U.S. Divers Co.

National Labor Relations Board - Board Decisions

Oct 13, 1961

133 N.L.R.B. 968 (N.L.R.B. 1961)

968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Larry Mason , thereby discouraging membership in the above Union , Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (3) of the Act.
4. By interfering with , restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
U.S. Divers Company and General Truck Drivers , Warehouse-
men & Helpers Union , Local 235 and Calvin Kirby and
William J . Lollis. Cases Nos. 21-OA-3983, 21-CA-4056-1, and
21-CA-4056-2. October 13, 1961
DECISION AND ORDER
On March 20, 1961, Trial Examiner Herman Marx issued his Inter-
mediate Report in the above-entitled proceedings, finding that the Re-
spondent had engaged in and is engaging in unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the Intermediate Report attached
hereto. The Trial Examiner also found that the Respondent had not
engaged in other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter the Re-
spondent filed exceptions to the Intermediate Report and a brief in
support of its exceptions.
The Board 1 has reviewed the rulings z of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its
powers in connection with these cases to a three-member panel [Chairman McCulloch and
Members Rodgers and Leedom].
2 During cross -examination of Tames Sutton , Respondent asked the witness for the names
of employees who had attended a union meeting at Lollis' home on the night before
Sutton's discharge and the names of employees who had signed union authorization cards
on the day of the discharge . General Counsel objected on the ground that the disclosure of
names of employees who had indicated interest in the Union might result in subsequent
discrimination against them Respondent argued that if given the names of other em-
ployees at the union meeting questioning of such employees might reveal that Sutton had
not received any union authorization cards that night and thus would serve to attack his
credibility Also, if the names of employees who had signed authorization cards were
revealed Respondent would show that it had not discriminated against them and that
Sutton was not attending to his duties on the day of his discharge but was spending his
time obtaining signatures to the union cards . The Trial Examiner ruled that he would
not permit Respondent to cross-examine Sutton as to the names of employees who had
either attended the union meeting or had signed union authorization cards unless they had
been identified or referred to in the direct examination . Respondent has excepted to
133 NLRB No. 88.
U.S. DIVERS COMPANY
ORDER
969
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, U.S. Divers Com-
pany, Santa Ana, California, its officers, agents, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Discouraging membership of any of its employees in General
Truck Drivers, Warehousemen & Helpers Union, Local 235, or in any
other labor organization, by discharging any individual, or in any
other manner discriminating against any individual in regard to his
hire, tenure, or any term or condition of employment, except as author-
ized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) Interrogating any employee with respect to any employee's
activity, membership, or interest in any labor organization in a manner
constituting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
(c) Directing, requesting, or inducing any of its employees, or in
any other manner suggesting or proposing to any employee, that such
employee propagandize or engage in any activity on behalf of, or
against any, labor organization seeking support from, or to represent,
any of its employees.
(d) Attempting to induce, or proposing or in any manner sug-
gesting to, any of its employees that they bargain, contract, or other-
wise deal with the Respondent through any representation plan, group,
or committee initiated or sponsored by the Respondent, or to which it
has contributed any support or assistance.
(e) In any other manner 9 interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, 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 to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
these rulings . The rulings of the Trial Examiner as to the scope to be allowed in cross-
examination were in the allowable area of his discretion . 3 Wigmore, Evidence , see. 983
( 3d ed ., 1940 ). Accordingly , they are hereby affirmed.
8 N.L.R .B. v. Entwistle Mfg. Co., 120 P. 2d 532, 536 (C.A. 4).
9-10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to James Sutton immediate and full reinstatement to his
former or a substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and make him whole in the
manner and according to the method set forth in the section of the In-
termediate Report entitled "The Remedy."
(b) Preserve until compliance with any order for reinstatement or
backpay made by the National Labor Relations Board in this pro-
ceeding is effectuated, and, upon request, make available to the Board
or its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records relevant to a determination of the amount of
backpay due, and to the reinstatement and related rights provided
under the terms of this Order.
(c) Post at its place of business in Santa Ana, California, copies of
the notice attachedhereto marked "Appendix."' Copies of said notice,
to be furnished by the Regional Director for the Twenty-first Region,
shall, after being signed by a duly authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director, in writing, within 10 days from
the date of this Order, what steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges violations of Section 8(a) (3) in the dis-
charges of William J. Lollis and Calvin Kirby.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership by any of our employees
in General Truck Drivers, Warehousemen & Helpers Union, Local
235, or in any other labor organization, by discharging any indi-
vidual, or in any other manner discriminating against any in-
dividual in regard to hire, tenure of employment, or any term or
U.S. DIVERS COMPANY 971
condition of employment, except as authorized by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL NOT interrogate our employees with respect to any em-
ployee's activity, membership, or interest in any labor organiza-
tion in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
WE WILL NOT direct, request, or induce any of our employees,
or in any other manner suggest or propose to any employee, that
such employee propagandize or engage in any activity on behalf
of, or against, any labor organization seeking support from, or to
represent, any of our employees.
WE WILL NOT attempt to induce, or propose or in any other
manner suggest to, any of our employees that they bargain, con-
tract, or otherwise deal with us through any representation plan,
group, or committee initiated or sponsored by us, or to which we
have contributed any support or assistance.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist any labor organization, to
bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and to re-
frain from any or all such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer James Sutton immediate and full reinstatement
to his former or a substantially equivalent position, without prej-
udice to his seniority and other rights and privileges, and make
him whole for any loss of pay he may have suffered by reason of
his discriminatory discharge.
All of our employees are free to become, remain, or refrain from
becoming or remaining members of any labor organization, except to
the extent that this right may be affected by an agreement in con-
formity with Section 8(a) (3) of the National Labor Relations Act.
U.S. DIVERS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint in this proceeding, issued by the General Counsel of the National
Labor Relations Board, herein called the Board, alleges, as amended, that U. S. Divers
Company, herein called the Respondent or Company, has discriminatorily discharged
three employees, James Sutton, Calvin Kirby, and William J. Lollis, in violation of
Section 8(a)(3) of the National Labor Relations Act, as amended (61 Stat. 136
et seq., 73 Stat. 519 et seq.; referred to herein as the Act); has, in addition to the dis-
charges, engaged in conduct constituting interference with, and restraint and co-
ercion of, employees in the exercise of rights guaranteed them by Section 7 of the
Act; and has, by such conduct, violated Section 8(a)(1) of the Act.' The Respond-
ent has filed an answer which, in material substance, denies the commission of the
unfair labor practices imputed to it.
Pursuant to notice duly served by the General Counsel upon each of the other
parties, a hearing upon the issues in this proceeding has been held before me, as duly
designated Trial Examiner, at Los Angeles, California. The General Counsel and the
Respondent appeared through, and were represented by, respective counsel and par-
ticipated in the hearing; and all parties were afforded a full opportunity to be heard,
examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral
argument. I have read and considered the respective briefs of the General Counsel
and the Respondent filed with me since the close of the hearing. No other party has
filed a brief.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD
The Company is a California corporation; maintains its principal office and a
plant in Santa Ana, California; and is there engaged in the business of manufacturing
and selling diving equipment.
In the course and conduct of its business during the year immediately preceding
the issuance of the complaint, the Company shipped products valued in excess of
$50,000 from its business location in California to points outside the State. By reason
of its interstate shipments the Company is, and has been at all times material to the
issues, engaged in interstate commerce within the meaning of the Act. Accordingly,
the Board has jurisdiction over the subject matter of this proceeding.
It. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers, Warehousemen & Helpers Union , Local 235, herein
called the Teamsters Union , admits individuals employed by the Company to mem-
bership ; exists, in part, for the purpose of dealing , on behalf of employees , with em-
ployers concerning wages, hours of employment , and other conditions of employment;
and is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Allegations of interference , restraint, and coercion
The General Counsel's allegations of interference, restraint , and coercion, apart
from the discharges , are to the effect that the Company , through its "traffic manager,"
Edwin Swan , and its "production foreman ," Robert Nyquist , interrogated employees
regarding union activity , urged and directed employees "to bring the AFL-CIO into
the plant" in order to thwart organizational activities on behalf of the Teamsters
Union , and "held a private election at the Respondent 's plant, during working time,
to determine if the employees wanted the (Teamsters ) Union or a company union";
and that the firm's vice president , Joseph Wheeler , urged employees "to sign a con-
1 The complaint, as amended, is based on a charge filed with the Board on April 28, 1960,
by General Truck Drivers, Warehousemen & Helpers Union, Local 235 in Case No.
21-CA-3983; a subsequent amendment thereof ; a charge filed by Kirby on June 14, 1960,
in Case No 21-CA-4056-1 ; and one filed by Lollis on June 21, 1960, in Case No 21-CA-
4056-2. The cases have been duly consolidated pursuant to Section 102 33 of the Board's
Rules and Regulations Copies of the charges, including the applicable amendment ; the
complaint, as amended ; and the order of consolidation have been duly served upon the
Respondent
U.S. DIVERS COMPANY 973
tract" with the Company without the Teamsters Union . Swan supervises the re-
ceiving, shipping , and warehouse activities of the Santa Ana plant ; Nyquist oversees
its production and maintenance work; Wheeler participates in the management and
direction of the plant ; and each of the three is, and has been at all times material to
the issues , a supervisor within the meaning of the Act.
The background of the relevant allegations begins with a meeting at Lollis' home
on the evening of April 20 , 1960, attended by a number of the Company 's employees,
including Lollis and Sutton , and by three representatives of the Teamsters Union.
The upshot of the discussion was a decision to organize employees at the Santa Ana
plant, and , to that end, to endeavor to secure from the employees the execution of
cards which , by their terms , would have the effect of authorizing the Teamsters Union
to act as the signatories ' bargaining representative . Lollis and Sutton signed such
cards that evening, and each subsequently engaged in organizational activities at the
plant that will be described at a later point.
On May 9, 1960 , the Teamsters Union filed a representation petition with the
Board , seeking certification as the bargaining representative of a specified bargaining
unit of the Company's employees . A hearing was held on the petition on June 8,
1960, and the matter was pending before the Board at the time of the hearing in the
instant proceeding.
Several days after the filing of the petition , Lollis, who worked in the shipping de-
partment , and thus under Swan 's supervision , had occasion to talk to the latter about a
customer's order, and in the course of discussion that followed Swan asked Lollis
what he thought of "the AFL-CIO," and whether he had considered endeavoring
to find out from the organization what it could do for the employees . Lollis replied
in the negative. (As used by Swan, the term "AFL-CIO" had reference to a labor
organization named United Rubber , Cork, Linoleum and Plastic Workers of America,
AFL-CIO, which, for convenience of description , will be referred to below as the
Rubber Workers Union.) 2
On the following day, on an occasion when Lollis , another shipping employee,
William Zuniga , and the shipping department foreman , Mark Gittins , who is Swan's
subordinate , were in the traffic manager's office , Swan inquired of Lollis and Zuniga
whether they had thought of communicating with the Rubber Workers Union to ascer-
tain what it could accomplish . Both Lollis and Zuniga replied , in substance , that they
would not communicate with the organization , and Lollis asked Swan why the Com-
pany should "try to bring in" the Rubber Workers Union if the firm, at the same time,
was "fighting the Teamsters ." Swan responded that he thought the Rubber Workers
Union was "a better union." He then stated that he had once worked for a firm that
had a "company contract" with its employees , and that the arrangement had worked
well, and he suggested that the Company 's employees try such an arrangement if
they did not wish union representation . At one point or another during the dis-
cussion (probably toward its end, as one may gather from Lollis ' testimony), Swan
asked Lollis and Zuniga what conditions in the plant had led to sentiment for union
representation, and the employees replied that there was dissatisfaction over overtime
and wages, and that "personal grievances" existed . Swan expressed some opinion
about these matters, and told Lollis and Zuniga that they "were in line for bigger
things" in the plant , and would not be limited to shipping duties.3
2 The record contains allusions to "AFL-CIO Rubber Workers," "CIO," "AFL-CIO,"
"AFL--CIO union," and variants of these descriptives. There can be no doubt, in the con-
text of the whole record, that these characterizations refer to the Rubber Workers Union,
and, in the interest of clarity , that name will be used in findings below in lieu of the
characterizations mentioned.
3 Findings as to the two conversations involving Swan, described above , are based on
Lollis' testimony . According to Swan , the first discussion between himself and Lollis on
the subject of unionization was on the occasion when Lollis, Zuniga, and Gittins were in
the office . Swan's version of what was said there on the subject is that Lollis asked
him "what . . . the rumors ( were ) about the union coming into the company"; that he
replied that "he didn 't know" ; that Lollis voiced dislike for unions and the hope that
"the union didn't get in"; and that he (Swan ) said that the management "had noth-
ing . . . to say" about the matter , and that if Lollis desired unionization he should select
"a union of his choice and get it." Gittins gave a scant version of what was said testify-
ing to little more regarding the incident than that either Lollis or Zuniga said that he
was not "in favor of the union." I am unable to base findings on the relevant testimony
of either Swan or Gittins . For one thing , Zuniga supports Lollis' account of the office
discussion in substantial measure, testifying that Swan "made the remark in front of us
that he would like to see somebody push the AFL -CIO." It should be borne in mind in
that connection that it was the Respondent that called Zuniga, and that he gave the
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In or about the same week in which Swan spoke to Lollis and Zuniga, representa-
tives of the Rubber Workers Union met with several of the Company's employees
at the home of one of their number, Alfred Bennett, who performs maintenance work
at the plant and, at the time involved, had minor supervisory duties.4 The meeting
had been arranged by Bennett, and the union representatives attended at his instance.
He had heard several days earlier (by "rumor" from Lollis or one employee or
another, according to Bennett) that the management was in favor of having the
Rubber Workers Union organize the employees. The upshot of the meeting was
that Bennett and other employees present were given authorization cards of the
Rubber Workers Union, and that Bennett undertook to circulate the cards among
the Company's employees, and to solicit them to sign the authorizations. He engaged
in such distribution on the following day.5 In his testimony, Bennett in effect denied
that he was prompted by the management to engage in organizational activities on
behalf of the Rubber Workers Union. While I have some doubt about the plausibility
of this denial in view of Bennett's supervisory functions, albeit they were minor in
nature, and of the evidence that the Company had a preference for the Rubber
Workers Union over the Teamsters Union and sought to promote interest among
employees in the former, the record does not, in fact, establish that Bennett engaged
in his activities at the instance of any of his superiors in management.
There is, however, credible evidence that Nyquist, who is Bennett 's supervisor,
sought to induce Kirby, who was also subject to Nyquist's supervision, to promote
sentiment for the Rubber Workers Union among the employees. This occurred about
the date of Swan's discussion with Lollis and Zuniga. On the occasion in question,
Nyquist opened a conversation with Kirby by alluding to the fact that the Teamsters
Union was endeavoring to become the employees' bargaining representative; and
then denounced that organization and its leadership; praised the Rubber Workers
Union, expressing a preference for it as the "right union" for the employees; and,
pointing out that Kirby's work required him to move "freely" among the employees,
besought Kirby to tell them that the Rubber Workers Union "is the best union,"
convince them "to vote" for the organization, "and at the same time . . . run down
the Teamsters." Kirby replied that he would do what he thought best, and after
some additional derogatory remarks about the Teamsters Union, Nyquist told Kirby
to secure some authorization forms of the Rubber Workers Union from a plant
"subforeman" named Carney, and distribute them to employees. Kirby subsequently
spoke to Carney about the Rubber Workers Union, but did not otherwise comply
with Nyquist's requests.6
quoted testimony under interrogation of its counsel. For that matter, as will appear,
there is substantial evidence, in addition to Lollis' testimony, that the Respondent pro-
moted the idea of entering into a "company contract" with a committee representing its
employees. This evidence gives corroborative support to Lollis' testimony imputing a
proposal of that type to Swan In sum, of the several versions of what Swan said on the
subject of unionization, I find Lollis' testimony the most credible, and have made corre-
sponding findings
4 Bennett performed such supervisory functions as telling the plant janitor "what to do,"
but the evidence does not establish that he was a supervisor within the meaning of
Section 2(11) of the Act.
5 The record does not establish the precise dates of Bennett 's organizational activities,
but he admittedly engaged in them after the Teamsters Union filed its representation peti-
tion on May 9, 1960, and one may fairly conclude from the record as a whole that he
engaged in the activities between that date and May 18, 1960, when the Rubber Workers
Union filed a representation petition with the Board I think it likely that Bennett's
organizational work took place within a few days after Swan's discussion with Lollis
and Zuniga
O Findings as to the conversation between Kirby and Nyquist are based upon Kirby's
testimony Nyquist described a number of conversations between himself and Kirby on
the subject of unionization According to the sense of Nyquist's testimony, what took
place, in essence, was that Kirby plied Nyquist with questions such as what the latter
thought of unionization, whether it was "good for the company," and whether the produc-
tion foreman "knew anything about the union" ; and that Nyquist made applicable replies
such as that he had no opinion about unions "one way or the other," that selection of a
union was up to Kirby, and that he (Nyquist) knew nothing about "the union." I do not
believe that Nyquist's remarks took the disinterested turn he describes, and, instead, credit
Kirby's relevant testimony because (1) there is ample reason to believe, as one may con-
clude from the testimony of the Respondent's own witness, Zuniga, that after the
Teamsters Union filed its petition , the management wished "to see somebody push" the
Rubber Workers Union in the plant; and (2) the record, apart from Kirby's testimony, as
U.S. DIVERS COMPANY 975
The Rubber Workers Union filed a representation position with the Board on
May 18, 1960, but withdrew the petition 2 days later. The evidence does not
establish the reason for the withdrawal.
About 2 or 3 weeks after the filing of the Teamsters Union's petition, and thus
some days after the withdrawal of the petition of the Rubber Workers Union, Nyquist
summoned to his desk a number of "subforemen" (or "leadmen," as they are also
described in the testimony) who worked under his supervision; 7 stated that plant
employees could "try to get . bargaining power" and enter into "a contract"
with the Company (meaning, plainly, an agreement governing terms and conditions
of employment); said that employees from other departments were going to elect
representatives to meet with Wheeler; and expressed the view that employees under
his supervision should also elect a representative to take part in such a meeting.
About the same date, Swan similarly proposed to shipping department employees
that they select a representative to meet with Wheeler.8
These remarks by Nyquist and Swan were soon followed by a secret ballot election
in the plant, resulting in the selection by the employees of a committee of four
representatives, including Zuniga. As is evident from the election suggestions made
by Nyquist and Swan, and as the testimony of Zuniga, who was called as a witness
by the Respondent, makes clear, the election was held at the instance of the Company.
Within a few days (apparently about the beginning of June), the four representa-
tives, upon the initiative of Nyquist, conferred in a private office he provided,
discussing employees' needs and grievances among themselves as a preliminary to
submitting them to Wheeler. The meeting which was held during working time for
which the representatives were paid their customary wages by the Company, lasted
several hours, and during its course, the committee, as one of their number, Wade
Walker, testified, wrote down "what we wanted on a piece of paper," but resolved
"to see what the management (meaning Wheeler) would have to offer first" before
advancing any proposals.
Later that day, in the afternoon, again upon Nyquist's initiative and arrangements
he made, the committee met during its members' paid working time with Wheeler in
the latter's office. It would serve no useful purpose to explore the points of difference
and of similarity among the several accounts of what took place at the meeting, for
there is no material dispute as to certain operative features of the discussion. These
are that the committee, through one or another of their number, asked Wheeler what
he proposed to do for the employees; that Wheeler, as he testified in effect, was
noncommital, but stated that he assumed that if he were in the place of the committee,
he would "be asking for better wages, better working conditions, better retirement
plans, and so forth"; that committee members then voiced grievances pertaining to
such matters as promotions, classifications, and wages; and that Wheeler, as he
testified, although making no commitments, "agreed" that the Company "could
very well raise the level of . wages," and that "some of the working conditions
were not the best," and stated that he thought the employees "would find that the
company would be very cooperative with them when the present turmoil was over,
and whether they (employees) decided to bring a union in or whether they decided
to do their own bargaining with the company themselves or through their own rep-
resentatives, .... they would find the company would be as generous as we could
possibly afford to be and still maintain a competitive position in the diving industry."
That same afternoon, soon after the close of the meeting in Wheeler's office,
Nyquist "took" Walker back to his (Nyquist's) desk; handed him some paper, made
a typewriter available for him; told him to prepare ballots bearing two legends, one
reading "union contract" and the other "company contract"; and stated that Walker
"could meet" with production employees, inform them of what Wheeler had said,
make his own comments thereon, and that "then we would have an election." As
the evidence makes clear, the "election" contemplated by Nyquist was a choice by
will appear later, establishes that management personnel, including Nyquist, were hostile
to the Teamsters Union's efforts to become the representative of the employees, and took
steps to counter such efforts.
7 The "subforemen" appear to have minor supervisory functions . The General Counsel
makes no claim, nor does the record establish, that they are supervisors within the mean-
ing of the Act.
8 According to Lollis, Swan' s proposal was made "somewhere around" the middle of
May. The record contains no more precise statement of the date. Judging by the period
when Nyquist spoke to the "subforemen," and by the sequence of events, I think it
probable that Swan's proposal, like that of Nyquist, was made at some point after the
withdrawal of the Rubber Workers Union's petition, and quite likely toward the end
of May.
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees, through the use of the ballots Walker was told to prepare, between a
"union contract," that is, as the record as a whole persuades me, an agreement
negotiated by the Teamsters Union as the employees' representative, and a "company
contract," or, in other words, an agreement made between the Company and its
employees, without union representation or participation.
The ballots were prepared, in conformity with Nyquist's directions. Toward the
end of the workday, committee members went from department to department,
addressed the employees in each as a group, giving them an account of what had
taken place at the meeting with Wheeler; and distributed ballots in each represented
department, telling the employees to mark them to indicate a choice between "union
contract" and "company contract." The employees voted, folding their ballots and
depositing them in a box provided for that purpose. The group discussions in the
several departments and the balloting were conducted during paid working time of
the employees affected. After the polling was completed, the ballots were taken to
Swan's office where they were tabulated in the presence of Swan, Nyquist, and
committee members. The record indicates that a majority of those voting marked
their ballots in favor of a "union contract."
There can be no doubt, particularly bearing in mind Nyquist's role in the matter,
that the poll was sponsored and arranged by the Company, notwithstanding the fact
that employees conducted it. In short, the employees who did so were but the
Company's instruments, and, hence, it will not be permitted, as it seeks to do in
the brief, to shift responsibility for the poll from itself.
Turning, now, to conclusions to be drawn from the foregoing, the evidence
leaves me in no doubt that the Respondent was hostile to the effort of the Teamsters
Union to become the employees' bargaining representative, and took steps to counter
and thwart this aim, endeavoring, to that end, to induce employees to favor the
Rubber Workers Union and, alternatively, endeavored to engineer a bargaining and
contractual relationship between itself and the affected employees as a means of
shutting out the Teamsters Union, despite the fact ,that that organization's repre-
sentation petition was on file with the Board and awaiting the Agency's disposition.
Some of the Respondent's activities directed to its goal were not unlawful. Thus,
Swan's inquiries of Lollis and Zuniga, several days after the filing of the Teamsters
Union's petition, whether they had considered communicating with the Rubber
Workers Union, were in effect expressions or intimations of opinion about the com-
parative virtues of the two organizations, and thus privileged comment within the
purview of Section 8(c) of the Act. I take a similar view of Swan's suggestion to
Lollis and Zuniga that the employees try a "company contract" (or a "company
union," a term that Lollis uses interchangeably with "company contract" in quoting
Swan) if they did not wish representation by an outside union. These conclusions
regarding Swan's comments are not altered by the fact that it was obviously his
aim to dilute the interest of employees in the Teamsters Union and to supplant it
with interest in an organization or a bargaining method that the Respondent favored.
Nor am I able to attach operative weight to the fact that during the course of his
discussion with Lollis and Zuniga, Swan told them that they "were in line for bigger
things" in the plant. It is not clear that this remark was a promise of benefit made to
induce adherence to the Rubber Workers Union or interest in a "company contract"
or "company union." The comment appears to have been made toward the close of
the discussion in a context of statements by Lollis and Zuniga expressing dissatisfac-
tion with the plant's wage scale, and one may reasonable construe Swan's remark as a
reassurance to Lollis and Zuniga that the Company had a high regard for them and
that they would rise above a wage scale with which they were discontented.
On the other hand, Nyquist's remarks to Kirby went much beyond privileged
expressions of opinion about the Teamsters Union and the Rubber Workers Union,
for in addition to stating his views of these organizations, the production supervisor
sought to recruit Kirby to perform organizational work on behalf of the Rubber
Workers Union during working time, going so far as to tell the employee to secure
that organization's authorization forms from a "subforeman"and to distribute them
to employees. Had Kirby complied, he obviously would have been an instrument
of unlawful assistance by the Company to the Rubber Workers Union, and of con-
sequent interference with the exercise of rights guaranteed employees by Section 7
of the Act; and I think it no less plain that the effort to induce an employee to be-
come such a tool was no mere expression of opinion but an act of interference with
the free exercise of Section 7 rights. By such interference, the Respondent violated
Section 8 (a) (1) of the Act.
I think it clear, too, that some of Wheeler's remarks to the committee, and the
poll that followed Wheeler's meeting with the group, abridged Section 7 rights of
employees. Contrary to the Respondent's view of the matter, as expressed in its
brief, it is not at all decisive that Wheeler used no threats, for Section 8(a)(1)
U.S. DIVERS COMPANY 977
forbids interference with , as well as restraint and coercion of, employees in the exer-
cise of their statutory guarantees . Nor am I able to agree with the Respondent's
claim that Wheeler did no more than express opinions to the committee.
The full measure of his remarks becomes apparent upon consideration of the
committee 's origin and the sequence of events that followed his meeting with the
group . The committee , it is important to bear in mind, was formed at the Com-
pany's instance, and notwithstanding the fact that the committee members were
elected by the employees , functioned with the Company 's support, as is indisputably
established by the evidence that the members were paid by the Company for time
they spent in the committee 's functions , and that the election of the members, the
talks they gave to employees in connection with the subsequent balloting, and the
later poll itself, were held during time for which the participating employees were
paid by the Company . Clearly, too , the Company 's aim in instigating the forma-
tion of the committee was to have it serve as the employees ' bargaining agent. Ny-
quist's own testimony makes it clear that the meeting with Wheeler was arranged
with a view to bargaining , for, according to Nyquist 's account, he told the com-
mittee before the meeting that he "was glad that they could finally get together as
a group ( at Nyquist 's instance , by the way ) so that they could bring all their
grievances together and to submit them to management."
Viewing the meeting between Wheeler and the committee against the background
of the committee's origin and intended function , it is clear that Wheeler used the
occasion as a vehicle for planting among the employees the idea of entering into a
"company contract" with the management or, in short , of rejecting union repre-
sentation in favor of representation by the committee . This conclusion is not altered
by the fact that Wheeler told the group that the Company would be "very coopera-
tive" with the employees "whether they decided to bring in a union or . . de-
cided" to deal with the Company directly or through the committee . In view of the
Company's role in the formation and functioning of the committee , and of the pur-
pose for which the group was brought into being, one may entertain a doubt, to say
the least, that this profession of disinterest was anything more than postured lip
service to neutrality , but whether one takes that view of Wheeler's remarks or gives
them literal meaning, the operative fact is that Wheeler gratuitously injected into
the meeting the idea of having the committee serve as the employees ' bargaining
agent , thus, in effect, planting among the committee members a proposal that the
employees bargain with the Company through a committee sponsored and sup-
ported by the Company, an arrangement to which Nyquist , as is obvious , applied
the term "company contract ," in the direction he gave Walker for the preparation
of the ballots. Clearly, too, the idea was advanced by Wheeler for the purpose of
having the committee spread it among the other employees , as is evident from the
fact that Nyquist lost little time after the close of the meeting in setting in motion,
through Walker , who was a "subforeman ," as well as a committee member , machinery
for relaying Wheeler's views to employees , and for the conduct of the poll (which,
by the way , does not appear to have taken into account the possibility that em-
ployees might desire neither a "company" nor a "union contract").
In sum, the evidence establishes , and I hold , that the committee was sponsored
and supported by the Company for the purpose of having it serve as the bargaining
agent of the employees , and thus as a device for thwarting selection of the Team-
sters Union as the employees ' bargaining agent; 9 that bearing in mind the origin
of the committee , the support given it by the Company , and the use to which it was
put, Wheeler 's gratuitous injection into the meeting of the idea of bargaining be-
tween the Company and the committee was tantamount to a proposal that the em-
ployees use a bargaining agent sponsored and assisted by the Company, albeit the
idea was advanced with professions of neutrality and disinterest as to the bargaining
agent used ; that the proposal was put forward as part of an overall design by the
Company to establish the committee as the employees ' bargaining agent and was,
therefore , an act of interference with the employees ' right of untrammelled choice
of a bargaining representative ; that by such interference the Company violated Sec-
tion 8(a)(1) of the Act ; that particularly taking into •account the Company's use
of committee members to relay Wheeler's idea to employees and to poll the latter
as to their choice between a "company contract" and a "union contract ," the Com-
pany's role in sponsoring and arranging the poll, like Wheeler's conduct in injecting
9In the absence of an appropriate allegation of the complaint , I make no finding that
the Respondent 's role in initiating and supporting the committee separately violated the
Act. Findings as to the activities of the Company in that regard are, needless to say,
relevant to a determination of the propriety of the conduct imputed to Wheeler in the
complaint , and of the subsequent poll.
624067-62-vol . 133-63
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his idea into the meeting with the committee , was an implementation of the Com-
pany's design and , notwithstanding its abortive results, constituted "interference with
the employees ' right of self-organization ; and that by such interference the Company
violated Section 8(a) (1) of the Act.io
B. The discharge of Sutton
Sutton was employed in the Santa Ana plant as its janitor from the early part
of March 1960 until April 21, 1960, when he was discharged under circumstances
to be described later. He was subject to some direction by Bennett , the plant's
maintenance man, and both, in turn , worked under Nyquist's supervision. As
janitor, Sutton had access to a room which was connected to the men's restroom by
a door, and contained janitorial and other supplies. Only Nyquist and Sutton had
keys to the supply room. Plant procedure required that the room be locked when
not in use.
At the meeting held at Lollis' home on April 20, 1960, Sutton, in addition to sign-
ing a card designating the Teamsters Union as his bargaining agent, agreed with
others at the meeting that he would bring a quantity of such authorization blanks
to the plant and store them there for use in the contemplated organizational cam-
paign. To carry out the arrangement, the union representatives at the meeting gave
Sutton some 40 or 50 such cards, and on the following morning he brought the cards
to the plant and hid them on a shelf behind some supplies . Ile secured signatures
for a number of cards that day, some during working time, and put the executed
cards in a separate group in the hiding place.
During the mid-morning rest period of April 21, Walker, having heard that
Sutton had the cards, sought out the janitor in the men 's restroom to obtain one of
the authorization blanks, and the two employees, accompanied by a third who had
also asked Sutton for a card in the restroom, then proceeded to the adjacent supply
room where the janitor gave each of his companions a card from his hidden store.
The rest period ended about that point. As Sutton handed over the two cards, he
saw Nyquist in the restroom through the open door, and thereupon walked into the
restroom, shutting the door and leaving Walker and the other employee behind.
Hard upon Sutton's appearance in the restroom, Nyquist went to the door, unlocked
it, told the janitor to return to the supply room, entered it with Sutton, and asked
what was "going on" there. Walker said that he had come to the supply room to get
a light bulb, and the other employee who had sought a card stated that he was
there to get a clean smock . Nyquist directed these two employees to leave the
supply room, stating that he would see them later, and following their departure, he
criticized Sutton for "goofing off" and admitting the other employees to the supply
room, and asked Sutton whether he did not "like working for this Company any-
more," and what "beef" he had. Sutton replied that the Company was "fine" except
for the "starvation wages" it paid, and that one "can 't live on them." Nyquist stated
in effect that he would decide later whether to discharge Sutton , and directed the
latter to resume his work."
According to Sutton, shortly before lunch that day, as he was returning to the
supply room from a janitorial errand in the plant's "front office," to which Nyquist
had dispatched him, he saw Nyquist and Bennett , both "grinning very broadly,"
emerging from the supply room. Thereupon, Sutton testified, he entered the supply
room, and observed that the supplies behind which he had hidden the authorization
cards were in a state of disarray, and that the cards, which he had left in two
10 1 find no merit in the Respondent's claim, advanced in its brief, that the poll could
be regarded as a violation of the Act only if viewed as unlawful interrogation of the em-
ployees, and that such a view is precluded because of the "secret ballot" used What this
overlooks is that the poll had the effect of presenting a proposal to the employees that
they "contract" with the Company through a committee sponsored and supported by the
management, and was part and parcel of a plan to maneuver the employees into rejection
of union representation in favor of representation by such a committee. The case of
N L R B v. Roberts Brothers, 225 F. 2d 58 (C A 9), cited by the Respondent, and upon
which it relies, is in my judgment plainly distinguishable upon its facts, and is thus
inapposite here
11 Findings as to what took place in the supply room after Nyquist entered it are based
on a composite of applicable portions of the testimony of Nyquist, Sutton, and Walker.
There are variances among them such as, for example, Nyquist's claim that there were
three employees, in addition to Sutton, in the supply room, instead of two, as Sutton and
Walker testified. The differences are not such as to alter the results in this proceeding,
and the composite, in my judgment, substantially reflects what took place on the occasion
in question
U.S. DIVERS COMPANY 979
separate piles, one consisting of executed authorizations and the other of unsigned
cards , were "all mixed up ." In his testimony, Nyquist in effect denied that he had
entered the supply room with Bennett that day or was aware that Sutton had been
"passing out union authorization cards." Bennett testified in similar vein , stating
that he was away from the plant on purchasing errands for the Company in Santa
Ana during the entire morning in question.12
There is no dispute that Nyquist discharged Sutton on April 21 , although there is
conflict in the testimony as to the time , Nyquist claiming that the dismissal took
place about 11:15 a.m. and Sutton stating that it occurred about 3 p.m. It is also
undisputed that Sutton , as both he and Nyquist testified in effect, punched his time-
card shortly after Nyquist informed him of his discharge . The important question
is whether Nyquist made certain remarks to Sutton on the occasion in issue.
According to Sutton , he asked Nyquist for the reason for the dismissal; the latter
replied , "You know why," and asked for plant keys in Sutton 's possession; and
Sutton stated that he would have to go to the supply room for his belongings. Then,
Sutton testified , they proceeded to the supply room where he collected his belongings,
including the authorization cards, and gave Nyquist the keys. According to Sutton's
account , as he extracted the cards from their place of concealment Nyquist remarked;
"Now you know why."
Nyquist denied that Sutton asked for the reason for his discharge ; that he saw the
authorization cards while he and Sutton were in the supply room after the dis-
missal; and that he made the remark , "Now you know why." According to Nyquist,
following the dismissal , he accompanied Sutton to the supply room where Sutton did
no more than pick up his lunch pail and surrendered his keys to Nyquist.
Describing the purported basis for Sutton 's discharge , Nyquist gave testimony to
the effect that in the early part of Sutton 's employment as janitor, the latter did well,
continuing for awhile "to put out under close supervision ," but that as time went on,
he wasted time talking to other employees , and the quality of his work diminished;
that Bennett , Sutton 's immediate supervisor , and management personnel , including
Francois Villarem , the Company 's executive vice president and general manager,
Wheeler , and Swan voiced complaints about Sutton ; that he (Nyquist) spoke to
Sutton "numerous times" concerning shortcomings in the latter 's performance; that
about a week before Sutton 's termination , Wheeler told him ( Nyquist ) that Villarem
"had complained quite vigorously" about Sutton , and that "something was going to
have to be done and we were going to have to watch our step , going to have to lack
Sutton up , see if we could do something about it "; that he had been told by "all (his)
superiors" that he had "probably made a mistake '.' in employing Sutton , and urged
by them to discharge the janitor ; 13 and that Sutton 's conduct in admitting the other
employees to the supply room precipitated a decision by Nyquist to put into effect
the proposals of his superiors that Sutton be dismissed for shortcomings in his
performance.
Clearly, whether or not any of Nyquist 's portrayal of supervisory or managerial
complaints about Sutton , and of deficiencies in Sutton 's work prior to April 21, is
credible , if Sutton 's version of what was said to him at the time of his discharge and
what took place in the supply room thereafter is true, the dismissal was precipitated
by Sutton 's organizational activity , and hence was unlawful . This is necessarily so,
for, if Sutton 's version of what occurred is correct , it is evident , in the context
of events , that Nyquist 's statement , "You know why ," in response to Sutton's re-
quest for a reason for his discharge , and the supervisor 's subsequent remark, "Now
you know why," made while Sutton was removing the authorization cards from the'
supply room , were tantamount to statements that Sutton was being discharged for
uninn activity.
The credibility question presented is not easy of resolution for the conflict arises
from the testimony of but two witnesses , one sharply pitted against the other.
Nevertheless , in the perspective of the whole record , I believe Sutton.
This view of the matter is the product , in the main , of an overall appraisal of
Nyquist and Sutton as witnesses . Upon my observation of Sutton and consideration
"A sales slip ( Respondent ' s Exhibit No. 9) Issued to Bennett , according to his testi-
monv , by a hardware store on the morning in question gives some corroborative support
to Bennett 's claim that he was absent from the plant on the morning of April 21 , but, bear-
ing in mind that the store is only some 5 miles from the plant and that Bennett admittedly
used a car on his purchasing errand , the slip does not establish that he was away the
entire morning
13 Nyquist quotes his superiors as "telling me in effect that, 'Bob, you have probably
made a mistake here Let's do it ' " The evident sense of this testimony in the context
in which it appears is that Nyquist ' s superiors told him that hiring Sutton had been a
mistake and that the Company should discharge Sutton.
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of his testimony as a .whole, I do not-think that he is given to evasiveness, descriptions
shaded to suit his purpose, or exaggeration . I cannot say as much for Nyquist, for
he did not appear to me to be as frank as he should have been at a number of
material points , as illustrated by the examples that follow.
The evidence leaves one in no doubt that Nyquist played a major role in the
Company's effort to plant the idea among the employees, in the face of the pendency
of the Teamsters Union's representation petition before the Board, that they bargain
with the Company through a committee that the management initiated and assisted-a
method of dealing that would subvert basic premises of the Act; yet Nyquist's testi-
mony would lead one to believe that he regarded the Teamsters Union and organi-
zational efforts on its behalf with detachment and disinterest . This implausible vein
in his testimony appears in his claim that his first intimation of any union activity in
the plant came during the afternoon of April 21 when an employee (whose name,
Nyquist stated, he could not remember) said that he had "heard there's been some
union activity in the shop"; and that he (Nyquist) said "Oh!" at that and "kept on
walking." Such an attitude of disinterest runs counter, in my judgment, to the
evidence of Nyquist's role in instigating the formation of the committee and what it
subsequently did. In fact, quite apart from Sutton's account of Nyquist's activities
on April 21, there is good reason to believe that the Teamsters Union was much on
Nyquist's mind soon after he spoke to Walker and another employee in the supply
room, for either later that day or on the next, Nyquist summoned Walker to his desk,
and, after discussing a business matter , the supervisor asked Walker if the latter had
anything else to tell him . This, after some exchange ( apparently of a fencing nature)
between the two men, led Walker to ask, "You mean about the union?" and Nyquist
said "Yes." Walker then stated that the Teamsters Union "would be a good deal,"
and that he held a "withdrawal card" from the organization. At this, Nyquist re-
marked that he had seen other business establishments that "were a lot worse oft"
than the Santa Ana plant, and that he "hated to see the Teamsters Union get in." 14
Moreover, implausibility appears in Nyquist's testimony, contrary to that of Kirby,
which would make it appear that in discussing the Teamsters Union with Kirby, he
followed the line of expressing neutrality regarding the employees ' choice of a union,
and of replying to inquiries by Kirby about the Teamsters Union with statements that
he knew nothing about the organization . This posture of detachment does not quite
jibe with the hard fact of Nyquist 's major role in the creation of the employees'
committee , its dealing with Wheeler , and the poll that followed.
It appears to me , also, that there are earmarks of exaggeration and a tenuous vein
in Nyquist 's criticism of Sutton 's performance prior to April 21. In substance, he
depicts Sutton 's work as deficient for most of the 6 or 7 weeks of the latter 's employ-
ment as janitor , picturing Sutton as spending too much time "in the toilet area .
and around the (plant) coffee machine"; portraying himself as observing Sutton doing
excessive talking "daily" or, in other words, wasting time every day, and as admonish-
ing Sutton "numerous times" for work deficiencies ; and describing criticism of Sutton
not only by Bennett, but by "all my superiors." All this naturally prompts one to
inquire why Nyquist did not dismiss Sutton sooner than he did , and it is of some
moment that in reply to such a question, during his testimony, Nyquist proffered the
explanation that he "liked" Sutton and "thought he (Sutton) could make the grade."
This response appears to me to be more the product of convenience than of truth,
and I believe it likely that the real answer is to be found in the fact that Nyquist's
criticism of Sutton 's performance is much overdrawn.
What is more, the claim that Sutton wasted time talking to others while on duty has
a tenuous cast, for Wheeler, Nyquist's superior, admitted that he himself followed
the practice of "shooting the breeze " with Sutton each day, during working hours,
upon encountering the janitor "any place" in the plant ; and Nyquist , in similar vein,
stated that "on different occasions during the day. (he) would stop and talk" with
14 Findings as to the conversation between Nyquist and Walker are based on Walker's
testimony which I credit. Nyquist in effect denied making the statements imputed to
him, testifying that he had never talked to any of the Company's employees "about any
union by name " I do not credit the denial For one thing, the very nature of Nyquist's
role in the formation and functioning of the committee points to a conclusion that he
"hated to see the Teamsters Union get in," and it is thus plausible that he would express
that attitude, as Walker testified For another matter, as described earlier, Nyquist de-
nounced the Teamsters Union to Kirby, and sought to recruit the latter to work against
the organization, and to engage in activity in the plant on behalf of the Rubber Workers
Union This conduct gives added corroborative support to Walker's relevant testimony.
Nyquist's professions of disinterest in the Teamsters Union contribute to my conclusion
that he was not a forthright witness, and that his version of what passed between him
and Sutton is not a reliable basis for findings
U.S. DIVERS COMPANY 981
Sutton (meaning, from the context, that Nyquist also followed the practice of spend-
ing working time daily "shooting the breeze" with Sutton about matters unrelated to
work). Significantly, too, although Wheeler, much like Nyquist, claims in his testi-
mony that he "daily" observed Sutton loafing in the men's restroom and the coffee
machine area, he admittedly never admonished Sutton for "loafing" or "talking too
much" or "for not doing his work." Upon my observation of Wheeler, I do not be-
lieve that he would have exercised such forbearance if he had actually seen Sutton
loafing frequently.
Nor am I able to attach any weight to an intimation by Nyquist that Bennett com-
plained to him about Sutton on "numerous" occasions. According to Nyquist, he
could "only remember one specifically," and that was a complaint by Bennett that he
"continually (had) to get after him (Sutton) to speed him up, try to make him move
faster, to get his work done, to get this trash out of here." Nyquist admittedly never
did anything about this alleged complaint; one may reasonably infer from this that he
did nothing about the "numerous" complaints he intimates he received from Bennett,
but states he cannot remember "specifically"; and the vagueness about the "nu-
merous" times Nyquist claims Bennett spoke to him about Sutton, and the production
supervisor's admitted failure to do anything about Bennett's alleged criticism, whether
voiced once or many times, lead me to believe that the testimony describing such
criticism is the product of afterthought.
In the light of what has been said, I am unable to escape the conviction that much
of the criticism leveled against Sutton is a posteriori embroidery designed to bolster
the claim that Sutton was discharged for lawful cause, and this characteristic of
Nyquist's testimony not only militates against acceptance of his account of what he
said to Sutton at the time of the discharge and thereafter in the supply room, but
bolsters a conclusion that the reason put forward by the Respondent for, the discharge
is but a pretext designed to conceal an unlawful motive for the dismissal.
This view is supported, too, by the substantial evidence of Nyquist's hostility to the
Teamsters Union, and of his disposition to interfere with the free exercise by the
employees of their right of self-organization.
For the reasons stated, I am unable to place reliance upon Nyquist's version of what
passed between him and Sutton at the time of the latter's discharge and during their
subsequent visit to the supply room. I credit Sutton's account of what took place
on those occasions.15
The findings made above warrant an inference, and I conclude, that at some point
on the morning of April 21, Nyquist held the belief or suspicion that the supply
room was a site of union activity; 16 that later that morning Nyquist confirmed the
belief or suspicion by locating Sutton's cache of authorization cards there; that he
attributed responsibility for the presence of the cards in the supply room to Sutton
because of the latter's special access to the room and his possession of one of the
two keys to the area; and that he discharged Sutton because of the janitor' s possession
of the cards or, in other words, because Sutton had engaged in activity on behalf of
the Teamsters Union.
By reason of the dismissal, the Respondent violated Section 8(a)(3) of the Act,
and interfered with, restrained, and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby violating Section 8(a)(1) of the
statute.
I hold, too, that the interrogation of Walker was unlawful, noting in that regard,
that I am unable to view Nyquist's conduct in the premises as merely an isolated
episode of a de minimis character. The Respondent has interfered with the free
exercise of its employees' statutory right of self-organization in a number of respects,
going so far as to employ the coercive instrument of discharge to frustrate this right,
is In evaluating Nyquist's credibility, I have taken into account testimony by Villarem
that "on probably three occasions," when he went to the men's room he observed "at least
four or five people" in the supply room, "talking, laughing, . . and, obviously, . . . not
working" ; and that he complained to Wheeler about Sutton, and told liim to put a stop
to the "meetings" in the supply room. Accepting this testimony, it does not alter my con-
clusion that testimony by Nyquist, such as his claim that Sutton's performance was
deficient for most of the period that he worked at the plant, and that he (Nyquist) daily
observed Sutton loafing, has a substantially exaggerated content, and that this character-
istic militates against acceptance of Nyquist's account of what he said to Sutton on the
occasions in question.
261 think it quite likely that the belief or suspicion arose or was bolstered by some
observation made by Nyquist at the time he was in the men's restroom while Sutton was
handing authorization cards to Walker and another employee. Significantly, in that con-
nection, Nyquist sought to draw out Walker "about the union" not long after the episode
in the supply room.
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and against that background, it is but rational , in my judgment , to take the view that
the inquiry was a projection of the Respondent's policy of interfering with Section 7
rights of its employees, particularly as it is quite likely that the interrogation, in
view of its timing and that it was addressed to one of the two employees to whom
Sutton had given cards in the supply room, was an outgrowth of Nyquist's belief that
union activity had taken place there. In short, as a result of the interrogation, the
Respondent interfered with the exercise of employees' Section 7 guarantees, and
thereby violated Section 8(a)(1) of the Act.
C. The discharge of Lollis
Lollis began his employment at the Santa Ana plant on March 22, 1960, worked
successively in the stock and shipping departments , and was terminated on June
10, 1960.
As noted earlier, it was at Lollis' home that some employees of the Company and
representatives of the Teamsters Union met on April 20, 1960, to plan union
organization of plant personnel. The representatives came to the meeting on Lollis'
initiative. On the day following the meeting, and again some 2 or 3 days later,
Lollis passed out some authorization cards to employees at the plant. There is
no evidence that any supervisor or other responsible management representative was
aware of any of these activities prior to Lollis' termination.
On or about May 31, 1960, during the course of a conversation with Swan and
Gittins, Lollis, as he testified in effect, expressed a belief that the Teamsters Union
would become the employees' bargaining representative, and intimated that he
regarded the prospect with favor because of the organization's "bargaining power." 17
It is undisputed that the Company had a reduction in force at its Santa Ana plant
on June 10, 1960, and that some 14 employees, including several in the shipping
department, were laid off that day. According to Swan, he was instructed by Wheeler
to make a selection of those to be laid off on the basis of "skill and ability and sen-
iority," and Lollis was one of those selected, although his work was "good."
The General Counsel maintains that Lollis was chosen for the reduction list because
of his union activity and sympathy, and, in support of the claim, points to the fact
that an employee named Foy Phillips, who, like Lollis, worked at "picking and
packing," was retained although he had less seniority than Lollis. -Swan testified, in
explanation of the retention of Phillips, that he was initially hired with the intention
of making him a "supervisory trainee," and Phillips' work, for which he received a
higher rate than Lollis, entailed, unlike the latter's duties, some special knowledge
of Government and export requirements.
The evidence will not support the General Counsel's thesis. As pointed out
earlier, there is no proof that the Company had knowledge of Lollis' union activity,
and, thus, to emerge with a conclusion that Lollis' termination was unlawful one
would have to base it on the evidence that some 10 days before the staff reduction
he expressed some approval of the Teamsters Union to Swan. That is, I think, too
slender a reed to support an inference that Lollis' selection for the layoff list was
rooted in a discriminatory motive. The reed grows no stouter because of the
retention of Phillips in preference to Lollis, for I think that the choice, upon the
record made, is at least as consistent with a lawful motive as with an unlawful one.
In short, the General Counsel has failed to carry the burden of proving that Lollis'
discharge was unlawful, and I shall therefore recommend the dismissal of the
relevant allegations of the complaint.18
D. The discharge of Kirby
Kirby entered the Company's employ in February 1960, worked in the assembly
department, which was under Nyquist's supervision, and was among those included
171 do not credit testimony by Swan and Gittins denying that Lollis made the remarks
he imputes to himself I am persuaded from Gittins' demeanor and some testimony he
gave following his denial that he has little or no recollection with respect to the incident
in question, and, as pointed out in a prior footnote, both he and Swan gave testimony
regarding 'a conversation with Lollis and Zuniga that I am unable to credit As that
credibility determination suggests, I do not believe that Swan made a reliable disclosure
of all that passed between him and Lollis with respect to union matters
" In reaching my conclusion regarding Lollis' termination, I have taken into account
his testimony that on the day of the force reduction, but before he was notified of his
layoff, in the course of a conversation that began with talk "about a diving trip and .
led into discussion of the union," he told one Al Smith, who had some sales managerial
functions , that if he became a union "steward or chief steward or something like that,
U.S. DIVERS COMPANY 983
in the reduction in force that took place on June 10. Initially , his work consisted
of "unskilled labor," but, although only 19 years of age , he was promoted to the
status of "subforeman ," which he held at the time of his termination . He received
two increases , each 10 cents an hour, during the course of his employment , and was
given an award of $20 and a letter of commendation by the Company for making
a suggestion for improvement in production.
Kirby, as he testified credibly, favored the Teamsters Union during its organiza-
tional campaign in the plant , and discussed the organization in approving vein with
other employees.
Nyquist gave testimony to the effect that the day before the staff reduction,
Wheeler told him to prepare a register of employees under his supervision in the
order of preferment on the basis of skill, ability, number of dependents, and senior-
ity; that such a register was prepared; that Kirby was rated 24th of 30 employees in
the order of preferment for retention; that he was so rated because during the last
month of his employment, he loafed, worked at a reduced pace, and talked ex-
cessively; and that he was among those laid off because of his numerical rating. It
is undisputed that several days before the layoff, Kirby was reprimanded by Nyquist
in writing for "excessive talking," and warned that he would be dismissed if he con-
tinued "in the same pattern."
The General Counsel, pointing to Kirby's wage increases, promotion despite his
youth, the commendation, the fact that his work as "subforeman" required him to
talk to employees who worked "under him," and the lack of any evidence that the
Company looked into the reason for his talking, maintains , in effect , that the repri-
mand was contrived to serve as a pretext for Kirby's inclusion in the staff reduction,
and that he was included because of his support of the Teamsters Union and not
because of the reasons assigned by Nyquist.
Taking into account the undoubted fact that the Company expressed high regard
for Kirby by promoting and commending him, and against the background of de-
ficiencies in Nyquist's testimony, previously described, I think that one should ap-
proach his criticism of Kirby and the reasons he gives for Kirby's termination with
caution. However, the General Counsel has the burden of proving an unlawful
motive by evidence of preponderant weight, and this includes, as an essential in-
gredient of the claim that Kirby was discharged because of his support of the
Teamsters Union, proof that the Company had knowledge of his union attitude.
If one is to conclude from the record that such knowledge existed, the inference
must be drawn from one or the other, or all, of three incidents. One of these in-
volved a conversation between Kirby and Walker, in which they discussed the de-
sirability of convincing employees in the plant that the Teamsters Union did not
have certain bad characteristics attributed to it. Nyquist was standing at a point
some 14 to 15 feet away at the time. Another incident involved a discussion in the
plant toolroom between Kirby and an employee named Jaako Raivio concerning ad-
vantages that could be derived from representation by the Teamsters Union. While
this was in progress, Raivio, who was facing in the direction of the toolroom door,
which was to Kirby's rear, noticed Nyquist standing in the doorway some 10 or 12
feet away. Both employees stopped talking, and Nyquist left the area, saying noth-
ing. The third incident occurred several days before the staff reduction and en-
tailed a discussion, lasting about 5 minutes, between Kirby and an employee named
Rebecca Berkey, in which he expressed approval of the Teamsters Union and spoke
of benefits it offered. The conversation closed when an assistant to Nyquist named
Tom Ruggles approached Kirby and Berkey and told the latter to return to work.
Shortly thereafter, Nyquist orally rebuked Kirby for talking to Berkey, and this was
soon followed by the written reprimand, mentioned previously.19
In his testimony, Nyquist denied that he overheard any discussion "concerning
unions" between Kirby and any of the three employees with whom Kirby had the
conversations described above, and that he knew at the time he prepared the list
for the force reduction that Kirby supported the Teamsters Union.
There is no firm basis in the record to support a finding that Nyquist was suffi-
ciently within earshot to overhear what was said in any of the conversations in
question, or that Ruggles overheard the discussion between Kirby and Berkey.
Hence, to conclude that Nyquist or any other member of management knew or
(he) would fight every grievance right down the line " This testimony does not, in my
judgment, add material weight to the General Counsel's thesis regarding the discharge.
19 Kirby and Nyquist differ as to the terms of the oral rebuke, but in neither version is
there any substantial indication that Nyquist was aware that the conversation between
Kirby and Berkey involved union matters Whichever version one accepts, it is evident
that the terms of the oral rebuke had reference to the fact that Kirby had spoken to
Berkey.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspected that Kirby engaged, during any of the discussions, in promoting or ex-
pressing support for the Teamsters Union (or even, for that matter, that unioniza-
tion was the subject of the conversations) would entail speculation. Needless to
say, guesswork is not a permissible basis for findings, and thus, there is insufficient
evidence that Kirby was discharged because of his support of the Teamsters Union.
Nor is there sufficient basis for a thesis, intimated, rather than concretely ex-
pressed, in the General Counsel's brief, that Kirby was discharged because he did
not comply with Nyquist's solicitation that he propagandize among employees in
favor of the Rubber Workers Union, and against the Teamsters Union, and engage
in organizational activity on behalf of the former. Here, too, acceptance of the
General Counsel's theory would rest on a guess.
The sum of the matter is that the General Counsel has not sustained his burden
of proving that an unlawful motive underlay Kirby's termination. Accordingly, I
shall recommend that the relevant allegations of the complaint be dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1) and (3) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to effectuate the policies of the
Act.
Having found that the Respondent discharged James Sutton on April 21, 1960, in
violation of Section 8(a)(1) and (3) of the Act, I shall recommend that the Re-
spondent offer him immediate and full reinstatement to his former or a substantially
equivalent position,20 without prejudice to his seniority and other rights and priv-
ileges, and make him whole for any loss of pay he may have suffered by reason of
his discharge by payment to him of a sum of money equal to the amount of wages
he would have earned, but for the said discharge, between the date of his dismissal
and the date of a proper offer of reinstatement to him as aforesaid; and that the
said loss of pay be computed in accordance with the formula and method prescribed
by the Board in F. W. Woolworth Company, 90 NLRB 289, to which the parties
to this proceeding are expressly referred.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. U. S. Divers Company is, and has been at all times material to this proceed-
ing, an employer within the meaning of Section 2(2) of the Act.
2. General Truck Drivers, Warehousemen & Helpers Union, Local 235, is, and
has been at all times material to this proceeding, a labor organization within the
meaning of Section 2(5) of the Act.
3. By discriminatorily discharging James Sutton, as found above, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The evidence does not establish that the Respondent has violated any of the
provisions of the Act by laying off or discharging Calvin Kirby and William J.
Lollis.
[Recommendations omitted from publication.]
20 In accordance with the Board 's past interpretation , the expression "former or a sub-
stantlally equivalent position " is intended to mean "former position wherever possible, but
if such position is no longer in existence, then to a substantially equivalent position."
The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 827.