Shell Oil Co.

National Labor Relations Board - Board Decisions

Nov 30, 1970

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

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