Shell Oil Co., Inc.

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.