Shell Oil Co.

National Labor Relations Board - Board Decisions

Nov 26, 1976

226 N.L.R.B. 1193 (N.L.R.B. 1976)

SHELL OIL COMPANY 1193
Shell Oil Company and David R. Reeves and Elton J.
Bodin . Cases 15-CA-6017 and 15-CA-6017-2
November 26, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On August 19, 1976, Administrative Law Judge
Robert A. Giannasi issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Shell Oil Company, New
Orleans, Louisiana, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order.
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge: Upon
charges filed on February 17 and March 16, 1976, resulting
in a complaint issued on April 20, 1976, this proceeding
was heard in Lafayette, Louisiana, on June 3 and 4, 1976.
The complaint alleges that Respondent discharged employ-
ees David R. Reeves and Elton J. Bodin in violation of
Section 8(a)(1) of the Act for engaging in protected con-
certed activity. Respondent denied the critical allegations
of the complaint Briefs were submitted by counsel for the
General Counsel and counsel for the Respondent.
Upon the pleadings, the evidence, my observation of the
demeanor of the witnesses and the entire record in this
case, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with offices and
facilities located in New Orleans , Louisiana , where it is
engaged in the exploration and production of oil and gas
products . During the 12 months prior to the issuance of the
complaint , Respondent , in the course of said business, had
direct inflow of goods and materials valued in excess of
$50,000 and had gross revenues from sales and services
which exceeded $500,000 . At all times material herein, Re-
spondent has been an employer within the meaning of Sec-
tion 2(2) of the Act, engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Elton (Frenchy) Bodin was employed by Respondent for
5 years. David Reeves had been employed for 4 years.
They were senior lease operators in the Respondent's Bay
Marchand B crew when they were terminated on Septem-
ber 18, 1975.' The Bay Marchand unit is an oil production
complex located some 10 miles off the coast of Louisiana.
There are three platforms in the unit, one of which con-
tains living quarters for personnel working offshore. The
immediate supervisor for the Bay Marchand B crew was
Maintenance Foreman Walter Talley. The B crew consists
of six to nine employees who work and live offshore for 7
days and then alternatively have 7 days off, at which time
another crew, the A crew, relieves them. There is also a
third crew which works 5 days and is off 2 days; it is head-
ed by Maintenance Foreman Ken Smart. All the crews are
supervised by Bob Grenn who is the production foreman
of the Bay Marchand unit. Grenn in turn reports to man-
agement officials at Respondent's offices in New Orleans,
Louisiana, and Houston, Texas.
During the dinner hour, on the evening of September 9,
Bodin came up to fellow employee Steve Terrebone who
was ahead of him in the food line and jokingly reached for
his steak. Terrebone moved away and the steak slid off his
plate to the floor. Terrebone slid the plastic plate across the
table and it also fell to the floor. Terrebone then left the
galley saying he would return after the others finished. Bo-
din cleaned up the spillage. Foreman Walter Talley then
came into the galley and asked Bodin about the noise. Bo-
din explained and told Talley to talk to Terrebone and he
did so. Talley returned and said he could get no more of
Terrebone than he could from Bodin and said that there
' All dates hereafter refer to 1975 unless otherwise specified
226 NLRB No. 190
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be a safety meeting for the crew in the morning.' He
also said that he wanted to see Bodin in his office.
After he finished eating, Bodin went to Talley's office
where Talley asked him to sign a written statement con-
cerning what had happened in the galley . He also wanted
to tape record a statement from Bodin on the matter Bo-
din refused and Talley told him to get out Talley also
asked Terrebone and the cook and his helper to give tape-
recorded statements.3
Thereafter, about 7 p.m., Bodin met with fellow employ-
ees at the "swing" area of the platform which contained a
porch-type swing. They spoke about Talley making an is-
sue out of the steak incident and the conversation led to a
discussion of other complaints against Talley such as name
calling and talking down to employees . They discussed
having a meeting with supervisors other than Talley to dis-
cuss their grievances . The meeting was to include Talley,
Maintenance Foreman Ken Smart , and Production Fore-
man Bob Grenn . During the meeting employee Emmitt
Spurlock joined the group . Bodin told him about the steak
incident and the discussion about having a grievance meet-
ing. Bodin then told Spurlock, a black, that Talley had
called him a "god damn nigger" in complaining to Bodin
about Spurlock's work.
The group, which consisted of Bodin, Reeves, Spurlock,
Terrebone, and employee Don Colombel, decided to seek
permission from Talley for a meeting with Respondent's
supervisors. They all walked over to Talley's office and
Bodin asked for permission for the meeting, to be attended
also by Grenn and Smart . Talley asked Bodin if he was the
leader of the group Bodin replied he was not and that the
men were all together on the matter Talley asked each
man individually if he wanted a meeting and each an-
swered in the affirmative . Talley then agreed to have the
meeting the next morning.
The employees left and continued to discuss the griev-
ances they had had with Talley. They decided to write the
grievances on paper . Bodin wrote them on a petition and it
was signed by the employees the next morning before the
meeting. In addition to the five employees who met the
night before, two other employees, Hughes and LeBlanc,
also signed the petition.
The petition listed 15 specific grievances which were di-
rected to Talley's supervision The list included a protest
against Talley's concern over the steak incident , his use of
tape recordings, his talking down to employees and breach-
es of confidence, his reference to Spurlock as a "nigger,"
and his handling of a dispute with Bodin over the opera-
tion of a crane during a storm . The list also included a
2 Safety meetings are apparently called by supervisors about once a week
or as needed to discuss work problems
J Most of the factual statement herein is based on the credited testimony
of Bodin and Reeves who impressed me as candid and forthwright witness-
es To the extent that any testimony conflicts with the facts as I have found
them herein , such testimony is not credited Talley's testimony, for example,
appeared to me to be evasive and contrived , particularly when he defensive-
ly explained why he used tape recorders At one point he denied asking to
tape record Terrebone and Bodin However , he admitted obtaining state-
ments from the cook and his helper and it is clear to me that Terrebone
must have been asked to give a statement for it was he who joined the other
employees in discussing grievances against Talley and he specifically object-
ed to the use of tape recorders at the September 10 meeting
protest against a threat by Talley to cut out overtime for
traveling from one platform to another. The petition also
stated the signers did not want to harm Talley or railroad
him but were "dissatisfied with his approaches."
At the meeting the next morning about 8 a.m., Bodin
acted as spokesman . He read the entire petition . Talley
defended himself against the charges and accused Bodin of
bringing up the grievances because of a personal difference
the two of them had during the operation of a crane in
stormy weather some time before. Thereafter , Spurlock
stood up and stated that he had heard from different
sources that Talley had called him a "nigger " and he asked
Talley if this was true. Bodin and Reeves indicated that
they had heard him refer to Spurlock in this manner but
Talley denied making the statement. Spurlock , visibly an-
gered , then stated that if he heard anyone call him a "nig-
ger" he would hurt him "in the worst way possible."
Employee LeBlanc commented on the issue of keeping
overtime for traveling from one platform to another. This
was apparently an issue because Talley had threatened to
cut the overtime . Employee Terrebone also spoke protest-
ing Talley's use of a tape recorder to obtain statements
from employees.
Supervisor Ken Smart made some remarks to the effect
that the men were attempting a mutiny, that they felt pow-
erful as a group , and that they were attempting to crucify
Talley whom he described as a family man. He also said
that Talley was dust trying to do his job and that the men
were being paid well for their work.
Production Manager Grenn also made some remarks
cautioning the participants not to discuss the grievances
beyond the confines of the meeting room and stated that
anyone who wanted a transfer should feel free to see him
after the meeting.
At one point during the discussion , Talley also asked
Reeves if he had heard him say anything about another
supervisor , Ken Smart , and Reeves said that he had.
Reeves also asked Talley why he was not trusted in his
work. Talley replied that he did not trust anything Reeves
said or did Reeves then stood up and said he was asking
for his transfer "right now" because he could not work for
a man who did not trust him. At this point Reeves left the
meeting.
According to Grenn, Spurlock came in after the meeting
and said he wanted to apologize to him and Talley.4 Grenn
told him to go get Talley , which he did , and Spurlock then
told them that he realized that he was "drawn in" by
Reeves and Bodin and that they told him things that Tally
had said about him which made him "fighting mad."
Grenn testified that he accepted Spurlock's apology and
said, "We'll forget about it."
The next person to visit Grenn was Reeves who asked
for a transfer because things were so bad that they would
"never be straightened out." Grenn said he would do what
he could to effectuate the transfer.
After Reeves left the office , Bodin went in and asked
Grenn if he could have a transfer closer to his home. He
had such a transfer request pending for some time. Grenn
said he would help Bodin obtain the transfer . Grenn then
Spurlock , who was still employed by Respondent at the time of the
hearing, did not testify
SHELL OIL COMPANY 1195
asked Bodin what he thought about the meeting and
whether the men could keep on working in the field. Bodin
thought they would as long as "few conditions were met."
Bodin then apologized to Talley and Grenn telling them he
had never been involved in protest meetings before but he
just thought the grievances ought to be aired. They both
shook his hand.
According to the testimony of Grenn, he called his supe-
rior, Sid Jones, in New Orleans on the afternoon of Sep-
tember 10.5 Jones asked for a report of the meeting and
asked what the grievances were. He also asked who started
the meeting and Grenn responded by telling him what
Spurlock had told him; namely, that Bodin and Reeves
had called Spurlock, who was on duty, over to their meet-
ing on the night of September 9. Jones told Grenn to sit
tight and he would get in touch with him. Later Jones
called back and ordered that Bodin and Reeves be told to
remove their personal belongings at the end of the work-
day, indicating that they would probably not be returning
to Bay Marchand.
Bodin and Reeves both worked the remainder of the
day. At the end of the workday about 4 or 5 p.m., they
were to return to shore for their scheduled 7 days off.
Grenn called Reeves into the office and told him to pack
his bags because he had been suspended. As Bodin passed
the office, Grenn also called him inside and told him to go
back and clean out his locker. Bodin asked why and Grenn
replied "we feel that you instigated this meeting" and that
as senior operators he and Reeves could have prevented
the meeting. Grenn also said that Bodin would be notified
later as to whether he would be transferred or terminated.
Bodin protested that he was not the instigator of the meet-
ing, that all employees felt as he did, and that the morale of
the men was low because of Talley.
Reeves and Bodin then sought a meeting with Bob Phe-
lan, division superintendent in New Orleans. Bodin called
Phelan at home. Phelan, who had obtained a report from
an associate that there had been a "flareup" at Bay Mar-
chand, asked Bodin what had happened, saying he heard
that the men had had a "little mutiny." Bodin denied this,
explained what had happened, and asked for a meeting
with Phelan. On September 16, Reeves and Bodin went to
New Orleans to meet with Phelan. In Phelan's office
Reeves and Bodin discussed what transpired at the meeting
and some of the underlying grievances. Phelan said that
they were the two most senior lease operators and that they
should have put a stop to the discontent. Reeves replied
that he thought they had the right to speak up if they had
gripes. Phelan indicated that it sounded to him like some-
5 Jones, who was apparently acting in place of Production Superintendent
Robert Phelan in the latter's absence, did not testify
6 The above is based primarily on the credited testimony of Bodin and
Reeves The major conflict is Grenn's testimony that, in response to Bodin's
question as to why he was being suspended, he gave no reasons but merely
transmitted Jones' statement that Bodin probably would not be returning to
Bay Marchand and would be notified the following week of any specific
action taken Bodin's testimony impressed me as the more accurate and
reliable in this respect and, accordingly, I find that Grenn mentioned that
Respondent felt that he and Reeves started the meeting This version is also
consistent with Grenn's other testimony that Jones had been concerned
enough about the meeting to ask who started it and to check the work
records of the two men
thing which had been blown out of proportion. Phelan also
said that if they thought they were going to run Talley off
thejob they were mistaken. Bodin said he was not trying to
do so. Phelan also said management would back supervi-
sors 100 percent. Bodin then asked "even if they're
wrong?" and Phelan did not respond. Phelan then advised
Reeves and Bodm to talk to Division Personnel Manager
William Gritus, who spoke to each individually. At the end
of Bodin's interview, Gritus asked if Bodin could go back
and work at Bay Marchand and he said he could if condi-
tions were changed. The men then met again with Phelan
who told Bodin it probably would not be good for him to
go back to Bay Marchand and asked if he was still interest-
ed in a transfer. Bodin said he was and Phelan said he
would try to get him the transfer. Phelan then told Bodin
he would get word to Bodin later on about Respondent's
final decision.
On September 18, 2 days later, Phelan called Bodin and
Reeves and told them that they were being terminated and
that their termination slips would show that they had re-
signed for personal reasons so that they would not have
problems in getting another job. Bodin asked about his
transfer and Phelan said that he could not work for Shell
Oil Company. Phelan also stated that management felt that
he had instigated the meeting and since he was a senior
operator he could have stopped it.'
B. Discussion
The General Counsel contends that Bodin and Reeves
were discharged for initiating end participating in the
meetings of September 9 and 10-protected concerted ac-
tivities-and thus that the discharges violated Section
8(a)(1) of the Act. Respondent does not dispute that Bodin
and Reeves engaged in protected concerted activity by ini-
tiating and participating in the meetings. Respondent con-
tends, however, that the two employees were discharged
for their past employment record and the "deliberate incit-
ing of a racial incident," more specifically, the involvement
of Spurlock by telling him that Talley had called him a
"nigger" and the subsequent outburst by Spurlock at the
September 10 meeting. I reject Respondent's contention
and find that Respondent discharged Reeves and Bodin
for engaging in protected concerted activity in violation of
Section 8(a)(l) of the Act.
The evidence establishes that Respondent fired Reeves
and Bodin for their instigation of and participating in the
employee meeting of September 9 and the grievance meet-
ing of September 10 The meeting of September 10 in-
volved criticism of Talley's supervision of the crew. Bodin
was openly the leader of the group. Reeves' leadership role
was also significant 8 It is clear that Respondent was con-
7 Phelan did not specifically deny that he told Bodin that Respondent felt
he had instigated the meeting although Phelan's version of the telephone
conversation does not include such a statement Bodin impressed me as a
more reliable and straightforward witness than Phelan (see infra, fn 14)
And I find it plausible that these remarks were made Phelan himself admit-
ted he was interested in getting at the cause of the meeting of September 10
and that he was told it was an attempt by Bodin and Reeves to drive a
wedge "in between the supervision "
Reeves' open confrontation with Talley at the September 10 meeting. his
Continued
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerned about who started or instigated the meeting of Sep-
tember 10. Although a safety meeting had been called by
Talley to discuss the steak incident-and such meetings
were common-what irritated him and other management
officials was that Bodin and Reeves converted that meeting
into one initiated by them to air general grievances against
Talley in front of a broader group of management officials.
Thus, according to testimony I have credited, Talley ac-
cused Bodin of being the leader of the group seeking the
meeting. According to other credited testimony, Grenn
and Phelan both indicated that Respondent was suspend-
ing and discharging Bodin for instigating the meeting
which he, as a senior lease operator, could have stopped.
Indeed, Phelan admitted that he was concerned that Bodin
and Reeves had driven a wedge between management.
Jones also expressed this concern when he asked Grenn
which employees started the meeting. Grenn told him that
Bodin and Reeves were responsible. The timing and
abruptness of the Respondent's suspension of Bodin and
Reeves dramatizes its concern over who started the meet-
ing. Only these two employees were suspended the same
day the meeting was held and told they would not be re-
turning to Bay Marchand. They were discharged a week
later after their appeals to retain theirjobs were unsuccess-
ful.
In these circumstances, I find and conclude that Re-
spondent discharged Bodin and Reeves for instigating and
actively participating in the employee meeting of Septem-
ber 9 and the grievance meeting with management on Sep-
tember 10. Such activity, undertaken to alleviate objection-
able working conditions, is clearly concerted and protected
under Section 7 of the Act and the discharges are thus
violative of Section 8(a)(1) of the Act.'
Respondent focuses on the Spurlock incident and con-
cedes that this was one of the reasons it discharged Bodin
and Reeves. However, I cannot separate, as the motivating
factor for Respondent's action, the involvement of Spur-
lock from the other conduct engaged in by Bodin and
Reeves on September 9 and 10. It is clear and not seriously
disputed that Reeves and Bodin sought Spurlock's support
in the group grievance against management and that this
was part and parcel of their overall concerted activity
Some of the other grievances against Talley involved name
calling and talking down to employees and it was natural
that Talley's disparagement of Spurlock be included in the
grievances. I note, moreover, that the Spurlock grievance
against Talley was only 1 of 15 listed grievances read at the
meeting of September 10. Reeves and Bodin had been par-
ticularly outspoken at the meeting-Bodin reading the list
and focusing on the steak incident the night before and
Reeves having walked out after a debate over whether Tal-
ley trusted him. In view of these factors, I have no doubt
that Respondent's primary, if not sole, objection to Reeves
and Bodin was that they were outspoken in their criticism
of Talley and that their leadership role in the grievance
request for a transfer, and subsequent walkout identified him as an active
participant and a leader in the grievance meeting
9 The protest of a supervisor's effect on working conditions is a protected
activity See N L R B v Guernsey-Muskingum Electric Cooperative, Inc, 285
F 2d 8 (C A 6, 1960), K-Mart Enterprises, Inc, 202 NLRB 358 (1973)
meeting and in the meeting of employees the night before
made them anathema to Respondent.
In asserting that its discharge of Reeves and Bodin was
lawful, Respondent relies on cases where no violation of
Section 8(a)(3) of the Act is found because the employer
established that the motive for the discharge was not the
employees' union activity, but some other unconnected
reason.10 However, where, as here, an employer discharges
employees at least in part for engaging in alleged miscon-
duct in the course of protected concerted activity, i.e., the
involvement of Spurlock in the group grievance, the ques-
tion of whether Section 8(a)(1) of the Act has been violated
and motive is normally not at issue. Thus, the employer's
good-faith subjective belief that the employees had en-
gaged in misconduct in the course of protected activity
does not excuse a discharge for that reason. N.L.R.B. v.
Burn up and Sims, Inc., 379 U.S. 21 (1964). Rather, the ques-
tion is an objective one; i.e., whether the alleged miscon-
duct is so serious that it deprives the employees of the pro-
tection the Act normally gives for engaging in concerted
activity. See N.L.R.B. v. Thor Power Tool Company, 351
F.2d 584 (C.A. 7, 1965); Boaz Spinning Co., a subsidiary of
Standard-Coosa-Thatcher Co v. N.L.R.B., 395 F.2d 512
(C.A. 5, 1968). More precisely, otherwise protected activity
loses its protected character only where, in the course of
that activity, the employee disseminates information which
is "deliberately or maliciously false" 11 or engages in fla-
grant misconduct.l2
Thus the real issue posed by Respondent' s defense is
whether Reeves and Bodin lost the protection of the Act by
telling Spurlock, in the course of discussing grievances
against management, that Talley had called him a "nig-
ger." As I have found, Respondent discharged Bodin and
Reeves for instigating and participating in the meetings of
September 9 and 10 and not specifically for involving
Spurlock. However, even assuming Respondent did in
good faith rely on the involvement of Spurlock in the
group grievance as the reason for the discharges, I cannot
sustain Respondent's position As I have indicated, the ap-
peal for Spurlock's support in the group grievances was the
essence of seeking mutual aid and support for employee
grievances against management. Additionally, I find that,
by such action, Reeves and Bodin did not engage in mis-
conduct sufficient to deprive them of the protection of the
Act, for their conduct did not constitute a maliciously false
representation or flagrant misconduct. Indeed, as shown
below, I find that Talley did call Spurlock a "nigger" in a
conversation with Bodin and thus the representation was
truthful.13
More specifically, I find Bodin's version as to what Tal-
10 E g, NLRB v I V Sutphin Co -Atlanta Inc, 373 F 2d 890 (C A 5,
1967)
11 Bowling Green Manufacturing Co, 169 NLRB 32, 34 ( 1968), see also
Roanoke Hospital v N L R B, 538 F 2d 607 (C A 4, 1976), enfg 220 NLRB
217 (1975)
12 Boaz Spinning Co v N L R B, supra
13 There is testimony that Reeves also mentioned the Talley remark to
Spurlock It is unclear to me whether Reeves independently heard this re-
mark or whether he simply heard it from Bodin I do not believe resolution
of this issue is relevant to the basic finding herein since Reeves is alleged to
stand on the same footing as Bodin under Respondent's theory that both
men untruthfully involved Spurlock in the grievance against Talley and I
find that the remark was made
SHELL OIL COMPANY 1197
ley told him about Spurlock entirely credible and I do not
credit Talley's denial. Both Bodin and Talley testified to an
incident several months before September 9 where Talley
criticized Spurlock for his work on a welding job, they got
into a heated argument and Talley reported this to Bodin.
Bodin testified Talley told him about the incident, which,
as Bodin testified, involved only Spurlock's work, and re-
ferred to Spurlock as a "nigger " Reeves also testified that
Talley referred in this manner to Spurlock. The evidence
also indicates that employees had objected to Talley's
name calling and talking down to employees as a general
matter. Talley's testimony on cross-examination was that
he had criticized a group of employees, including Spurlock,
doing the welding job and that Spurlock came up to him
later and objected to being called "boy" by Talley-a
phrase Talley said he used to refer to all his employees.
Talley's testimony on this point in his direct examination
was evasive. Moreover, in response to questions on the
welding incident, Talley seemed anxious to go beyond the
bounds of the question and volunteer information about
his continuing friendship with Spurlock which seemed to
me to be as contrived as was his testimony on the use of
tape recorders referred to supra, fn. 3. In these circum-
stances, I find that Bodin and Reeves truthfully repre-
sented Talley's derogatory name calling of Spurlock and
Respondent has not established that Reeves and Bodin en-
gaged in misconduct sufficient to deprive them of the pro-
tection of the Act.14
Moreover, even if there were some inaccuracy in Bodin's
remarks to Spurlock, I do not believe that they were made
maliciously in view of Talley's own testimony concerning
the welding incident and the fact that the employees were
concerned about Talley's name calling. The subject was
generally related to the grievances being aired. Nor do I
believe that Bodin and Reeves could be held responsible
for Spurlock's outburst in the meeting of September 10 or
that Respondent really regarded the outburst as all that
serious. Spurlock's apology was so readily accepted that it
seems clear to me that the incident itself was not thought to
be significant. And there apparently was no thought at all
of reprimanding Spurlock for what was characterized at
the hearing as a serious threat of physical harm.
14 Phelan testified that during the meeting of September 16 Bodin denied
to him that Talley had used the word "nigger" in referring to Spurlock
Reeves and Bodin's testimony indicates that the Spurlock grievance was
discussed only briefly if at all I do not credit Phelan's testimony His
concern over possible racial friction seemed to me not to be genuine he
seemed concerned only with the conduct of Reeves and Bodin and showed
a disregard of Talley's possible disparagement of Spurlock Phelan appar-
ently never called or questioned Talley about the meeting of September 10
but his testimony is confusing on this issue He testified at one point that he
never talked to Talley before deciding to discharge Reeves and Bodin How-
ever, when asked on subsequent examination whether he spoke to Talley
about the Spurlock matter, he said he did and received a denial, yet, when
asked to be specific on this, he could not remember when this was or wheth-
er it was simply the result of a hearsay report from Grenn
in any event , even a denial by Reeves and Bodin in such a conversation
would not convince me that the denials were reliable The two employees
were being questioned under circumstances which would make such a deni-
al compelling Their jobs were on the line and they were being questioned in
the offices of higher management They could well have been reluctant to
ventilate the issue any further in view of their suspensions after criticizing
Talley
Respondent also asserts that it discharged Bodin and
Reeves not only for what I have found was part of lawful
concerted activity-the involvement of Spurlock in the
group grievance, but also because of their past work rec-
ords. Respondent cites, among other things, Bodin's al-
leged propensity for engaging in horseplay and bullying
fellow employees, including the steak incident of Septem-
ber 9 and slapping an employeee 3 years before; Respon-
dent also cites Reeves' suspension in 1972 for kicking a
fellow employee who was black; Respondent also alleged
that Reeves was insubordinate because he allegedly failed
to cooperate with Talley in the investigation of the steak
incident and walked out of the September 10 meeting.
These reasons, first asserted in the litigation of this case,
are pretexts. None of these reasons was mentioned to Bo-
din or Reeves at the time of their suspension or discharge
even though there is testimony from Grenn and Operations
Manager H. L. Ruark that Respondent went over their
past records before suspending them. Nor did Phelan or
Gritus mention these reasons in their interviews with Bodin
and Reeves on September 16. Some of the incidents relied
on by Respondent were several years old, and the steak
incident, which occurred after working hours, was trivial in
itself, made significant only by Talley's overreactions and
insistence upon use of tape-recorded statements. None of
the reasons given at the hearing would have resulted in the
discharge of Bodin and Reeves who were highly regarded
employees Phelan admitted as much when he said that
Bodin would not have been fired for horseplay and that
both he and Reeves were fine lease operators. Bodin, for
example, was the crew's relief supervisor, standing in for
Talley when the latter was absent. In short, Respondent's
reliance in litigation on such stale and minor incidents to-
gether with the fact that these reasons were not mentioned
to the employees when they were discharged reinforces my
view that the real and only reason for the discharges was
the employees' participation in protected concerted activi-
ty.
CONCLUSIONS OF LAW
1. By discharging employees Elton Bodin and David
Reeves because they engaged in concerted activities for the
purpose of mutual aid or protection, Respondent interfered
with, restrained, and coerced its employees in the exercise
of rights guaranteed in Section 7 of the Act, and thereby
has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist
from its unfair labor practices and that it offer reinstate-
ment to the employees found herein to have been unlawful-
ly discharged, with backpay, computed as provided in
F W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co, 138 NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 15
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith.
The Respondent, Shell Oil Company, New Orleans,
Louisiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or discriminating in regard
to their hire, tenure of employment, or any term or condi-
tion of employment, because they had engaged in concert-
ed activities for the purpose of mutual aid or protection.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Offer David Reeves and Elton Bodin immediate and
full reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for any loss of earnings they may
have suffered, in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
of this Order.
(c) Post at its Bay Marchand unit copies of the attached
notice marked "Appendix." 16 Copies of said notice, on
forms provided by the Regional Director for Region 15,
after being duly signed by Respondent's representative,
shall be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
15 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, 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
16 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
hearing, that we violated the National Labor Relations
Act, as amended, we hereby notify you that:
WE WILL NOT discharge or discriminate against any
employee for engaging in concerted activity for the
purpose of mutual aid or protection under Section 7 of
the Act.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
rights under Section 7 of the Act.
WE WILL offer reemployment to Elton Bodin and
David Reeves and pay them for losses they suffered as
a result of our having discharged them.
SHELL OIL COMPANY