Shell Oil Co.

National Labor Relations Board - Board Decisions

Jul 11, 1951

95 N.L.R.B. 102 (N.L.R.B. 1951)

102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
required the Company so to discriminate , the Union has engaged in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act.
4. By discriminating in regard to the hire and tenure of employment of John
Words, Booker Armstrong, and James Ellis, thereby encouraging membership,
in the Union , the Company has engaged in unfair labor practices within the
meaning of Section 8 ( a) (3) and ( 1) of the Act.
5. By causing the Company so to discriminate against said persons in violation
of Section 8 (a) (3) of the Act, the Union has engaged in unfair labor practices
within the meaning of Section 8 (b) (2) and 8 (b) (1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
SHELL OIL COMPANY (SUCCESSOR TO SHELL OIL COMPANY, INCORPO-
RATED) and OIL WORKERS INTERNATIONAL UNION, CIO. Case No.
7-CA-296. July 11, 1951
Decision and Order
On March 30, 1951, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Shell Oil Company, and
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Oil Workers International Union,
CIO, or in any other labor organization of its employees, by dis-
1 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member panel
[ Chairman Herzog and Members Houston and Reynolds].
2 Trial Examiner Lloyd Buchanan properly denied Respondent 's motion to strike certain
allegations of the complaint on the ground that they were not contained in the charge filed
Ferro Stamping and Manu facturing Co., 93 NLRB 1459.
95 NLRB No. 24.
SHELL OIL COMPANY 103
charging or refusing to reinstate any of its employees,'or in any other
manner discriminating in regard to their hire and tenure of employ-
ment, or any term or condition of their employment.
(b) By means of interrogation, threats to reduce or abolish any
rights or privileges or to impose more restrictive working rules and
conditions, .or in-any other manner interfering with, restraining, or
coercing its.employees in the exercise of their right to self-organiza-
tion,.to form labor organizations, to. join or assist Oil Workers Inter-
national Union, CIO or any other labor organization, to bargain col-
lectively through representatives of their own choosing, to engage
in other concerted activities for the purpose of collective bargaining
,or other mutual aid or protection, or to refrain from any or all of
such activities, , except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
.condition of employment, as authorized in Section 8 (a) (3) of the
Act.,
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer to Richard E. Scovel, Fred Knight, and George Marutz
immediate and full 'reinstatement to their former or substantially
'equivalent positions, without prejudice to their `seniority and other
rights and privileges.'
(b) Make whole Ri6hard ' E. Scovel, ' Fred Knight, and George
Marutz, in the manner set-forth in the section of the Intermediate
Report entitled "The Remedy," for any loss of pay they may have
suffered as ' a result of Respondent's discrimination against them.
(c) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying,, all payroll records,
social security -_paylnent records, time cards, personnel records and re-
ports, and all other 'records necessay to analyze and compute the
.amounts of back pay due and the right of reinstatement under the
terms of this Order.
(d) Post immediately at its; plant in Benton Harbor, 'Michigan,
,copies of the notice attached hereto and marked "Appendix A." 3
Copies of said notice; to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof
and maintained by it for sixty .(60) consecutive days thereafter in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
2 In the event that this Order is enforced by a 'decree of a United States Court of
Appeals, there shall be inserted in the notice before the words, "A Decision and Order,"
the words , "A Decree of the United States Court of Appeals Enforcing."
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10 ) days from the date of this Order, what steps
Respondent has taken to comply herewith.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in OIL WORKERS INTER-
NATIONAL UNION , CIO, or in any other labor organization, by
discriminatorily discharging or refusing to reinstate any of our
employees or in any other manner discriminating in regard to
their hire and tenure of employment, or any term or condition.
of employment.
WE WILL NOT by means of interrogation , threats to reduce or
abolish any rights or privileges or to impose more restrictive
working rules and conditions , or in any other manner interfere
with, restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations , to join
or assist OIL WORKERS INTERNATIONAL UNION , CIO, or any other
labor organization , to bargain collectively through representa-
tives of their own choosing , to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection , or to refrain from any or all of such activities , except
to the extent that such right may be affected by an . agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) 45f. the Act.
WE WILL offer to the employees named below immediate and
full reinstatement to their former or ' substantially equivalent
positions , without prejudice to their seniority or other rights and
privileges , and will make them whole for any loss of pay suffered
as a result of our discrimination against them :
Richard E . Scovel
Fred Knight
George Marutz
All our employees are free to form, join , or assist labor organiza-
tions and to become or remain members of the above-named union'
or any other labor organization. We will not discriminate in regard
to the hire or tenure of employment or any term or condition of em-
SHELL OIL COMPANY 105
ployment against any employee because of membership in or activity
on behalf of any such labor organization.
SHELL OIL COMPANY,
Employer.
By -------------------------
(Representative ) (Title),
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material. '
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon an original charge filed August 24, 1949, and amended charges filed
January 16 and May 29, 1950, by Oil Workers International Union, CIO, herein
called the Union, the General Counsel of the National Labor Relations Board,
herein called respectively the General Counsel and the Board, by the Regional
Director for the Seventh Region (Detroit, Michigan), issued a complaint on
December 21, 1950, against Shell Oil Company, Incorporated (which was suc=
ceeded prior to issuance of the complaint by Shell Oil Company) 1 herein called
the Respondent, charging that Respondent violated Sections 8 (a) (1) and (3)
.and 2 (6) and (7) of the National Labor Relations Act, as amended, 61 , Stat. 138,
herein called the Act, as follows: (1) Respondent discharged Richard E. Scovel
on August 1, 1949, and Fred Knight and George Marutz on December 27, 1949,
and has since refused to reinstate them, because of their membership in and
activities on behalf of the Union, and other concerted activity; and (2) since
April 20, 1949, Respondent has made various threats against and interrogated its
employees to discourage their union activity. Copies of the complaint,. original
and amended charges, and notice of hearing thereon, were duly served on Re-
spondent and the Union.
Respondent filed an answer admitting the discharges and refusal to reinstate
the above employees, but denying the commission of any unfair labor practices.
In filing its answer, Respondent also moved to strike those allegations of the
complaint alleging, threats and interrogation of employees on the ground that
such allegations were not contained in the charge filed. That motion was denied
on January 17, 1951, by Trial Examiner Lloyd Buchanan, duly designated by the
Chief Trial Examiner to consider and decide the motion.
Pursuant to notice a hearing was held at Benton Harbor, Michigan, on January
30 and 31 and February 1 and 2, 1951, before the undersigned Trial Examiner,
duly designated by the Chief Trial Examiner. The General Counsel and Re-
spondent were represented by counsel, and the Union by two international repre-
sentatives. All parties participated in the hearing and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the conclusion of the hearing, all parties were
afforded an opportunity to present oral argument and submit briefs and proposed
findings of fact and conclusions of law ; the parties waived oral argument, but
the General Counsel and Respondent have filed briefs.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
1 The name of Respondent as amended prior to the hearing by order of January 17, 1951.
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times mentioned in the complaint and up to September 30, 1949, Shell
Oil Company, Incorporated, a Virginia corporation, was engaged in the produc-
tion, processing, sale, and distribution of gasoline, motor oil, and other petroleum
products in various States of the United States. As an integral part of its multi-
state operation, it' maintained and operated a.branch warehouse, and storage
depot at Benton Harbor, Michigan, (the only plant involved in this proceeding)
from which it distributed and sold its products to consumers within the State
of Michigan. On September 30,1949, by intercorporate arrangement, Respondent
Shell Oil Company, a Delaware corporation, took over and assumed all the
property, rights, and obligations, and carried on the business, of Shell Oil Com-
pany, Incorporated, which was a wholly owned subsidiary of Respondent, and
since that date has operated the business of its subsidiary, including the facility
at Benton Harbor, Michigan, in the same manner' as the subsidiary had there-
tofore operated it. The subsidiary corporation was legally dissolved on Decem-
ber 29, 1949. During the year 1949 both corporations produced, processed, and
distributed throughout the United States products valued in excess of 50 million
dollars. In the same year they imported from other States to the Benton Harbor
plant, products valued in excess of $100,000, all of which were distributed to
:,-cIi tomers-within the State of Michigan. Respondent admits that it, as well as
its subsidiary corporation, has been and is engaged in interstate commerce. The
Board has previously exercised jurisdiction over.facilities of the subsidiary
corporation, and recently over the present Respondent' On the above facts I
find that Respondent is engaged in commerce within the meaning of the Act, and'
that it would effectuate the policies of the Act for the Board to exercise jurisdic-
tion herein.'
II. THE LABOR ORGANIZATION INVOLVED
Oil Workers International Union, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act, which admits to membership employees of
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Prelin nary union activity and the election
In the latter part of April or first week in May 1949, Roy N. Freeman, a.
representative of the Union, held the first organizational meeting of Respondent's
employees at the union hall in St. Joseph, Michigan, a town contiguous to
Benton Harbor and about a mile from Respondent's plant. The meeting was
attended by driver-salesmen (hereafter called "drivers") Richard E. Scovel,
Fred Knight,, Wendell D. Waldo, and Robert Leach, and night loaders George
Marutz and Leroy Baugher. All the employees present signed membership and
authorization cards in the Union except Robert Leach. Wilbur Dewitt, the plant
mechanic, and drivers Leach, Ray Marshall, and William H. Pedde were later
solicited by Knight to join the Union but refused to do so. On May 24, 1949,
Respondent and the Union entered into an agreement for a consent election
under the auspices of the Board. The election was held by the Regional Director
for the Seventh Region on June 8, 1949, at Benton Harbor among employees
2 Shell Oil Company, Incorporated, 66 NLRB 510; 79 NLRB 618; 79 NLRB 1255;
Shell Oil Company, Incorporated, 90 NLRB 371.
The Borden Company, Southern Division, 91 NLRB 628.
SHELL OIL COMPANY 107
in an agreed unit comprised of all driver-salesmen, yardmen, and driver me7
chanics at the plant, excluding office and clerical employees and supervisors as
defined in the Act. The employees eligible to vote, and actually voting in the .
election were: Drivers Knight, Leach, Pedde, Marshall, Scovel, and Waldo; night
loaders Marutz and Baugher ; and mechanic Dewitt, Robert Quardokus , a former
driver of Respondent who was rehired May 24, 1949, cast a ballot in the election,..
the validity of which was challenged by the agent of the Regional Director, and
likewise by the Union, but was supported by Respondent 4 After investigation,
the Regional Director on July 1, 1949, sustained the challenge and rejected
Quardokus' vote, and upon a tally of the eligible votes showing five cast for the
Union and four against it, he certified the Union as the exclusive bargaining
representative of the employees in the above unit under Section 9 (a) of the;Act.
At an election of union officers held shortly after the Board election, George
Marutz was elected president and Fred Knight secretary-treasurer of the local
Union, and Marutz, Knight, and Waldo were elected to a grievance and bargain-
ing committee which thereafter met with representatives of Respondent on
various occasions to negotiate a contract and discuss the discharge of Scovel,
as set forth below.5
B. Interference, threats, and other coercion
The day after the initial prganizational meeting of the employees at St.
Joseph, Michigan, Clarence Petree, foreman of the Benton Harbor plant, had
discussions with various employees regarding their union activities. Early
in the morning, Petree told Leroy Baugher he understood there had been a
meeting of the employees, and asked Baugher why they wanted a union at the
plant. Baugher stated his own reasons why he thought they should have a union,
and Petree replied that he .could not understand why, as "things were pretty
good down there the way it was, and we didn't need one." He also said' the
employees had seniority, good pay, and uniforms, and if a union came in "thing'
would change," that when the Union comes in rules and regulations are laid
down and enforced ; that the men might have to punch a time clock, and a man
would be subject to discharge easier if he were late to work ;6 rules as to errors
and adjustments (in their delivery and account records) would be enforced, and
they might be laid off for errors ; and that under present conditions "it was not
so tough that way." Petree also reminded Baugher that the employees were-
saving money on gasoline at the plant, and if the Union came in that would
change.' Petree's interrogation of Baugher as to why the men wanted a union
* In its letter of June 13, 1949, challenging the vote (General Counsel's Exhibit No. 5),
the Union claimed that Quardokus was rehired by Respondent solely to defeat the Union
in the election, after Clarence Petree, his foreman, had learned by interrogation of the
employees that a majority of five out of nine favored the Union. Respondent's letter of
Jpne 16, 1949 (General Counsel's Exhibit No. 6), claimed that Quardokus was eligible to
vote as a temporarily laid-off employee who was recalled in the normal course of business
In May 1949.
s These findings are based on uncontradicted testimony of Scovel, Knight, Baugher,
Marutz, and Waldo, other facts stipulated by the parties at hearing, the letters mentioned
in the previous footnote, and the Board's file in Case No. 7-RC-558, of which the Trial
Examiner takes judicial notice.
Under existing practice, the employees noted their own reporting and quitting times
on sheets they turned into the office, and there was apparently no check or verification
of the entries by Respondent. There was no company official present when the drivers
on the first shift reported for work around 5 a . in., nor when those on the second shift
returned to the plant late at night.
7 Petree here referred to the existing practice allowing employees to take gasoline
drainings from the trucks for use in their own cars without charge. The scope and
significance of this practice will be discussed in my consideration of the discharges of
Scovel, Knight, and Marutz, below.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was an unlawful inquiry into their union sympathies and views and, under
settled law, was a violation of Section 8 (a) (1) of the Act' Petree 's argu-
ments against the Union , including his enumeration of the employees ' existing
benefits, if considered alone, might fall in the category of protected free speech ;
but when coupled with the warnings that "things would change" if the Union
came in , that rules regarding time of reporting , handling of errors and adjust-
ments, and discharges or layoffs therefor , would be enforced , and that the em-
ployees would be deprived of their privilege . of using gas drainings , these state-
ments amounted to clear threats of reprisals for their union activity, in the
form of withdrawal of existing privileges and imposition of more restrictive
working rules and conditions , which were clearly calculated to discourage union
activity and membership and the exercise of the rights guaranteed by Section
7 of the Act' I find that Respondent thereby violated Section 8 ( a) (1) of the
Act..
-That afternoon Petree talked to Richard E. Scovel, George Marutz, Fred
Knight, and William H. Pedde in the plant office on the same subject . Wilbur
Dewitt, the plant mechanic , joined the group during the discussion . Petree
opened the conversation by saying he did not know who had joined the Union
or signed a union card , and that it was the employee 's business whether or
not he joined a union . Knight then said that he, for one , had joined the Union.
Petree asked him why, and Knight stated that the men did not have any seniority
rights, and that they wanted seniority as to operations , layoffs, promotions, and
demotions. Pedde claimed they did have seniority rights, and Knight replied
that .it did not "look much like it," that promotions and layoffs were "out
of line," and that office employees , like Budd Beacham (office clerk), and
George Gravis ( assistant depot foreman ) were sent to Chicago to pick up
loads, after the regular drivers had worked 40 hours, thus depriving the regu-
lar drivers of overtime pay. Knight also claimed he had seen older employees
laid off and new men retained , and also new men promoted into the office over
older employees . _ Petree argued that seniority was in force at the plant, but
Knight disagreed , saying he had heard Petree tell other employees the con-
trary. , Marutz then said that he did not see why there should be any trouble
about these matters, as the employees only wanted seniority , and if the Com-
pany claimed they had seniority , it should be willing to state that in a con;
tract. Petree was perturbed by this discussion , and stated that if the employees
were going to have a union , things would be different and "were going to get
tough around there," that "the line will be drawn at the office door from now
on" ; and "I will stay on this side and you stay on the other ." Scovel took
this to mean that there would no longer be the informal and friendly inter-
mingling of company officials with the other employees which had existed
in the past . Prior to the advent of the Union , Petree had always been in-
formal, friendly, easygoing , and almost fatherly , in his relations with the
employees , freely adjusting their schedules and working conditions to suit
their personal problems, giving them special days off, and accommodating them
in other ways . In these circumstances , Petree's statement that things would
"get tough" at the plant , and that "the line would be drawn at the office door,"
was a clear warning and threat to the employees that the easygoing camaraderie
8 As depot foreman, Petree had complete supervision of operations and employees at
Benton Harbor. While he had no direct authority to hire and fire employees , his recom-
mendations on that subject were usually accepted by his immediate superior, Francis V.
Smith, Respondent 's district manager in charge of the Kalamazoo district. It is clear that
Petree was a supervisor and that Respondent is responsible for his acts.
9 The above findings are based on the credited testimony of Baugher . Petree did not
deny the conversation specifically.
SHELL OIL COMPANY 109
ibetween management and the employees, with the attendant benevolence of Re-
spondent in applying rules and regulating the working conditions of the employees,
would be a thing of the past if the Union organized the plant. Such threat,
though general in nature, was reasonably calculated to discourage further
-union or concerted activity, and therefore constitute a violation of Section
-8 (a) (1) of the Act30
Later the same dax; Petree told Scovel in front of the office that he had been
"grilled" for about 8' hours by officials of Respondent in another city, and the
.,officials were very unhappy about the Union,- and Petree said that " things
wouldn't be the same around there if the Union went in." Standing alone,
the quoted statement is too vague to warrant a finding that it violated the
Act. However, coming on the heels of the broad threats made earlier that day
by Petree to the group of employees, including Scovel, it was calculated to
emphasize to Scovel the dire consequences to the employees of the presence
.of a union in the plant. I therefore find that this statement, when considered
in the light of Petree's previous talk to the group, was coercive and violated
Section 8 (a) (1) of the Act.
Shortly after noon the same day, when Waldo returned from his run, Petree
called him over to his car parked near the plant, and asked Waldo why he had
joined the Union, and if he was dissatisfied. Waldo told him he was very
much dissatisfied with seniority and thought some of the employees were get-
ting '.a bad break." 31 Waldo also complained that office employees were allowed
to make some trips which deprived the drivers of the chance to earn overtime
pay. Petree said he thought that trouble could be straightened out without the
Union being involved, and said that if the employees would forget about the
Union, "things would straighten out." He also told Waldo that if the Union
came into the plant, time clocks would be installed, there would be no promo-
tions from the office and the Company would compel him to put rules and regu-
lations into effect, and force him to be "a lot rougher" on the drivers than he was
.accustomed to' Petree's inquiry as to Waldo's reason for joining the Union
was an unlawful interrogation which violated Section 8 (a) (1) of the Act.
His suggestion to Waldo that the trouble could be "straightened out" without
the Union, and that "things would straighten out" if the employees would for-
get the Union, were : attempts to induce Waldo to negotiate with Respondent
individually regarding his grievances and to forego collective bargaining through
the Union. This was clearly an illegal interference with the employees' right
-of self-organization, and violated Section 8 (a) (1) of the Act" Petree's
warning as to the consequences to the employees if the Union organized the
plant, like his prior warnings to Baugher and the other employees found above,
was an illegal threat of reprisals by way of strict enforcement of rules, insti-
10 These findings are based on the credited and mutually corroborative testimony of
Scovel, Knight, and Marutz as corroborated in part by Petree and Leach. To the extent
that Petree's testimony conflicts with these findings, it is not credited . Pedde did not
mention this discussion in his testimony . Dewitt did not testify at the hearing . I reject
Respondent's contention that Petree's remarks that "things would be different" Is merely
an expression of opinion protected by Section 8 (c) of the Act . He did not mention the
possibility of a union contract or tie the threats of changed conditions to probable
operations under such a contract , in his discussion with the men.
11 Waldo was one of the oldest drivers at the plant in length of service.
u These findings are based on the uncontradicted and credited testimony of Waldo.
' Medo Photo Supply Corporation v. N. L. R. B., 321 U. S. 678, 686 . In view of the
above finding , I made no finding of violation of the Act on the basis of Petree 's discussion
with Marutz at a later date , in which Petree asked Marutz if the trouble at the plant
could not be straightened out without the employees joining the Union, inasmuch as this
query, as testified to by Marutz, did not involve any clear promises of benefits or threats
of reprisal by Petree.
110 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
tution of more restrictive working. conditions,, and, deprivation of promotion
rights, and violated Section 8 (a) (1) of the Act.
On an unspecified date before the Board election of June 8, 1949, Respondent's
drivers had read a newspaper article indicating that- aNation-wide campaign
was being conducted by some union to organize truck drivers, and that in con=-
nection therewith truck drivers would be stopped- to ascertain whether they
had union cards. Driver Robert Leach was approached during the campaign,
and reported it to the other drivers. A groupof..'them including Marutz, Leach,
and Marshall, discussed the matter in the presence of Petree at the ;plant office.
Some drivers raised the question whether they should joiii.a labor organization
or not, what good it would do them , ' and what effect it would have on their
working conditions at the plant. Some employees, including Marshall, were
against unionization. When the group could not reach any. decision on these
questions, Petree entered the discussion and said that the drivers could join a
union if they wanted to, that it was up to them, and it did not make any differ-
ence to him. However, he pointed out to them, that if the plant were unionized,
he would have to operate in a different way, that the Company would place the
men on a definite schedule, they .would have to report at definite times, and if
they did not report on time, they would lose that day's 'wages.14 Petree's re-
marks, like his prior statements to the employees, were clear threats of imposi-
tion of more restrictive and less desirable rules and working conditions in the
event the plant was unionized, and were thus calculated to discourage union
and other concerted activity among the employees. I conclude and find that
Respondent, by these remarks of Petree, further interfered with, restrained,
and coerced its employees in violation of Section 8 (a) (1) of the Act.,
About a week, after Scovel signed a union card at, the. St. Joseph meeting,
George Gravis, assistant foreman at Benton Harbor, asked Scovel in the plant
office "Dick, there is one thing I want to know, did you sign one of the union
cards or didn't you?" Scovel answered that he had signed, and- Gravis replied,
"That is all I wanted to know." As assistant depot foreman, Gravis handled
all the cash, checked in the drivers' sales and delivery reports, kept the stock
account books, and supervised the plant and. gave orders to all employees in
the absence of Petree. He was clearly part of management, .and Respondent is
responsible for his acts. Gravis' interrogation of 'Scovel as to his union affilia-
tion was :illegal under the Act, and I find that. Respondent,, thereby violated
Section 8 (a) (1) of the Act1e .
It is clear from the above facts, and I further find, tbat: Respondent was
hostile from the outset to self-organization of its employees ; Petree made this
known to the employees. the day after Knight, Scovel, Marutz, Baugher, and
Waldo joined the Union ; the same day Petree learned by his interrogation of
the employees that these five were dissatisfied with their working conditions
and favored the Union. I also find from the credited testimony of Petree, Leach,
14 The existing lenient practice regarding reporting procedures has been explained in
footnote 6, above. With regard to schedules , Petree accommodated the men in arranging
their trips so far as possible to suit their personal situations, as by giving them days off
whenever they requested leave , and by assigning them to local or short trips , so that they
could be near home, in the event of illness or other emergencies in their families.
15 These findings are based on the credited testimony of Respondent ' s witnesses Pedde
and Marshall . The fact that Petree prefaced his remarks by professing indifference to
their affiliation with the Union does not detract from the coercive and illegal character
of his final threats which were uttered after the drivers had reached a point of indecision,
were similar to his earlier illegal threats , and were consistent with Respondent 's known
hostility to organization of its employees.
1s-These . findings are based on the credited testimony . of,Scovel . Gravis' general denial
of interrogation of any employees is not credited.
SHELL OIL COMPANY 111
and Marshall that between that date and the election , Petree learned by fur-
ther discussions with the men that Pedde, Leach , Marshall , and Dewitt were
opposed to the Uni on. There Who direct testimony regarding Dewitt's attitude,
but the facts that' he refused to join the Union when solicited by Knight and
that Petree .questioned all the men to find out whether they were dissatisfied,
justify the inference that Dewitt also opposed the Union and that Petree knew
it. The record thus establishes that prior to the election of June 8, 1949, Re-
spondent, through Petree, knew that five of its nine employees at Benton Harbor
favored the Union . In this situation , Petree rehired Robert Quardokus , a former
employee , about 2 weeks before the election.
Quardokus had worked for'Respondent at Benton Harbor in various capac-
ities during 1947 and up to December 6, 1948, when he was laid off. From that
date until his reemployment on May 24, 1949, he was self-employed , driving
his own truck . After the first union meeting but before the election , Petree
had a talk with Quardokus in which be asked Quardokus how he felt about
unions. Quardokus replied that he did not care much for them, giving as
his reason some union trouble be experienced in unloading his truck . Petree
then asked him if he knew there was an election coming up at the plant. Quar-
dokus said he had word of it, and Petree then said, "Well, we will call you in
a few days ." Quardokus was rehired May 24, 1949, and started work as a
driver May 27, 1949. Shortly before he started work, Petree told Scovel
in the office that Quardokus was coming back to work , that he had had union
trouble while unloading his truck somewhere , that he was antiunion and
would vote against the Union. As found above , Quardokus voted at the. elec-
tion, but his vote was rejected by the Regional Director conducting the elec-
tion. Quardokus .joined :, the Union after the election and on September 24,
1949, was elected a trustee of the local Union. Shortly thereafter , Gravis asked
him in the office, "I hear you are on the committee of the Union ," and when
Quardokus affirmed that he was, Gravis said , "I thought you had a head on
your shoulders , but I guess not ." Quardokus was discharged by Respondent
in November 1949, for errors in his records . 14 Petree 's inquiry about Quar-
dokus' attitude toward unions, before . he was rehired, was an unlawful in-
terrogation of a prospective employee , and Gravis ' inquiry as to his status in
the Union after the election was a proscribed interrogation of an employee. I
conclude and, find that -Respondent ; by'both inquires , further violated Section
8 (a) (1) of the Act. The above facts further indicate , and I find that Quar-
dokus was rehired by Petree only after the latter ascertained his apparent
feeling about unions, and in the expectation that he would vote against the
Union in the election.
C. The discharge of Richard E. Scovel
Richard E. Scovel worked for Respondent as a truck driver at its Benton
Harbor plant from May 1945, until his discharge on July 29, 1949. His duties
involved the delivery of gasoline and other petroleum products to various
gasoline service stations and other customers served by Respondent. He
delivered these products in a tractor-trailer unit carrying a 5,000-gallon tank
divided into compartments.
As found above, Scovel joined the Union at the first organizational meeting
17 These findings are based on the credited testimony of Quardokus and'Scovel , and the
report of the Regional Director on the challenged ballot in Case No . 7-RC-558. I do not
credit Petree's and Gravis' denials of the interrogation of Quardokus and the conversation
with Scovel , in view of Petree's admitted interrogation of all employees about their
grievances , and his threats to them, and Respondent 's openly expressed hostility to the
Union, as found above.
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in late April or early May 1949, and was interrogated and subjected to unlaw-
ful threats the next day by Petree, who learned at the same time that Scovel
favored the Union, and later learned through Gravis, that Scovel had joined it.
On July 29, 1949, Scovel was on the morning shift, and reported for work
at the plant about . 5 a. in. He checked the compartments of his truck as usual
to make sure it was loaded in accordance with the inventory figures contained
on his delivery orders for the day, and also checked the drain valves, located
in a closed compartment, or "bucket box," on the side of the tank trailer, to
make sure, they were closed. When he opened the bucket box, he found therein
five 5-gallon cans which, upon examination, contained gasoline. Scovel had not
filled the cans with gasoline, nor placed them in.the bucket-box, and did not
know how they got there ; he assumed they held drainings from the truck placed
there by the loader at the Thiesen-Clemens plant at St. Joseph before loading
the tank with gasoline." Scovel was scheduled to start his vacation Monday,
August 1, and decided to take enough- drainings to tide him over, so he poured
the contents of one can into the fuel tank of his car, which was parked on Third
Street, around the corner from the plant office, and put three of the cans into
the rear compartment of the car, together with a 2-gallon can containing a mix-
ture of crankcase oil drainings from the trucks and 5 quarts of fresh motor
oil which he took from the truck oil barrel in the warehouse. He then helped
Robert Quardokus, who was on the same shift, pour the contents of the fifth
can into the tank of Quardokus' car which was parked on Main Street in front
of the plant office. Scovel then drove his truck out on his usual delivery run.
The drainings which Scovel took were regular gasoline and worth about $6. The
fresh motor oil he took was worth about 96 cents.
When Scovel returned from his run about 3 p. in. and checked out at the
office, Francis V. Smith, Respondent's district supervisor from Kalamazoo, Mich-
igan, called him into the inner office, and told him he knew Scovel had company
products in the back of his car, and would have to discharge him. Scovel ad-
mitted he took the gasoline and oil but protested against his discharge, stating
that all the employees had been taking gasoline drainings from the truck tanks
for their own use for a long time, and Petree had never objected to that prac-
tice, so long as they did not take gasoline from storage. Smith made no com-
ment on this, except to say that it was "out. of his hands," but he would try
to call Respondent's office in Detroit about it; while he did this, Scovel and
Petree walked outside the office, where Petree told Scovel there was nothing
he could do about the discharge, that it was "out of his, hands," too. Back
19 Drainings , or "tailings" as they are also called, consist of small amounts or pockets
of gasoline which remain in the bottoms of truck tanks or compartments and in the
drain lines and valves , after gasoline is unloaded at a customer 's premises . The tailings
vary from 1 to 20 gallons , depending upon the construction of the particular tank and
unloading conditions . They usually occur when the tank is standing on sloping ground
while being unloaded, and the customer receipts for a full load on the basis of the meter
readings ( on a metered truck ) or visual inspection of an emptied compartment, without
insisting that the driver change the position of the truck in order to drain off the tailings.
When the empty truck is driven back to the plant, the constant change of tank level while
traveling over the road causes the drainings to gravitate and collect in the drain lines
and valves , from which they can readily be drained at the plant . Drainings occurred on
all of Respondent ' s trucks at Benton Harbor . At times, before trucks were taken to the
Thiesen -Clemens storage tanks at St . Joseph for loading, Respondent ' s loaders or drivers
would first drain off tailings from the last trip into 10-gallon Davis cans standing in
front of the office, or the loaders at St. Joseph would often drain them into similar cans
before loading fresh gasoline , and the filled cans would be stacked in the bucket box of
the truck , to be unloaded at the plant and left with other Davis cans at the office. The
appearance of Davis cans with drainings on the truck was not unusual ; Scovel had found
them on his truck at least once before, and Waldo testified credibly that drainings were
often drawn off into cans and left on the truck for the next driver or the, loader to unload.
SHELL OIL COMPANY 113
in the office, Scovel asked Smith why he had not been warned first that the
Company was changing the practice as to use of drainings, and said that if
he were given another chance, he would act as the Company desired with respect.
to drainings. Smith replied, "that was it, that was all there was to it." He
assured Scovel his work had been satisfactory, and that he was not being dis-
charged on that account. Before leaving the office, Scovel asked Smith if he
should come back the next day. Smith looked at Petree and asked him, "Do
you think he should come out tomorrow?" Petree made no reply, and Smith.
then replied to Scovel that he did not think so, but stated he and Petree would.
come to Scovel's house to talk to him.
Smith visited Scovel's home about noon the next day, Saturday, July 30, and
asked Scovel to sign a resignation from his job. Scovel was reluctant to do so,
saying he did not want to give up the job. Smith said it would be "easier" for
Scovel if he signed a resignation, but Scovel still refused. Later that afternoon,
when Scovel returned, after shopping, to his car parked in a Benton Harbor
parking lot, he found in it a note initialed by Smith, requesting him to contact
the latter at the plant. When Scovel called the plant, Petree told Scovel that
Smith would get in touch with him. That night Smith called Scovel at his home
by long distance telephone from Kalamazoo and asked Scovel again if he would-
not sign a resignation "in order to make things easier all the way around.
Scovel refused, saying he would not quit the job of his own volition. Smith said
"O. K." and hung up.
On Sunday, July 31, Petree went at the request of Smith to Scovel's home
with a typewritten statement purporting to admit that Scovel took gasoline and
motor oil for use in his own car. Petree urged Scovel to copy it in his own
handwriting on another sheet of paper and sign it, stating that he would
show it to the company officials to indicate that Scovel had not been taking.
products in wholesale lots, but just for his own use. He also stated that if,
Scovel signed it, he (Petree) would do his best to have Scovel reinstated. Scovel
then copied the. statement in his own hand on another sheet, changing the:
wording slightly to indicate that he took "gasoline from Shell truck drainings,
or otherwise" by inserting the word "drainings" after "truck." •Scovel signed it:
in this form and gave it to Petree, in the belief that it would help him get
his job back. Petree took the document with him." At some later time, it was
"witnessed" in ink by Petree and Smith, although Smith was not present when
it was written or signed by Scovel.20
After his discharge, Scovel at once notified Knight and the union grievance+
committee. At the request of Marutz, Scovel on August 2, 1949, compiled a long'.
19 The statement, General Counsel's Exhibit No. 2, reads as follows :
Mr. C. E. PETREE, JULY 30, 1949.
Shell Oil Co., Inc.
Benton Harbor, Mich.
To confirm my statement to you & Mr. Smith, July 29, the only thing I have ever`
taken from Shell Oil Co. was to fill my car occasionally with gasoline from Shell
truck drainings or otherwise.
I admit filling my car and taking five five-gallon cans of Shell's gasoline from my
truck on July 29 which were filled by someone else before I reported for work.
My reason for taking this gasoline and two gallons of motor oil was to tide me
over my vacation Which starts Monday, August 1st.
Signed R. E. SCOVEL.
Witness :
C. E. PETREE.
F. V. SMITH.
20 The above findings are based on the credited testimony of Scovel, Baugher, and
Quardokus, as corroborated in part by that of Petree and Gravis. To the extent that
other testimony of Petree and Gravis conflicts with these findings, it is not credited.
Smith did not testify at the hearing.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter which he gave Marutz, setting forth the employees' practice in taking
gasoline drainings and other products for private use and reciting various drink-
ing, gambling, and other practices by both employees and officials at the plant 21
A few days later, the union grievance committee, consisting of Freeman,
Knight, and Marutz, met with company officials at the Hotel Vincent in Benton
Harbor to discuss Scovel's discharge. Respondent was represented by Petree,
Smith, Jones, division manager from Detroit, Lou Gray, his assistant, and Tom.
Moore, a company attorney from New York, New York.
At first the company representatives refused to consider Scovel's case, but
finally entered into a discussion of his discharge, maintaining that it was for
."l'iolation of a standing company rule requiring discharge of employees who took
company products. In response to this, Knight pointed out that ever since he had
worked there (he started August 1944), it had been the common practice for
employees to take drainings for their own use, and that Petree should have
warned all the drivers they might be fired if they continued to use drainings.
Knight also pointed out that someone had long been taking gasoline from the
trick service pump which was used to fuel company trucks, and that Petree
had' told the drivers on several occasions he did not mind their using drainings,
but he would fire the first man he caught taking gasoline from the pump, since
it caused errors in the meter readings on that pump. Knight then referred to the
fact that another driver, Leach, had been caught one night by Petree and Gravis
taking gasoline from that pump, and that Petree did not discharge Leach for
that, but had discharged Scovel. Petree tried to explain this by saying Leach
had offered to pay for the gasoline he took the next day. Knight then asked
Petree why he had not allowed Scovel to pay for what he took, and Petree replied
lie did not know. Despite this discussion, the company representatives refused to
reinstate Scovel. Marutz then read to them the letter Scovel had written regard-
ing practices at the plant ; Jones took copious notes while Marutz was reading
it. The union grievance committee tried to secure Scovel's reinstatement at every
subsequent meeting with company officials, but without success, the company
representatives maintaining their original position. At one of these meetings,
Freeman asked what would happen if the Company caught anyone else taking
products, and the company representatives said they would be discharged. Scovel
figs "never been offered reinstatement.22
Respondent contends that Scovel, Knight, and Marutz were legally discharged
for stealing company products, in conformity with an established company rule
that employees who took products for their own use would be terminated. Gen-
eral.Counsel argues, on the other hand, that this rule was never made known.,
to the employees or enforced at Benton Harbor prior to the discharge of Scovel,
that it was suddenly enforced as a pretext to effect the discharge of the three
union men , and that the real motive for their termination was their admitted
union membership and activity. The burden of proving this contention rests at
all'times on the General Counsel, while the burden of adducing evidence in support
of 'its-defense sufficient to rebut the prima facie case made by'General Counsel
rests upon the Respondent? The issue thus raised requires a careful considera-
tion of the company rule, its scope and the extent to which it was publicized
and enforced at Benton Harbor prior to the discharges.
21 General Counsel's Exhibit No. 3. I make no findings herein on the basis of the
contents of this letter.
22 The findings stated above are based on the credited and mutually corroborative
testimony of Scovel, Knight, and Marutz, as corroborated in part by Petree, and General
Counsel's Exhibit No. 3. None of the company officials present at the meeting with the
Union testified, except Petree.
Respondent made no motion to dismiss the complaint on the merits at the conclusion
of General Counsel's case. E. B. Law and Son, 92 NLRB 826.
SHELL OIL COMPANY 115
It is well settled, of course, that an employer may discharge an employee for
good reasons , poor reasons , or none at all, provided the discharge is not moti-
vated by a reason or purpose proscribed by the Act. Scovel admitted, and I find,
that he took gasoline drainings and 5 quarts of fresh motor oil on July 29, 1949,
from the plant for his own use. That fact, standing alone, would be ample
ground for his discharge, provided the discharge arose from a bona fide appli-
cation of the company rule. However, a careful consideration of the record
in the light of the arguments of counsel thereon discloses substantial and
persuasive evidence that Scovel's discharge was otherwise motivated.
. In the first place, the credible testimony of Scovel, Knight, Marutz, Quardokus,
Waldo, Tuell, Baugher, and Leach demonstrates, and I find, that : For several
years prior to 1949 it had been the common practice of most of the employees
at the plant 24 to take gasoline drainings once or twice a week, as they needed
them, for use in their own 'cars ; the drivers usually took the drainings directly
from their own trucks, and at times from the 10-gallon Davis cans standing in
front of the office, when their trucks yielded no drainings ; they did this at
various times of the day or night, both before and after their daily delivery
runs; 25 Gravis and the office employees' usually helped themselves to drainings
from the cans in the daytime during their regular working hours. I do not
credit testimony of Petree, Gravis, Marshall, Beacham, and Pedde to the con-
trary. All of them admitted the occurrence of drainings in the regular course
of operations. There were only 11 employees and 2 supervisors , at the plant,
all of whom met or worked with each other at sometime during the day ; 26 all
employees reported in or out, as the case might be, at the office where Petree,
Gravis, and Beacham worked ; the activities of drivers and other employees
while at the plant were readily observable from the office, which had windows
on all sides . It is inconceivable that in a plant of this size, with the employees
and officials working closely and informally together, the personnel were not
fully cognizant of the general use of drainings by, all. Furthermore Gravis,
Pedde,. Marshall, and Beacham all knew shortly after the event that Scovel
had been. discharged allegedly for taking company products ; they also knew they
would suffer the same fate if they likewise admitted they took drainings. After
the initial charge was filed with the Board, all 4 were interviewed individually
and privately on November 30, 1949, by Russell Vandivort, attorney for Respond-
ent who conducted Respondent's case at the hearing, and at that time they each
signed statements prepared by Vandivort in which they denied they took products
and stated they never saw others taking products ' When they testified in the
case, it is obvious that Pedde, Marshall, and Beacham, still employed by Respond-
ent, and Gravis, now employed as a local peace officer, were constrained to testify
strictly in accordance with their statements. In fact, Marshall frankly ad-
mitted that, after Scovel's discharge, he realized he would suffer the same fate
if he admitted to Vandivort that he, too took products ; he also admitted that an
employee in that situation would probably not tell the truth. Baugher's later
2 The drivers. yardmen, loaders, office employees, and Assistant Foreman Gravis. Petree.
Dewitt, and Marutz did not avail themselves of the drainings : Petree apparently was given
bit gasoline free, as he took it regularly from the truck service pump near the office ;
Dewitt also took gasoline from the same source, as he used his car on company business;
Marutz did not own or drive a car, so far as the record discloses, prior to July 29, 1949.
25 The three morning shift drivers reported for work about 5 a. M. and returned from
their runs between 2 and 3 p. m.; the three on the afternoon shift took the sanre trucks
out about 3.p. in. and returned to the plant between 9 u. nr. and midnight, depending on
the length of their runs.
26 See footnote 25, above.
21 Credited testimony of Gravis, Pedde, Marshall, Beacham, and General Counsel's
Exhibit No. 8.
961974-52-vol. 95--9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
experience with Vandivort also supports this conclusion. When first interviewed
by Vandivort on November 30, Baugher told him everybody at the, plant took
drainings regularly, and that he did not think it was fair for Scovel alone. to be
fired for that. When Baugher was again summoned before Vandivort on, Decem-
ber 27, 1949, E. P. Ericson, division operations manager of Respondent from.
Detroit, was there. When both men asked Baugher about his use of drainings, he
admitted he took them. Ericson then read the company rule about stealing to
Baugher out of a book, and asked Baugher if he knew what that meant. Baugher.
said he did. Vandivort repeated the rule to him, and said they were concerned
lest someone be discharged because of a false sense of loyalty to Scovel.
He then asked Baugher to state whether,he took drainings,'having full, knowledge
of what the consequences would be. Baugher was perplexed, so Vandivort,
repeated his previous statements and questions. Baugher then realized it.
meant his job if he admitted taking drainings, so he said he did not. Ericson
said that was the "right answer," and asked Baugher to sign a statement to
that effect, and Baugher did so, after it was written out by Vandivort 20 Ericson
then told Baugher to go back to work and not worry about his job. Baugher
testified the statement was false,. but hd signed it because he needed the job.
It is significant that Leach was the only present employee who admitted he saw
other employees take drainings ; and his statement of December 27, 1949, does
not mention his observation of the acts of other employees.'0
In the second place, it appears that prior to July 29,1949, Respondent's
officials at Benton Harbor knew that the employees took drainings, and openly
permitted the practice. On one occasion in the winter of 1946-1947, after
Knight had used drainings in his car, he had trouble with fouled gaslines.
While he was blowing out the lines with an air hose one day in front of the
office, Petree asked him if he had been using drainings and whether that caused
the trouble, and Knight said "yes." Petree said he did not care whether Knight
used the drainings, but warned him not to touch any products which were
inventoried. Petree did not deny this conversation. On another occasion, after
Knight used drainings in his car during the winter, his gaslines froze up due'
to water in the gasoline. He complained about it angrily in the presence' of
Petree, Gravis, and other drivers, saying someone had watered the gasoline,
and he thought it was a dirty trick. The others laughed about it as though it
were a joke. During the same period, Quardokus overheard Petree telling
Gravis in the office that he (Petree) had mixed water with the drainings in
the Davis cans, and someone had used the watered gasoline. About -a week
later, Baugher, who also used drainings, said his gaslines had frozen up while
on a trip with his family, and he would like to find out who put water in the
cans. On another occasion in the same period, while Petree was talking to
Knight at the plant in the presence of Scovel about the problem of apparent
shortages in the gasoline stocks, Knight told Petree he took drainings from
his truck for use in his car, and Petree said, "I don't care about that; that
isn't what I'm talking about; what I am worried about is taking it out of
storage." In the spring of 1949 Petree had a conversation with Beacham,
office clerk, and Ted Schultz, then assistant foreman, in the office about gaso-
21 General Counsel's Exhibit No. 4.
"The essential facts as to Baugher's interviews with Vandivort are based on his,
credited and uncontradicted testimony, much of which was adduced on cross-examination
by Vandivort himself. Ericson was present at the hearing, but did not testify. Baugher
quit his job November 14, 1950, after an argument with Retzlaff, the new depot
superintendent, about changing shifts.
10 General Counsel's Exhibit No. T.
SHELL OIL COMPANY 117
line shortages in the truck service tank appearing from the meter readings
on the truck pump. He said in the presence of Baugher that he did not mind
,employees taking drainings, but they must leave the truck pump alone, as the
taking of gasoline from that pump mixed up the records," and that he would
like to catch the man who used the truck pump to gas his car " In the early
part of 1947, shortly after driver Tuell was hired, Petree was concerned about
stock shortages appearing on the records, and he cautioned the employees to
be more careful about making out stock records, and checking the meters and
compartments on their trucks when loading them. The subject of drainings
was brought up, and Petree told the men it was all right for them to take drain-
ings, but "to use a little discretion." On one occasion before Scovel's discharge,
while Quardokus was driving to Battle Creek, Michigan, with Petree to un-
load a car of oil, Petree remarked to Quardokus, "I am glad I get my gas free,
and I don't have to fight for the drainings out front." In this connection, Tuell's
testimony indicated that there were not always enough drainings on hand in.
the cans to satisfy the personal needs of the drivers '
Petree's indifference to the employees' use of drainings is further indicated
by his contrasting orders to them regarding the disposition of drainings and
surplus gallonage. The credible testimony of Scovel, Quardokus, Tuell, Waldo,
Beacham, and Leach, shows, and I find, that : The drivers and yardmen had
specific orders from Petree to return to storage in the bulk tanks or the truck
service tank (1) large amounts of surplus gasoline remaining in the trucks after
delivery trips, which occurred either when the customer bought less than a full
tank or compartment, or when the truck meter was so inaccurate that the cus-
tomer was "shorted" a substantial amount,34 and (2) substantial drainings of
the more expensive ethyl, or premium, gasoline from trucks of a common car-
11 The truck service pump, attached to a 1,000-gallon storage tank, was used to fuel
the company trucks and other. vehicles used on company business. The gasoline in the tank
was inventoried daily ; the contents of the tank were measured each morning with a
measuring stick, and all withdrawals from the tank were metered, the drivers being
required on each withdrawal to record the meter readings on special record sheets which
were turned in to the office.
"This remark assumes added importance in connection with Respondent's treatment of
Leach when he took gasoline from the truck pump for his car shortly thereafter. This
incident will be considered below.
"These findings are based on the credited testimony of Scovel, Knight, Marutz, Baugher,
Quardokus, and Tuell. I do not credit Petree's denials of the conversations with Scovel,
Knight, Beacham, and Schultz, nor his testimony that he never knew the men took drain-
Digs. He did not deny his talk with Quardokus, his remarks to the nren in the presence
of Tuell, nor the incidents involving the watered gasoline. He admits he knew or
suspected as early as "about 1945" that gasoline was being taken from the Davis cans,
for he says he deliberately watered the drainings on one -occasion, that winter, hoping
some employee's car would freeze up and he would find out about it and thus learn where
the gasoline was going. However, he stated he failed to find out anything, and did
nothing further about it, although he claims he asked all the men if they were taking
gasoline, but without learning anything. His vague and reluctant testimony on this whole
incident (during which lie professed at times not to hear questions put to him on cross-
ezamination), and his unexplained failure to follow up the incident with further investiga-
tion or with warnings to the drivers, leads me,to believe that he erred in his recolleetiont
of the time of the occurrence, that he watered the gasoline at the times stated by Quardokus
and Knight, and that when he did so, it was not to find out who was taking gasoline, but
solely in order to play a rather grim joke upon the employees. Beacham did not deny
the conversation between Petree, Schultz, and himself. Schultz did not testify at the,
hearing.
31 In such cases, the customer was charged only for the anrount actually delivered ; tlie'
surplus remained on the company records as unsold.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rier which hauled premium fuel for Respondent to Benton Harbor.' The sur-
plus gallonage and ethyl drainings were normally drained into Davis cans by
the drivers or loaders and then dumped by the yardmen into the truck tank;
if that tank was full, the drainings would remain in cans in front of the office
until the truck tank could accommodate them. In contrast, the drivers were
given no instructions about the disposal of the normal drainings from their
trucks, and there Was no fixed practice as to their disposition ; the drivers took
what they needed for their own cars; if they did not need gasoline, they either
left the drainings in the trucks, to be drawn off by the loaders or loaded over
with fresh products, or drained them into Davis cans, where they were often
mixed with other drainings of regular andremium gasoline. At times the
tailings, as drawn off, were mixtures of both types of gasoline. Petree himself
admitted that he gave no instructions about disposal of normal tailings. The
reason for this lies in the fact that he was not accountable for drainings, as such,
but only for products which were inventoried and for which he had to account
daily ; this included all surplus gasoline, but not drainings until after the latter
were poured into the truck tank, the contents of which were included in in-
ventory ; no inventory was maintained on the normal drainings while in the
Davis cans. The testimony of Beacham, the office ,clerk, indicates, and I find
that, normal drainings really represented only shortages to the customer who had
signed and paid for a whole tank or compartment of product but actually re-
ceived the amount listed on the delivery slip, less the amount of tailings, for
which he received no credit. Thus, tailings in the cans usually represented
salvage, or overages of regular or mixed gasoline which was out of inventory,
and Petree was obviously not concerned with their disposition until they went
back into inventory in the truck tank.
In the third place, the record indicates that the drainings from the Davis cans
were used by Respondent only to operate its trucks and other vehicles, after
they were poured into the truck tank. There is no proof that they were sold
commercially, either from the cans or after storage in that tank. They were
usually mixtures of several grades of gasoline, polluted by sediment or foreign
matter collected in the cans which often fouled the motors of the employees'
cars." These facts convince me, and I find, that the drainings were not saleable
products nor considered as such by Respondent's officials at Benton Harbor.
This finding further supports the conclusion that Petree, in accordance with his
benevolent and lenient treatment of the employees, was not averse to their use
of the drainings as an unofficial perquisite of their employment and allowed it
to develop into a regular habit, to which he turned a convenient blind eye and
against which he made no attempt to enforce the company rule regarding thefts.
In addition, I find from the uncontradicted and credited testimony of Scovel,
Knight, Marutz, Waldo, Marshall, and Leach that, prior to Scovel's discharge,
no employee had ever been warned, reprimanded, or disciplined, much less dis-
35 Ethyl, or premium, gasoline was brought to Respondent's storage tanks at the Benton
Harbor plant from East Chicago, Indiana, by tank trucks of Producers' Transport, a
contract carrier ; at Benton Harbor, it was pumped by Respondent' s loaders into its trucks
-during the night, and was delivered therein to customers the next day. Regular, or Shell
gasoline was stored for Respondent at a marine storage terminal operated by Thiesen-
-Clemens, an independent operator, at St. Joseph, Michigan ; Respondent's trucks were
driven there during the night by the loader, were loaded by Thiesen-Clemens employees,
and driven back to the bulk plant, where Respondent' s drivers took them out the next
-day for deliveries.
35 As found above, Knight experienced a fouled gasline in his car in 1946 or 1947 after
using drainings, Waldo testified without contradiction, and I find, that during 1945
the engine of his car became so fouled with dirt from the drainings that it required an
expensive overhaul of the fuel system ; after that Waldo did not use drainings as
frequently as before.
SHELL OIL COMPANY 119
charged, for personal use of drainings. This is further proof that the company
rule'was never applied-to drainings.
'What is more, Petree did not even enforce the rule with regard to stock items,
such as motor oil.-and other lubricants. Knight testified without contradiction,
and I find that, he saw employees take gear and transmission lubricants from
stock in the warehouse, and use them in their cars while they were parked in
the driveways of the plant or in the street in front of the office. There is no
proof that Petree objected to this, reprimanded the men therefor, or required them
to pay for what they took. In the spring of 1949 Baugher borrowed a Rototiller,
a light farm tractor, from Waldo, and discovered he needed a special lubricant
for its transmission. While he and Waldo were discussing, in the office, the
type of grease required, Petree overheard them mention the type needed, and told
them there was a barrel of it in the warehouse. Baugher thereupon openly took
some in a can from the warehouse, carried it home and used it in the tractor,
without objection from Petree. Petree did not deny this incident. .Baugher
also testified without contradiction, and I find, that some employees went to the
trouble of accumulating drainings of fresh oil from empty 5-gallon tins which
had held stock oil, and used the drainings in their cars, without apparent objection
from the company officials. Scovel testified credibly, and I find, that on one occa-
sion in May 1949, after he joined the Union, he asked Dewitt to save him some
waste crankcase oil drained from the trucks, which Scovel desired to use in his
car. On hearing this, Gravis, the assistant foreman, asked Scoval, "What do
you want to use that crap for? There is plenty of oil out in the warehouse in
the truck service pump ; we are always long on motor oil anyway." Scovel then
took 2 quarts of fresh oil from the truck barrel for his car, without objection
from Gravis. In view of the other facts found above, I do not credit Gravis'
denial of this incident.
The above facts clearly indicate, and I find, that prior to July 29, 1949, Re-
spondent's rule regarding discharges for thefts was never publicized as being
applicable, and was in fact never applied, with respect to the employees' use of
drainings and small amounts of motor oils and other lubricants which were
stgred in bulk.
Another circumstance which leads to the conclusion that Scovel was not dis-
charged for violation of the company rule, but for a discriminatory reason, is
the disparate treatment accorded him and Robert Leach after Petree learned that
each took gasoline. Leach took several gallons of inventoried gasoline for his
own car from the truck pump about 11 o'clock one night in the latter part of
March or early April 1949. As he was pouring the fuel into his car tank through
the pump hose in front of the office, Petree, Gravis, and Schultz drove up to the
office in Petree's car. Although the testimony of Leach, Petree, and Gravis
would indicate that none of those in the car actually saw Leach taking the
gasoline, Leach nevertheless came to the office the next morning, admitted to
Petree that he had taken the fuel in order to get home, and offered to pay for it.
Petree testified he would not take the money, but warned Leach that he had
violated the company,rule, and told him "never let that happen again." Knight
testified that, while he was working in the yard with Pedde that day, Gravis
said to them, "Well, we finally got the guy that has been tapping that pump ;
you will never guess who it was," and when they asked, he said it was Leach,
and recounted that when he and Petree drove up to the plant, Leach had the
truck hose in his hand and was fueling his car, but hurriedly put up the hose,
jumped into his car and drove off." Gravis' statement to Knight coupled with
97I credit Knight's testimony on this point,.-Gravis -does not deny -the conversation,
merely stating he could not recall it, and formally denying only the exact words which
Knight attributed to him . Pedde did not deny the conversation.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leach's significant action indicates that Petree and Gravis either caught Leach
"inthe act" or saw enough of his actions to warrant the belief that he was taking
fuel from the truck pump, and I am persuaded that Leach realized he had been
caught ftagran.te delicto, and, knowing the possible consequences from Petree's
previous warnings about the truck pump, hastened to confess and make amends
to avert a possible discharge: His efforts succeeded, ford: his only punifthment
was a warning. The treatment accorded Scovel •on-jJrily 29 and 30 -was quite
different. On the 29th Petree and Gravis deliberately and covertly watched
Scovel from a distance as he openly took cans of drainings and put them in his
car in broad daylight 38 Although Petree had long known of and permitted this
practice, and was not sure what was in the cans (I. e., whether it was stock
fuel or drainings), he at once called Smith, his superior, and reported the inci-
dent, without attempting to warn Scovel or recover or examine the cans. Smith
came to Benton Harbor that afternoon, accused Scovel of taking company prod-
ucts and abruptly discharged him when he admitted taking drainings. Scovel's
offer to make amends, unlike that of Leach, was peremptorily refused, and his
protest at his abrupt dismissal without warning was brushed aside. It is clear
that in Leach's case, the company rule, which Petree had always openly applied
to the contents of the truck pump, was not enforced, consistently with Petree's
past liberal attitude toward the men and lax operation of the plant; whereas,
in Scovel's case, Respondent suddenly and for the first time applied the rule in
its full vigor to the taking Of random drainings or leavings and. a smalhhcamount
of stock oil, contrary to past practice at the plant. These circumstances
persuade me that the rule was invoked as to Scovel, not for the bona fide pur-
pose of protecting company property, but as a pretext to get rid of an active
member of the Union. That Respondent was determined to "get" Scovel for
this reason is further shown by Gravis' conversation with Quardokus the same
day just before the, discharge: When Quardokus returned from his run, Gravis
called him aside and said "Did you know Scovel is going to be fired when he gets
in off his trip?" Quardokus said he did not, and asked why, and Gravis said
Scovel had been seen by Petree and Gravis putting gasoline in his car that
morning. Quardokus said, "If you saw him, you saw me, too," to which Gravis
answered, "We are not after you, we are after Scovel." Quardokus had come on
duty with Scovel that morning, and had also poured drainings, with the help of
Scovel, openly into his car which was parked in the street adjacent to the office.
Gravis admitted that he saw Baugher and Waldo at the plant about that time,
and that he and Petree were parked in a position from which they had a full
view of Scofel's truck and his car, but he does not say he saw Quardokus. I am
satisfied by the above facts, however, and I find, that Petree and Gravis saw
Quardokus taking drainings at the same time as Scovel. Their indifference to
3 In view of my findings that Petree openly permitted the men to take dralnings, I do
not credit his story that he was surprised and shocked by Scovel's acts. Nor do I credit
Gravis' statement that they "stunrbled" on the alleged theft by accident. Both witnesses
said they were out in Petree's car that night to follow Respondent 's trucks and observe
loading operations both at St . Joseph and the bulk plant, in an effort to discover why
the trucks were not getting out on time in the morning. Gravis testified they observed
delays in the loading of two trucks at the Thiesen-Clemens plant, but Petree does not
mention this fact ; nor is there any proof that he inquired further into the reason for the
_ delay, , or-took • any corrective measures later. These circumstances iimpel the, conclusion
that the alleged. business reason for their , nocturnal trip is spurious , and that they- were
really scouting the plant to observe Scovel's movements for an ulterior purpose. It Is
unnecessary to resolve the many conflicts in the testimony of Petree and Gravis regarding
their movements that night, as I consider it beside the issue . However,- their evasive
manner of testifying on this subject , and the conflicts in their stories, were such as to
throw doubt on their general credibility. I have therefore credited their testimony on
other points only to the extent that it is consistent with credible evidence of other wit-
nesses.
SHELL OIL COMPANY 121
Quardokus' conduct is explained by the fact that Petree rehired Quardokus just
before the election, after learning his antiunion attitude, in the expectation that
he would vote against the Union. Although the scheme failed, Respondent still
considered him antiunion and had no desire to get rid of him, as indicated by
Gravis' remarks.
. Finally, the spurious character of Respondent's ostensible reason for the
iisc'l arge is further. ievealed b3; ,the studied efforts o£`'Stflith.,after the dis-
charge to secure from Scovel first a written resignation and, failing that, a writ-
ten admission of guilt. Smith tried twice on July 30 to get a written resigna-
tion from Scovel, but failed. He then resorted to the expedient of sending the
elderly, white-haired and fatherly Petree, who had been much closer to the men
and had more influence with them. Petree succeeded in getting a written
confession from Scovel, but only after representing that it would be used in
an effort to get Scovel's job back for him. Once having obtained the document,
however, Respondent used it to resist the Union's efforts to secure reinstate-
ment for Scovel, and as support for its defense at the hearing. It is a legitimate
inference from these facts, and I am convinced, that Respondent recognized
the weakness of its use of the company rule as the basis for Scovel's discharge,
and made determined efforts, even to the extent of fraudulent promises, to
secure the confession in order to bolster its conduct against any future charge
by Scovel or his Union.
Upon the foregoing considerations I conclude and find that Scovel's ap-
propriations of drainings and a small amount of motor oil on July 29, 1949,
was not the real motive for his discharge. Respondent admits his work was
otherwise satisfactory. This leaves only his union affiliation and concerted
activity for consideration, and I am convinced that these were the real reasons
for his discharge. I am impelled to this conclusion not only by the salient facts
and circumstances outlined above relating to the sudden application of the com-
pany rule to him following the advent of the Union, but also by Respondent's
open hostility to self-organization of its employees, its unlawful interrogation
of employees, and its threats of reprisal for their union activity, as found
above.
After careful consideration of all the above facts and circumstances, I am
convinced, and I therefore find, that Scovel was discharged by Respondent
on July' 29, 1949, because of his union membership and concerted activity,
and that by such discharge Respondent discriminated against Scovel in. regard
16 his hire and i tenure of employment, thereby discouraging membership in
the Union, and interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed by Section 7 of the Act, all in violation of Section
8 (a) (1) and (3) of the Act3B
D. The discharges of Fred Knight and George Marutz
Fred Knight worked for Respondent as a truck driver at Benton Harbor from
August 1944, until his discharge on December 27, 1949. As found above, Knight
joined the Union at the first organizing meeting, and the next day apprised
Petree of that fact and took the lead in expressing to Petree the dissatisfaction
of the drivers with their working conditions. Shortly after the Union won
the election of June 8, 1949, Knight was elected secretary-treasurer of the local
Union. After- Scovel's. discharge, Knight, as a: member of the union grievance
®B See N. L. R. B. v. Ford Brothers, 170 F. 2d 735 (C. A. 6), enforcing 73 NLRB 49,
where . the court upheld a finding of discriminatory discharge based on similar facts and
circumstances.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committee, fought actively for Scovel's reinstatement" during meetings with
company representatives.
On or about November 30, 1949, Knight was directed by Petree and Smith to
attend a meeting at the Hotel Vincent, Benton Harbor, with Russell Vandi-
vort, Respondent's counsel, and another company attorney from New York,
New York. They questioned Knight about the charges Scovel had ` made in his
letter of August 2, 1949, and about various practices at the plant . Knight
told them the charges were true, and that it was common practice for the
employees to take gasoline drainings. The attorneys mentioned the charges
filed herein by the Union, and, Knight told them representatives of the Board
had questioned him about the case.
, On December 27, 1949, Knight was again sent by Petree to the same„ hotel
where he met Vandivort and E. P. Ericson, Respondent's division manager from
Detroit. Vandivort told him the company policy required the discharge of em-
ployees who took company products, and asked him to sign a statement that
the taking of drainings had not been a common practice. Knight refused,
stating it would not be the truth. He also said he thought their request had
some connection with Scovel's discharge, and that if he signed such a state-
ment, the Company would submit it to the NLRB and Scovel would never have
a chance. to. get his job back. He also told Ericson that ever since the trouble
had started, the company was "out to get all of us union men, and fire us."
Ericson denied this, saying it had nothing to do with the Union, and -then
urged Knight to sign 'the statement requested by Vandivort. Knight, asked
if other employees had signed a similar statement, and when Ericson said they
had, Knight said they were liars, because all the employees had done the
same thing. Vandivort said that the company was concerned lest Knight make
a statement out of a false sense of loyalty to Scovel, and then asked Knight
again to state whether or not he had taken products himself, knowing what
the consequences of his statement would be. Knight repeated that he.had
taken drainings, like the others, and refused to sign a statement to' the con-
trary. As Knight was leaving, he asked Ericson if he should return to work
the next day, and Ericson said, "If you sign the paper you have your job, and
if you don't sign the statement, you don't need to come back to work."' K night
did not report-for work the next morning. He has never been offered reinstate-
ment by Respondent. 40
George Marutz entered the employ of Respondent at Benton Harbor as a
truck driver on December 15, 1945, and continued there in that capacity until
his discharge on December 27, 1949. He joined the Union at the same time
as Scovel and Knight, and took part in the drivers' discussion with Petree the
next day in which they aired their dissatisfaction with working conditions at
the plant. Shortly after the Board election, Marutz was elected president of
the-local Union and a member of its grievance committee which negotiated with
Respondent in futile efforts to secure Scovel's reinstatement, as found above.
The circumstances of Marutz' discharge closely parallel those in Knight' s case.
Thus, Marutz was+ also summoned to appear before Vandivort at the Hotel
Vincent on or about--November 30, 1949. Vandivort told him he was handling
for Respondent the case involving the charges filed by the Union, and that'he
was investigating conditions at the plant for that purpose. The attorneys asked
Marutz about gambling and drinking at the plant, and Marutz said, it was
serious. He was asked about the use of 'drainings, and he told them it was
common practice for the employees to take them. However, he did not admit
. ao These findings are based on the uncontradicted and credited testimony of knight.
Neither Vandivort nor Ericson testified at the hearing.
SHELL OIL COMPANY 123
that he had taken drainings. Marutz mentioned Scovel's case, and told the
attorneys that because of the pending charges involving Scovel's discharge,
which the Union had already discussed extensively in meetings with company
representatives, he did not want to discuss that matter further, but preferred
to talk about it only at an NLRB hearing. That apparently ended the confer-
ence.
On December 27, 1949, Petree took Marutz to another conference with Vandi-
vort at the same hotel, at which Ericson was also present. Vandivort recited
the' company rule regarding discharges for theft, and asked Marutz if he took
company products. Marutz denied it, saying he was an honest man. Vandivort
then reminded him of his statement at the previous meeting about the common
practice as to drainings, and Marutz admitted he had made that statement.
Vandivort and Ericson then asked him to sign a statement indicating whether
or not he had taken gasoline, and denying the existence of the common practice.
Marutz refused to do so, stating he felt they wanted it to jeopardize Scovel's case
before the Board. They said it had nothing to do with Scovel, and that they
were only interested in whether illarutz had or had not taken products. Vandi-
vort asked him to tell the truth. Marutz offered to take a lie detector test to
prove the verity of his oral statements, but Ericson said that was not necessary,
that if he signed a statement that he had not taken gasoline, they would believe
him. Marutz pointed out it would be more logical for them to believe his
statement that everybody took gasoline drainings. Asa result of this discussion,
Marutz was in doubt whether he should sign anything or discuss the matter
further with them, so he told them he wanted to consult his attorney about his
legal position. Vandivort agreed that he should do so. When Marutz left the
conference, it was agreed that he would call them before 9 p. in. that evening.
Before he left, however, Vandivort said that unless he was willing to sign a
statement, they would assume that his previous statement that everybody took
gasoline meant that he Also took it. Marutz left the meeting and conferred
with Freeman, the union representative, and Knight on the telephone, learning
from the latter of his discharge earlier that day. Marutz called Ericson at the
hotel before 9 p. m.,,and told him Knight had advised him he had been discharged.
Ericson affirmed this, and said that he (Marutz) was through, too. Marutz
has never been offered reinstatement by Respondent."
Respondent claims Knight and Marutz were discharged, like Scovel, for tak-
ing company products. The record indicates, and I find, that after Scovel's
discharge became known to the employees, all discontinued the practice of
taking drainings. Thus, Respondent can bottom Knight's discharge only on
his admissions to Vandivort and Ericson that he indulged in the practice prior
to Scovel's discharge. At the hearing Marutz admitted he took drainings, but
It is clear that he, too, did so only before July 29, 1949. However, he never
admitted this to Vandivort at either meeting, and it follows that his discharge
can be based -only on Respondent's assumption of his guilt arising from his ad-_
mission of the common practice at the first meeting and his refusal at the
second to' sign any statement on the subject. In-its brief, Respondent admits
these wbre'the reasons which occasioned the discharges.
I have already found that Respondent discriminatorily discharged Scovel for
union activity, using as a pretext his alleged miscondust in violating a company
rule never before applied at Benton Harbor to. the employees' use of drainings
and small -amounts of other products. Since Knight and Marutz were dis-
chargeed ex post facto for their alleged contemporaneous violations of the
same rule, the same considerations which indicated the illegality of Scovel's
"These findings are based on the uncontradicted and credited testimon of Marutz.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge apply with equal force to the discharges of Knight and! Marutz ;
those considerations alone would justify the conclusion • that their discharges
were likewise discriminatory. However, the conduct of Respondent's.represent-
atives in their interviews with Knight, Marutz, and other employees on Decem_
ber 27, 1949, further support that conclusion.
The experiences of Baugher, Knight, and Marutz at their second interviews
with Vandivort clearly show that each was offered the alternative of signing
a statement denying the common practice as to drainings or losing their jobs
through application of the company rule. Gravis, Pedde, Marshall, and
Beacham succumbed to the economic pressure on November 30, and saved their
jobs. Baugher yielded finally on December 27, and was retained. However,
at the hearing Baugher, who was on longer in Respondent's employ, repudiated
his statement ; on the other hand, Marshall, still employed at Benton Harbor,
was constrained to stand by his statement, although 'admitting that under the
circumstances in which he had been interviewed and signed the statement, no
employee was likely to tell the truth. From the credited testimony of these
witnesses, it is clear that Respondent's pattern of approach to each employee
was the same : Ile, .mpst, either sign a statement. denying,,the common p>;actige;
which would in effect contradict the Union's position on Scovel's discharge, or
lose his job. Those employees who yielded to the pressure saved their jobs.
The two men who resisted, refusing to commit themselves contrary to the facts
in order to avoid prejudice to the case of their fellow union member, were dis-
charged, Respondent applying to them as a pretext the same rule it had used
in firing Scovel.
.That Respondent was interested only in securing written statements which
would tend to controvert the Union's charges, regardless of the true facts, is
indicated by the circumstances .that (1) in preparing Respondent's defense to
the charges, Vandivort found it necessary to interview some employees twice :
Gravis, Pedde, Marshall, and Beacham, who gave the required statements
on November 30, were not interviewed again ; those who admitted the common
practice or their participation in it (Knight, Marutz, Baugher, and Leach) were
not asked for written statements. at the first meeting, but were reinterviewed
on December 27 and given special treatment : They were first pointedly reminded
of the company rule requiring discharge for thefts, and were then asked for
written statements about the common practice in such terms as to make.it clear
to them that they must deny the practice and their participation in it, ,or lose
their jobs; (2) when Baugher yielded and signed the negative statement to save
his job, he was told that was the "right answer," and he need not worry about
his job; (3) Marutz' repeated insistence on the existence of the practice, though
denying he indulged in it, and his offer to submit to a test of his verity, was not
enough for Respondent : Ericson wanted only the type of statement signed by the
other employees, indicating that would satisfy the Company; and (4) similar
statements given by Pedde, Beacham, Leach, and Marshall compelled these pres-
ent employees to testify, accordingly thereto, and thus support Respondent's de-
fense, under the ever-present"threat of application, of the company. rule AGtthein
only Marshall had the courage to indicate, in effect, that his statement and
corresponding testimony was coerced and contrary to the fact"
42 In its brief, Respondent concedes that it is "debatable" whether the method followed
by its representatives on December 27 in interviewing the employees "under suspicion"
was "well calculated to arrive at the truth." The facts outlined above convince'me that
their method could hardly have brought out, and in fact did not elicit, the truth from
those who signed statements.
It is significant that when Leach , the antiunion employee who had confessed to theft
of gasoline from storage and had been let off with only a warning , was reinterviewed as
SHELL OIL COMPANY 125
When Knight and Marutz, officials of the Union, refused to sign the statements
requested by Respondent on the grounds that they would be false and would jeop-
ardize Scovel's case before the Board, they were engaging in a concerted activity
which is protected by the Act. The institution by the Union of proceedings be-
fore -the Board was a matter of vital interest, not only to Scovel, but to all
members of the Union, and in itself constituted a form of concerted activity,
engaged in by these employees through the agency of the Union, for their mutual
aid and protection. As part of that concerted activity, Knight and Marutz were
entitled to give information and other assistance to the Union which would aid
Scovel's case, and, as a corollary, were also entitled to refuse to make any state-
ments or take any action which would jeopardize his case. Although Respondent
had a right to prepare its defense to the Union's charges, it could not in the
course of that preparation encroach upon the employees' right to engage in this
concerted activity by attempting to compel them to forego that right or by
penalizing them through discharge if they persisted in making common cause
with Scovel and the Union. Considering Respondent's open hostility to self-
organization of its employees, and its prior attempts by threats and other illegal
means to discourage concerted, and union activity, it is clear that, when Re-
spondent insisted that Knight, Marutz, and Baugher, as a condition of their con-
tinued employment, must make written statements contrary to the position of
their Union, it was motivated by antiunion sentiments and a desire to prevent
these employees from giving information or testimony favoring the position of
Scovel and the Union in the Board proceeding, rather than by a legitimate de-
sire to procure information which would assist it in preparing its defense. The
imposition of the condition under the circumstances was a clear interference
with the right of self-organization for mutual aid and protection guaranteed to
employees by Section 7 of the Act. I conclude and find that Respondent thereby
violated Section 8 (a) (1) of the Act. In addition, the discharge of Knight
and Marutz eT post facto for their alleged past violation of a company rule, after
they refused to sign statements detrimental to their Union, was clearly a penalty
for making common cause with the Union, which tended to discourage member-
ship therein. I conclude and find. that by such discharges, Respondent dis-
criminated against Knight and Marutz in regard to their tenure of employment
in order to discourage membership in the Union, and thereby violated Section
8 (a) (3) of the Act's
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of Respondent set forth in Section III, above,
occurring in connection with the operations of 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act, the Trial Examiner
an "employee under suspicion ," Vandivort drafted his statement in such form that his
theft appeared as an unauthorized "borrowing" or gasoline , for which Leach offered to
pay the next day. This created a plausible excuse "on the'record " for Petree 's failure
to discharge him for a bald theft which clearly violated the company rule.
48 Cf. Wire Rope Corporation of America, Inc., 62 NLRB 880; N. L. R. B. v. Peter
Cailler Kohler Swiss Chocolates Co., Inc., 130 F. 2d 503 (C. A. 2) ; N. L. R. B. v. Duncan
Foundry & Machine Works, Inc., 142 F. 2d 594 , 599 (C . A. 7). -
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will recommend that it cease and desist therefrom and take certain affirm-
ative action in order to effectuate the purposes and policies of the Act.
The Trial Examiner has found that Respondent discriminated against Richard
E. Scovel, Fred Knight, and George Marutz, in regard to their hire and tenure
of employment because of their union affiliation and concerted activity, thereby
discouraging membership in the Union, a labor organization. It is, therefore,
recommended that Respondent offer to each of said employees immediate and
full reinstatement to his former or substantially equivalent position, without
prejudice to his seniority and other rights • and privileges, and that Respondent
make each employee whole for any loss of pay he may have suffered by reason
of Respondent's. discrimination against him. It is recommended that the loss
.of pay for each employee be computed on the basis of each separate calendar
quarter or portion thereof during the period from Respondent's discriminatory
action to the date of a proper offer of reinstatement; the quarterly periods, here-
inafter called "quarters," shall begin with the first day of January, April,
July, and October ; loss of pay shall be determined by deducting from a sum
equal to that which each employee would normally have earned for each quarter
or portion thereof, his net earnings," if any, in other employment during that
period ; earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. It is also recommended that Respondent be
ordered to make available to the Board upon request payroll and other records
to facilitate the checking of the amount of back pay due.45
The number and variety of-unfair labor practices found above clearly indi-
cates that Respondent has been and is disposed to defeat concerted activity and
self-organization among its employees by any conceivable means, and discloses
an attitude on the part of Respondent of fundamental hostility to the purposes
of the Act. This attitude and conduct also indicates the likelihood that Respond-
ent may resort in the future to similar or related unfair labor practices proscribed
by the Act. The preventive purposes of the Act will be thwarted unless the rec-
ommendations herein and the Board's order thereon are coextensive with the
threat. The Trial Examiner will therefore recommend that Respondent cease
and desist from in any manner infringing upon the rights of employees guaran-
teed in Section 7 of the Act.
Upon the foregoing findings of fact, and the entire record in the case I make
the following :
CONCLUSIONS OF LAW
1. Oil Workers International Union, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Richard
E. Scovel, Fred Knight, and George Marutz, thereby discouraging membership
in a labor organization, Respondent has engaged in and is engaging.in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By such discrimination, and by otherwise interfering with, restraining,
and coercing its employees in the exercise of rights guaranteed by Section 7
of the Act, to the extent herein .found to be violative of the Act, Respondent
44 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, which would not have been incurred but for this unlawful discrimination, and the
consequent necessity of his seeking employment elsewhere. Crossett Lumber Company,
8 NLRB 440. Monies received for work performed upon Federal, State, county, municipal,
or other work-relief projects shall be considered earnings. Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7. . .
45 F. W. Woolworth Company, 90 NLRB 289. - . . ..
FORD MOTOR COMPANY 127
has engaged in and is engaging 'in unfair labor practices within the.meaning
of Section 8 (a) (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 thg Act.
[Recommended Order omitted from publication in this volume.]
FORD MOTOR CO IPANY (CANTON FORGE DIVISION) and INTERNATIONAL
BROTHERHOOD OF BLACKSMITHS, DROP FORGERS AND HELPERS, AFL,
PETITIONER. Case No. S-RC--935. July 11, 1951.
Decision
Upon a petition duly filed, a hearing was held in this case at Canton,
Ohio, before John H. Garver, hearing officer: The hearing officer's
rulings made at the hearing are free from prejudicial error and are!
hereby affirmed., All parties have filed briefs with the Board, and the
Petitioner has requested oral argument.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner and the Intervenor, International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-CIO, are labor organizations claiming to represent
employees of the Employer.
3. The question concerning representation :
The Petitioner filed its petition herein on June 20, 1950, seeking
to represent all employees in the Employer's Canton, Ohio, forging
plant. The Employer and the Intervenor, in addition to contending
that the unit sought is not appropriate, maintain that their collective
bargaining contract of September 28, 1949, is a bar to this proceeding.
The Petitioner contends that this contract is no bar, and urges in
support of this contention several grounds, one of which is that the
contract contains an unauthorized and unlawful union-security pro-.
vision. The Petitioner argues that the Congress of Industrial Organ-
izations , the parent federation of the Intervenor, was not in com-
pliance with the filing requirements of the Act at the time of the
union authorization election, and that therefore the union-security
clause in the contract was never properly authorized.
Since 1941, the Employer .and the Intervenor have entered into a.
series of collective bargaining agreements covering all plants operat-
ed by the Employer. In 1948 the Employer started operations. in the.
Canton plant. Purusant to a Board-directed election,' the Inter-
1 Ford Motor Company, Canton Forge Plant, 80 NLRB 1094.
95 NLRB No. 27.