Sea Life, Inc.

National Labor Relations Board - Board Decisions

May 15, 1969

175 N.L.R.B. 982 (N.L.R.B. 1969)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sea, Life , Incorporated and Construction and General
Laborers' Union, Local 368 of the Laborers'
International Union of North America, AFL-CIO,
Petitioner
Sea Life, Incorporated and Construction and General
Laborers' Union, Local 368 of the Laborers'
International Union of North America , AFL-CIO.
Cases 37-RC-1404, 37-CA-520, and 37-CA-520-2
May 15, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 27-, 1968, Trial Examiner Henry S.
Salim- issued his.- Decision in the above-entitled
proceeding , finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner 's Decision . He further found that
Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and
recommended that the allegations pertaining thereto
be dismissed . In addition , the Trial Examiner
recommended, that certain objections to conduct
affecting the results of the election in Case
37-RC- 1404 be sustained , and that the election
conducted on D cmber 8, 1967, be set aside and a
new election . ordered.' Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief, and the Respondent
filed a brief in support of the 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 except to the
extent that such 'rulings are modified herein, finds
that no prejudicial error was committed.
Accordingly, to the extent consistent with our
Decision herein , the rulings are hereby affirmed.
The Board has considered the Trial Examiner's
Decision , the exceptions and briefs, and the record
in these cases, and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner only insofar as they are consistent with
the following.
Background
The record shows that the Respondent operates
Sea Life Park , a commercial venture in Hawaii
featuring marine life shows and exhibits, with a
'The representation proceeding involves a consent election agreement,
and is therefore before the Regional Director for Region 20 for such
further action as he deems appropriate.
restaurant, gift shop, and other supporting activities.
When the Respondent began operations in 1964 its
president, Taylor Pryor, told the employees that
additional employment benefits would be considered
as the Park's financial status improved. The Park
incurred substantial losses from 1964 to 1966, and
during that period made health insurance available
to the employees on a cost-shared basis and gave the
employees discounts on gasoline, gifts, and meals.:
Pryor testified that in late 1966 he approached the
Respondent's board of directors about considering a
profit-sharing plan, in anticipation of a
profit-making year in 1967. Apparently the directors
responded negatively to this suggestion, for the
Respondent made no attempt to implement
improved employment benefits until the following
autumn. On January 16,, 1967, the employees were
given a bulletin entitled "Staff Policies", which
renewed the 1964 promise of improved benefits at
some unspecified future time. The Union began its
organizing campaign among the Park employees in
August 1967.
On October 16, 1967, the Respondent's treasurer
reported to the board of directors that he projected
a profit for that year. The directors authorized a
study of wages and profit sharing for presentation at
their January 1968 meeting, with a view to raising
wages to competitive local levels. On November 1,
1967, the Respondent notified its employees that a
projected financial improvement made it possible to
"begin to fulfill" the promises made in 1964, and
that the Respondent wanted to consider group life
insurance, a staff credit union, a profit-sharing plan
and other benefits, while continuing to review
salaries at periodic intervals. The letter also
announced the formation of a Staff Planning
Committee, composed of employee representatives
and with Park superintendent Evert Boerrigter as
chairman , to lend management "guidance" on new
benefits.3 The Committee held its first meeting on
November 14. On November 17 the Union
unsuccessfully demanded recognition and
bargaining, and that same day filed a representation
petition with the Board. As hereinafter detailed,
following the Union's demand for recognition the
Respondent engaged in a massive campaign to
defeat unionization, attended by flagrant violations
of Section 8(a)(1), (2), and (3) of the Act. The
Union failed to secure a majority of the votes cast
in the election conducted on December 8, 1967, and
thereafter filed objections to conduct affecting the
results of the election.
'The Trial Examiner inadvertently found that the health insurance and
discount benefits were granted in 1967, whereas the uncontradicted
testimony in the record reveals they were granted in the period 1964-66
'The Trial Examiner inadvertently stated at one point that the decision
to establish the Staff Planning Committee was made in October 1966, long
before the Union began its organizing campaign . The uncontradicted
testimony in the record reveals that management made that decision in
October 1967 , and we so find.
175 NLRB No. 168
SEA LIFE, INCORPORATED 983
The Section 8(a)(1) Violations
In the absence of exceptions, we adopt the Trial
Examiner's findings that the Respondent-violated
Section 8(a)(1) of the Act, (1) by the conduct of
Park superintendent. (later director of personnel)
Evert Boerrigter on various occasions between
November 17 and 25, 1967, when he threatened
employees Myra Robello, Rose Apao, Katherine
Silva, and Puanani Smith with the loss of their
existing employment benefits if they selected the
Union as their bargaining representative; (2) by the
conduct of restaurant manager William Johnson
when he interrogated employee Mildred Fung
concerning her attendance at a union meeting; and
(3) by the conduct of supervisor Madeline DuPont
when she threatened employee Mildred Fung with
the loss of existing employment benefits if the
Union won the election. However, in addition to the
above-described conduct, we find that the
Respondent engaged in numerous other violations of
Section 8(a)(l). The Trial Examiner inadvertently
overlooked these allegations, or, having made
findings of fact, failed to , draw conclusions
therefrom.
The record shows that Boerrigter engaged in a
vigorous antiunion campaign. He listed all present
and proposed employment benefits on a sheet of
yellow legal paper and went over ' he list in
numerous discussions with employees, either singly
or in groups. Six employees testified that during the
campaign Boerrigter threatened them; with the loss
of both present and proposed employment benefits if
the Union won the election. The Trial Examiner,
discrediting Boerrigter's denials, found, as set forth
above,' that Boerrigter did threaten. four employees
with the loss of existing benefits. But the Trial
Examiner recommended that all allegations relating
to proposed benefits be dismissed on grounds that
the Respondent made these promises to its
employees long before the advent of the Union. We
do not agree. Irrespective of when, or under what
conditions, the Respondent announced proposed
improvements in benefits to its employees,
Boerrigter specifically conditioned the
implementation of such benefits on a rejection of the
Union. Therefore, we find that the Respondent
violated Section 8(a)(l) of the Act on numerous
occasions during the campaign when Evert
Boerrigter threatened employees with the loss. of
present and proposed employment benefits,
including threats addressed to Katherine Silva,
Natalie Smith and other employees, Rose Apao and
other employees, and Myra Robello and other
employees.
The record shows that Boerrigter interrogated
employees about their union sympathies, attempted
to create the impression of surveillance of union
activities, and attempted to create the impression
that support for the Union would be futile.
Boerrigter told employee Joseph Santos that he
understood he was passing out cards and suggested
that Santos get them back. On another occasion
Boerrigter told Violet Engstrom that he knew how
the vote was going in- each department and that the
Union could not possibly win. Boerrigter also told
employee Hazel Rivera the day before the election
that he knew the Union was going to hold a big
meeting that night at Betty Baker's house.' We find
that the above acts were violative of Section 8(a)(1)
of the Act.
The Trial Examiner found that restaurant cook
Annie Niimi is not a supervisor, on grounds that
Niimi does not hire, fire, or, promote kitchen
employees, and therefore that her conduct cannot be
imputed to the Respondent. We do not agree. The
record shows that Niimi schedules hours of work,
changes work schedules, awards overtime,. and
grants time off. When employees call in to ask for
time off, they are referred to Niimi. She is the only
person effectively directing the work of the kitchen
employees, in view of manager Johnson's testimony
that he seldom goes into the kitchen to give
instructions. New employees are told to take their
orders from her. Her rate of pay is higher than that
of any other restaurant employee or supervisor
except Johnson. We therefore find that Annie Niimi
is a supervisor. The record shows that . Niimi
interrogated employees Myra Robello and Prudelisa
Tacbas about how they planned to vote and then
threatened the loss of benefits if the union won the
election. She also told employee Rose Apao that she
knew Apao attended union meetings, and
interrogated her about the identities of other union
supporters.' We find that the above acts were
violative of Section 8(a)(1) of the Act.
The Staff Planning Committee6 and New
Benefits
On November 1, 1967, the Respondent announced
the formation of a Staff Planning Committee, with
superintendent Boerrigter as chairman, to lend
"guidance" on new benefits. Supervisors oversaw
the election of employee representatives. Employee
Betty Baker testified that supervisor Madeline
DuPont stopped her on her way to work one day,
told her to put someone's name on a piece of paper
'Boerngter ' s remark to Rivera was overheard by employee Violet
Engstrom . The Trial Examiner discredited Engstrom 's testimony in this
regard on grounds that an experienced union would not hold a meeting
within 24 hours of an election The Trial Examiner's finding is clearly
based on a misinterpretation of the Board 's rule in Peerless Plywood, 107
NLRB 427, and we specifically disavow the Trial Examiner 's findings in
this regard Moreover, whether or not the Union actually planned such a
meeting has no bearing on whether or not Boerrigter thought or said it did
Inasmuch as Boerngter 's general denials were discredited, and inasmuch as
Engstrom's testimony corresponds with Boerngter's established pattern of
conduct, we credit it.
'The Trial Examiner stated that Numi had denied these allegations
Numi did not testify
'The activities of the Committee are detailed in the minutes of the
meetings , G C. Exh. 33, which was admitted in evidence without
objection
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and put it in a paper bag she was holding,
disappeared indoors with employee Mary Tong, and
told Baker a few minutes later that she had been
elected restaurant representative. Park Vice
President Haws attended the first meeting on
November 14 and told the group that it was to
make "effective recommendations " to management.
Boerrigter stated that management wanted such
recommendations on proposed employment benefits,
wage schedules , working conditions , and many other
subjects.
Apparently at the invitation of the Respondent,
various insurance company representatives spoke to
the Committee at different times on their respective
group life plans. On January 16, 1968, the
Committee voted to make a firm recommendation
to management that it adopt a group life insurance
plan providing for $2000 coverage at Park expense,
$2000-5000 coverage on a cost-shared basis, and
further options over $5000 at employee expense. On
March 12 Haws informed the Committee that its
recommendation had been adopted, and the Park
newsletter 3 days later notified all employees that a
group life plan, which "will follow the
recommendations of the STAFF PLANNING
COMMITTEE," would be effective on April 1.
However, on March 26 Haws told the Committee
that the Respondent had just adopted a group life
policy very different from the one it had
recommended, providing for $3500 coverage at Park
expense , cost-shared options based on annual salary,
and without further options at employee expense.
Haws quickly obtained Committee ratification. The
April 1 newsletter announced the implementation of
group life insurance, but was silent about the sudden
ex parte change in plans.
On November 28, 1967, the representative of a
trust company spoke to the Committee about profit
sharing, including trusts, capital gains, forfeitures,
and market appreciation and depreciation. This first
and only meeting on profit sharing took I hour, and
at Boerrigter's suggestion the Committee voted to
recommend such a plan. The newsletter of January
15, 1968, stated that the directors had decided to
recommend profit sharing to the stockholders, and
that the Committee "has been discussing details for
several months with experts in the field." The
newsletter again credited the Committee with
helping to "work out the details" on March 15. A
profit-sharing plan was implemented in April.
On December 12, 1967, Boerrigter announced that
management had arranged for the chartering of a
credit union. On April 16, 1968, management gave
the charter to the Committee , Boerrigter having
paid the necessary fee, apparently out of his own
pocket.
On April 2 Boerrigter suggested that terms on the
Committee be staggered and that nonmembers be
allowed to attend meetings as observers. The
Committee adopted his suggestions.
On January 23 Boerrigter put the Committee to
work on an "Employee Handbook," and the
Committee. agreed to work on one "under the
supervision of Mr . Ernie Boerrigter ." Boerrigter
supervised the selection of topics, led the
discussions, and took the responsibility for drafting.
Rules for employees were drafted covering
disciplinary procedures and penalties, seniority, sick
pay, rest periods, meal periods, hiring, wages,
probationary periods, responsibility for
Company-owned property, and a suggestion
program . When some members expressed concern
over loss of departmental seniority upon transfer,
Boerrigter did "some checking." On April 2,
Mr. Boerrigter said that he had done some
checking and had found that Company seniority is
of prime importance, while Departmental
seniority is not of prime importance. Also,
seniority only counts when all other factors in a
situation are equal, and Company seniority takes
precedence over Departmental seniority.
Accordingly, the Committee approved seniority
rules for the Handbook in verbatim accord with
Boerrigter 's "checking."
On April 23, Boerrigter suggested the formation
of an employee grievance committee. When the
Planning Committee showed little enthusiasm, he
volunteered to hear personally all grievances for
management . When on April 30 a member asked
about considering a choice of health insurance plans,
Boerrigter said it would be too expensive for the
Company. The record does not show that the
subject was ever brought up again. Management
asked the Committee to decide whether employee
family passes to the Park should be issued or
whether a master family list should be posted at the
gate. The Committee voted to recommend that both
be done. However, on May 14, the Committee was
informed that management had decided just to issue
passes. On May 21 Boerrigter announced that
suggestion boxes had been made up, and the
Committee voted to recommend that a suggestion
program be implemented
The Respondent's president, Pryor, attended the
May 14 meeting . He stated that he was so pleased
with the work of the Committee that he was
considering setting up similar organizations in two
other enterprises operated in conjunction with the
P ark.
The Committee was still working on the
Handbook at the time of the hearing in this case.
The Trial Examiner found, and the Respondent
contends, that the Staff Planning Committee is not
a "labor organization" within the meaning of
Sections 2(5) and 8(a)(2) of the Act. We disagree.
The record shows that the Committee was created
by the Respondent for the express purpose of
making "effective recommendations" respecting
wages , hours, working conditions, fringe benefits,
and other matters covering the entire employment
SEA LIFE, INCORPORATED 985
relationship. The Respondent has consistently
represented that these "effective recommendations"
are considered as a factor in making management
decisions. Even without negotiating in the traditional
sense , such an employee organization is "dealing
with" management respecting mandatory subjects of
bargaining .' We therefore find that the Respondent's
Staff Planning Committee is a labor organization
within the meaning of the Act.
The record further shows that the Committee is a
classic example of an employer-dominated labor
organization, created by management fiat and used
to deceive the employees into believing that they
have effective representation. The chairman is a high
management official, supervisors control the election
of employee representatives, administrative changes
are made in any manner suggested by the chairman,
the Respondent dictates the time, place, and
duration of meetings , and management officials
attend meetings at will. The Committee makes
"effective recommendations" at the invitation of
management, but management dictates what those
recommendations will be by controlling the selection
of topics, what and how much information comes
before the group, the duration of deliberation, and
finally by having the chairman suggest the content
and draft the form. The Respondent's newsletter
tells the employees that the Committee is a prime
mover and informed advisor in the implementation
of new benefits, but the role of the Committee is
ignored when management changes its plans. We
find that the Respondent's Staff Planning
Committee is an employer-dominated labor
organization in violation of Section 8(a)(2) of the
Act, and shall order it disestablished.
The Trial Examiner found that the Respondent
did not violate Section 8(a)(l) of the Act by
implementing new employment benefits, including
group life insurance, profit sharing, and a credit
union , while objections to the election were pending,
on grounds that the Respondent was motivated by
legitimate business considerations. We do not agree.
The record shows that while the Respondent
expressed a desire to consider new benefits before it
learned that the Union was organizing its
employees, definite plans were formulated and
implemented only thereafter. During the campaign
Pryor asked the employees to reject unions until the
Park had an opportunity to recoup the heavy losses
of previous years, yet new benefits were
implemented soon thereafter. Further, special notice
is taken of the fact that the new benefits were
implemented through an employer-dominated labor
organization, itself a device for diluting interest in
unionism. Considering the vagueness of the
Respondent's commitment before it learned of the
Union' s campaign , the timing of the specific
announcement, the vehicle for implementing new
benefits, and the record as a whole, we find that the
Respondent was motivated by a desire to defeat the
Union , rather than by any legitimate business
considerations . Therefore, we find that the
Respondent violated Section 8(a)(1) of the Act by
granting group life insurance, profit sharing, and a
credit union, while objections to the election were
pending.'
The Discharge of Engstrom and Baker'
Violet Engstrom worked as a waitress during the
summer of 1966, but was terminated at the end of
the season. She was rehired for the 1967 summer
season , but continued to work regularly until shortly
after the December 8 election because of the illness
of another employee. Betty Baker was hired as a
part-time counter girl in September 1967. Before the
election, the Respondent's president, Pryor,
acknowledged in conversation that he had heard that
Engstrom and Baker were active in union affairs.
When business slowed in December, these two
employees were taken off their regular hours and
placed on on-call status. They were ' in fact called a
number of times in December. Restaurant manager
Johnson discharged Engstrom by telephone on
January 4 and Baker in person on January 5, giving
lack of business as the reason. Johnson testified that
it is his "custom and policy" to discharge part-time
employees during slow periods, but admitted that
Baker was his only part-time employee. When Pryor
learned about the discharges a few days later, he
angrily ordered Boerrigter to have them put back on
the payroll, " Because I had promised the girls that
there would be no vindictiveness of any kind, and I
told Ernie that this sure looked like it to me." When
Johnson told him there was no work, Pryor told him
to "just go ahead and schedule them as you
ordinarily would." On January 7 Engstrom and
Baker were reinstated. After that date, and through
the spring of 1968, they were called from time to
time on busy holidays, to cover for employees who
were ill, and for conventions and other special
occasions.
The record shows that the Respondent had a
strong anitunion animus, and that supervisors knew
that Engstrom and Baker were union activists.
Johnson's "custom and policy" apparently existed
only as to these two employees. After the
Respondent's president ordered that they be
"'Respondents say that these activities by the Committees ... do not
mean that the Committees were 'dealing with' respondents in respect of
those matters , because , they argue , the proposals and requests amounted
only to recommendations and that final decision remained with
respondents . But this is true of all such 'dealings ,' whether with an
independent or a company -dominated ' labor organization .' The principal
distinction lies in the unfettered power of the former to insist upon its
requests ." N.L.R.B . v. Cabot Carbon Company, 360 U.S. 203.
'Ambox. Incorporated . 146 NLRB 1520.
'The complaint alleged that Engstrom and Baker ' s hours of work were
discriminatorily reduced after the election . The Trial Examiner found that
the reduction was dictated by economic considerations , and in this regard
we adopt his findings . As part of this broad allegation , a narrow issue was
fully litigated , the question of whether Engstrom and Baker were
discriminatorily discharged in January and then quickly reinstated. The
Trial Examiner made no findings with respect to this narrow question.
98.6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scheduled as they "ordinarily would", there
continued to be -work for them. Even the
Respondent' s president initially analyzed the
situation as, a case of discriminatory discharges.
Unlike the Trial Examiner, we do not find that the
failure to discharge other union activists establishes
that Engstrom and Baker were not discriminated
against . This rather seems to show only that other
supervisors , unlike Johnson , followed Pryor's orders
in this regard . Based on the above, and the record
as a whole , we find that the Respondent discharged
Engstrom and Baker in violation of Section 8(a)(3)
of the Act. However, since these employees were in
fact reinstated , and since the record affirmatively
shows that they did not suffer any loss of wages, we
shall confine the remedy to an order that the
Respondent cease and desist from such
discrimination.
The Refusal To Bargain
The Petitioner demanded recognition and
bargaining on November 17, 1967, on the basis of
24 signed authorization cards . The parties agree,
and we find , that at all times material herein there
were at least 43 employees in the stipulated
appropriate unit . However, we further find that
there were additional employees in the unit on the
date the Petitioner made its demand for recognition
and bargaining.
The ballot of employee Vivian Firth was
challenged at the election , but as no evidence was
adduced at the hearing to substantiate the basis for
the challengg, we shall include Firth in'the unit. The
ballot of Alexander Carvalho was challenged on
grounds that he was a supervisor , but, like the Trial
Examiner, we find that the record lacks any
probative evidence to support the allegation of
supervisory status, and we shall include Carvalho in
the unit.
During • the hearing the Respondent proffered
evidence that the numerical scope of the unit was
larger on the date of the Petitioner's demand for
recognition than it was on the date of the election.
The Trial Examiner excluded such evidence on
grounds that the scope of the unit had been
determined on 'November 28, 1967, when the
Respondent and the Petitioner entered into the
consent agreement . The Trial Examiner did,
however, accept an offer of proof from the
Respondent to the effect that there were several
additional employees in the unit on November 17,
election.. We find, therefore, that there were no
fewer than 46 employees in the stipulated
appropriate unit on November 17, 1967.
As a campaign technique, the Petitioner waived
its $60 initiation fee for employees who signed
authorization card - membership applications
before the election.1° The record testimony raises
substantial questions as to just what transpired in
this regard during the solicitation of cards from
certain employees. Employee Annie Naeole testified
that she initially refused to sign a card when
approached by a solicitor. Upon her refusal the
solicitor, without more, told Naeole that unless she
signed the card she would have to pay the Union
$60 if it got in. The solicitor, who testified at the
hearing, did not challenge Naeole's testimony to
that effect. Naeole also testified that she did not
read the card, did not know what it said or meant,
did not know that she was applying for membership
in the Union, and signed solely to avoid paying the
$60.
On the basis of the objective evidence of what
occurred at the time of the signing, and without
considering Naeole's subjective testimony as to why
she signed, we do not believe that Naeole's card
may be relied upon as establishing an intent on her
part to authorize the Union to represent her for
purposes of collective bargaining . Naeole's expressed
refusal to sign the card when requested by the
solicitor and her consent to do so only after being
warned by the solicitor in the same conversation of
the possible financial consequences of not signing
supports a finding that her only purpose in signing
the card was to shield herself from later having to
pay a $60 initiation fee should the Union win the
election. This, then, is not a case where a finding of
the employee's lack of intent must rest on the
employee's secret mental reservations." Nor is it
one in which it would be necessary to speculate that
the card signer could not also have had another
purpose in signing ." In these circumstances, we
conclude that Annie Naeole's card may not properly
be counted as an authorization for the Union to
represent her.
Inasmuch as there are no fewer than 46
employees in the stipulated appropriate unit, and
inasmuch as the Union had at most 23 valid
authorization cards, we find that the Union did not
represent a majority of the unit employees.
Therefore, in the absence of a duty to bargain, we
dismiss the allegation that the Respondent violated
Section 8(a)(5) of the Act."
1967. We disagree with the Trial Examiner's ruling
excluding evidence material to determining the "See DIT-MCO , Incorporated , 163 NLRB No. 147.
numerical scope of the unit on the date the " Cf. Joy Silk Mills, Inc v. N.L.R.B., 185 F.2d 732 (C.A.D.C.) enfg. 85
NLRB 1263, cert . denied 341 U.S. 814 " . . an employee 's thoughts (orPetitioner made its demand , and that ruling is, after-thoughts) as to why he signed a union card and what he thought that
accordingly , overruled . As the record reflects that card meant cannot negative the overt act of having signed a card .. "
restaurant janitor Alfred Rivera was employed on "Cf. Edro Corporation and Anasco Gloves , Inc., 147 NLRB 1167, enfd
November 17, 1967, and was named on the voting 345 F.2d 264. Although we do not depart from what was said in the Edro
case, we consider this case distinguishable for the reasons stated above.eligibility list, we shall include him in the unit, even "In view of the above, we find it unnecessary to consider the
though his employment ended shortly before the Respondent's contentions that there were more than 46 employees in the
SEA LIFE, INCORPORATED 987
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, `the National Labor
Relations Board hereby orders that the Respondent,
Sea Life, Incorporated, Oahu, Hawaii, its officers,
agents, successors , and -assigns , shall:
1. Cease and desist from:
(a) Dominating or interfering with the formation
or administration of the Staff Planning Committee
or any other labor organization of its employees, or
giving support to such labor organization.
(b) Discouraging membership in Construction and
General ' Laborers' Union, Local 368, of the
Laborers' International Union of North America, or
any other labor organization of its employees, by
discriminating in regard to their hire, tenure, or any
other terms or conditions of employment.
(c) Threatening its employees with the loss of
their employment benefits, present or proposed, for
the purpose of discouraging membership in,
sympathy for, or activity on, behalf of the Union or
any other labor organization.
(d) Unlawfully interrogating its employees
concerning their union activities , membership,
sympathies, or desires.
(e) Creating the impression among its employees
that it has engaged or is engaging in surveillance of
employees in their union activities,
(f) Creating the impression among its employees
that support for the Union or any other labor
organization is' futile. `
(g) Interfering with , restraining , or coercing its
employees in the exercise of rights guaranteed in
Section 7 of the Act by granting them economic
benefits or by changing the terms or conditions of
their employment;, provided, however, that nothing
in this Order shall be construed as requiring the
Respondent to vary or abandon any economic
benefit or any term or condition of employment
which it has heretofore established.
(h) In any other manner interfering with,
restraining , or coercing its employees in the exercise
of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it
is found, will effectuate the policies of the Act:
(a) Completely disestablish the Staff Planning
Committee as representative of any of its employees
for the purpose of dealing with it with respect to
wages or other employment benefits, hours, working
conditions, grievances , disciplinary procedures and
penalties, sick pay, rest periods, meal periods,
hiring, probationary periods, responsibility for
employer-owned property, suggestion programs,
seniority, employee family passes, or any other
unit and that other authorization cards were also invalid . Similarly, we
find it unnecessary to consider the General Counsel 's contention that the
Trial Examiner erred in finding that the Union 's demand for recognition
was defective . We note that the Trial Examiner inadvertently confused the
unit description in the consent election agreement with the unit descriptions
in other formal docuthents, and do not adopt his findings in the matter
terms or conditions of employment.
(b) Post at its place of business at Oahu, Hawaii,
copies of the attached notice marked 114
Copies of said notice, on forms to be provided by
the Regional Director for Region 20, shall after
being duly signed by an authorized representative of
the Respondent, be posted 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 be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 20, in
writing, within 10 days from the date of this Order,
what steps Respondent has taken to comply
herewith.
"In the event that this Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that:
WE WILL NOT dominate or interfere with the
formation or administration of the Staff Planning
Committee or any other labor organization of our
employees nor will we give support to it.
WE hereby disestablish the Staff Planning
Committee as representative of any of our employees
for the purpose of dealing with us with respect to wages
or other employment benefits, hours, working
conditions, grievances, disciplinary procedures and
penalties, sick pay, rest periods, meal periods, hiring,
probationary periods, responsibility for Company
property, suggestion programs, seniority, employee
family passes, or any other terms or conditions of
employment, and we will not recognize it or any
successor for any of the above purposes.
WE WILL NOT discourage membership in
Construction and General Laborers' Union, Local 368,
of the Laborers' International Union of North
America, AFL-CIO, or any other labor organization of
our employees, by discharging employees for engaging
in protected concerted activity, or in any other manner
discriminating against any individual in regard to his
hire, tenure of employment, or any term or condition of
employment except as authorized in Section 8(a)(3) of
the Act.
WE WILL NOT threaten you with the loss of your
employment benefits, present or proposed, to
discourage you from joining, assisting, or supporting
the Union or any other labor organization.
WE WILL NOT interrogate you concerning your union
activities, membership, sympathies, or desires in a
coercive manner or under circumstances constituting
coercion.
WE WILL NOT create the impression among you that
we have engaged or are engaging in surveillance of your
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union activities.
WE WILL NOT create the impression among you that
support for the Union or any other labor organization
is futile.
WE WILL NOT interfere with, restrain, or coerce you
in the exercise of your rights guaranteed in Section 7 of
the Act by granting you economic benefits or by
changing the terms or conditions of your employment;
provided, however, that we are not required to vary or
abandon any economic benefit or any term or condition
of employment we have heretofore established.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of your rights to
self-organization, to bargain collectively through
representatives of your own choosing, and to engage in
any other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to
the extent that such rights might 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 National Labor
Relations Act.
Dated By
SEA LIFE, INCORPORATED
(Employer)
(Representative) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1311 Kapiolani
Boulevard, Suite 308, Honolulu, Hawaii 96814, Telephone
808-546-5797.
TRIAL EXAMINER'S DECISION
AND
REPORT ON OBJECTIONS
STATEMENT OF THE CASE
Background
HENRY S . SAHM , Trial Examiner: This case arose as
the outgrowth of a union organizational campaign,
commencing in August 1967, at the Respondent's
oceanarium called Sea Life Park, a commercial venture,
incorporated in January, 1962. Sea Life Park, located at
Makapu Point on the Island of Oahu, is an educational
marine exhibit in aquarium tanks showing reef life in
Hawaii. The public pays an admittance charge in order to
view marine aquariums and aquatic shows featuring
trained porpoises and whales. There is also a museum of
Hawaiian lore depicting the natural history of the
Hawaiian Islands and also an ocean science theatre. To
service this commercial venture which is an educational
forum of what the sea is like around Hawaii, there is a
gift shop and restaurant. Adjoining Sea Life Park is the
Oceanic Foundation, (the parent organization of Sea Life,
Inc.), a nonprofit entity, established in 1960, the stated
purpose of which is to encourage marine progress in the
areas of education, research and conservation. Another
adjunct, the Oceanic Institute, a facility and subdivision of
the Oceanic Foundation, operates by means of private
grants, contracts with private agencies, and funds from its
own endowment derived from Sea Life Park. The land
upon which Respondent Sea Life and the Oceanic
Foundation are located, comprising 118 acres, is leased
from the State of Hawaii Sea Life, the Respondent,
subleases 20 acres from the Oceanic Foundation. Also
affiliated with the Oceanic Foundation, is the Makai
Range, a commercial undersea testing facility, presently
under construction, the research findings of which are
available to industry, government and academic
institutions.'
When Sea Life Park was opened in February, 1964, it
was not an economic success. It was in such severe
financial circumstances in the fall of 1964, that the
Company was forced to borrow funds which enabled the
park to operate to the end of the year. In both 1965 and
1966, the park operated at a loss but in 1967, it made a
modest profit.'
The employees had been notified on January 16, 1967
(G.C. Exh. 24), that if and when the park were able to do
so, they would be given additional benefits, including
group life insurance and profit-sharing and retirement
plans However, from the time Sea Life Park opened, the
employees had a group health and medical plan on a
shared-cost basis with the Respondent. When a profit was
made for the first time in 1967,' the employees were
granted a discount on gasoline for their personal
automobiles and on purchases made in the gift shop and
food eaten in the restaurant They were again advised by
letter on November 1, 1967, that the Board of Directors
was also considering the feasibility of a retirement plan,
group life insurance, a profit-sharing plan and a credit
union while continuing its policy of wages and salary
reviews each 6 months.' Respondent's Exhibit No. 9 dated
October 16, 1967, which is the minutes of the Board of
Directors meeting, reads as follows
Management recommended that wages and salaries be
brought up to at least competitive local levels early in
1968 and in this connection the Board authorized
management to make and submit to the Board at its
next January meeting a study of this area together with
a study of the feasibility of undertaking a profit-sharing
plan
The unfair labor practices are alleged to have occurred
during the pendency of a petition for an election, in the
course of the organizational campaign which eventuated in
an election on December 8, 1967, that the Union lost by
26 to 16 votes and to which objections were filed after the
election.
STATEMENT OF THE CASE
Upon an initial charge filed on December 11, 1967, 3
days after the election , and amended on April 16, 1968, in
Case 37-CA- 520 and a charge filed on January 8, 1968, in
Case 37-CA-520-2, by Construction and General
Laborers ' Union , Local 368 of the Laborers ' International
Union of North America , AFL-CIO , herein called both
the Charging Union and the Union , the General Counsel
'Three officers of Sea Life, Inc , Pryor, Haws and Moorish, are also
officers of the Makai Range facility
'See Resp Exh. 9
'The park closes in the fall and reopens in the spring
4See G.C Exh 24, page 2, dated January 16, 1967, 8 months before the
advent of the Union and also page 3 of Resp. Exh. 3 which was sent to all
employees after its approval by the Board of Directors
SEA LIFE, INCORPORATED
of the National Labor Relations Board, by the Regional
Director for Region 20 (San Francisco, California), issued
a complaint dated April 22, 1968, against Sea Life,
Incorporated, hereinafter referred to interchangeably as
the Company, Respondent and Sea Life.
The General Counsel alleges that the Respondent
Company Sea Life violated Section 8(a)(1) when it
interrogated employees concerning union activity;
promised them increased job benefits to persuade them to
abandon their union activities; threatened them with more
arduous working conditions, loss of jobs, and loss of
existing job benefits if they signed union authorization
cards or voted for the Union, and created the impression
that Respondent was engaging in surveillance of the
employees' union activities.
It is alleged that the Respondent Sea Life, in order to
defeat the Union, violated Section 8(a)(2) by creating a
"Staff Planning Committee" of unit employees on
November 1, 1967, for the purpose of discussing the
adoption of various new job benefits. With respect to the
8(a)(3) violations, the complaint alleges that Respondent
has decreased the hours of work of two employees because
of their union activities. The 8(a)(5) allegation avers that
on November 17, 1967, at a time when the Union
represented a majority of the employees, the Union
requested that Respondent recognize it as said employees'
bargaining representative but that Respondent refused to
do so.
Respondent's answer denies generally the commission
of any unfair labor practices and contends in its brief that
the General Counsel failed to show by a preponderance of
the evidence any violations of the Act. Moreover, argues
Respondent, none of its actions exceeded the bounds of
legitimate campaign conduct but were factual and relevant
to the election issues before the employees. Finally,
contends Respondent," some of the General Counsel's
witnesses, because of bias, inconsistencies and
fabrications, are not to be credited.
The relevant provisions of the National Labor
Relations Act, as amended (61 Stat. 136, 73 Stat. 519,29
U.S.C. 151, et seq.) are as follows:
Sec. 7. Employees shall have the right to self
organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall
also have the right 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).
Sec. 8. (a) It shall be an unfair labor practice for an
employer -
(1) to interfere with, restrain, or coerce employees
in the exercise of the rights guaranteed in section 7;
(2) to dominate or interfere with the formation or
administration of any labor organization or
contribute financial or other support to it ....
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment
to encourage or discourage membership in any labor
organization:
*
(5) to refuse to bargain collectively with the
representatives of his employees ....
Introduction
989
In August 1967, union organizational activity
commenced at Sea Life Park. Various employees signed
authorization cards which designated the Union to act as
their bargaining agent for the eventual purpose of having
the Union represent the said employees in
collective-bargaining negotiations with Respondent Sea
Life.' Approximately 3 months after organizational
activity had commenced, union officials went to the Park
on November 17, 1967, and delivered a letter to officers
of the Respondent which stated that "many of your
employees have indicated an interest in authorizing our
Local Union to represent them for purposes of Collective
Bargaining." Also, at this meeting, the Union officials
orally requested recognition of their Union. The Company
officials advised the Union representatives that they had
no authority to either recognize or bargain with the Union
but that Respondent's president, who was in Wisconsin,
would be contacted immediately, and the Union would be
notified. Within two hours after the conclusion of this
meeting, the Union filed a petition for an election with the
Board's Regional Office in Honolulu.
Thereafter, the Company and union officials met at the
Board's offices and an agreement for a consent election
was entered into on November 28, 1967. Pursuant to this
agreement, an election was held on December 8, among a
unit of all employees excluding office clerical employees,
confidential employees, professional employees, trainers,
animal handlers, bartenders, swimmers, receptionists
and/or receptionist clerk, photographer, narrator, curator,
outside sales personnel, guards and/or watchmen, and
supervisors. The Union lost the election by a decisive
margin. The tally of ballots showed there were 46 eligible
voters and that 45 votes were cast, of which 16 were for
the Union, 26 against the Union and 3 were challenged.
Thereafter by a letter dated December 12, 1967, four days
after the election, the petitioning Union filed objections to
the conduct of the election.
Report on Objections
The objections allege:
1. The Employer threatened employees with loss of
existing benefits and/or privileges in order to
discourage employees from voting for the Union.
2. The Employer promised employees new benefits
such as profit sharing plan, a credit union, and group
life insurance in order to persuade employees to vote
against the Union.
3. The Employer informed employees that if they
voted for the Union, they would create a wall between
the employees and management.
4. The Employer instructed employees not to sign
authorization cards.
5. The Employer created an impression of
surveillance of Union activity by advising employees
that it knew which employees had attended Union
'The card in pertinent part reads as follows
I, the undersigned, hereby designate Local Union No 368 of the
International Hod Carriers ', Building and Common Laborers' Union of
America, affiliated with AFL-CIO, as my collective bargaining
representative in all matters pertaining to labor conditions , wages and
hours of employment, and
(If not yet a member,) I do hereby apply for membership in Local
Union No..368.. affiliated with the above International Union and
agree to abide by all the provisions of the Constitution and By-Laws of
said Local and the International Union.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings.
6. The Employer promoted an employee in order to
defeat the Union.
7. The Employer created and sponsored a
staff-planning committee in order to defeat the Union's
organizational effort.
8. The Employer threatened employees with loss of
employment if they voted for the Union.
9. The Employer interrogated employees about their
Union activity and the Union activity of other
employees.
10. The Employer promised employees "guaranteed"
longer hours if they voted against the Union.
11. The Employer on the morning of the election
threw a special breakfast for employees which it knew
to be against the Union.
No evidence was produced at the hearing in support of
the objections, as such. However, the objections are
substantially the same as those alleged in the complaint
and are discussed in later sections of this Decision and
disposition made thereof infra.
On April 22, 1968, the Regional Director issued an
Order directing that the hearing on Objections (Case
37-RC-1404) be consolidated with the unfair labor
practice allegations (Case 20-CA-4284) and both cases
were set down for hearing.
The answer of the Respondent was a general denial,
disclaiming the commission of any unfair labor practices.
The hearing in the consolidated case, commenced on
June 3, before Trial Examiner Henry S. Sahm, at
Honolulu, Hawaii, and concluded on June 7, 1968. Upon
the conclusion of the taking of testimony, counsel for the
various parties waived oral argument and filed excellent
briefs on August 12, 1968, which have been fully
considered.
Upon the entire record in the case and from obervation
of the demeanor of the witnesses, there are hereby made
the following:
FINDING OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent Sea Life, Incorporated, a Hawaii
corporation, which was established in January 1962, and
opened to the public on February 11, 1964, operates an
oceanarium, an educational commercial venture at
Makapu Point on the Island of Oahu, where it publicly
exhibits marine aquariums showing Hawaiian sea life, and
aquatic shows and operates a gift shop and restaurant
facilities. It employs approximately 85 employees,
comprising maintenance employees, restaurant and gift
shop employees, divers, animal handlers, swimmers,
narrators, show personnel, office clerical, photographers
and supervisors. Respondent received during the past year,
gross revenues in- excess of $500,000 and made sales of
goods and services valued in excess of $50,000 to firms in
Hawaii which in turn made sales of goods and services
valued in excess of $50,000 directly to customers located
outside the State of Hawaii.
Upon the above admitted facts, it is found that
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.'
"'Sea Life Park is one arm of the private Oceanic Foundation . Part of
the Park 's earnings subsidize the Oceanic Institute which maintains a select
staff of scientists and provides both sea creatures and facilities for visiting
researchers." Readers Digest , issue of August 1968, page 146, "Hawaii's
It. THE LABOR ORGANIZATION INVOLVED
Construction and General Laborers' Union, Local 368
of the Laborers' International Union of North America,
AFL-CIO, the Union herein, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED VIOLATIONS OF SECTION 8(A)(1)
The Union began its organization of the employees
approximately 4 months before the election. Respondent's
only formal campaigning was confined principally to its
president, Taylor Pryor, who addressed the employees on
the eve of the election. At that time he told them that he
not only had no animus toward the Union and that he had
even cooperated with the Union but the Park, after its
serious financial struggles over the years beginning in
1964, had only now begun to make a profit and
consequently, was not quite ready for the Union until Sea
Life recouped its considerable losses for the past 3 years.
Pryor assured the assembled employees that they were
free to vote their conscience and that there would be no
discrimination or reprisal for their voting as they saw fit.
He suggested the employees discuss the issues involved in
the election as "the more discussion there was about the
election, the better informed people would be."'
From the time the Union requested recognition until
December 8, 1967, the date of the election, the Union held
luncheon meetings with the employees at the Hawaii Kai,
the Hotel Moana and the La Ronde restaurant to extol
the virtues of and benefits that they would receive if they
joined the Union. From the time the Union requested
recognition until the election, there was much discussion
among the employees themselves, and in some instances
with their superiors, in which the necessity for a,union and
the Company's personnel policies were debated. Some of
these discussions and debates, which are detailed below,
had their genesis and were the basis in the complaint, for
most of the allegations of 8(a)(1) unfair labor practices. In
this regard, the trier of these facts has borne in mind that
the record discloses Sea Life Park was operated in a
relaxed atmosphere and that a rather intimate and
informal first-name relationship existed between the
employees and their immediate supervisors.
The Testimony
The General Counsel's representatives alleged at the
hearing that Evert Boerrigter, an admitted supervisor
within the meaning of Section 2(11) of the Act, reviewed
with various employees their existing benefits and
discussed with them proposed benefits that management
had in mind. Boerrigter, continued the General Counsel,
made the continuance of the present benefits and
implementation of the proposed new benefits contingent
on the defeat of the Union in the forthcoming election.
Jose Santos, an employee, who was called as a witness
by the General Counsel, and who obtained the signatures
of 16 employees on union cards,' testified that Boerrigter
never told him that any of his benefits would be taken
from him nor was he threatened in any way if the Union
were to prevail in the election.
Showcase of the Sea."
'See Lozano Enterprises v. N.L.R.B., 357 F.2d 500, 503 (C.A. 9).
'Many of the employees were told by union solicitors that they would
not have to pay a $60 initiation fee if they signed union cards. Two others,
who signed , testified, inter alia , that they had heard of strong-arm tactics
SEA LIFE, INCORPORATED 991
Violet Engstrom, a part-time employee, who claims
Respondent decreased her hours of employment because
of her union activities, testified, that on November 19,
1967, she heard Boerrigter say that "he was a paid-up
union member . and that the union is good, but we
don't need it in Sea Life Park, because it would only put
a wall through the Park, management on one side,
employees on one side, and then the aloha spirit will be all
gone. And he says all these benefits that the Park is trying
to give us, they would be no more.' And I told him it
doesn't apply to me because I have very short hours. [The
benefits which he mentioned were] credit union, medical,
profit sharing and our discounts that we have at the
Galley [restaurant], gas and Sea Chest [gift shop]. We
would lose all of that."
Her testimony continued that, on another occasion, a
few days before the December 8, election, Boerrigter came
into the restaurant and "asked me what I thought of all
the benefits that the Park was giving. I said, 'It's all right,
I guess, if you have longer hours.' And he comes up with
this yellow piece of paper and had the drawing of the
Park with the wall in the middle, and he says, "Now,. if
the Union should come in, later on another Union will
come in for the training area [employees] because the
training area cannot go under the Laborers' Union, and
then when they are bucking one another where will you
be?' I says, "I don't know.' He said, 'right in the center.
So, we don't need a union.' And then he said also that,
these benefits that we're getting, will all be lost. So I told
him again that it doesn't apply to me". Engstrom
explained that it didn't apply to her because she didn't
have any of the discounts that the regular employees have
"because I was only a part-time worker . I had no
discounts". She testified that Boerrigter said he could tell
"how the vote is going," and he went on to state that "in
the Galley the majority is for the Union, at the Gatehouse
they are for the Park, at the Sea Chest it's for the Park,
and very few in the maintenance department is for the
Union. And he said, 'So you can see the Union is out"'.
She also testified that she overheard a conversation on
December 7, at work during a coffee break, in which
Boerrigter told Hazel Rivera, a sister of Madeline
DuPont, who is assistant manager of the restaurant, that
"there was going to be a big union meeting at Betty
Baker's home. When he had left, I went up to Hazel and
asked her if I heard right . . . . And Betty said yes ... .
And I said, 'That's all I wanted to know' ".
Betty Baker, a part-time employee, who it is alleged in
the complaint, had her hours of employment decreased
because she was a union proponent, testified that she had
a conversation on November 18, with Boerrigter during a
coffee break. "He had a yellow legal-size piece of paper in
his hand listing all the benefits that we were presently
being used by the Union in times past . Another stated he signed the union
card "just to get them off my back." On authenticating cards, see McEwen
Mfg. Co., 172 NLRB No . 99. See also N. L.R.B. v. Continental Nut Co.,
395 F.2d 830 (C.A. 9) holding a reduction of initation fees is not a valid
objection.
'Boerrigter ' s explanation of this cryptic allusion to a "wall through the
park" is as follows:
"Yes. I used two terms. I used the word 'wall ' and I used the word
'barrier,' relative to the fact that Mr. Samson, [union official] stated
that he wished to exclude certain departments from the bargaining unit,
and then I brought out the fact that here you would then have some
departments covered by the bargaining unit and you would have other
departments not covered by the bargaining unit, and the family at Sea
Life Park would be divided , some of the group being represented by a
union and some departments not being represented by a union, and there
would be a division there."
entitled to, and he started saying that if the Union came
into Sea Life Park we would be denied these privileges or
benefits, and the first six months of 1967 the Park made a
profit of $163 so that they were just about out of the red
then, so he saw no need for a Union. He said if the Union
did come into Sea Life Park there would be a definite
wall right through the Park, and on one side you would
have management and on the other side you would have
the Union and when they were at the bargaining table .. .
and when they get together he said, you people would be
in the middle".
About November 14, testified Baker, Boerrigter
"wanted to know why there were so many unhappy people
in the Galley. So I politely told him it was the conditions.
He said he was a paid-up union man and he showed this
card stating he was a paid-up union member [and then he
said] he was for the Union, but not for Sea Life Park
having one".
Myra Robello, an employee, testified that in
November, around Thanksgiving time, Boerrigter spoke to
her and other employees and "He was talking about
benefits that the Park had and the benefits that the Park
was proposing to have, and the things we were going to
lose - like getting discounts on gas and buying things in
the Sea Chest on discount. You know, buying things in
the kitchen, all of those things. . . . Then he talked about
a wall between the employees and the management at the
Park. If the Union came in that there was going to be a
wall between us".
Rose Apao testified that on November 19, she
discussed the Union with Boerrigter while at work during
her coffee break in the back of the galley where a table is
set aside for the employees to have their lunch. "He
started off by saying: now girls, Mr. Pryor [Respondent's
president] is a very nice man. He has tried to fight for
some benefits for you girls . We're working on it now. And
he has talked to his Board of Directors about a profit
sharing. And you know the benefits you are now having,
such as medical, discount in the gift [shop], discount on
gasoline, having vacations with pay for two weeks and no
other company gives you, being here for that length of
time. You have to work either 3 to 5 years before you
have 2 weeks with pay. And now, if the Union come in,
what are you girls going to have? Nothing. If there's a
strike the company gains, the Union gains, and you go
without. All you have to do is pay dues and get nothing . .
There is going to be a wall between management and
the workers. . . In this book I have in my hands . . . a
list of names of those who.is for the Union and those who
is for the Park, and those that we are not sure of. But if I
was to take these names that we are not sure of and put
them for the Union, we still come out the winner".
Linda DeMotta worked for Respondent until January
10, 1968. She testified that Boerrigter spoke to her with
respect to the benefits she now enjoyed and those she
would have in the future.
Katherine Silva, the "second cook," testified that
between November 17 and 21, Boerrigter spoke with her
about the Union during her coffee break. "He said that if
I knew that the Union was getting in the Park. I didn't
answer him. He said we weren't ready yet. He said the
company is very young. He went on saying that if we did
have the Union we would lose benefits such as gas and off
with pay on birthdays. And he showed me his union card.
And he said he was a paid-up member".
Prudelisa Tacbas, an employee, testified that she spoke
with Boerrigter on November 19. "He said, the Union -
is not the right time to come in. And he said, Well, there's
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to be a wall between the Union and the Park. We're
not going to be one big happy family".
Puanani Smith, an employee, testified that around
November 25, while she was having her lunch, Boerrigter
said, "if the Union gets in there would be a wall between
management and the employees. There would be no aloha
spirit. When the Park wasn't there the Union didn't want
to come in. Now that they were doing good, the Union
wanted to come .in . . . He said if the Union got in we
would lose all our benefits". Thomas Moorish, vice
president of Sea Life Park, testified, that Puanani Smith
came to him and asked if the Union came in whether they
would lose any benefits, and he assured her that under no
circumstances would they lose any benefits.
Mildred Fung, an employee, testified that about
December 7, while at work, Boerrigter discussed the
Union with her. "[He] said, you know, we mustn't let the
Union come in. Then I said why? He said there's two
sides of the Park, which is the office and the trainers, the
office and us, of course. The Park side. And that the
Union was a nonprofessional union . That's why they
wouldn't be able to be with us. And there's no Aloha
spirit and we can never be together. And he said . . . we
would be the losers if the Park and the Union cannot get
together".
Evert Boerrigter, superintendent of Sea Life Park and
an admitted supervisor, categorically denied that he
threatened any employees with loss of existing job benefits
and/or planned future benefits if they voted for the
Union. He testified that he never represented to any
employee that he kept a. book in which he recorded whom
of the employees were either favorable or unfavorable to
the Union. He also testified that he is a member of Local
630, Plastering and Cement Finishing Union of Ohio for
the past 9 years and denied that he has any union animus.
The testimony of Respondent's officials, Pryor, its
president, Collins, -vice president of the Oceanic
Foundation, Haws, vice president and treasurer, Moorish,
vice president and associate director of Sea Life Park, and
Boerrigter, superintendent, that they were not aware of
union activity prior to November 17, is not only credited
but the General Counsel failed to adduce any probative
evidence showing knowledge on their part.
Discussion
In determing whether an employer's conduct amounts
to interference, restraint or coercion within the meaning of
Section 8(a)(1), the test is not the employer's intent or
motive, but whether the conduct is reasonably calculated
or tends to interfere with the free exercise of the rights
guaranteed by the Act.10 Then too, on the issue of whether
Section 8(a)(1) has been violated, consideration must be
given to Respondent's entire course of conduct, as it is not
required that each item of Respondent's actions be
considered separately and apart from all others, but
consideration must be given to all such conduct as a whole
with a view to drawing inferences reasonably justified by
their cumulative probative effect.
The` attendant circumstances in this proceeding have
been considered compositely and inferences drawn which
are reasonably justified by their cumulative, probative
effects. "Events obscure, ambiguous, or even meaningless
when viewed in isolation may, like the component parts of
"Time-O-Matic v., N.L.R.B., 264 F .2d 96, 99 (C A 7); N L.R B v
Illinois Tool Works , 153' F.2d 811 , 814 (C.A. 7), Russell-Newman Mfg
Co.. 153 NLRB 1312; Neco Electrical Products Co., 124 NLRB 481, 482.
an equation, become clear, definitive, and informative
when considered in relation to other action. Conduct, like
language, takes its meaning from the circumstances in
which it occurrs"." "The fact that there is evidence
considered, of and by itself, to support an administrative
decision is not sufficient where there is opposing evidence
so substantial in character as to detract from its weight
and render it less than substantial on the record as a
whole".' I
With respect to the alleged violations of Section 8(a)(1),
the test is whether the conduct charged was reasonably
calculated to interfere with the employees' free choice as
to whether they desired to be represented by the Union for
the purpose of collective bargaining." Interference,
restraint, or coercion is not measured by the employer's
intent or the effectiveness of his action, but rather by
whether the conduct is reasonably calculated, or tends to
interfere with the free exercise of employees' rights under
the .14
The language and legislative history of Section 8(a)(1)
shows that Congress intended in banning "interference" to
proscribe any employer activity which would tend to limit
employees in the exercise of their statutory rights. The key
to interpretation of Section 8(a)(1) is the purpose of the
Act as expressed in the preamble: to preserve to
employees an atmosphere in which they have full freedom
of..choice with respect to collective bargaining and the
designation of a bargaining representative. Inherent in the
very nature of the rights guaranteed by Section 7 is the
concomitant right of full freedom from employer
intermeddling. Employees have as clear a right to organize
and select their representatives for lawful purposes as the
employer has to organize its business and select its own
officers and agents.
One of the purposes of the Act is to insure that
employees shall have a free choice as to the question of
their representation in negotiating with an employer. This,
of course, does not preclude the employer from stating his
views as to whether or not his employees should join a
union.
In the light of these principles, with respect to the
various allegations of unfair labor practices which have
been discussed above, it may be stated that as to all these
alleged violations of Section 8(a)(1), involving future
benefits, that the Act does not require an employer
pending an election to refrain from making economically
motivated decisions involving business matters or any
changes in working conditions necessary to the continued
and orderly operations of his business, absent a promise of
benefit conditioned upon rejection of the union and/or any
casual connection between such changes and the rights
accorded to employees by the Act. Normal business
decisions must continue to be made and frequently are
necessary for the efficient operation of the business, even
though it occurs during an organizational campaign.
Any finding that an employer can not continue to make
normal business decisions such as benefits considered
before the advent of the union, in keeping with its
established company policy, clearly is contrary not only to
the realities of industrial life but also to the actualities of
"Stafford Trucking, Inc, 154 NLRB 1309, 1310 See Arch Beverage
Corporation, 140 NLRB 1385, 1386-87, The Lord Baltimore Press, 142
NLRB 328, 329, I A.M. (Serrick Corp ) v. N L.R B., 311 U.S. 72, 79
"Russel H. Williams v. U.S, 127 F Supp. 617, 619, c,tmg Universal
Camera Corporation v N.L.R.B, 340 U.S. 474, 487
"N.L.R.B v. Wilbur H Ford, d/b/a Ford Brothers , 170 F.2d 735, 738
(C.A 6).
"Dixie Shirt Company, Inc, 79 NLRB 127, 128.
SEA LIFE, INCORPORATED 993
industrial relations and the law, as such action on the part
of an employer, under the test stated by the Supreme
Court in the American Ship Building case (fn.21), could
not interfere with, restrain, or coerce employees within the
meaning of Section 8(a)(1).
Conduct which serves legitimate business ends dispells a
claim of illegitimate motives. An employer is free during
an organizational campaign to increase wages or otherwise
to institute improved conditions of employment if the
changes are motivated by legitimate business
considerations." Action taken by an employer in the
pursuit of legitimate business ends and without any intent
to invade employees' •statutory rights, but to accomplish
business objectives acceptable under the Act, is the
overriding consideration in situations of this type. 16
"Certainly it cannot be laid down as a governing rule
that during a union campaign , management, must deny to
its employees increased advantages which in the absence
of the campaign would be granted"." Assuming,
arguendo, that some or all of the matters discussed above
would ultimately lead to additional benefits, nevertheless,
if the Respondent Company was motivated by a legitimate
business purpose, it is not prohibited by Section 8(a)(1),
even though its incidental effect conceivably may be to
discourage union membership . Only if it were the
Respondent's express purpose to discourage such
membership is the "°... claim of legitimacy totally
dispelled"." Here, however, all of the proposed benefits
were initiated before the Respondent was aware of the
Union' s organizational campaign."
Moreover if the changes effected were not inherently
discriminatory or destructive of the rights guaranteed to
employees by the Act, they are not proscribed. Section
8(a)(1) implements Section 7's guarantees by prohibiting
interference, restraint, and coercion on the part of the
employer. These provisions must be considered in light of
the expressed policy of Section 1 of the Act to protect
"the exercise by workers of full freedom of association,
self-organization , and designation of representatives of
their own choosing". Hence, it follows that the "dominant
purpose" of Section 8(a)(1) is to insure "the right of
employees to organize for mutual aid without employer
interference".20 If it is apparent to the employees that
there is a legitimate business purpose for the employer's
action, they are not likely to consider this as something
which could be gained and retained if there were no union.
Also, when one considers the rather intimate and
informal relationship that existed between the employees
and their immediate superiors, the fact that they may have
discussed employment problems, working conditions, and
the Union, and that many of these conversations were
initiated by the employees themselves and, in some
instances , their superiors were invited by the employees
themselves into discussing the union campaign , it would
seem to be rather ;captious to hold that, under the
circumstances , these ingenuous often rhetorical inquiries,
require a ruling in all the instances detailed above, of an
independent violation of Section 8(a)(1), or that any useful
purpose would be served by issuing a cease-and-desist
"Burns Brick Company , 80 NLRB 389, 391.
"See T. L. Lay Packing Company, 152 NLRB 342, 347
"N.L.R.B. v. W. T. Grant Company . 208 F .2d 710, 712 (C A. 4).
"N.L.R.B v. Erie, Resistor Corp ., 373 U. S. 221, 228.
"See Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 798;
N.L.R.B. v. New England Web, Inc., 309 F .2d 696, 700-702 (C.A. I);
N.L.R.B. v. Houston Chronicle Publishing Company , 211 F 2d 848, 855
(C.A. 5)
"Republic Aviation Corporation v N.L.R.B., 324 U.S 793, 798.
order based on them.
There is only one instance when this area can be
inquired into and that is when these judgments are
motivated by antiunion considerations . No credible
evidence was introduced that all of the actions of any of
Respondent ' s supervisors were motivated by union animus
and if such actions can be justified by the Company's
interest in the normal operation of its business , such right
must be respected . Nor is there manifest here, any
evidence of minimizing the influence of organized
bargaining and interfering with the right to
self-organization by emphasizing to the employees that
there is no necessity for a collective - bargaining agent
As was said by the Supreme Court:
Section 8(a)(1) provides that it is an unfair labor
practice for an employer "to interfere with , restrain, or
coerce employees in the exercise of" Sec. 7 rights.
Naturally, certain business decisions will, to some
degree, interfere with concerted activities by employees.
But it is only when the interference with Sec. 7 rights
outweighs the business justification for the employer's
action that Sec. 8 (a)(1) is violated . See e.g., Labor
Board v. Steelworkers , 357 U.S. 357; Republic Aviation
Corp. v. Labor Board , 324 U.S. 793. A violation of
Sec. 8 (a)(1) alone therefore presupposes an act which,is
unlawful even absent a discriminatory motive. Whatever
may be the limits of Sec. 8(a)(1), some employer
decisions are so peculiarly matters of management
prerogative that they would never constitute violations
of Sec. 8 (a)(1), whether or not they involved sound
business judgement ....21
Conclusions
There is not a scintilla of probative evidence that
Boerrigter, as alleged in the complaint, "created the
impression that Respondent was engaging in surveillance
of employees' union activities". Engstrom, whose
testimony and demeanor did not favorably impress the
trier of these facts, testified that on December 7, she
overheard Boerrigter telling an employee, Hazel Rivera, a
sister of the restaurant's assistant manager, that there was
going to be "a big union meeting at Betty Baker's home"
the night before the election. She and Baker immediately
went to Pryor's office and told him that this was not true
Pryor stated, according to Engstrom, that he had been
informed of this. On cross-examination, Baker was forced
to admit that Pryor told her and Engstrom "not to worry
about her job there" because "everything would be all
right . . ." This trifling, minutest and petty incident is
the basis in the complaint for the accusation that Pryor
"created the impression" that he "was engaging in
surveillance of employees' union activities". It shall be
recommended that this allegation be dismissed.
Moreover, with respect to Boerrigter's role in this
alleged incident, it is found that it does not attain the
stature of an unfair labor practice. Then too, it is not
believed the Union, which it is reasonable to assume was
knowledgeable about such matters, would have
compromised itself by holding a meeting within 24 hours
"N L.R.B v. Darlington Manufacturing Co., 380 U.S. 263, 268
Accord N.L R B. v Brown , 380 U.S 278, N.L.R B. v. American
Shipbuilding Co., 380 U S . 300, 339: ". . the correct test for determining
whether Sec 8(ayl) has been violated in cases not involving an employer
antiunion motive is whether the business justification for the employer's
action outweighs the interference with Sec 7 rights involved." (Emphasis
supplied.)
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the impending election , a violation of the Board's
precept prohibiting employers and unions alike from
making preelection speeches within 24 hours of an
election . Furthermore , it is cogently significant that the
General Counsel did not call Rivera as a witness to
corroborate this hearsay testimony . The failure to produce
this witness at the hearing , to corroborate Engstrom's
testimony , renders her version of this incident dubious,
and also warrants drawing an inference that if produced,
Rivera's testimony would not have been favorable to the
General Counsel . 22 It is recommended , accordingly, that
paragraph VI (i) of the complaint be dismissed.
The only evidence adduced by the General Counsel that
Boerrigter " interrogated an employee concerning his union
activity" is the testimony of Katherine Silva that
sometime between November 17 and 21, after the Union
demanded recognition, that Boerrigter said to her, "if I
knew that the Union was getting in the Park " It is not
too unreasonable to assume that Boerrigter did not ask a
question but merely made a declaratory statement, as it
was known by the employees that the Union had
requested recognition on November 17, at a time prior to
this innocuous conversation between Silva and Boerrigter.
Moreover , this isolated statement in the context of Silva's
cryptic and ambiguous testimony , did not amount to
unlawful interrogation as it did not amount to
interference , restraint or coercion within the meaning of
Section 8(a)(1). The Board in Cannon Electric Company,
151 NLRB 1465, 1470, placed its imprimatur on the
Bourne doctrine (332 F.2d 47, 48 (C.A. 2)), where the
court set forth five factors to be considered in weighing
the lawfulness of company interrogation of employees:
(1) The background , i.e. is there a history of
employer hostility and discrimination?
(2) The nature of the information sought, e.g . did the
interrogator appear to be seeking information on which
to base taking action against individual employees?
(3) The identity of the questioner , i.e. how high was
he in the company hierarchy?
(4) Place and method of interrogation , e.g. was
employee called from work to the boss's office? Was
there an atmosphere of "unnatural formality"?
(5) Truthfulness of the reply.
The Board has applied this holding since then ' 23 which is
precedent for the finding that Boerrigter did not violate
8(a)(1) when he had the conversation with Silva detailed
above.
Boerrigter did not promise any of the employees whose
testimony is particularized above , increased job benefits as
all these conversations occurred subsequent to November
17, at a time when the Respondent had announced almost
a year before the advent of the Union that it proposed to
grant the employees , if and when , conditions warranted it,
a profit sharing plan, group life insurance and the
establishment of a credit union . 14 Accordingly, this
allegation of the complaint will be dismissed."
With respect to the allegation that Boerrigter
threatened employees with loss of existing job benefits, it
"Interstate Circuit v . U.S., 306 U.S. 208, 225, 226; Concord Supplies &
Equipment Corp., 110 NLRB 1873, 1879 . Homedale Tractor & Equipment
Co., 211 F.2d 309, 315 (C A. 9).
"Harris Paint Company , 150 NLRB 72; Rosen Sanitary Wiping Cloth
Co., 154 NLRB 1185; United Mineral & Chemical Corp, 155 NLRB
1390. Grubers Food Center, Inc.. 159 NLRB 629, fn. 3.
"See supra.
"Cf. National Bookbinding Co., 171 NLRB No 34, Formex Co.. 160
NLRB 835
"N.L.R.B. v. Zimmox Coal Co., 336 F.2d 516, 517 (C.A. 6).
"N.L.R.B. v. Camco , Inc., 340 F .2d 803, 807 (C A. 5) cert. denied 382
is found, based upon the testimony detailed above, that he
violated Section 8(a)(1) when he:
1. Told Myra Robello, about November 25, 1967,
that they would lose their gasoline, food and gift shop
discounts, if the Union were to become the employees'
representative
2. When Boerrigter told Rose Apao on November
19, 1967, that "if the Union comes in," the employees
would lose all the benefits which they presently enjoyed.
3. When he told Katherine Silva substantially the
same thing sometime between November 17 and 21
4 When he told Puanani Smith, on or about
November 25 that "if the Union got in we would lose
all our benefits".
Mildred Fung testified that when she arrived at work
on December 6, 1967, William Johnson, manager of the
restaurant, and an admitted supervisor within the meaning
of Section 2(11) of the Act, asked her if she had been to a
union meeting at the La Ronde restaurant. Fung testified
that she replied in the affirmative, whereupon Johnson
inquired: " `There were some eleven of you there, huh?'
And I just looked at him and I didn't answer. I walked
away."
Johnson denied that between November 17, when the
Union requested recognition and December 8, the date of
the election, that he either talked to any employee about
the Union, or asked anyone if they had attended a union
luncheon at the La Ronde restaurant. On
cross-examination, when he was asked the same question,
his answer was not as positive as on direct: "I truly do not
remember." He did acknowledge, however, that during
this period of time because of the proximity of his office
to the table where the employees ate and drank coffee
during their breaks, he saw and heard them discuss the
impending election.
Conclusions
Mildred Fung, who is presently employed by
Respondent, impressed the Trial Examiner as a credible
witness. Moreover, considerable weight has been placed
upon her testimony as she was in the employ of the
Respondent at the time she testified. As such, she
depended on her job for her livelihood and she
undoubtedly understood that after testifying she would
continue in the employ of the Respondent. Moreover, one
is not unmindful of the predicament of an employee who
testifies adversely to her employer's interests, being
apprehensive and fearful as to the future possibility of
retaliatory action. These practical considerations, coupled
with the normal workings of human nature, have led the
Trial Examiner to credit Fung's testimony, as not only is
she presently employed by Respondent, but it is believed
she was impelled to tell the truth regardless of what
consequences might eventuate
The Act contains no absolute prohibition against a
supervisor questioning an employee about their union
attitude and activities. Such interrogation "may or may
not amount to coercion, depending upon the manner in
which it is done and the surrounding circumstances." 16
Here, however, Johnson's quizzing Fung had a coercive
effect because the purpose of the interrogation was not
explained and there were no assurances against retaliation
which inevitably conveys an impression, rightly or
wrongly, that he is considering reprisals against her for
having attended a union meeting.27 Accordingly, it 'is
found that Johnson coercively interrogated Fung in
violation of Section 8(a)(1) of the Act.
SEA LIFE, INCORPORATED 995
The General Counsel alleged at the hearing that
Madeline DuPont, an admitted supervisor, engaged in
interrogation, threatened employees with "more difficult
working conditions," loss of job benefits if the Union won
the election and in speaking to employees she "revealed
knowledge of certain Union meetings which they had
attended."
Violet Engstrom, an employee, testified that on
November 19, while working in the restaurant, she and
the bartender were discussing the Union. "I asked Roy
[the bartender whose name is Roy Suga] if he had heard
anything about the Union, and he said that we were stupid
to have a union there with all the benefits that's coming
up. And Madeline DuPont said, 'We don't need a union
here, because we are one big happy family.' And then she
also stated that Joe Santos was the cause of the Union
coming to Sea Life Park. Roy Suga said why don't she
fire him. She said she can't, she has nothing to do with
him."
About a week before the election, Engstrom testified
that DuPont asked her "if anyone had given [her] a union
card, and I said no. And she said: 'We don't need a union
here, and if we do have one we would lose these benefits
that the Park is giving us. We won't be able to use the
phones during working hours. We would lose the
privileges of buying cheap meats through the company.'
And she says: 'Now, for instance, if there's a strike, the
Union gets paid, the Park gets paid, and all you do is pay
Union dues and get nothing.' So I told her it doesn't
apply to me, because I have very short hours. And then
she left."
Mildred Fung, whose immediate superior is DuPont,
assistant manager of the restaurant, testified that she
discussed the Union with DuPont on December 3. Fung
testified that DuPont told her "that everybody better
think twice before they vote for the Union, because
everybody is going to work harder and they cannot stand
around like we usually do and rest when we want to ... .
She said we have to pay for our lunches, which now we
eat free. And she said that even if you lose your job, the
Union won't be able to get you one .'. . . She said: 'Even
if the Union and the Park negotiate for higher pay we
only have to pay union dues with it and where would it
leave us? This is the same thing.' "
Madeline DuPont testified that she heard the employees
discussing the Union and the forthcoming election but
that she took no part in the discussions. She emphasized
that these employees knew she was listening because she
shared the same table with them at coffee breaks and
lunch time as they discussed union matters but that they
never addressed remarks to her regarding the Union or
the election. She denied that she told any employee that if
the Union prevailed, they would have to work harder, lose
their free lunches, gift, and gas discounts. She denied that
she told any of the employees she knew they were
attending union meetings or asked them how they were
going to vote in the election.
Conclusions
For the reasons stated supra, Fung's testimony is
credited that DuPont threatened that in the event the
Union won the election the employees would have to work
harder and the Respondent would abolish free meals for
the restaurant employees. These threats are a violation of
Section 8(a)(I) of the Act.
Mary Tong is alleged in the complaint, not to be a
supervisor but an agent of Respondent, within the
meaning of Section 2(13) of the Act which states that "In
determining whether any person is acting as an 'agent' of
another person so as to make such other person
responsible for his acts, the question of whether the
specific acts performed were actually authorized or
subsequently ratified shall not be controlling." Tong is
alleged to have threatened employees with loss of existing
and future benefits, loss of work, jobs and more arduous
working conditions if employees signed union cards or
voted for the Union.
Mary Tong is a "cleaning woman," doing menial work
such as cleaning tables and the ladies toilets. The General
Counsel in his opening statement alleged that Tong
informed various employees that Haws, Respondent's vice
president, had requested her to discuss with them their
existing and planned job benefits, and that if they
persisted in espousing the Union's organizational efforts,
they would lose these benefits if they chose the Union.
Tong denied she ever discussed the Union with Haws.
She testified that inasmuch as the employees were
discussing the forthcoming union election, she told some
of the "girls" .....to give the Park a chance." She
reviewed .with the girls, •she testified, the benefits they now
enjoyed, which she had written on a pad of paper and the
additional '.benefits the Park `hoped to give them in the
future. She :admitted she asked Boerrigter to list on a
piece of paper the employees' existing and anticipated
benefits in her-endeavor to show her coworkers how well
the Park was treating them. She went on to explain: "I
felt because I had been there from the beginning when the
Park open[ed] - I wanted to just talk to the girls. You
know, just to give the aloha spirit to Sea Life Park, to
give our Park a chance to build up . . . . So, I didn't
actually mention anything about union or don't vote for
the Union or anything . . . To give the Park a chance. So,
just use their judgment. That's all."
Haws' denial that he ever discussed the Union with
Tong or solicited her help to campaign against the Union
is credited because as a "knowledgeable spokesmen for
management," it is reasonable to assume he would
scrupulously avoid discussing these union matters with
her.3° It strains one's credulity to believe that having the
executive responsibilities Haws had, a corporate official of
both the Respondent and the Oceanic Institute, a
renowned scientific organization, would be so incredibly
naive as to senselessly compromise his Company by
enlisting the aid of Tong, a menial employee, to threaten
her coworkers, particularly so, when Respondent had the
advice of legal counsel right from the outset of the
Union's request for recognition on November 17, before
these violations were alleged to have occurred. Moreover,
an employer is not liable for the antiunion conduct of a
nonsupervisory employee who is not so identified with
management that the other employees could reasonably
infer that Tong was acting for Respondent."
In Goodyear Mill No. 2,3° the Board held that just
because an employee admitted to a union representative
that ". . . he was, in effect, acting as an agent of the
Company in distributing handbills that the Company had
arranged for, is not sufficient to establish, as a matter of
law, that he was in fact an agent of the Company in
distributing the handbills."
U.S. 926. See N. L.R.B. v . Griggs Equipment , Inc., 307 F.2d 275, 278
(C.A. 5).
"See National Plywood, Inc., 172 NLRB No. 141.
"A.W.C. Inc., 162 NLRB No. 95.
"102 NLRB 1329, 1346.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In N.L.R.B. v. Russell Manufacturing Co., 82 NLRB
1081, the Board stated:
A person acting in the interest of the employer must be
one who in fact and law may properly be termed his
agent . The basic inquiry must be as to the control of
the principal over the agent, the agent's authority or
control over the matter entrusted to him, the agent's
acts authorized or unauthorized, and whether those acts
came to the knowledge of the principal and received his
ratification The mere fact that the principal has
received or enjoyed the benefits of the unauthorized act
will not amount to a ratification if he did so in
ignorance of the facts.
In International Longshoremen's & Warehousemen's
Union; Local 6, 79 NLRB 1487, 1508, where the case
concerned the agency relationship between a union and its
officers, the Board listed "the fundamental rules of the
law of agency" which are controlling:
1. The burden of proof is on the party asserting an
agency relationship, both as to the existence of the
relationship and as to the nature and extent of the
agent's authority.
2. Agency is a contractual relationship, deriving from
the mutual consent of principal and agent that the
agent shall act for the principal . . . . authority to act
as agent in a given manner will be implied whenever the
conduct of the principal is such as to show that he
actually intended to confer that authority.
3. A principal may be responsible for the act of his
agent within the scope of the agent' s general authority,
or the `scope of his employment' if the agent is a
servant, even though the principal has not specifically
authorized or indeed may have specifically forbidden
the act in question."
Accordingly, the General Counsel has not proven by a
preponderance of the evidence that Tong, a nonsupervisor,
was held out by Respondent to be its agent32 or was acting
as Respondent's agent. As such burden is upon the
General Counsel, there has been a failure of proof and it
will be recommended, accordingly, that this allegation in
the complaint be dismissed.
The Alleged Violations of Section 8(a)(2)33
The General Counsel's representative stated at the
hearing that various new benefits were created and
announced to the employees. These benefits, he alleged,
grew out of the recommendations of a "staff planning
committee," composed of unit employees with Boerrigter
as chairman, which Respondent established on November
1, 1967.30 This committee, continues his opening
statement, held weekly meetings, at which, among other
things, representatives of trust companies, credit unions,
group medical and insurance companies explained their
various programs, plans and proposals with the eventual
purpose of the committee expanding their present
coverage and adopting new ones. This staff planning
committee, after discussion and vote, submitted their
recommendations to the Board of Directors.
"Followed in International Brotherhood of Teamsters, Local 377, 159
NLRB 1313, 1315.
"Tyler Pipe Co., 171 NLRB No. 38
"Sec 8(a) It shall be an unfair labor practice for an employer
(2) to dominate or interfere with the formation or administration of
any labor organization or contribute financial or other support to it:. .
[Emphasis supplied.]
Baker, an alleged discriminatee, was the representative
of the restaurant employees on the staff planning
committee. She attended meetings of the committee on
November 14, 21, 28 and December 5. She testified that
when she was elected, she was advised that the committee
would consider a credit union, profit sharing and pension
plans but her supervisor, DuPont told her ". . . don't take
any gripes from the Galley [restaurant] to these meetings.
Leave gripes . . . here, and grievances. 1131 At these
meetings, she testified, representatives' from different
insurance companies explained their plans with respect to
group insurance, profit- sharing plans and a credit union.
Evert Boerrigter, a supervisor, who was chairman of the
Staff Planning Committee, testified that the committee
held its first meeting on November 14, 1967, before he
was aware that the Union had begun it's organizational
campaign. His testimony continues as follows: "At our
first meeting we outlined quite a list of activities that we
planned to go into in the future. Many of these activities
covered potential benefits, planned benefits that we hoped
to discuss, develop, and finally make firm
recommendations to management regarding their
adoption"
Conclusions
This Staff Planning ,Committee was conceived and
established in October 1966, months before the advent of
the Union in August 1967. Under these circumstances, if
the proposed benefits, which had been planned before the
Union's advent, were to have been withdrawn, after the
Union began its organizational activity, such action would
have been tantamount to a threat and the basis for a
possible charge of an unfair labor practice and violation of
the Act.36
Significant also is DuPont's admonition to Baker, a
member of the committee, that she was not to bring
"grievances" to the attention of the staff planning
committee. There is no evidence that after the Committee
was formed, the Company controlled its operation. There
is not a scintilla of evidence to substantiate the allegation
that the staff committee existed for the purpose of dealing
with the employer concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions
of work, within the meaning of Section 2(5) of the Act,
which defines a "labor organization " as interpreted by the
Supreme Court in N.L.R.B. v. Chabot Carbon Co., 360
U.S. 203. The record is clear that this committee was not
established for the purpose of carrying on a preelection
antiunion campaign or to plant in the minds of its
employees the idea of forming a company assisted
bargaining committee. It is recommended that this
allegation in the complaint of a violation of Section
8(a)(2) be dismissed.31
The Alleged Violation of Section 8(a)(3)
The General Counsel in his opening statement alleged
as follows: Baker and Engstrom, part-time employees,
were discriminatorily discharged.31 The complaint alleges
they had their "hours of employment" decreased because
"See Resp Exh 3.
"See G C Exh. 33, the minutes of the Staff Planning Committee from
November 14, 1967, to May 28, 1968.
"See Cincinnati Gasket , Packing & Mfg. Inc. v. N.L R.B., 395 F.2d 268
(C.A 6).
"Cf Hotpoint Co. v. N.L.R.B., 289 F 2d 683 (C.A 7); Chicago
Rawhide Mfg. Co. v. N.L.R.B., 221 F.2d 165 (C A. 7).
"As part-time employees , they were not entitled to the various discounts
SEA LIFE, INCORPORATED 997
of their union activities. Two days after the election, the
General Counsel continued, these employees "ceased
employment for all practical purposes," for the reason
given to them by Respondent that there was a "lack of
work". The General Counsel further states that these two
employees were put on an "on-call" status on December
12, and informed on January 4, 1968, that they were no
longer on the payroll; then reinstated January 7, "on the
payroll" but only worked twice, namely, 2 hours in March
and 3 hours on April 13.
Violet Engstrom, who had a full-time job elsewhere,
took a part-time job in June 1966, with the Respondent as
a night-time waitress for summer seasonal dinners which
are served 3 nights a week. During the summer season
which lasts until Labor Day, the Park is open evenings. In
order to service this night-time business, Engstrom was
hired to wait on tables in the restaurant. When the season
ended in 1966 she and all the part-time summer
employees, of whom there were 15 to 20, were let go. She
was again hired in June 1967, for the summer season. She
was also called in when a regular waitress was ill or they
had a banquet.
After the Park's regular summer season came to a close
on Labor Day, 1967, she continued on at the restaurant as
a full-time daytime waitress because Judy Carvalho, the
regular waitress, was taken sick on August 12. When
Carvalho returned to work in October, Engstrom worked
the month of October because a special convention tour of
75 people was booked into the Park. Engstrom worked 28
hours in November and on December 10, DuPont, her
immediate superior, notified her, testified Engstrom, "that
she would call me when she needed me because business
was slow". Her testimony continues that on January 4,
Johnson, the manager of the restaurant, telephoned her
and said: "'I don't want to keep you dangling. The office
wants me to turn your time card in.' He said, You can
look for another job."' On January 7, continues
Engstrom's testimony, Boerrigter told her "my job was
reinstated to me". She testified that she worked 2 hours
on February 4 and 3 hours on April 13, 1968." She later
corrected herself on cross-examination and remembered
she was paid for an hour to attend an employees' meeting
on January 25, 1968, and a half-hour to attend an
employees' meeting on February 8.
On cross-examination, Engstrom admitted she was
employed on a sporadic basis during the summer months
and that when the summer season ended she no longer
worked. In 1966, she worked from July 1966 to the fall of
1966, the end of the season, and then started again, along
with the other summer part-time employees, in June 1967,
when the new season began. She acknowledged that she
did not know any summer part-time employees who
continued to work after the regular summer season ended.
Betty Baker, who has had a full-time job at the Hawaii
State Hospital for 10 years, started working part-time in
September 1967, as a countergirl in the restaurant
working as long as needed and when needed.'° In January
1968, Johnson, manager of the restaurant, telephoned
both Engstom and Baker and told them due to a decline
in business , it was not fair to keep them "dangling,"
waiting for a phone call and that they would be free to get
another job if they wished because "business did not
warrant this extra help."
given to full-time employees.
"Engstrom testified she worked on February 4, because there was a
"special event."
Pryor, Respondent's president, testified that when he
learned Baker and Engstrom were taken off the payroll,
he asked Boerrigter about it and was informed that "it
was just a technical thing" and that there was not enough
work for them and from an administrative standpoint
there was no point in keeping them on the payroll. "I did
not agree," continues Pryor's testimony and "I told
Boerrigter to get hold of the girls and tell them they were
back on the payroll. I was angry that this was done
because I had promised the girls that there would be no
vindictiveness of any kind and I told Boerrigter that this
sure looked like it to me. Boerrigter did so notify them. I
also spoke to Johnson, the manager of the galley, and
asked him why the girls were taken off the payroll and he
said because there wasn't any work for them to do. I told
him to go ahead and schedule the girls as he ordinarily
would. Run the operation according to the work load you
have got. I don't care what people think about that. And I
was satisfied in my own mind that he had not made a
movement of a vindictive manner, that it just looked that
way to me and I presumed it looked that way to the
girls." "
The Respondent contends the reason Engstrom and
Baker were laid off was economic: With the close of the
summer season, there was no need for their services as
there was no work for them. Every year the part-time
summer employees' services end with the close of the
season. To substantiate the validity of Respondent's
economically motivated defense to the General Counsel's
charge that Engstrom and Baker were discriminatorily
discharged, records of the restaurant and bar were
introduced into evidence which showed a drastic decrease
in restaurant and bar receipts ranging from 22 percent to
57 percent from the time the park closed in September,
1967, after the summer season until March, 1968." Haws,
Respondent's vice president, testified that in March the
restaurant receipts totaled $25,353, of which amount,
$3,672 represented a special catered dinner and, the bar
receipts for the same month were $5,010. In April,
continues his testimony, the receipts for the restaurant
were $22,538 and for the bar $4,332. In May, restaurant
receipts were $23,594 and for the bar $5,315.
Conclusions
Baker was not an impressive witness as she evaded,
equivocated and misstated facts. She testified that the last
day she worked was December 7. On cross-examination,
however, it was arduously elicited that after the election
on December 8, when Baker was called in for work that
week, she told DuPont, her immediate supervisor, that she
had agreed with Puanani Smith, a regular waitress, who
needed money badly that Smith could work in her place
for that week. The following week, Baker was again called
in to work, but she said she would be unable to do so as
she had to attend training classes for a week in connection
with her regular job at the Hawaii State Hospital. She
admitted that she was also told to report for work on
December 24, and that she worked on February 4, 1968.
After that business continued to decrease in the
"See Engstrom ' s and Baker ' s timecards , Resp . Exhs . 10 and 11. It
would appear both Baker and Engstrom were casual employees. Vaca Bus
Lines , 171 NLRB No. 179.
'On cross-examination , Pryor testified that Johnson told him that the
reason he had taken Baker and Engstrom off the payroll was because there
was not any work for them and "it wasn ' t fair to the girls to have them
expecting work and standing by the telephone."
•'Resp . Exh. 8.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restaurant.
The burden of proof is on the General Counsel to
establish and sustain the allegations of his complaint by a
preponderance of the probative and credible evidence, and
when it is charged Baker's and Engstrom's hours were
decreased due to their union activities, purportedly in
violation of Section 8(a)(3), this alleged discrimination
must be established by a preponderance of the evidence.
Furthermore, when the Respondent's explanation of their
termination is ' not only a reasonable one but
uncontradicted as evidenced by the Company's records
showing a decrease in business, the burden of going
forward with the evidence shifted to the General Counsel
to establish the falsity of the explanation and the truth of
his own allegations." This he has failed to do."
Moreover, both Engstrom and Baker, whose demeanor
gave the impression that their credibility was suspect were
not particularly active in union activities" as contrasted
with Santos, an employee (supra), who solicited and
obtained the signatures of 16 employees to union cards
and yet he was retained. This is cogent proof that
Respondent's layoff of them was not violative of the Act.
Neither is there any probative evidence of illegal union
animus or that the terminations of Baker and Engstrom
were discriminatorily motivated. Discrimination
presupposes or implies disparate treatment. Such a
showing has not been made here. On the contrary,
Respondent has furnished substantial and legitimate proof
that there was not a sufficient volume of business to
justify retaining them. Furthermore, the Board and the
courts, in other cases where it has been found that the
Respondent has committed unfair labor practices,
considered a respondent's union animus. Evenhanded
justice would require that where there is no substantial
evidence produced by the General Counsel to show such
antiunion bias, that this factor should be considered in
evaluating whether the Respondent in this proceeding has
committed any unfair labor practices. There is no
substantial evidence in the record to support such a
conclusion. The evidence "must do more than create a
suspicion of the existence of the fact to be established.""
The burden is upon the General Counsel to prove
affirmatively and by substantial evidence that the acts
alleged in the complaint were illegally motivated.
In order to find an 8(a)(3) violation with respect to
Engstrom and Baker, it would be necessary, among other
factors, to hold under the circumstances here revealed,
that their layoffs for obstensibly valid economic reasons,
as evidenced by the company's records , is not a
management prerogative but rather was intended to
discriminate against them. Fundamental economic
concepts would decry such a concept as administrative
arrogance. What was said by the Court of Appeals for the
Fifth Circuit is particularly pertinent in this regard:
But as we have so often said: management is for
management. Neither Board nor Court can
second-guess it or give it gentle guidance by
over-the-shoulder supervision. Management can
discharge for good cause, for bad cause, or no cause at
"N.L.R.B. v. Great Dane Trailers, 388 U.S. 26, 34; Martel! Mills
Corp. v. N.L.R.B., 114 F.2d 624, 631 (C.A. 4); N. L.R.B. v . Entwistle
Mfg. Co., 120 F.2d 532, 535 (C.A. 4)
"Crawford Mfg. Co.. 386 F.2d 367 (C.A. 4), where slack-claim period
was corroborated by company records.
"Engstrom attended four luncheon meetings, thaothemUdion held for the
employees , the last one being at the La Rondd Restaurant at which 15
employees and two union officials, Samson and Keamo , were present.
"Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477.
all. It has, as the master of its business affairs,
complete freedom with but one specific, definite
qualification: it may not discharge when the real
motivating purpose is to do that which Section 8(a)(3)
forbids . . . . The employer does not enter the fray with
the burden of explanation. With discharge of employees
a normal, lawful legitimate exercise of the prerogative
of free management in a free society, the fact of
discharge creates no presumption, nor does it furnish
the inference that an illegal - not a proper - motive
was its cause. An unlawful purpose is not lightly to be
inferred. In the choice between lawful and unlawful
motives, the record taken as a whole must present a
substantial basis of believable evidence pointing toward
the lawful one."
In order to lend plausibility to the General Counsel's
theory that the above testimony constituted violations of
Section 8(a)(3), it would be necessary to hold, under the
circumstances here revealed, that an employer, in an effort
to operate his business efficiently, could not discharge
employees for lack of work without being accused of
discrimination and thus assuming the risk of being found
guilty of an unfair labor practice. This is not the law. The
Act does not circumscribe an employer's right to
discharge an employee for reasons not forbidden by the
Act. The employer can do all these things at will, so long
as his action is not based on union considerations or
intent to interfere with the purposes of the Act and where
a just ground for termination appears, it is ordinarily a
mere matter of speculation to hold that discharging the
employee was because he was a union adherent. To infer
otherwise, with respect to the alleged discriminatees
involved here, would be tantamount to the Trial Examiner
placing himself in the position of substituting his own
ideas of business management for those of the Company.
This is not permissible. This is a management prerogative
which is necessary in order to maintain efficiency. Where
a proper collateral motive can be as reasonably inferred as
an unlawful one, the act of management cannot be held to
be improperly motivated. It would seem, however, that in
evaluating whether an unfair labor practice has been
committed, the legality of the employer's actions involves
the problem of accommodating the rights of employees
under Section 7 vis-a-vis the prerogatives of management
to conduct and protect its business enterprise. Unless
Baker's and Engstrom's union adherence followed by their
"decreased hours of employment" is to be equated as a
violation of the Act per se, it is not believed the General
Counsel has sustained his burden of proof. Highly
probative in evaluating Respondent's motive is the
uncontradicted fact that since Baker and Engstrom were
laid off, no one has been hired to replace them." Certainly
Respondent's defense of lack of work has not been
disproved. The record fails to establish by a clear
preponderance of the evidence any discriminatory
treatment of Engstrom and Baker because of their union
activities within the meaning of Section 8(a)(3). Engstrom
and Baker were temporary seasonal employees. They were
informed and knew when they were hired that after the
summer season was over that they would be terminated."
Accordingly, it is found their layoffs were temporary for
"N.L.R.B. v. McGahey, 233 F.2d 406, 412-413 (C.A. 5). Accord:
N.L.R.B. v. Ace Comb Co., 342 F.2d 841 (C.A. 8).
"Engstrom testified that when she went to the restaurant on December
24, and returned there many times thereafter , there was no new help.
"Sanitary Bag & Burlap Co., 162 NLRB No . 151, where the Board held
that the employer did not discharge an employee in violation of Sec.
SEA LIFE, INCORPORATED 999
lack of work. It is recommended, therefore, that
paragraph 12 of the complaint be dismissed.60
The Alleged Violation of Section 8(a)(5)
It is the position of the General Counsel that the Union
had obtained 24 valid authorization cards when it
requested recognition on November 17, 1967. The unit
described in the complaint comprised either 44 or 46
employees on the day of the election," depending on
whether or not two employees, Carvalho and Niimi, are
held to be supervisors. For the reasons stated infra, they
are found not to be supervisors. The General Counsel
alleges that not only did the Respondent refuse to
recognize and meet with the Union but it also committed
various unfair labor practices between the time recognition
was requested and the date of the election. He asks that
the election be set aside and a "Bernel Foam" order issue
requiring the Respondent to bargain with the Union upon
request based upon the preelection conduct which it is
alleged dissipated the Union's preelection majority status.
The Testimony63
Elmo Samson, business manager and secretary of the
Charging Union, accompanied by two of his assistants,
Albert Keamo and Norman Janicke, met on November
17, with Respondent's officials, Haws, Moorish, Collins,
and Boerrigter at Respondent's offices at the Park,
sometime between 2 and 3 o'clock. Samson, who was the
sole spokesman for the Union, orally requested that
Respondent recognize the Union as the duly designated
collective-bargaining representative of a "majority" of its
employees. Samson simultaneously handed Haws,
Respondent's vice president, a letter dated November 16,
1967, signed by him which reads as follows:
This letter is written on behalf of Laborers' Union,
Local 368 for the purpose of advising you that many of
your employees have indicated an interest in authorizing
our Local Union to represent them for purposes of
Collective Bargaining.
Many of these employees and representatives of our
Union are discussing the advantages of joining a labor
Union and authorizing the Union to represent the
employees of your firm in order to negotiate a contract
concerning wages, hours and working conditions.
The Federal Law gives your employees and Union
Representatives the right to engage in such activities.
The Federal Law forbids employer to take any action
or make any statements that will interfere with, restrain
or coerce employees in the execution of their rights to
8(iX3), even though the discharge occurred shortly after the inception of a
union campaign , since the employee was hired for a seasonal job and was
terminated after completion of the work for which she had been hired.
Accord: Sprouse-Reitz Co., 168 NLRB No. 56.
"In Barnwell Garment Co . v. N.L.R.B. 398 F .2d 777 (C.A. 6), the court
did not find sufficient evidence that the Company's antiunion bias was
responsible for the layoff of its employees but rather economic reasons.
"Clearly a company may curtail its work force for economic reasons,
notwithstanding the plant employees ' union representation or organizing
efforts . . . . But the fact that an employer harbors an antiunion bias
cannot be used to contaminate its every subsequent act. There is no
evidence of substance to link the antiunion bias of [Respondent ] to the lay
off of employees."
"Noteworthy is the testimony of Keamo , who actually did the
organizing at Sea Life Park that there were approximately 34 to 44
employees whom the Union wished to represent . He stated it was he who
"put the bargaining unit together."
"See supra.
engage in, join or assist labor organizations, or to
engage in other activities for the purpose of Collective
Bargaining or other mutual aid or protection.
We are certain that your firm will not take any action
or make any statements that will violate the Federal
Law in this regard.
If it is feasible, the Union would like to meet with your
representatives to discuss a collective bargaining
agreement.
Please indicate when and where you would like to meet.
You may call me at 816-607
The Respondent's officials thereupon requested of Samson
that he show them the signed authorization cards, (which
he had in his pocket), as proof of his oral representation
that the Union represented a "majority" of the
employees53 although the letter stated ". . . many of your
employees have indicated an interest in authorizing our
Union to represent them." Samson refused Respondent's
request, stating he would only show them the signed cards
if the Respondentfirst recognized the Union.
Moorish, another officer, then stated that in the
absence of the president, Taylor Pryor, who was in
Wisconsin, they had no authority to recognize the Union.
Samson was assured, however, that Pryor would be
contacted immediately, apprised of the Union's request
and the Respondent would then notify the Union. s' Pryor
had left Hawaii about the first week in November as he is
Chairman of the President's Commission for Marine
Science, Marine Engineering and Marine Research,•which
requires his presence in Washington once every month in
connection with a report being written for the President.
The Company's witnesses are credited who testified that
Samson refused to show them the authorization cards
when they requested him to do so. Samson's testimony on
this incident is inconsistent, equivocal and evasive. At
various points in his cross-examination, when he was
asked if he refused to show the Company the cards, his
testimony is contradictory: he answered at one point that
he did not recall; at another, he denied the Respondent's
officials asked to see the cards and at still another part of
his testimony, when asked if they asked to see the cards,
he equivocally answered: "I didn't, since they didn't give
me the recognition ." and finally he denied they asked
to see the cards. It is found that Samson refused to honor
Respondent's request that he prove his majority
representation although he had the signed cards on his
person at the time. Corroborative of this finding is
Keamo's testimony, Samson's assistant, that the Company
officials asked to look at the cards and Samson refused to
show them.
Moorish, Respondent's vice president, testified that
when Samson refused to show them the union cards, he
told Samson, he did not feel it "right" for us to recognize
anyone to bargain on behalf of the Sea Life Park, if, in
fact, we couldn't be sure that most of the people wanted
the Union to represent them." It was on this note that the
meeting came to an end.
Immediately upon conclusion of this meeting, which
lasted less than half an hour and ended around 3 o'clock,
the Union filed at approximately 4 o'clock with the
"Haws, vice president , testified Samson said he represented "more than
50 percent."
"Samson's testimony that the Company official failed to disclose the
reason for their being unable to recognize the Union is not credited.
Keamo, who accompanied Samson , testified otherwise.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regional Office, a representation petition (G.C. Exh.
2(a))." The petition described the unit involved as follows.
Ground maintenance employees , restaurant employees,
gift shop employees , gate girls, and bar maids.
Excluded
Office clerical employees , trainers , divers , guards
and/or watchmen , professional employees, and
supervisors.
At the same time that the petition was filed , the Union
representative turned over to the Regional Office, 23
signed authorization cards.
On November 20, an amended petition for certification
of representatives (G.C. Exh. 2(b)) was filed which
describes the unit involved as follows:
All employees of the Employer including maintenance,
restaurant , bar, and gift shop employees and gate girls.
Excluded
Office clerical employees , trainers , divers , guards
and/or watchmen , professional employees, and
supervisors as defined in the Act.
The Consent Agreement (G.C. Exh. 2(c)) describes the
"appropriate collective bargaining unit" as follows:
Ground maintenance employees , restaurant employees,
gift shop employees , gate girls , and bar maids.
Excluded
Office clerical employees , trainers, divers , guards
and/or watchmen , professional employees, and
supervisors.
The complaint at paragraph VII, reads as follows:
All employees of the Employer employed at Sea Life
Park , Island of Oahu , Hawaii ; excluding office clerical
employees , confidential employees , professional
employees , trainers , animal handlers , bartenders,
swimmers , receptionist and/or receptionist clerk,
photographer , narrator , curator , outside sales personnel,
guards and/or watchmen and supervisors as defined in
the Act."
On or about November 21 or 22, a second meeting was
held at the offices of Respondent at Sea Life Park.
Present on this occasion was Respondent 's attorney, Peter
A. Donahue . 17 Again , as at the first meeting , the Park
officials, to quote Samson, "asked if I [Samson] would
care to discuss or divulge what unit I want to petition for.
My reply at that time , I told them all this would come
about at the meeting at the Labor Board where we will
determine the eligibility list of employees ." Nothing was
discussed at this meeting regarding recognition except that
the company officials asked if Samson could be more
definite with respect to which job categories of their
employees the Union purported to represent in order that
they might more intelligently discuss which employees
should be included in the unit . However, Haws,
Respondent ' s vice president, did inform Samson at this
second meeting that he had the requisite authority to
agree to a consent election if an appropriate unit could be
agreed upon by the Union and again requested Samson to
"Unknown to the company representatives , Samson had the
representation petition with him when he met with them on November 17.
A copy of the petition was received by Respondent on November 18.
"Keamo testified this unit is not the same that Samson purported to
represent when he met with management on November 17.
define more specifically those employees the Union
claimed to represent. Again Samson declined to do so.
Samson refused to accept this suggestion or discuss the
composition of the unit, stating he would prefer to resolve
this at the meeting scheduled at the Regional Office on
November 28, 1967.
At the meeting at the Regional Office, an agreement
for a consent election was entered into on November 28,
and an election by secret ballot was conducted on
December 8, which the Union lost: 16 votes were cast for
the Union, 26 against and 3 ballots were challenged. See
supra.
With respect to the challenges , Alexander Carvalho and
Anne Niimi were alleged to be supervisors and, therefore,
not eligible to vote. The record is clear that neither of
these employees were supervisors within the meaning of
Section 2(11) of the Act. The General Counsel did not
even call Carvalho as a witness . Santos , a fellow
employee, who worked in an admitted nonsupervisory job,
testified Carvalho did the same work he did: fixing pumps
and other mechanical breakdowns at the Park. Boerrigter,
director of personnel, testified Carvalho works in the
maintenance department as a utility man, performing
general maintenance work as he is a plumber by trade. He
maintains and repairs the tanks , replacing valves , fixing
leaks , pumps and motors . Boerrigter testified Carvalho
does not hire, discharge, transfer employees, adjust
grievances, nor does he have anything to do with pay
scales or promoting employees. Accordingly, he is found
not to be a supervisor within the meaning of Section 2(11)
of the Act.
Anne Niimi , alleged to be a supervisor , works as "first
cook" in the kitchen, receiving $2.60 an hour. She does
not hire, transfer, suspend, lay off, recall, promote or
discharge any of the employees working in the kitchen of
the restaurant nor does she adjust grievances or effectively
recommend such action. This authority is vested
exclusively in William Johnson, the manager of the
restaurant, and in his absence , his assistant , Madelyn
DuPont. Niimi arranges the employees ' working hours,
grants them time off, tells the kitchen help what to do,
answers their questions regarding their duties and instructs
them . Johnson has, on occasions, told her to let him know
if any employee is not performing her duties properly but
she has never recommended that anyone be fired. Niimi
did not possess the authority and independent judgment
required to make her a supervisor . Her function was
limited to routine direction of the kitchen help , subject to
Johnson and DuPont's direction. Niimi had no
independent discretion. Overseeing , which Niimi did,
cannot be equated with responsible directing of menial
unskilled kitchen help which does not carry with it
independent judgments . Hers was routine direction of
work and employees like a "lead man" on any work crew.
It is found , therefore , that Niimi is not a supervisor within
the meaning of Section 2(11) of the Act. Accordingly
paragraph VI (k), (o) and (q) of the complaint that Niimi
threatened employees with loss of job benefits and created
the impression that employees' union activities were under
surveillance , is dismissed as liability for such conduct,
which is denied by Niimi, cannot be imputed to
Respondent.
"Pryor, Respondent's president , did not attend this meeting as he was on
the mainland from the first week in November until December 1.
SEA LIFE, INCORPORATED 1001
Conclusions
It was never clear whom of Respondent's employees the
Union purported to represent when Samson requested
recognition at the meeting on November 17. Likewise at
the second meeting about November 22, Keamo, who was
the Union official that actually did the organizing at the
Park, admitted that when the Company officials asked
Samson to be definite as to whom of Respondent's
employees the Union represented that Samson replied,
according to Keamo, "You are ready to recognize us, then
we give you everything including the cards that you people
wanted to see." When Keamo acknowledged he was "the
one that did the organizing ... and really put together the
bargaining unit" and was pressed by Respondent' s counsel
to state what that unit was that the Union purported to
represent on November 17, he conveniently took refuge in
the lame answer that he was temporarily out of the
meeting room when Samson discussed with Respondent's
officials which employees the Union claimed to represent.
Finally, he admitted that he did not hear Samson describe
the unit of employees the Union claimed to represent.
When he was questioned by the General Counsel, he was
asked if he heard Samson request recognition "in a
particular unit . . . if he identif[ied] the types of employees
he wanted to represent." Keamo's answer was "No"; all
he heard, he testified was Samson stating "he had the
majority."
Norman Janicke, a field agent and organizer for the
Union, who was present at the November 17 meeting,
testified that he didn't "recall" Samson describe the
bargaining unit the Union claimed to represent.
Haws, who managed the Park on a day-to-day basis,
testified that when he telephoned Pryor immediately after
the November 17 meeting, at which the Union requested
recognition, that he had no reason to believe Samson's
assertion that he represented a majority of the employees
because of his "evasive" answers and refusal to show the
signed authorization cards.
The Respondent employer had a right to demand proof
of the Union's alleged majority status before the duty to
bargain arises. When the Union refused repeated
demands for proof of its majority status, the Respondent,
under the circumstances here revealed, was justified in
doubting the Union's majority status. "The employer is
free at all times to demand proof as a condition of
bargaining. The duty to bargain arises only at such times
as the union representative presents convincing evidence of
majority support."56 Under the facts in this case , there is
no evidence upon which to impute bad faith to
Respondent. In fact, Section 9(a) of the Act defines the
circumstances in which an employer is required to extend
recognition that is otherwise forbidden - when a union is
designated by a majority of the employees in an
appropriate unit . If, Respondent had recognized the
Union, under the circumstances delineated above, it would
have violated the Act.59
Cogent proof that there was a lack of evidence as to
which employees the Union claimed to represent on
November 17, is the fact that the description of the
so-called appropriate unit in the representation petition of
November 17, varied from the description in the amended
petition filed on November 20, which, in turn, was
"Edward Fields . Inc., 325 F.2d 754, 761 (C.A. 2).
"ILGU v. N.L.R.B ., 366 U.S. 731, 738-739; N.L.R.B. v. Jones &
Laughlin Corp., 301 U.S. 1, 44; Medo Photo Supply Co. v. N. L.R.B., 321
U.S. 678, 683, 684.
amended by the description in the consent agreement of
November 28. Clearly, the unit was not adequately
defined by Samson, a union official for over a decade and
undoubtedly well versed in labor relations. With such a
wealth of experience in dealing with employers for 11
years, it was legally incumbent upon him to have clearly
described the unit for which recognition was sought. Such
a requirement imposes on the union representative only
the obligation to state what he meant. Failing to do so, he
cannot be considered as having made the sort of request
to bargain which imposes upon an employer a legal
obligation to comply. Nor do the various petitions and
consent agreement submitted subsequent to the oral
request alter this conclusion as the cumulative effect of all
this still failed to categorize the specificity of the
purported represented unit with adequate definiteness until
the Regional Office did so when the consent agreement
was executed on November 28.60 A prior appropriate
request for bargaining is a condition precedent to any
finding of a refusal to bargain.61
It has been established, therefore, that at the November
17 meeting, the union officials neither defined no
definitely described adequately those employees it claimed
to represent and that they refused to discuss the subject at
the second meeting on November 22. Such conduct on the
part of the Union, removed the possibility of effective
negotiations, excluded the Respondent from meaningful
bargaining, and thus precluded the existence of a situation
in which the Respondent's own good faith could be tested.
If it cannot be tested, its absence can hardly be found.63
Therefore, Respondent did not refuse to bargain with the
Union.63
The only remaining theory upon which a Bernel Foam
order" could be predicated and which would justify a
remedial bargaining order is the unfair labor practices
found above which were committed by Respondent. Such
a remedy, as the Court of Appeals for the Second Circuit
graphically described it, is "strong medicine. 11 61 In that
opinion the court refused to enforce a bargaining order
entered to rectify a violation of Section 8(a)(I) alone.
Judge Anderson writing for the court stated that
"restraint" was indicated in regard to the dictation of the
"strong medicine" of a bargaining order, because of its
troublesome tendency to encroach on the employees'
Section 7 right not to organize a labor union and the
Section 9(c)(I) right to a secret-ballot election. Judge
Anderson implies that a bargaining order would be
approved only when the company's conduct consisted of a
"broad-gauged campaign" that was flagrantly hostile to
the organizing efforts of the union, where there were
"glaring violations." He states that a bargaining order is
inappropriate in the case of "a borderline unaggravated
Sec. 8(a)(I) violation, standing alone," resulting in only "a
moderate unbalancing of an election by an employer."
The opinion concludes that in such a case "a more
appropriate remedy" is a cease and desist order coupled
with the granting of a new election.
In the proceedings at bar, the findings of unfair labor
practices detailed above, were minimal and anemic.
Moreover, the record clearly reveals there is not a scintilla
"Bailey Grocery Company, 100 NLRB 576; N.L.R.B. v. Jackson Press,
Inc., 201 F.2d 541 (C.A. 7).
" Barlow-Maney Laboratories , Inc., 65 NLRB 928, citing N.L.R.B. v.
Columbian Enameling Co., 306 U.S. 292.
"Times Publishing Company, 72 NLRB 676, 683.
"Sprouse-Reitz Co ., 163 NLRB No. 56.
"Bernel Foam Products , Co., 146 NLRB 1277.
"N.L.R.B. v. Flomatic Corporation , 347 F.2d 74, 77-80 (C.A. 2).
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of evidence to indicate Respondent rejected its
collective-bargaining obligation or that its motivation was
to dissipate the Union ' s majority . Furthermore , as there
was no prior history of collective bargaining, it was
incumbent on the General Counsel to prove affirmatively
that the circumstances herein show bad faith . The General
Counsel failed to carry this burden of proof." Finally, the
decisions of the Board and Courts hold that the proximate
result of Respondent ' s commission of unfair labor
practices must be "substantial ." It appears the cumulative
effect of the proscribed conduct should be considered and
weighed in combination ." It is not believed these
violations in their cumulative effect are sufficiently
"substantial" to justify the drastic remedy of a Bernel
Foam order ." This conclusion is based upon the Board's
recent decision in J. C. Penny Co ., Inc.," where the Trial
Examiner dismissed a refusal to bargain charge upon the
Union 's failure to define adequately the unit of employees
it sought to represent . Respondent engaged in 3 incidents
of coercive interrogation and threats to employees. The
Board held such illegal conduct was not so flagrant as to
vitiate the employer 's good faith in questioning the union's
majority. In N.L.R.B. v. Ben Duthler Inc., 395 F.2d 28
(C.A. 6), the court found that the 8(a)(1) conduct
committed by the employer did not warrant the inference
that its refusal to recognize the union was in bad faith
because they were " not the flagrantly coercive type that
might properly show a complete rejection of the
collective-bargaining principle ..." (68 LRRM at 2327).
The employer 's conduct in that case consisted of coercive
interrogations about a union meeting that had taken
place , and threats that if the union came in, the number of
employees might be reduced, as well as the number of
hours worked."
However , it is found that the Respondent 's violations of
Section 8 (a)(1), discussed supra, and objections to the
election , supra, which occurred during the preelection
period from November 17 to December 8, 1967,
constituted improper interference with the election
warranting that it be set aside. Accordingly, it is
recommended the election held on December 8 should be
set aside and that the Regional Director for the Twentieth
Region hold a second election at such time as he deems
circumstances permit a free choice of a bargaining
representative. rr
"Aaron Brothers , 158 NLRB 1077; John P. Serpa , Inc., 155 NLRB 99.
See Levi Strauss Co., 172 NLRB No. 57 and McEwen Mfg. Co., 172
NLRB No. 99.
"Home Town Foods Inc., 172 NLRB No. 126, on remand from 379
F.2d 241 (C.A. 5).
"Hammond B Irving Inc., 154 NLRB 1071; N.L.R.B. v. Dee's of NJ.,
395 F.2d 112 (C.A. 3); Lane Drug Co. v. N.L.R.B.,391 F .2d 812 (C.A 6);
Ill. THE REMEDY
Having found the Respondent engaged in certain unfair
labor practices it shall be recommended that it cease and
desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings and
conclusions and upon the entire record in this case, there
are made the following:
CONCLUSIONS OF LAW
1. By threatening employees that they will have to work
harder , lose their discounts and benefits , present and
future , in order to discourage membership in, sympathy
for and activity on behalf of the Charging Union,
Respondent violated Section 8 (a)(1) of the Act.
2. Respondent did not violate Section 8(a)(2), 8(a)(3) or
8(a)(5) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
[Recommended Order omitted from publication.]
Colecraft Manufacturing Co., Inc., v. N.L.R. B., 385 F.2d 998 (C.A. 2).
"172 NLRB No. 82.
"Accord: N.L.R.B. v. Johnnie 's Poultry Co., 344 F.2d 617, 619, 620
(C.A. 8); Pizza Products Corp. v. N.L,R. B., 369 F .2d 431, 437 (C.A. 6).
"The Respondent attempted to relitigate at the hearing the Regional
Director 's finding as to the makeup of the unit . This matter was discussed
at the meeting on November 28, and waived by Respondent when it signed
the agreement to the consent election . If Respondent felt aggrieved by the
Regional Director's determination , it could have appealed to the Board.
But here it chose not to seek review . Instead , it expressly waived its right
to appeal to the Board by agreeing to the consent election . It was too late
to relitigate this matter at the hearing of this case . Moreover, the issue of
relitigation is controlled by Sec . 102.67(f) of the Board's Rules and
Regulations which states that failure to request review shall preclude
relitigation in any related subsequent unfair labor practice proceeding, any
issue which was , or could have been , raised in the representation
proceeding . Pittsburgh Plate Glass Co . v. N.L.R.B., 313 U.S. 146, 158. In
N.L.R.B. v. Continental Nut Co., 395 F.2d 830 (C A. 9), the court found
the Company signed away its right to Board review of the Regional
Director's election determination when it signed a consent -election
agreement . In the absence of newly discovered or previously unavailable
evidence or special circumstances (none of which are asserted by
Respondent) litigation is not permitted in an unfair labor practice case of
issues which were or could have been litigated in a prior representation
proceeding . Howard Johnson Co., 164 NLRB No. 121. This policy is
applicable even though no formal hearing on objections has been provided
by the Board . Such a hearing is not a matter of right unless substantial or
material issues are raised by the objections . O.K. Van & Storage Co., 127
NLRB 1537. N.L.R.B. v. Air Control Window Products, Inc., 335 F.2d
245, 249 (C.A 5).