by the latter in the line
of duty, but that he had never used the man-study sheets in said
file to form an opinion of Hickman. W. D. Wilson, another em-
ployee, testified that McClelland informed him that he had a reputa-
tion for being lazy and a bully, and that he then said to McClelland
s Olmstead had occupied a position of head treater at the Deer Park refinery for about
2 years. Olmstead went on vacation either on July 1 or July 15, 1939, and did not return
to the Deer Park refinery thereafter . The respondent maintained that it had no knowledge
of where Olmstead was working at the time of the hearing or whether or not he was still
employed at any of the respondent 's refineries or by any of its subsidiaries.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he knew that such statements were in his record, and that the
record also indicated that he was a "C. I. O. agitator," thus referring
to his man-study sheet which he had previously seen in the drawer of
McClelland's desk. He further testified that McClelland then re-
plied "If you aren't a C. I. O. agitator, why is it on your record?"
McClelland denied that he had consulted Wilson's man-study sheet,
and testified that he had obtained the information concerning Wil-
son's reputation for being lazy and a bully from an entirely separate
file in the industrial relations department and from the oral opinion
of other employees in the treating department. This file was not
produced, and no employee in the treating department testified with
respect to Wilson's reputation. McClelland denied that Wilson
stated to him that he, Wilson, knew that the man-study sheet indi-
cated that he was a "C. I. O. agitator," and that he replied in the
manner set forth above. In view of the foregoing, we find, as did
the Trial Examiner, that McClelland made use of the man-study
sheets and the information contained therein on at least one occasion,
and that he made the statements above attributed to him by Wilson.
In August 1939, the above man-study files were in the desk used by
L. W. Gibbons, who was McClelland's assistant and occupied the
same office. After Lebus, Field Examiner for the Board, had called
these files to Keegan's attention, the latter telephoned to about six
of the respondent's supervisory employees to inquire whether or
not. they had files similar to those, found in the treating department.
Keegan testified that he received a negative reply from all the super-
visors to whom he telephoned, but admitted that he had not searched
the files of any of the supervisors.
The respondent contends that the personnel files in question were
maintained and used by Olmstead as an individual without the
authority of the management, and that, furthermore, the files could
only have been used by Olmstead for a very brief period of time.
The respondent further contends that it cannot be held responsible
for the action of Olmstead since he was not an officer of the respond-
ent. We are not impressed by these contentions. The records were
made by Olmstead as a result of a course of study inaugurated by the
respondent, and Keegan never issued orders to the supervisory em-
ployees not to keep the man-study sheets or records. Olmstead was
a supervisory employee with the power to hire and discharge em-
ployees. Consequently, the respondent's contention that it is not
responsible for the acts of Olmstead is without merit." Likewise,
See International Association of Machinists V. National Labor Relations Board, 311
U. S. 72, aff'g 110 F. ( 2d) 29 (App. D. C.), enf'g Matter of The Serrack Corporation and
International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B.
621; Atlas Underwear Company v. National Labor Relations Board, 116 F. (2d) 1020
(C. C. A. 6), enf'g Matter of The Atlas Underwear Company and Textile Workers Union
of America, affiliated with the C. I. 0., 18 N. L . R. B. 338.
SHE'LL 'OIL CO.) IN C. 875
the, notations concerning union membership and activity contained
in the man-study sheets clearly reveal the respondent's animosity
toward union members. A number of the respondent's employees
discovered -these records in Olmstead's office and saw the references
to union membership, and in at least one instance the records were
used by a supervisor, McClelland, to obtain an unfavorable impres-
sion of an employee. Under such circumstances this plain indication
that the respondent deemed union membership synonymous with
disloyalty and lack of cooperation could not but have the effect of
interfering with the right of the employees tojoin a union of their
own choosing. -
E. F. Thurston, a second-class boilermaker, testified that on or
about August 26, 1939, he held a conversation with Clifford Alder-
man, assistant to the chief engineer, during which Alderman stated,
"I have heard a lot about you and want to get acquainted. I have
heard that you talk too much union. I don't mind men belonging
to the union, but I would rather see them belong to a good union
rather than one that wasn't so damn unreasonable. s I belong to a
union myself, however, and I haven't found them all that way."
Alderman further stated, according to Thurston, that the respondent
was not making money and that "the union's demands were unreason-
able."
On August 30, a further conversation took place between Alderman
and Thurston, which was participated in by a boilermaker's helper,
R. F. Davis. Alderman asked why so many grievances were being
referred to him "all of a sudden" by the boilermaking department.
Thurston replied that it was due to conditions in that department.
According to Thurston, Alderman then said that, "He had other
ideas about it and that he could get rid of the both of us by bumping
us back to the bull gang and out the gate." Davis, in substance,
corroborated the testimony of Thurston concerning the above con-
versation. Alderman stated that he remembered part of the conver-
sation with Thurston and Davis. He testified that he told them
there were a number of complaints coming in from the boiler depart-
ment and asked them what they thought the solution was, but
specifically denied saying that he felt that he could get rid of Thur-
ston and Davis by-bumping them back into the bull gang and out the
gate. However, Alderman did not deny the conversation with
Thurston on August 26. We credit, as did the Trial Examiner, the
testimony of Thurston and Davis and find that Alderman made the
statements above attributed to him.
Willie B. Nelson, an employee, also testified that on or about August
4, 1939, Alderman started a conversation with him about a previous
conference between a union committee on- which Nelson served and
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Waser, the respondent's manager, during which conversation Alder-
man stated that he was going to have to do something about'the
radical elements in the boiler department, and added that the respond-
ent did not mind dealing with the right kind of a union. Alderman
denied Nelson's testimony. °
On September 15, 1939, according to the testimony of A. L. Bur-
row, president of the Union, Alderman engaged him in a conversa-
tion about unions and stated that "he had worked in the office of a
union and he was convinced that there was crooked- work going on
in all unions." Burrow testified that he replied that there might
be crooked work in other unions, but not in his organization. Alder-
man denied the above-quoted remark. He testified that he told
Burrow that he once belonged to a union which had a bad reputation,
and that his association with that union "bore out the fact," but
that he later joined other unions which he respected. He further
testified that he said that "in these troublesome times we didn't seem
to have any trouble in the local organization." In, view of the earlier
remarks hereinabove found to have been made by Alderman to Thur-
ston and Davis, we credit, as did the Trial Examiner, Burrow's and
Nelson's testimony as to their respective conversations with Alder-
man.
. On September 26, 1939, the respondent issued a bulletin to all em-
ployees stating that requests had been received from some employees
to extend the lunch period and that the management was agreeable,
provided such was the desire of a majority of the employees. The
bulletin then went on to request each employee to hand a ballot to
the paymaster on October 5, 1939, and informed the employees that
copies of the ballot could be obtained in the industrial relations
office. Pursuant to this bulletin a vote was taken on October 5, and
the result of the balloting was posted by Keegan on October 10.
Sometime between April 25 and May 1, 1940, the respondent con-
ducted a similar ballot to determine whether the employees desired
bi-weekly or semi-monthly pay periods. The Trial Examiner found
that the conduct of these elections on company time and property
constituted an attempt by the respondent to discredit the Union as
a collective bargaining agency. We are unable to agree with this con-
clusion. The proposed changes in the lunch and pay periods were
never the subject of negotiations between the respondent and the
Union, and while it appears that the tentative agreement reached by
the respondent and the Union contained a provision specifying that
the respondent should pay its employees at "semi-monthly or bi-
weekly intervals," such provision obviously indicates no preference
as to which of the two pay periods should ultimately be adopted
by the respondent. Under these circumstances, we do not find that
SHELL OIL CO., INC. 877
the respondent's' action in determining the desires of its employees
with respect to the foregoing matters was an attempt to undermine
the employees' confidence in the Union as their collective bargaining
representative.
We find that by conducting the election among its supervisory
employees, by its discriminatory use of the man-study sheets, and by
the activities and anti-union statements of its supervisory employees,
as above set forth, the respondent has interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. Other alleged acts of interference, restraint, and coercion
In addition to the allegations discussed above, the amended com-
plaint alleged that: (1) on or about December 28, 1937, J. W.
Richardson, general welder and tinner foreman, made a statement
prejudicial to and disparaging of "the. Union," to Rocky L.• Davis;
(2) between March 1 and 31, 1938, the respondent armed its gatemen
and patrolmen and caused them to spy upon members of the Union
for the purpose of intimidating and coercing its employees; (3) on
or between March 1 and 31, 1938, K. S. Lewis, laboratory shift fore-
man, and J. W. Morris, dock shift foreman, made three statements
prejudicial to and disparaging of the Union to J. J. Hickman; (4)
on or about March 7, 1938, L. W. Smith, foreman, provoked a fight
with W. D. Wilson for the purpose of causing Wilson to commit an
act in violation of company rules, thereby giving cause for discharge;
(5) or or about March 24, 1938, P. E. Keegan falsely accused James
Benson of running down one of the respondent's patrolmen, for the
purpose of intimidating a union member; (6) on or about April
8, 1938, Waser, refinery manager, sent a statement of labor policy to
all employees to undermine their confidence in the Union; (7) on
or about September 15, 1938, J. L. Miller, general superintendent,
made a threatening statement to A. L. Burrow; (8) on or between
July 1 and 31, 1939, Waser made a statement prejudicial to and in
disparagement of A. L. Burrow, a union officer, for the purpose of
undermining the confidence of the other union members in him as
an officer of the Union; (9) on or about December 23, 1939, P. E.
Keegan directed Patrolman King to apply discriminatory tactics
to James Benson; (10) between March 1 and 30, 1940, S. P. Robert-
son, master mechanic, made a statement prejudicial to the Union to
E. F. Thurston; (11) on or between June 1 and 30, 1940, N. B. Ayers,
chief chemist, made a statement in disparagement of the Union to
Thomas E. Stafford; (12) on or about August 4, 1940, S. B. Martin,
foreman of the machine shop, made a statement disparaging the
Union to Willie B. Nelson; and (13) on or about November 1, 1940,
878 DECISIONS .OF NATIONAL LABOR RELATIONS BOARD
S. J. Kennedy, general foreman of the boiler house, made a statement
disparaging the Union to Willie B. Nelson. No evidence was intro-
duced, however, to support the allegations that Smith provoked a
fight with Wilson and that Martin, Morris, and Robertson made
statements to Nelson, Hickman, and Thurston, respectively, which
were in disparagement of the Union. Lewis, Miller, Ayers, Kennedy,
and Richardson denied the alleged disparaging statements attrib-
uted to them by Hickman, Burrow, Stafford, Nelson, and Davis, re-
spectively, and the Trial Examiner credited their denials. We find,
in accordance with the conclusion of the Trial Examiner, that the
allegations of the complaint set forth above with reference to the
anti-union activities and statements of the foregoing supervisory
employees of the respondent are not supported by the evidence.
With respect to the allegation that the respondent issued a state-
ment of policy for the purpose of undermining the Union, the evi-
dence shows that on April 8, 1938, Waser sent a statement on labor
policy and conditions of employment to all 'employees, together with
a covering memorandum, which stated :
We( realize that many of our employees have been interested
in knowing the Management's ideas on labor relations ... Ac-
tion has necessarily been deferred in order to give the present
Management time to absorb enough of local conditions to be able
to furnish you with a reasonably clear statement of our views on
these matters . . .
The "working conditions" as herein laid down will remain in
effect until further notice or until such time as we might suc-
cessfully conclude negotiations with a proper collective bargain-
ing. agency or agencies.
We intend that the "statement of policy" will be the fixed
policy of the present Management.
We shall be glad to receive any questions that may occur to
you concerning these matters.
The statement itself contained a general outline of policy and
specific provision with respect to wages, rates of pay, hours, and
other working conditions. There is nothing in the terms of the
memorandum which is designed to interfere with the rights guar-
anteed by the Act, and under the circumstances surrounding its
issuance, we find, as did the Trial Examiner, that the posting of the
statement of policy was not intended to and did not have the effect
of interfering with the employees in the exercise of their rights under
the Act.
With respect to the allegation concerning the arming of gatemen
and patrolmen, the record shows that on or about October 1, 1938,
the respondent. armed its gatemen and patrolmen. According to
SHELL OIL C'0., INC. 879
Waser, the respondent's purpose in this action was to protect its
property and the persons of its employees. Reports of patrolmen
and gatemen with respect to disturbances at the gate indicate that
the chief function performed by said employees, other than to make
sure that all employees coming in and out of the main gate of the
plant were in possession of the proper means of identification, was to
guard the property of the respondent particularly against sailors on
shore leave, who had to go through the property of the respondent
in order to get back to their ships.7 The guards were installed at
a time when sailors frequently came through the property. In 1939,
a road was built alongside the refinery which made it unnecessary for
the sailors to pass through the refinery grounds in order'to reach their
ships. However, even after the road was shifted, • the respondent
had trouble with sailors coming over the fence. In two other plants
of the respondent at East Chicago, Indiana, and Wood River, Illi-
nois, the respondent also maintained armed guards. Waser further
testified that another company whose refinery adjoined that of the
respondent also employed armed guards for the protection of its
property.
James Benson, vice president of the Union, testified that about
November 1939, while he was working in the pump house on the
night shift, he saw a patrolman outside watching the pump house,
and that when he went out to ask him what he was doing there,
the patrolman rode away on his bicycle. Shortly thereafter, two
guards returned and rode up and down in front of the pump house.
Benson became alarmed and telephoned his superior, Taylor, to come
over to the pump house. Shortly after he had telephoned, the armed
guards came into the pump house. They were followed by Taylor.
The guards asked Benson what he had in his hand and Benson replied
that it was the operating manual of the respondent. Benson reported
the incident to Keegan, who said he knew nothing about it.
Except for the pump-house incident hereinabove set forth, there
is no evidence that gatemen or patrolmen threatened union employees
in any way or spied upon them. Keegan testified that instructions
were never issued to the gateman or patrolmen to treat union em-
ployees differently from other employees. While the pump-house
incident is not fully explained in the record, we find, as did the Trial
Examiner, that such incident is not sufficient to support the allegation
that the respondent armed its gatemen and patrolmen in order to in-
timidate the Union and that it caused said employees to spy upon
union members.
7 The respondent 's plant is located on a channel leading from the Gulf of Mexico to the
Port of Houston , and sailors from vessels tied up at docks used the respondent ' s property
to reach the highway.
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding the allegation that the respondent falsely accused Ben-
son of attempting to run down a patrolman, the evidence shows that
on April 4, 1938, Patrolman A. J. Sopcjack reported to his immediate
superior, Jones, that Benson had tried to drive out of the parking
lot through the entrance gate and that when he stopped Benson and
told him that he should go out the other gate, Benson stepped on
the throttle of his car and almost ran over him. Benson testified
that he had been ill and had not used the parking lot in some time
and was therefore unaware that the exit gate had been changed. He
denied attempting to run over Sopcjack. After Benson had given;
this explanation of the incident to Keegan, the latter stated that it
was just a misunderstanding. With respect to this incident, we find,
as did the Trial Examiner, that Keegan did nothing more than con-
duct an inquiry into a matter reported to him by one of his employees,
and that he did not falsely accuse Benson for the purpose of intim-
idating a union member.
With respect to'the allegation concerning an anti-union statement
made by Waser to Burrow, the latter testified that in July 1939, while
he was negotiating with Waser concerning employee vacations, Waser
stated to him that he would be glad to have him take "a 5-year va-
cation." Waser admitted that he might have said something to that
effect, but stated that he did so in a joking manner and that it had
not been intended seriously. Burrow admitted that Waser had a
smile on his face when he made the above statement. We find, as
did the Trial Examiner, that the evidence is insufficient to support
the allegation that Waser made the above statement for the purpose
of undermining the confidence of other union officers in Burrow.
With respect to the' allegation that the respondent directed a
patrolman to apply discriminatory tactics to Benson, the evidence
shows that on or about December 23, 1939, while Benson was sitting
in the gate house at the main entrance to the plant telephoning,
Patrolman King approached him and asked him for his badge. When
Benson informed him that he wished to go to the company hospital
about an insurance check, although he had no special permit to do
so, King ordered him to leave the plant. Benson refused to comply
with King's order and proceeded 'to enter the plant. Evidence sub-
mitted by the respondent shows that it was a company rule at that
time to require employees seeking entrance to the plant outside of
working hours to obtain a special permit for that purpose. Under
these circumstances, we find, as did the Trial Examiner, that the
evidence is insufficient to support the allegation that Benson was
accorded discriminatory treatment by King. ,
We find that by the above-described activities, the respondent
has not, interfered with, restrained, and coerced its employees in the
SHELL OIL CO., INC. -881
exercise of their rights under Section '7 of the Act, and we shall
accordingly dismiss the allegations of the complaint with respect
thereto.
C. The d'iscriminato'y discharge
W. O. Ventura was employed by the respondent in July 1932. He
first worked as alaborer on the bull gang. In October 1933 he be-
came a second-class pipe-fitter helper in the cracking clean-out depart-
ment. Thereafter he, received further promotions, and on January
17, 1940, the date of his discharge, he was employed in that depart-
ment as a first-class pipe-fitter helper and second-class pipe fitter.
He joined the Union in 1935 and served as a steward in the dub
clean-out department from -October 1937 to November 1939. From
November 1939 until his discharge he was alternate steward in his
department. While serving in these capacities Ventura had occasion
to take up grievances with Keegan, head of the industrial-relations
department, Miller, plant superintendent, William Cowgill, his fore-
man; Bodine, then head of his department, and other supervisory
employees. On one occasion in 1938 Ventura took, up with Cowgill
the matter. of a wage reduction suffered by two of the, men, Pendle-
ton and Robison, in the dub clean-out department. Later, after a
conference participated in by Ventura and other union representa-
tives with Miller and Keegan representing the management, the re-
spondent granted back pay to these men amounting to approximately
$80 each. About 2 or 3 months before his discharge Ventura sought
a wage-rate increase from Cowgill for employees doing a certain
type of work in the department which he represented. The request
was referred to Bodine, who sent for Ventura. Ventura refused to
go to Bodine's office without the other employees whose interests
were affected. After a discussion with Cowgill, Fullerton, who was
then the steward for the dub clean-out department, and Ventura
went together to see Bodine. When they arrived at Bodine's office,
the latter said that he had been dealing with men for 15 years, and
that "this is the first time that a fellow ever refused to come down
and talk to him." In answer to a question by Ventura as to why
he wished to see the men one at a time, Bodine replied, "If I got
14 or 15 of you down here I might have 2 loud mouths in the bunch
and others wouldn't have anything to say." Fullerton and Ventura
then explained the nature of their request. About 6 weeks later,
shortly before Ventura's discharge,'the request was refused.
The respondent contends that Ventura was discharged for the vio-
lation of two company rules adopted in 1938. One of these rules for-
bids employees from threatening fellow employees with violence and
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was published in a memorandum issued by Waser to all employees on
March 14,1938, and posted in the plant as follows :
It has come to our attention that some of our supervisors are
receiving threats of violence from some of the employees, which
are obviously designed to intimidate them.
We are absolutely determined to stop any reprisals either on or
off the job that are an outgrowth of any differences connected
with activities of our employees. Any employee found making
a threat connected in any way with intimidation or physical vio-
lence between our supervisors or other employees will be subject
to instant dismissal.
... Any employee receiving such threats should immediately
report to his department head or to me.
The other of these rules prohibits the use of abusive language to-
wards other employees, and is found in a booklet entitled "Rules and
Regulations for Employees," a copy of which was furnished each
employee on or about August 1, 1938. The rule reads :
Dismissal
An employee is subject to immediate dismissal for. any of the
following reasons.
5. Insubordination . . . or the use of abusive language toward
other employees.
During the lunch period on January 10, 1940, Ventura was in the
dub clean-out shack along with a number of fellow employees : Alec
Vincent, A. N. Vana, T. A. Barker, Mike Robison, Leo L. Fullerton,
M. L. Roller, R. E. Pendleton, R. L. Marchiando, and G. A. Smith."
Some of the men attempted to induce Vincent, a former union member,
to rejoin the Union and an argument developed between Ventura and
Vincent. The argument ended at the close of the lunch period.
There was no physical violence of any kind.
On January 15, 5 days later, Gaines Mason, assistant foreman, ap-
proached Vincent and asked him for the details concerning his alterca-
tion with Ventura. Later that day Mason informed Cowgill that
Vincent had told him that he was upset by threats made against him
by Ventura.9 Cogwill thereupon called Vincent into his office, and
instructed him to prepare a' written statement giving his version of
8 The record shows that Pendleton , Vana, Robison , Fullerton , and Roller were members
of the Union and that Barker had been a member. The record does not disclose whether
or not the remaining employees were members of the Union.
8 Vincent testified that he had not reported the incident to anyone prior to being ques-
tioned by Mason. Mason testified that although he was eating lunch in the clean-out
shack at the time the argument between Vincent and Ventura took place, be first learned
of what had happened from Olson , an employee who accompanied him on his way home
that evening . Mason offered no explanation as to why he had waited 5 days before question-
ing Vincent and reporting the matter to Cowgill.
SHFJLL OIL CO., TNC. 883
the incident. On the following morning, in accordance with these
instructions, Vincent gave Cowgill a statement, reading in part, as
follows :
I quoted to them that I once belonged to it, (the Union) and
due to Misfortune, I had lots of Doctor bills and many other
bills to pay so I was forced, to fall out. I also quoted to them that
before I 'was delinquent I even tried to borrow money from some
Union brothers to keep from going delinquent but my efforts were
fruitless.
So I told them I had made up my mind I was better off to stay
out of it. They said if I was in sympathy with labor I had to
belong to some Union. I said that was up to me and I ask them
to leave that matter up to me and I wish to be left alone. Fuller-
ton said, "if you want to be left alone, why don't you leave the
gasoline (meaning the 15 gallons monthly allowance) alone? He
said the Union was solely to be credited for that . . . That's
.when Bill Ventura flushed out and said "DON'T YOU THINK
IT'S WORTH YOUR TWO DOLLARS?"
Again I said, you fellows leave me alone and worry about your-
self. Bill Ventura said, "I'm through with you, you coon-ass
son-of-a-bitch, I'll meet you at the gate at 4:30. I , want to whip
your God-damned ass."
NoTE.-And in that statement Bill Ventura's manner was very
antagonistic and with impetuous threats.
Then Pendleton said, "I for myself don't want to try to force
you into it, but when you get home think it over and if you decide
to come in O. K. and if you don't, well you're free to think as
you want. Talk it over with your wife and if she disapprove
it, well that's one thing to consider too." Also he said he thought
I'd profit by joining.
* * * * * * *
On the morning of January 16, Cowgill wrote a letter to his
superior, A. S. Mitchell, containing a report of the incident based
upon the written account given him by Vincent. Cowgill then inter-
viewed Barker, Robison, Marchiando, and Vana asking each of them
to give his version of the conversation in the clean-out shack on Jan-
uary 10. Barker, Robison, and Vana, then signed below Cowgill's
signature on the latter's letter to Mitchell, stating in effect that it was
substantially their recollection- of what had transpired. Cowgill tes-
tified that Marchiando stated that he overheard the argument, but
"couldn't say what was said or who said it." 10
10 Marchiando executed an affidavit to the same effect on January 18, 1940 , the day after
Ventura was discharged.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cowgill, Mitchell, and Keegan then discussed the matter with
Waser. During the conference, which took place on January 16,
Waser had before him Cowgill's letter to Mitchell and Ventura's em-
ployment record. Waser, according to his testimony, told Keegan
and the others that he was. particularly interested. in finding out
whether Vincent cursed Ventura at any time during the conversation
in the clean-out shack and whether there were any circumstances that
would change the picture in favor of Ventura. Accordingly, he in-
structed Keegan and Mitchell to make a further investigation of the
matter.
In the course of this further investigation, on the same afternoon
Keegan called Robison, Vana, and Barker into his office and obtained
their signatures to the following affidavit : ^l
While we were eating; all of us sitting pretty close together,
either Pendleton or Fullerton started a conversation with Alec
Vincent about getting back into the Union. We don't remember
which one started it but during the conversation both Pendleton
and Fullerton got into it. They were trying to convince Vincent
that he should rejoin. There was no cursing between Vincent,
Pendleton and Fullerton. We could tell there was quite a bit of
argument but we didn't pay much attention to it until Bill Ven-
tura got into it.
Vincent had told all them that he wanted them to leave him
alone; that they could do as they pleased and he would do as he
pleased. He was very nice about the way he asked them not to
bother him. At this point, Ventura started cursing Vincent.
He called Vincent a son-of-a-bitch and told him that if he would
meet him outside the gate he would whip his ass.' Vincent re-
plied, "It looks like you are trying to lead up to trouble." Soon
after that the whistle blowed and we went back to work.
Ventura was very loud and abusive toward Vincent but at no
time did Vincent curse or abuse Ventura.
On January 17, prior to Ventura's discharge, Keegan also obtained
affidavits from Pendleton and Smith, who were present during the
conversation. In his affidavit, Pendleton stated :
... Of course, we weren't using the best of Sunday School lan-
guage but I didn't notice anybody cursing the other ... There
could have been cursing and I didn't catch it. After Bill told
him that it wasn't no place to argue but that they could settle it
"'Subsequently , Robison and Vana signed statements at union headquarters about the
incident. In his statement , Robison stated that Keegan did not "act like he thought the
thing amounted to anything." He further stated that Keegan wrote out a statement after
asking him some questions, read it to him, asked if it was "about right," and had him sign
it. In his statement , Vana stated that he heard a "lot of loud talk" and some cursing,
but that he did not know whether or not Ventura was cursing Vincent.
SHELL OIL CO., INC. 885
at four o'clock or some other time, about that time the whistle
blowed and we had to go to work.
Smith's statement read, in part, as follows:
I don't say that Ventura cursed Vincent or that Vincent cursed
Ventura. I just heard the last of the argument. Otherwise, I
couldn't even say what the argument was about. That is all I
heard that I could swear to. If they were,cursing one another
it didn't draw my attention enough to pay any attention to it
because the men are always arguing and most of the time I don't
pay any attention. I just went ahead and ate my lunch. I guess
I just got the tail-end of the argument.
On the afternoon of January 16, Ventura, having heard that the
incident of January 10 was being investigated, went to see Keegan
and told his version. According to Keegan, Ventura denied that
he had cursed Vincent during the conversation and stated that Vincent
had,not cursed him. Keegan further testified, however, that during
the conversation Ventura told him that Vincent had referred to "some
of you damn good union brothers" and had said "To hell with the
Union." Keegan did not ask Ventura for a written statement.
Ventura's version of the incident, and the one which he testified
that he related to Keegan, was that while the employees were at lunch,
Fullerton told Vincent that he could get back into the Union for $7,
whereupon Vincent replied that he belonged to a "bigger damn organi-
zation" than Local 367 and that the Union had never done anything
for him except to take away 6 years' seniority. About this time Ven-
tura asked Vincent how he came to "go delinquent first," and Vincent
replied that it was because he could not borrow $2 "from some of the
good union brothers sons-of-bitches." Ventura testified that he then
said "Why don't you just admit that you are just a damn coon-ass and
too tight to pay the two dollars . . . Vincent, it is 12: 30 now. Either
now or at 4: 30 you can come out to the gate and you can either whip
my God-damn ass or I'll whip yours or we can go out and talk it over
or settle it any way you want to . . ." Ventura further testified that
Vincent then asked the men to leave him alone, and that he, Ventura,
told him that "as far as leaving him alone it was settled there as far
as I was concerned." Ventura thereafter took no physical or other
action against Vincent.
On the afternoon of January 17, Keegan, Mitchell, and Cowgill had
a further conference with Waser. At that time, Waser had before
him a statement signed by Robison, Barker, and Vana, the letter from
Cowgill to Mitchell, Vincent's statement, and the statements of Pen-
dleton and Smith. Waser testified that at this time he did not decide
to discharge Ventura, but left the final decision to Cowgill and
Mitchell.
451269-42-vol. 34-57
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after this conference, Cowgill for the first time sent for
Ventura and asked him-to tell his version of the incident. Mitchell
was also present during this conversation . Cowgill testified that
Ventura denied that he swore at Vincent or that Vincent cursed him.
He further testified that he told Ventura he was convinced that Ven-
tura had violated the rules of the company and, therefore, that he
could do nothing but discharge him. According to Ventura, Cowgill
admitted that he had not interviewed all the men who were present
during the conversation of January 10. Ventura testified that at
this time Mitchell stated , ". . . we have been out here together a long
time . . . I really hate to fire a man like you , but this has gone just
a little bit too far. The pressure has been put upon us and if we don't
let you go, we will have somebody in our place." Mitchell denied that
he had stated that "the pressure has been put upon us, and if we don't
let you go, we will have somebody in our place." The Trial Examiner
credited his denial, and we find that Mitchell did not make the state-
ment attributed to him by Ventura. ,
On the day after Ventura was discharged, the respondent took
statements from Roller and Fullerton, both members of the Union.
Roller's statement is, in part , as follows :
I don't know whether he (Vincent) said None of the Union
Sons-of-bitches or bastards or, something would loan him the
$2.00 so Bill (Ventura) was sitting over there and he told him
if that was the way he felt about it to wait until he got on the
outside . . . I didn't hear either one of them curse the other, but
the way I looked at it one was just as much to blame as the other.
I don't think Bill would have said what he did if Frenchy (Vin-
cent) hadn't brought out the remarks he did about the rest of the
men.
Fullerton testified that on the day of Ventura's discharge Cowgill
had questioned him as to the incident, and that he had asked Cow-
gill, "What are you doing, framing Bill?" and accused him of "taking
up men that hate his (Ventura's) guts to go up to Mr. Keegan's office
to make statements," and not those who had participated in the argu-
ment. The following day Cowgill told Fullerton that Keegan wanted
to see him. Shortly thereafter Fullerton went to Keegan's office,
where he executed a statement reading, in part, as follows :
... so he (Vincent) said he wouldn't have had to drop out if
"some of you Union Bastards or Sons-of-bitches or something,
had loaned me two dollars" ... and Bill said "Well, if that is
the way you feel about it, Coon ass, just wait until 4: 00 and we
will argue about it on the outside of the gate.
In view of the ,foregoing, we find, as did the Trial Examiner, that
on January 10 Ventura called Vincent a "coon ass son-of-a-bitch,"
SHELL OIL CO., INC. 887
and that after Vincent had made some disparaging remarks about
the union members, Ventura stated in substance that he wanted to
meet Vincent at the gate that afternoon and whip his "God-damn
ass." We also find, however, that the language used by Ventura on
this occasion was used frequently among the respondent's employees.
Benson, Nelson, Ventura, Vincent, and Robison, all testified that em-
ployees at the plant often cursed and called each other "coon ass" and
"son-of'a-bitch" when arguing over various matters.
On January 24, 1940, the union committee consisting of Burrow,
Chairman, J. E. Crossland, James Benson, A. A. Hendrick, R. L.
Ferguson, C. Butler, and D. W. Todd, conferred with Waser, Keegan,
Cowgill, and Miller, with reference to Ventura's discharge. Waser
told the committee that Ventura had been discharged for the viola-
tion of company rules with respect to the use of abusive language
toward fellow employees and threatening a fellow employee with
violence. He also stated that he had evidence of the violations in the
form of sworn statements from some of the employees who were pres-
ent when the argument between Vincent and Ventura took place.
The union representatives stated that they did not believe that Ven-
tura had used the language and made the threat attributed to him,
and asked to see the statements. Waser refused to produce them.
The union representatives further stated that they did not feel that
the offense, with which Ventura was charged, merited dismissal.
According to Benson, Crossland, and Burrow, the Board witnesses
who testified concerning the conference, Waser stated at the end of
the discussion that he would look over any statements of employees
present during the argument that the Union might have, but that
they would not change his mind concerning Ventura's discharge, and
that the discharge would "stick." The Union did not present any
statements. Waser testified that he had told the 'union representa-
tives that they had not presented any evidence during the interview
that would lead him to change his mind, and that he would be glad
to look over any statements that they had to offer. Benson also tes-
tified that during the conference "Dr. Waser further stated that he
thought this Ventura case could be a good one for the Harris County
-Grand Jury, which was in session but idle at the time. He said that
he was an American citizen, a citizen of the State of Texas, and
Harris County, and that, speaking for the better class of citizens in
Harris County, they were getting God damned tired of this labor
violence and that he thought it would be a good idea to have us in-
vestigated." Waser testified that the statement he made was that "if
a man has to belong to any church, lodge, or labor organization or
any other organization and if he can't decide for himself if he is to
belong or not to belong, in order not to meet with physical violence,
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and can't decide for himself, that, as an American Citizen, and I am
speaking for other citizens, I am getting damned sick and tired of it."
Waser's account of what was said by him at the conference was cor-
roborated by Mitchell, Cowgill, and Keegan. We credit, as did the
Trial Examiner, the testimony of Waser regarding the statements
made by him to the union representatives on January 24.
The respondent maintains in its brief that Ventura's violation of
the rules against threatening and abusive language was the first to
come to its attention since such rules were published. The record
shows, however, that the respondent permitted at least two other
employees to violate these rules without being discharged, and in one
instance without any disciplinary action whatsoever. At the time
Benson had his argument with King on December 23, 1939, the cir-
cumstances of which are hereinabove set forth, J. M. Pridgeon, who
according to the uncontradicted testimony of Benson was not a mem-
ber of the Union, was also present. According to a statement sub-
mitted by King to his superior, Jones, during the course of the argu-
ment, Pridgeon "came up and raised Hell. He wanted to fight and
said when I took this gun off he was going to whip me. I asked
him what I had done to him. He said nothing only I was a Damned
stool pigeon." Derr, another employee, corroborated King's state-
ment and added in his memorandum to Jones that Pridgeon had
stated that "he would beat the Hell out of him (King)." Pridgeon
was outside the main gate of the plant when he made these remarks,
but King was on duty as gateman. When asked to distinguish be-
t weeu the incidents, Waser testified :
Well, in the first place it happened outside the gate . . . In the
second place Mr. Pridgeon came the following morning to my
office voluntarily, regretted very much the incident, . . . He ad-
mitted he was drinking and he apologized to Mr. King . . . The
language . . . was not as abusive as Mr. Ventura's . . . The
main distinction is that Mr. Pridgeon came back and apologized.
Sometime in the early part of February 1940, Ventura asked Waser
to reinstate him but Waser refused. He told Ventura at that time
that if he had "just thought about" himself and apologized to Vin-
cent there would have been nothing to the incident. Prior to his
discharge, however, Ventura was given no indication that an apology
to Vincent would mitigate the disciplinary action contemplated by
the respondent.
The second instance of the respondent's failure to impose the pen-
alty of discharge prescribed for a violation of one of the rules in
question, is revealed by the testimony of Foreman Cowgill. Cowgill
testified that on -one occasion Deehart, an employee under his super-
vision, greeted him with the remark, "Thanks for the (indecent
SHELL 0IL CO., INC. 889
word)," referring to a shortage in time for which he believed Cowgill
to be responsible; that he then told Deehart he could not talk to him
in that manner ; and that when Deehart asked what he was going to
do about it, he replied, "I shall find out and let you know shortly."
Deehart was afterwards given a disciplinary lay-off of 2 weeks with-
out pay.
In view of the above facts, we are convinced, as was the Trial Exam-
iner, that Ventura was not discharged for the reasons assigned by the
respondent, but because of his union activities. Ventura was admit-
tedly a competent workman, and at the time of his discharge had 71/2
years of satisfactory service with the respondent. He was an active
union member and his union membership and activities were known to
the respondent. While it is true that Ventura technically violated
the rules against the use of abusive or threatening language, the cus-
tomary purpose in promulgating such rules is to prevent trouble be-
tween employees while working and not while they are off duty during
the lunch period. Moreover, the evidence shows that the language
employed by him was common among the employees, particularly dur-
ing the lunch period, and that no other employee had been discharged
for that reason. In fact, Pridgeon, a non-union employee, was per-
mitted to use language of a threatening nature to an employee on duty
with impunity, and Deehart was disciplined with but a 2 weeks' lay-off
for insubordinate language to his foreman. Furthermore, it is appar-
ent from Waser's statement at the union conference that the respond-
ent's concern over Ventura's argument With Vincent lay principally in
the fact that Ventura was attempting to induce Vincent to rejoin the
Union, and not in the threatening or abusive character of Ventura's
statements. In addition, the manner in which the investigation of the
matter was conducted indicates that the respondent was seeking to
secure evidence to justify the discharge rather than to conduct an
impartial investigation. In this regard, it is significant that Vincent
made no complaint regarding Ventura until approached by Mason;
that the statements of Fullerton and Roller, which were the most favor-
able to Ventura, were not obtained until after his discharge; and that
although Vincent's statement was immediately taken, Ventura was
never requested to make a written statement of his story, and, in fact,
was not interviewed by the respondent with respect to the incident until
he, himself, voluntarily went to see Keegan and requested permission
to relate his version of what occurred. These facts, viewed in the light
of Ventura's activity in the Union and of the respondent's hostile con-
duct toward that organization, compel us to conclude, as did the Trial
Examiner, that his violation of the rules against threatening and
abusive language was not the real reason for Ventura's discharge, but
was seized upon as a convenient pretext for a discharge motivated by
his union membership and activity.
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by discharging W. O. Ventura on Jan-
uary 17, 1940, and thereafter refusing to reinstate him, discriminated
in regard to his hire and tenure of employment, thereby discouraging
membership in a labor organization and 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
We find that the activities of the respondent set forth in Section III,
A and C, 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 tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices. We, will, therefore, order the respondent to cease and
desist therefrom and to take certain affirmative action which we find
will effectuate the policies of the Act.
We have found that the respondent discriminatorily discharged and
subsequently refused to reinstate W. O. Ventura because of his member-
ship and activity in the Union. We shall therefore order the respond-
ent to offer Ventura immediate reinstatement to his former or a sub-
stantially equivalent position, without prejudice to his seniority and
other rights and privileges. We will also order the respondent to
make him whole for any loss of pay he has suffered by reason of the
respondent's discrimination by payment to him of a sum of money
equal to the amount which he normally would have earned as wages
from the date of the discrimination to the date of the offer of rein-
statement, less his net earnings 12 during that period.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAw
1. Oil Workers International Union, Local 367, affiliated with the
Congress of Industrial Organizations, is a labor organization, within
the meaning of Section 2 (5) of the Act.
12 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 and United Brotherhood of Carpenters and Joiners of, America,
Lumber and Sawmill Workers Union, Local 2590, 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. N L. R. B., 311 U. S. 7.
SHELL OIL CO., INC. 891
2. By discriminating in regard to the hire arnd tenure of employ-
ment of W. O. Ventura, thereby discouraging membership in Oil
Workers International Union, Local 367, affiliated with the Congress
of Industrial Organizations, the respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section
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. '
5. By the activities described in Section III, B, above, the respond-
ent has not thereby engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Shell Oil Company, Incorporated, Houston, Texas, and its
officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union,
Local 367, affiliated with the Congress of Industrial Organizations,
or any other labor organization of its employees, by discriminating
in regard to their hire and tenure of employment or any terms or con-
ditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose 'of collective bargaining or other mutual aid or pro-
tection, 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) Offer to W. O. Ventura immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority and other rights and privileges;
(b) Make whole said W. O. Ventura for any loss of pay he may
have suffered by reason of the respondent's discrimination against him
by payment to him of a sum of money equal to that which he would
normally have received as wages from the date of the respondent's
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination against him to the date of such offer of reinstatement,
less his net earnings,13 during said period;
(c) Immediately post notices to its employees in conspicuous
places throughout its Deer Park refinery, Houston, Texas, and main-
tain such notices for a period of at least sixty (60) days from the date
of posting, stating (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs
1 (a) and (b) of this Order; (2) that it will take the affirmative
action set forth in paragraphs 2 (a) and (b) of this Order; and (3)
that its employees are free to become or remain members of Oil
Workers International Union, Local 367, affiliated with the Congress
of Industrial Organizations, and that it will not discriminate against
any employee because of membership or activity in said labor
organization ;
(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 herewith.
AND IT IS FURTHER ORDERED that the complaint, in so far as it
alleges that the respondent, by statements prejudicial to and in dis-
paragement of the Union and by statements threatening union mem-
bers made by supervisory employees Waser, Robertson, Morris,
Kennedy, Lewis, Miller, Ayers, Martin, and Richardson ; by arming
its gateman and patrolmen for the purpose of intimidating and
coercing its employees and causing said gateman and patrolmen to
watch and spy upon members of the Union ; by provoking a fight
through Foreman Smith with Wilson, a union member; by falsely
accusing James Benson of running down one of the respondent's
patrolmen; by directing Patrolman King to discriminate against
Benson; by issuing a statement of labor policy on or about April 8,
1938, and a bulletin regarding the submission of grievances on or
about March 7, 1939, and by causing ballots to be furnished to its em-
ployees on or about September 26, 1939, and May 1, 1940, for the pur-
pose of taking a vote on working hours and methods of pay, has
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act, be, and it hereby is, dismissed.
MR. EDWIN S. SMITH took no part in the consideration of the above
Decision and Order.
13 See footnote 12, supra.