Shell Petroleum Corporation

National Labor Relations Board - Board Decisions

Dec 20, 1938

10 N.L.R.B. 719 (N.L.R.B. 1938)

In the Matter of SHELL PETROLEUM CORPORATION and INTERNATIONAL
UNION OF OPERATING ENGINEERS
Case No. C-393.-Decided December 20, 1938
Oil Refining Industry-Interference, Restraint and CoercionInterference
in Administration of Union: attempt to influence election of union officers, sum-
moning employees into office and questioning them about union election , accus-
ing officers of being radicals ; employer ordered to cease interference-Refusal
.to Meet with Representatives of Union: allegations of, dismissed-Descrimina-
tion: discharge of leaders in strike-Reinstatement Ordered-Back Pay: awarded
from date of discharge-Strike: sit-down.
Mr. Alan F. Perl, for the Board.
Green, Verlie c6 Hoagland, by Mr. D. J. Verlie and Mr. Karl
Hoagland, and Mr. J. Fred Schla fly of Alton, Ill., for the respondent.
Mr. George Rose, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed on May 21, 1937, and September 2, 1937,
by the International Union of Operating Engineers, herein called
the Operating Engineers, the National Labor Relations Board, herein
called the Board, by Dorothea de Schweinitz, Acting Regional
Director for the Fourteenth Region (St. Louis, Missouri), issued and
served its complaint dated October 21, 1937, against Shell Petroleum
Corporation, Wood River, Illinois, 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), (2), and (3) and Section 2 (6) and (7) of the Na-
tional Labor Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices, the complaint alleged
in substance (1) that the respondent had coerced, interfered with,
and restrained its employees in the exercise of their rights to self-
Organization by (a) giving preference in promotion and positions on
the seniority list to employees eligible for but not members of the
Operating Engineers, (b) denying to its employees who were mem-
10 N. L. R. B., No. 60.
719
720 - NATIONAL LABOR RELATIONS BOARD
bers of the Operating Engineers their right to be represented by
representatives of their own choosing, (c) persuading certain em-
ployees to give up their membership in the Operating Engineers;
(2) that the respondent had interfered with the administration of a
labor organization; and (3) that the respondent had discriminated
in regard to the hire and tenure of employment of three employees,
William O'Dell, Frank C. Werner, and W. C. Eades, because they
had engaged in concerted activities with other employees for the
purpose of collective bargaining and other mutual aid and protection.
On October 26, 1937, the respondent filed its answer, denying the
charges of unfair labor practices but consenting to the entry by the
.Board of an order directing it to cease and desist from such practices,
and setting forth that the three men discharged conducted a sit-down
strike in violation of an agreement and in violation of the criminal
statutes of the State of Illinois.
Pursuant to notice, a hearing was held in St. Louis, Missouri, from
November 4 to November 13, 1937, before W. P. Webb, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent-were represented by counsel ,and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to produce evidence bearing upon the issues was af-
forded to all parties. At the hearing, counsel for the respondent
objected to the introduction of testimony in support of certain allega-
tions in the complaint,' on the ground that said allegations were not
based on the charge. The Trial Examiner overruled the objection.
Ccunsel for respondent thereupon moved to strike from the complaint
paragraph 6, including subparagraphs (a), (b), and (c) and para-
graphs 7, 8, and 9, on the ground that the complaint was broader than
the charge. The Trial Examiner denied the motion. The Board
affirms these rulings.
The function of the charge is to call the attention of the Board to
the fact that certain unfair labor practices are alleged to have been
committed. It is not essential that the charge describes the alleged
unfair lab-or practices with the same particularity as the complaint.
The charge in this case sets forth that the respondent has engaged
in and is engaging in unfair labor practices within the meaning of
Section 8 (1) and (3) of the National Labor Relations Act, in that
- 1 Paragraph 6 set forth allegations that the respondent "through its officers and agents,
coerced , interfered with , and restrained its employees at the wood River Refinery in the
exercise of their i fights to self-organization by
"(a) Giving preterence in promotion, and position on the seniority list of employees
eligible for , but not members of, the International Union of Operating Engineers , affiliated
with the American Federation of Labor
"(b) Denying to its employees , who are members of the International Union of Operat-
ing Engineers their right to be represented by representatives of their own choosing.
"(c) Persuading certain employees of the wood River Refinery and inducing them to
give up their membership in the International Union of Operating Engineers."
DECISIONS AND ORDERS 721
the respondent "both by its officers and agents has interfered with
its employees, who are members of the above-named organization in
their right to belong to this 'organization and to be represented
through representatives of their own choosing." The portions of
the complaint objected to are not extensions beyond the primary
allegations of the charge, but constitute a setting forth in greater
detail of the violations, alleged to have been committed by the re-
spondent. To favor non-union employees as against union employees
as alleged in subsection (a), to deny its employees the right to be
represented by representatives of their own choosing as alleged in
subsection (b), and to persuade employees to give up their member-
ship in the Operating Engineers as alleged in subsection (c) of
paragraph 6 of the complaint are clearly interferences with the
right of its employees "to belong to this organization," such as is
prohibited in Section 8 (1) of the Act. In paragraph 8 of the-com-
plaint, it is alleged that the respondent has "interfered with the
administration of a labor organization. . . by attempting to
influence and control the vote of that organization so that repre-
sentatives favorable to the respondent might be elected to hold office
in that organization." In paragraph 9, it is alleged that this is a
violation of Section 8 (2) and (1) of the Act. While the charge
sets forth no specific allegation of a violation of Section 8 (2), it
is apparent that the portion of the- charge quoted above provides a
proper basis for setting forth such a violation as is contained in
paragraph 8. We believe, therefore, that the Trial Examiner prop-
erly overruled the respondent's objection and permitted the ques-
tioning of the witness on matters in support of these allegations of
the complaint.
During the course of the hearing, the Trial Examiner made various
rulings on the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On January 27, 1938, the Trial Examiner filed an Intermediate Re-
port, copies of which were duly served upon all parties, in which he
found that the respondent had engaged in and was engaging in un-
fair labor practices within the meaning of Section 8 (1) and (3) and
Section 2 (6) and (7) of the Act, and recommended that the re-
spondent cease and desist from the unfair labor practices found and
offer full reinstatement with back pay to the three persons named in
the complaint, but recommended that so' much of the complaint as
relates to allegations of unfair labor practices within the meaning of
Section 8 (2) be dismissed. Exceptions to the Intermediate Report
were thereafter filed by the respondent and the Operating Engineers
on February 8 and 10, 1938, respectively.
722 NATIONAL LABOR RELATIONS BOARD
On February 17, 1938, the respondent filed a motion to strike por-
tions of the exceptions to the Intermediate Report filed by the Oper-
ating Engineers. This motion is denied. The Board has considered
the exceptions filed by the respondent and those filed by the Operating
Engineers and, save to the extent that the findings below depart from
those of the Trial Examiner, finds that the exceptions are without
merit.
On July 5, 1938, oral argument on the exceptions to the Inter-
mediate Report and on the record was held before the Board in
Washington, D. C. The respondent and the Operating Engineers
participated in the oral argument.
Upon the entire record in the case, the Board makes the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Virginia corporation, organized in 1917, aricf
is a wholly owned subsidiary of Shell Union Oil Corporation, a Dela-
ware corporation. It is engaged in the business of refining crude
oil and selling and distributing gasoline, lubricating oils, greases,
and similar petroleum products and derivatives. The respondent
operates oil refineries at Wood River (Roxana), Illinois; Houston,
Texas; New Orleans, Louisiana; Arkansas City, Kansas; and East
Chicago, Indiana. It has a capital investment of approximately $40,-
000,000 in equipment, machinery and other appliances used by it.
We are concerned here only with the respondent's refinery at Wood
River, where the respondent employs some 2,000 workers. The re-
spondent uses at the Wood River Refinery about 1,000,000 to 1,500,000'
barrels of crude oil a month. All this crude oil originates in Texas
and Oklahoma and is shipped to Wood River through a pipe line
owned by a company controlled by Shell Petroleum Corporation.
The products of the Wood River Refinery exceed $1,000,000 in value
per month; less than one-half of those products are sold in Illinois.
The remainder are sold in Indiana, Ohio, Georgia, Missouri, and
Wisconsin. Some shipments go to New Orleans where they are for-
warded to foreign countries.
The Wood River Refinery is about the twelfth refinery in size out
of several hundred in the United States.
II. THE ORGANIZATION INVOLVED
The International Union of Operating Engineers is a labor or-
ganization affiliated with-the American Federation of Labor, admit-
ting to its membership all persons engaged in the operation of steam
boilers,' stationary; marine Diesel,- portable, hoisting and electrical
engines, gas engines, internal combustion engines or any machine
DECISIONS AND ORDERS 723
that generates power . Local No. 525 and Local No. 525A are the
representatives of the men belonging to the Operating Engineers
in the respondent 's refinery . They number about 750 men , of whom,
about 150 belong to Local No. 525A. Local No. 525A is a subordi-
nate local , a junior and apprentice branch of No. 525, subject to.
its jurisdiction.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor relations
Local No. 525 of the Operating Engineers was organized in 1933._
In November 1935, a sublocal , Local No. 525A , was established to-
comprise the junior or apprentice members of the Operating Engi
neers, most of whom were employed in the compounding department.,
Local No. 525A had its own grievance committee , which took up the-
members' grievances separately with the respondent; its chairman
was the president of Local No . 525, and it had representatives on the
executive committee of the parent local. When the respondent nego-
tiated with the Operating Engineers the two locals were represented
by the joint executive committee of Local No. 525.
On or about May 1, 1934, the Operating Engineers first entered-
into an agreement with the respondent at its Wood River Refinery..
Thereafter, through the efforts of an organizer of the American
Federation of Labor, the Operating Engineers , together with the
13 other craft unions affiliated with the American Federation of
Labor which were located in the Wood River Refinery, representing.
1,500 of the 1,600 eligible employees in the refinery , through their,
international unions, jointly entered with the respondent into a
"Memorandum of Agreement ," herein referred to as the "Orange
Book Contract ." This agreement went into effect May 1, 1935, and
was to remain in force until May 1 , 1936, and "each year thereafter
unless 90 days written notice is given prior to each yearly expiration
date by any of the parties to the agreement."
The "Orange Book Contract" was composed of two parts, one.
being the general provisions and the other the special craft pro-
visions. The general provisions governed the relations of the re-
spondent with all of the unions, as a group . The special craft pro-
visions related to the individual craft unions, and were negotiated
by the respondent with each craft union separately , in reference to
matters which did not concern the other organizations.
After the signing of the "Orange Book Contract ," certain matters-
as to wage rates remained to be negctiated. On August 27, 1935, an
international representative of the International Brotherhood •of-
Boilermakers , Iron Ship Builders and Helpers .of America, sent a
letter to the respondent asking for a wage conference . Subsequently,,
724 NATIONAL LABOR RELATIONS BOARD
the respondent arranged a meeting for Tuesday, September 17, 1935.
at St. Louis, -Missouri. At this conference, Mr.,High, representative
for the respondent, announced that the respondent would not grant
a flat wage increase but that adjustments of individual rates would
be made on the facts of the individual cases. Thereafter meetings
were held between the representatives of the respondent and the
separate unions. When all the schedules had been discussed, the
various proposals were voted upon by the unions together in a body,
and at a subsequent meeting on September 20, 1935, the respondent
was notified of the acceptance of the changes. On September 24,
1935, however, the Operating Engineers notified the respondent that
it was not satisfied and requested a further conference. After a
strike was threatened, the matter was submitted for arbitration to
J. A. Lapp, the umpire appointed by the United States Commis-
sioner of Conciliation, who found that the Operating Engineers
was bound by the terms of the supplementary wage agreement of
September 20, 1935.
This solution was unsatisfactory to the Operating Engineers,
which gave the 90 days' notice of its intention to withdraw from the
contract on May 1, 1936, as required- by the "Orange Book Contract."
Upon the expiration of this period, the Operating Engineers asked
the respondent-to enter into negotiations for a new agreement. This
was refused by the respondent's manager, Waser, who told the repre-
sentatives of the Local No. 525 that "the agreement was still in
effect for the majority of the crafts, and if they wanted to be under
the agreement or signed working conditions, their place was to get
back under that agreement."
Meanwhile a number of unadjusted grievances accumulated which
were climaxed in June by the discharge of an employee, named
Boren, for sleeping 'at his work. The Operating Engineers at-
tempted to have Boren reinstated but was unsuccessful. Subse-
quently strike authority was placed in the hands of the executive
committee, and when the respondent failed to take any action, on
July 11, 1936, a strike was called which lasted about 5 weeks, during
which time the plant ceased operations. At the time the strike was
-settled, an understanding was arrived at whereby the parties would
be bound as to the .adjustment of the grievances by the decision of
two boards, an Advisory Board and, a Board of Arbitration.
The Advisory Board was to decide whether the Federated Crafts
Council, a committee established by the "Orange Book Contract"
which comprised 6 representatives from each craft union, should be
reorganized as a part of the Metal Trades Department of the Ameri-
can Federation of - Labor; what was to be the - voting strength of
,each organization affiliated with the Federated• Crafts Council ; and
whether- the .unit system of joint agreement- should prevail in the
DECISIONS AND ORDERS 725
relationship with the respondent. On September 5, 1936, the Ad-
visory Board met and determined that the Federated Crafts Council
should be reorganized as a part of the Metal Trades Department
of the American Federation of Labor; that in wage settlements and
negotiations the rule of unanimous consent should apply where
previously it was determined by a majority; and that the unit sys-
tem of joint agreement with the respondent should-apply.
The Arbitration Board was to hear and rule on grievances sub-
mitted by both parties. Pending this arbitration all men were to be
returned to work without discrimination.
On November 20, 1936, the Arbitration Board made its decision.
Altogether 16 grievances were determined. The Board held that
Boren, whose discharge had precipitated the strike, should be rein-
stated without back pay, and that three men whose discharges the
respondent sought for strike activities should not be dismissed.
On November 17, 1936, a notice relating to a change in job classi-
fication was posted in the compounding department. The respond-
ent stated in the notice that due to the respondent's dissatisfaction
with the performance of the checkers, the job of supervisory checker
would be placed on the monthly pay roll and would be taken from
the line of seniority, and higher educational qualifications would be
required. This was strongly objected to by the Operating Engineers.
Nevertheless the change became effective about January 1, 1937.
Four men were appointed as supervisory checkers, only one of whom,
a non-union employee who ranked between 12th and 16th on the senior-
ity list, had worked in the compounding department before. Such
great disaffection arose over this affair that a strike vote was taken,
but the international representative of the Operating Engineers in-
structed the Local "to let it go for a while."
On January 19, 1937, W. A. Calvin, secretary-treasurer of the
Metal Trades Department of the American Federation of Labor, on
behalf- of the 14 unions, which had been placed under that depart-
ment in their joint relations with the respondent, wrote to the re-
spondent requesting a conference to consider wages and working
conditions with the view of negotiating an agreement. This did not
amount to notice of termination of the contract but only a request for
negotiations for a contract to replace it. At the same time he ad-
vised the respondent that the Operating Engineers would be gov-
erned by the terms of the existing working agreement. This letter
was also signed by Wm. J. Stuhr, the -international representative of
the Operating Engineers. Thereafter, it was testified, the Local con-
sidered itself bound by the "Orange Book' Contract." This request
was granted and on January 26, 1937, in St. Louis, Missouri, the first
of a series of meetings began which continued until April 23, 1937,
when the general provisions of the projected agreement were vir-
147841-89-vol 10--47
726 NATIONAL LABOR RELATIONS BOARD
tually completed. Before the adjournment, O'Dell, chairman of the
grievance committee of Local No. 525A, asked that the respondent
establish a revised schedule of working hours for the compounding
and shipping departments. The representatives of the Local left
with the impression that the schedules were to be negotiated when
they returned to Wood River. For the purposes of this case, how-
ever, it is unnecessary to decide whether there was any agreement
to that effect. The conference adjourned to Wood River, where the
respondent was to meet with the individual unions and negotiate the
special craft provisions.
On the morning of April 30, 1937, without any negotiation, a new
schedule of hours for the compounding department was posted, to go
into effect May 6, providing 24-hour operation with 4 shifts. Men
in the department immediately protested to the grievance committee
of Local No. 525A, which was composed of William C. Eades, Wil-
liam O'Dell, and Frank C. Werner.
These complaints were taken at once by the grievance committee
to Wilson, assistant head, of the department. On the following day,
May 1, 1937, O'Dell and Eades took up the matter with Harrison,
the head of the department, and with Dale, assistant superintendent
in charge of the lubricating division.
The feeling of the men about the new schedule, which they regarded
as being in violation of the respondent's agreement at St. Louis, was
explained to Dale. The grievance committee asked that the respond-
ent take the new schedule off the bulletin board and allow the men
to continue to work under the old schedule, as the committee could
not be responsible for what might happen in the department if the
schedule remained up. Dale asked if that was a threat to strike.
O'Dell replied, "You can call it that if you want to; that is the way
they feel." Dale offered to explain the schedule to the men, but the
grievance committee refused to permit him.
A petition was circulated on Sunday, May 2, 1937, calling a special
meeting of Local No. 525A, to be held that afternoon to determine
whether a strike should be called. During the meeting Stuhr, inter-
national representative of the Operating Engineers, and Kelahan,
secretary of the Union, upon perceiving the trend of feeling, asked
permission of the meeting to get in touch with the respondent and
succeeded in reaching Stiles, general superintendent of the refinery.
Kelahan told Stiles that the men felt the respondent had violated
its agreement and urged that he try to forestall any extreme action.
Kelahan finally succeeded in communicating with Waser who, how-
ever, refused to meet with any of the union representatives that
evening. He agreed to confer with them on Monday, May 3, 1937, if
no strike was called before then. Meanwhile, a strike had been voted
by the Local and authorized by Stuhr.
DECISIONS AND ORDERS 727
On May 3, 1937, at 7: 30 a. m., a sit-down strike commenced in the
compounding department. Eighty-eight employees participated. At
9: 30 Kelahan went to the office of Waser for the conference arranged
the night before. There he found several officials of the respondent,
and Fair and Hambleton from the Metal Trades Committee. Since
the strike had already commenced the immediate purpose for the
meeting was gone, but the suggestion was made (it is not clear by
whom), that some of the respondent's officials go down to the com-
pounding house and explain the schedule. This was agreed to by
Lacomble, vice president of the respondent in charge of manufacturing
operations.
Thereafter, Lohman and Dale, for the respondent, who were later
joined by Harrison, the head of the compounding department, Fair,
Hambleton, and Kelahan went down to the compounding house. As
they approached the compounding house Kelahan went ahead of the
group and met the members of the grievance committee of Local No.
525A, Eades, O'Dell, and Werner; he told them the purpose of the
group coming down to the compounding house, but the committee
refused to permit any of the company officials to go in and speak to
the men, saying that they were the duly elected committee and as
such were authorized to speak for the men. O'Dell testified, in
explanation, that they did not want the strike broken. Being unable
to effect any arrangement, the group and the grievance committee
went into the nearby truckers' shanty, where the respondent's repre-
sentatives urged that the men go back to work and then discuss the
new schedule. The committee insisted, however, that the new schedule
be taken down first and that they go back under the old schedule.
As no agreement was reached on this matter, the group returned to
the respondent's offices and the sit-down strike continued.
The sit-down strike was conducted in a very orderly manner. It
first extended to the whole compounding department, that is, the com-
pounding house, the barrel reconditioning plant, and the can filling
plant. On the evening of the first day of the strike, at the request of
the respondent, the strikers withdrew from the barrel reconditioning
and can filling plants and permitted the respondent to lock up these
buildings in order to prevent the theft of any of the respondent's
property therein. During the course of the strike the other depart-
ments of the refinery continued to operate without any restriction.
There was no evidence that any of the respondent's property had
been destroyed or stolen by the strikers.
During the continuance of this strike, boxes of food, change of
clothing, toilet articles, and other necessities were passed over the
fence for the strikers. On May 6, 1937, Grammer, president of the
Local No. 525, came to the compounding house and directed that the
men evacuate it immediately, because an injunction had been issued.
728 NATIONAL LABOR RELATIONS BOARD
By this time the 88 men who had initiated the sit-down had dwin-
dled to only 21. These men gathered their possessions together into
the boxes and took them to the fence, where several other members
of the union were assembled on the outside to receive their packages
as they passed them over. O'Dell approached the fence first, where
a foreman and a guard were standing. The foreman asked to see
the contents of O'Dell's box, but O'Dell ignored the request and
passed the box over the fence. The other men allowed their boxes to
be inspected and immediately left the refinery.
On May 10 the Operating Engineers voted on a resolution outlining
a plan to be submitted to the respondent under which they would
return to work. This plan provided that there should be no dis-
crimination or attempt to penalize any member of the organization.
This was immediately rejected by Waser, who refused to waive the
respondent's right to punish any employee but stated that it would
consent to the men returning to work. He then indicated whom the
respondent intended to penalize. On May 13 the union decided to
take a• vote on going back to work, since the respondent was bringing
in men to break the strike. A ballot was taken, and the men voted to
return to their jobs. The international union promised to back up
any men whom the company attempted to single out or discharge for
union activity in the strike.
On May 14, 1937, the men returned to work. Eades, O'Dell, and
Werner were not permitted to go to their jobs, and received their
discharge slips.
B. The discharges
The following four reasons for discharge were stated on the dis-
charge slips of each of the three men: (1) "Illegal seizure and pos-
session of company property"; (2) "Violating Article 2 of the Memo-
randum of Agreement now in effect between the Operating Engineers'
Union and the Company by going on an illegal strike"; (3) "Refusing
to permit the Operating Engineers' Business Agent or representatives
of the Metal Trades Council or the Company to explain to the Com-
pounding House employees the true facts surrounding this illegal
seizure and possession of company property"; (4) "Violating Article
17 of the Memorandum of Agreement now in effect between the Op-
erating Engineers and the Company by disregarding the machinery
provided for the orderly adjustment of any grievance."
O'Dell's slip carried also a fifth reason, applicable only to him,
charging his "taking from the refinery, through the fence, several
boxes of unknown contents and refusing to allow, the company rep-
resentatives to inspect the contents, thus violating Article 22 of
Company Rules and Regulations."
DECISIONS AND ORDERS 729
Twenty-one employees remained in possession of the compounding
house until its evacuation on May 6. Of these the respondent selected
the three named above for punishment . The conduct of these three
was no different from that of the other 18 except in regard to the
third point stated on all three discharge slips and the fifth point
stated on O'Dell's. All 21 participated equally in the " illegal seizure
and possession of Company property ," violating the agreement "by
going on an illegal strike" and failing to resort to the, grievance pro-
cedure of the "Orange Book Contract." The third point, that the
three men discharged had refused to permit an explanation of the
schedule to the group of sit-down strikers , of course , does not charge
any breach of agreement or violation of law or of the respondent's
rules. Quite reasonably, they feared that the respondent was
attempting to break the strike by going over the heads of the elected
representatives of the strikers . The refusal was a legitimate tactic
designed to preserve the employees ' organization , and cannot justify
the respondent 's action in refusing to reinstate the committee. The
fifth point on O'Dell 's slip, not being included on the slips of Werner
and Eades , is clearly a makeweight and not the real reason for his
discharge.
The respondent attempted to explain its decision to discharge the
three employees rather than all 21, by stating that it considered that
the discharge of all 21 would have been "unduly harsh" and that
the three were the most active and were "responsible for the mainte-
nance of the strike." If it is relevant , there is no evidence to support
the respondent 's claim that the three were more responsible for the
strike or its conduct than any others of the group. They were merely
the members of the grievance committee authorized by the union to
represent it in dealing with the respondent . In fact, it appears that
the respondent singled out these employee representatives for punish-
ment merely because they were the chosen union representatives.
Such action clearly interferes with the right to self-organization,
for if union representatives are made to assume the risk of personal
responsibility for the actions of their union, no employee of the
employer will be willing to accept the position of representative.
We find that the respondent in discharging W. C. Eades, William
O'Dell, and Frank C. Werner has discriminated in regard to their
hire and tenure of employment, thereby discouraging membership
in the Operating Engineers, and has thereby interfered with, re-
strained, and coerced its employees in the exercise of rights guaran-
teed in Section 7 of the Act.
C. Refusal to meet representatives of Union
Upon the discharge of Werner , Eades, and O'Dell, the executive
board of the Operating Engineers made arrangements for the Metal
730 NATIONAL LABOR RELATIONS BOARD
Trades Committee to take up this grievance with the respondent.
On May 16, 1937, the Metal Trades Committee, of which F. R. Gibson,
an employee, was a member for the Operating Engineers, met with
the respondent. Article 16 of the "Orange Book Contract" provides
that the Metal Trades Committee shall be composed of five employees
of the respondent, of whom, for the consideration of any grievance,
one shall be a member of the union presenting the grievance. Kela-
han attended this meeting to present the case for the Operating En-
gineers, but the respondent objected to his participation on the
ground that Kelahan was not a Committee member. Under the con-
tract, it is clear that the Operating Engineers had no right to a
second representative in addition to Gibson. On May 24, 1937, the
Metal Trades Committee attempted again to meet with the respond-
ent to settle this grievance, but upon being informed that Kelahan
was named as a member of the Committee, the respondent again ob-
jected to his participation, this time because, contrary to the require-
ment of Article 16 of the contract, he was not an employee. In this
connection it should be noted that Article 17 of the "Orange Book
Contract" provides that if no satisfactory arrangement is reached
through negotiation between the management and the Metal Trades
Committee, the matter in dispute may be referred to the international
union involved. We do not find that this contract, apparently freely
entered into by the Operating Engineers, or the insistence upon its
terms by the respondent, constituted a denial of the right of mem-
bers of the Operating Engineers to be represented by representatives
of their own choosing. Accordingly the allegations in paragraph
6 (b) of the complaint that the respondent has denied to its em-
ployees, who are members of the Operating Engineers, their right
to be represented by representatives of their own choosing must be
dismissed.
D. Interference in the administration of the Operating Engineers
The election of officers of the Operating Engineers was to be held
on June 17, 1937. About 2 weeks prior to this date, Lohman, the
assistant manager in charge of industrial relations, called a number
of the employees to his office and talked to each of these men sepa-
rately. After a general introductory conversation, he brought up the
subject of the coming election. One witness, Ufert, an employee of
the respondent, on October 13, 1937, made a statement to the Regional
Attorney that Lohman had told him, "We must see that Shoemaker
and Gibson are elected. . . . We don't want to see any radicals in
office." Although this statement was signed by Ufert, on the witness
stand at the hearing he denied that the word "radical" was used.
Winship, another employee, testified that "Lohman asked that he
DECISIONS AND ORDERS 731
try to have Grammer defeated," that Lohman said to him that "We
want to keep the radical element out of the Union," and to go out
and campaign a bit. Lohman told Wm. R. Mayberry, an old em-
ployee, that the present officers were radicals, that a change of offices s
would be best for the Union. Lohman also told Shoemaker, another
employee, that he was disappointed he did not run for office, and
questioned him about the qualifications of the candidates. Lohman
admitted that he had discussed the leadership of the Union with some
of the men, and that possibly he had used the expression "radical."
By calling into the office various employees and impressing upon
them the employer's ideas as to who should be their officers, the re-
spondent sought to secure the defeat of those it opposed and the elec-
tion of those who it judged might be more favorably inclined to-
wards it. This was an interference on the part of the respondent
with the administration of the Operating Engineers.
We find, therefore, that the respondent has interfered with the
administration of the Operating Engineers and has thereby inter-
fered with, restrained, and coerced 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
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
with foreign countries, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
We have found that O'Dell, Eades, and Werner were discrimina-
torily discharged. They are entitled to reinstatement with back pay,
subject to the following qualification. On July 27, 1938, counsel for
the Board, the respondent, and the Operating Engineers entered into
a stipulation, which was thereafter filed with the Board on August
4, 1938, to the effect that the compounding house of the Wood River
Refinery was destroyed by fire on May 4, 1938. It is not stated
whether the operations or staff of the compounding house were sus-
pended or transferred. In affording the three discharged employees
relief, the remedy should seek to place them in the position in which
they would now be if they had not been discriminated against. Con-
sequently, if the employees who performed their work after their
discharge were retained after the fire or after an interval were rein-
stated elsewhere by the respondent, reinstatement of the discharged
employees should not be denied, nor back pay withheld except for the
732 NATIONAL LABOR RELATIONS BOARD
period during which the replacements received no pay. If, on the
other hand, employment of those persons who took the place of the
discharged employees has permanently ceased as a result of the fire,
reinstatement is not necessary , and back pay should be confined to the
period up to the cessation of such employment.
We shall, therefore, order the respondent, in conformity with the
limitations set forth in the paragraph above, to make the discharged
employees whole for any loss of pay they have suffered by reason
of their respective discharges by payment to each of them of a sum
equal to the amount which he normally would have earned as wages
from the date of his discharge to the date of reinstatement, less his
net earnings 2 during said period.
We have found that the respondent interfered with the administra-
tion of the Operating Engineers, by attempting to influence the elec-
tion of its officers. We shall order the respondent to cease and desist-
from its interference.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union of Operating Engineers, Local No. 525, is a
labor organization, within the meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the hire and
tenure of employment of William O'Dell, W. C. Eades, and Frank C.
Werner, thereby discouraging membership in the International Union
of Operating Engineers, Local No. 525, has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (3)
of the Act.
3. The respondent, by interfering with the administration of the
International Union of Operating Engineers, Local No. 525, has en-
gaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act.
4. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
2 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 Woi kei s Union, Local 2590, 8 N L R B 440 Monies re-
ceived for work performed upon Federal, State, county, municipal, or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other government
or governments which supplied the funds for said work-relief projects
DECISIONS AND ORDERS 733
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) 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
respondent, Shell Petroleum Corporation, and its officers, agents, suc-
cessors, and assigns shall:
1. Cease and desist from :
(a) Interfering with the administration of the Operating Engi-
neers or with the formation or administration of any other labor
organization of its employees, by attempting to influence the non-
reelection or election of certain members as officers of such labor
organizations;
(b) Discouraging membership in Operating Engineers or any
other labor organization of its employees, by discharging or refusing
to reinstate any of its employees or in any manner discriminating in
regard to their hire or tenure of employment or any term or condi-
tion of their employment;
(c) 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 representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Subject to the qualifications expressed in Section V of the
above Decision, offer to William O'Dell, W. C. Eades, and Frank C.
Werner immediate and full reinstatement to their former or sub-
stantially equivalent positions, without prejudice to their seniority
and other rights or privileges;
(b) Subject to the qualifications expressed in Section V of the
above Decision, make whole William O'Dell, W. C. Eades, and Frank
C. Werner, for any loss of pay they have suffered by reason of their
discharges, by payment to each of them a sum equal to that which he
would normally have earned as wages during the period from the
date of discharge to the date of such offer of reinstatement, less his
net earnings during such period, deducting, however, from the
amount otherwise due to each of the said employees, monies received
by said employee during said period for work performed upon Fed-
eral, State, county, municipal, or other work-relief projects, and pay
734 NATIONAL LABOR RELATIONS BOARD
over the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(c) Post in conspicuous places where they will be observed by the
respondent's employees, and maintain for a period of thirty (30) con-
secutive days, notices stating that the respondent will cease and desist
in the manner aforesaid;
(d) Notify the Regional Director of the Fourteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
[SAME TITLE]
AMENDMENT TO DECISION AND ORDER
January 23, 1939
On December 20, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Order in the above-entitled
proceeding.
The Board hereby amends paragraph 3 of the Conclusions of Law
set forth in said Decision to read as follows :
"The respondent, by interfering with the administration of the
International Union of Operating Engineers, Local No. 525, has
engaged in and is engaging in unfair labor practices, within the
meaning of Section 8 (2) of the Act."
10 N. L. R. B. No. 60a.