States Steamship Co.

National Labor Relations Board - Board Decisions

Aug 26, 1975

219 N.L.R.B. 1252 (N.L.R.B. 1975)

1252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
States Steamship Company and Professional Office &
Industrial Division, Marine Engineers Beneficial
Association . Case 20-CA-8982
August 26, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING AND
PENELLO
On February 28, 1975, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding and on March 10, 1975, issued the
attached Supplemental Decision herein. Thereafter,
General Counsel filed exceptions and a supporting
brief, Respondent filed cross-exceptions and a brief
in support thereof and in opposition to General
Counsel's exceptions, and Charging Party filed ex-
ceptions to the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decisions in light of the exceptions, cross-ex-
ceptions, and briefs, and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge only to the extent consistent here-
with.
Our sole disagreement with the conclusions
reached by the Administrative Law Judge goes to his
dismissal of the allegation that Respondent's dis-
charge of employee Randall Smith on February 22,
1974, violated Section 8(a)(3). For the reasons given
below, we find, consistent with General Counsel's ex-
ceptions, that the alleged 8(a)(3) violation should be
sustained.
1. As a preliminary matter, we note that the Ad-
ministrative Law Judge found that Respondent,
through the statements of Stephen Widnes, its assis-
tant manager of data processing, violated Section
8(a)(1) by advising Smith on February 20, 1974, that
he should seek another job because union activists
would face termination. We fully agree with the Ad-
ministrative Law Judge's finding of that violation. It
is clear from the record that Widnes was a supervisor
within the meaning of Section 2(11) of the Act on the
dates here material? Widnes was promoted to the
i The parties have excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd . 188 F.2d 362 (C.A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
position of assistant manager of data processing on
February 1, 1974, in which capacity he possessed and
exercised the authority to direct the work of other
employees within his department. He hired at least
one individual in data processing; he disciplined em-
ployees; and he granted them time off and leaves of
absence when requested. Evidence of such authority
and action is sufficient grounds for finding that Wid-
nes was a supervisor at least as of February 1, 1974.
2. With respect to the dismissal of Randall Smith,
we find, contrary to the Administrative Law Judge,
that the credited evidence establishes a prima facie
case supporting the complaint's allegation that Smith
would not have been discharged absent his union ac-
tivities, and affords no sound basis for concluding, as
contended by Respondent, that Smith's union activi-
ties played no part in the discharge decision. In so
finding, we accept as true Respondent's testimonial
claims that (1) Smith's discharge was ordered by
Donohue, Respondent's secretary-treasurer, when
Dowling, its manager of the data processing depart-
ment in which Smith worked, reported to Donohue
at a high-level conference attended by Respondent's
personnel manager , Fenton, that he (Dowling) had
been having "problems" with Smith's "cooperation";
and (2) but for this characterization of Smith by
Dowling, Smith would not have been terminated.
However, other relevant evidence, detailed below,
persuades us that in attributing to Smith a "non-co-
operative" attitude Dowling was reacting not to any
real dissatisfaction with Smith's performance of his
job, but to a disapproval of Smith because of his
union activities.
Smith was prominently identified with the intro-
duction of the Union's organizing effort at
Respondent's premises. His union adherence was
well known to those in his department, including
Widnes, with whom Smith had a verbal exchange
concerning the relative merits of unionization. On
one occasion during the initial union campaign,
Dowling had indicated to Smith his disapproval of
Smith's prounion activity and had, indeed, indicated
he believed that such activity was a mark of disloyal-
ty to Respondent.
Although Smith's discharge followed by 2 months
the Union's December 1973 withdrawal of its repre-
sentation petition , it is plain, as the Administrative
Law Judge found, that at least one of Respondent's
officials, Fenton, was concerned that the Union
would renew its organizational efforts. Fenton's in-
terest in this regard is clearly evidenced by his unlaw-
ful interrogation of employee Vela concerning the
2 Such finding is not only necessary to the 8 (a)(l) violation noted above.
but is relevant to and an integral part of our finding of the 8 (a)(3) violation
below.
219 NLRB No. 192
STATES STEAMSHIP COMPANY 1253
identity of the "union instigators" only a short time
before Smith's discharge.
Logic compels a judgment that the concern which
Fenton showed over the possibility of renewed union
activity was not kept secret from or unknown to
Dowling and Widnes, the manager and the assistant
manager of the data processing department in which
Smith was employed. Indeed, that judgment has a
sound basis. For, as the Administrative Law Judge
found, Widnes on February 20 asked Smith what he
(Smith) had heard from "his" Union and then ad-
vised Smith that he should look for another job, be-
cause "as soon as these year-end reports are complet-
ed, most of those employees active in the union deal
are going to be terminated, one way or another." It is
not without significance that Widnes' admonitions
that Smith look for another job were given on the
very day-and shortly after-Donohue directed
Dowling to discharge Smith, and that when Donohue
gave that direction he was meeting with Dowling and
Fenton in order to make up an economic layoff list.
Nor can we lightly disregard the other relevant
facts surrounding Smith's discharge which point to a
discriminatory motive:
First, when Donohue inquired of Dowling whether
he could not let even one individual in his depart-
ment go, Dowling twice indicated his need for ev-
eryone in his department. Only after being pressed
by persistent questioning from Donohue did Dowl-
ing finally refer to Smith as an undesirable employee,
alleging he was having "problems" with Smith's "co-
operation." Acting with great expedition, and with-
out inquiring into the nature of his "problems," Don-
ohue immediately ordered Smith's discharge (not lay-
off).
Second, when, only 2 days later, without notice of
any dissatisfaction with Smith's prior job perfor-
mance, Dowling called Smith to his office and dis-
charged him, he (Dowling) at first gave no reason for
the action. Only after Smith protested the decision
did Dowling cite "non-cooperation" as the reason for
his discharge. When Smith later asked Fenton why
his employment was being terminated, the latter re-
plied that Smith knew "damn well" why he was being
discharged; and, of course, the only reason Fenton
knew of was the one given by Dowling to Donohue,
viz Smith's lack of "cooperation."
Finally, it was not until February 25 that Dowling
drew up the specific reasons for Smith's discharge-
reasons which the Administrative Law Judge charac-
terized as "lame, specious, and trivial," and reflective
by "hyperbole" and "post hoc rationalization." We
agree with his characterization of the belatedly of-
fered reasons for the discharge of Smith, who had
never before been the object of criticism, who had
never before been considered a poor employee, and
who had never before been admonished for his al-
leged poor attitude toward supervision, i.e., his al-
leged resentment of "constructive" criticism and his
failure to display "cooperative" spirit. Quite to the
contrary, Smith had received a merit raise in July
1973 before the Union came into the picture.
We are not unmindful of Respondent's need to
effect an economic layoff and its position that, in its
economic circumstances, it was layoff and its posi-
tion that, in its economic circumstances, it was reluc-
tant to retain "non-cooperative" employees. But, in-
asmuch as Dowling's description of Smith as
"non-cooperative" had no real reference to his job
performance, we find that it had reference to Smith's
prounion attitude and was grounded therefore on a
statutorily forbidden reason.3 Clearly, but for
Dowling's recommendation Donohue would not
have discharged Smith. Accordingly, by acting on
this unlawfully grounded recommendation, Respon-
dent violated Section 8(a)(1) and (3) of the Act .4
REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1)
and (3) of the Act, we shall order 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
Randall Smith on February 22, 1974, and has since
failed and refused to reinstate him because of his
union activities, in violation of Section 8(a)(1) and
(3) of the Act, we shall order the Respondent to offer
him immediate and full reinstatement to his former
position or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges, and to
make him whole for any loss of pay he may have
suffered as a result of his discharge, by payment to
him of a sum of money equal to that which he would
have earned as wages, from the date of reinstate-
ment, less his net earnings during such periods, in
accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), together
with interest at the rate of 6 percent per annum to be
added to such backpay, such interest to be computed
in accordance with the formula prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
J Cf Shattuck Denn Mining Corporation (Iron King Branch) v N L R B.
362 F 2d 466, 470 (C.A 9, 1966).
4 Douglas Electric Cooperative, Inc. 194 NLRB 821 (1972)
1254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
Substitute the following for paragraph 4 of the Ad-
ministrative Law Judge's Conclusions of Law:
"4. By discharging Randall Smith, on February
20, 1974, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and
(3) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
States Steamship Company, San Francisco, Califor-
nia, its officers, agents , successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Professional
Office & Industrial Division, Marine Engineers Ben-
eficial Association, or any other labor organization,
by discharging or otherwise discriminating against
any employee with respect to his hire, tenure, or any
other term or condition of employment.
(b) Questioning employees with regard to their
knowledge of union activities; requiring them to
name fellow workers presumably known to them as
union supporters; or threatening them with pro-
spective discharge because of their prior participa-
tion in union organization activities.
(c) Interfering with, restraining , or coercing em-
ployees, in any other manner, with respect to the ex-
ercise of their rights to seek self-organization, to
form, join, or assist Professional Office & Industrial
Division, Marine Engineers Beneficial Association,
or any other labor organization, to bargain collec-
tively through representatives of their own free
choice, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid
and protection, as guaranteed by Section 7 of the
Act, or to refrain from any or all such activities.
2. Take the following affirmative action which will
effectuate the policies of the Act, as amended:
(a) Offer to reinstate Randall Smith to his former
position or, if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges.
(b) Make whole Randall Smith for any loss of
earnings he may have suffered by reason of the un-
lawful action taken against him in the manner set
forth in the section of this Decision entitled "Reme-
dy."
(c) Preserve 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 necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its California Street headquarters and
Pier 80-A facility in San Francisco, California, cop-
ies of the attached notice marked "Appendix." S Cop-
ies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
5In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing, during which all parties were given
an opportunity to present evidence and argument, it
has been determined that we violated the law by
committing unfair labor practices. In order to reme-
dy such conduct, we are being required to post this
notice. We intend to comply with this requirement,
and to abide by the following commitments:
WE WILL NOT discourage membership in the
Professional Office & Industrial Division, Ma-
rine Engineers Beneficial Association, or any
other labor organization, by discharging em-
ployees or otherwise discriminating against them
because of their union activities.
WE WILL NOT question employees regarding
their knowledge of union activities, or require
them to name others known to them as union
supporters.
WE WILL NOT threaten employees with dis-
charge because of their prior participation in
union organizational activities.
WE WILL NOT interfere with, restrain, or coerce
employees, in any other manner, with respect to
their exercise of statutorily guaranteed rights to
STATES STEAMSHIP COMPANY
seek self-organization; to form, join, or help
Professional Office & Industrial Division, Ma-
rine Engineers Beneficial Association, or any
other labor organization; to bargain collectively
through representatives of their own free choice;
to act together for collective bargaining or other
mutual aid and protection; or to refrain from
doing any or all of these things except to the
extent that the above-listed rights may be affect-
ed by an agreement requiring membership in a
labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act.
WE WILL offer Randall Smith immediate and
full reinstatement to his former position or, if
that position no longer exists, to a substantially
equivalent position, without prejudice to his se-
niority and other rights and privileges, and WE
WILL make him whole for any loss of earnings he
may have suffered as a result of the discrimina-
tion against him with interest at 6 percent per
annum.
STATES STEAMSHIP COMPANY
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon a
charge filed February 26, 1974, and duly served, the Gen-
eral Counsel of the National Labor Relations Board
caused a complaint and notice of hearing dated May 23 to
be issued and served on States Steamship Company , desig-
nated as Respondent within this Decision . Therein, Re-
spondent was charged with the commission of unfair labor
practices within the meaning of Section 8(a)(1) and (3) of
the National Labor Relations Act. (61 Stat. 136, 73 Stat.
519.) Respondent's answer , duly filed, conceded certain
factual allegations within General Counsel's complaint, but
denied the commission of any unfair labor practice.
Pursuant to notice , a hearing with respect to this matter
was held on various dates between July 16 and July 20,
1974, in San Francisco , California, before me. The General
Counsel and Respondent were represented by counsel;
Complainant Union appeared , likewise, through its vice
president . Each party was afforded a full opportunity to be
heard , to examine and cross-examine witnesses , and to in-
troduce evidence with respect to pertinent matters. Since
the hearing's close , General Counsel 's representative has
filed a brief ; this brief has been duly considered.
FINDINGS OF FACT
Upon the entire testimonial record , documentary evi-
dence received , and my observation of the witnesses, I
make the following findings of fact:
1. JURISDICTION
1255
Respondent raises no question herein with respect to
General Counsel's jurisdictional claim. Upon the
complaint's relevant factual declarations-specifically,
those set forth in detail within the second paragraph there-
of-which have not been denied, and upon which I rely, I
find that Respondent herein was, throughout the period
with which this case is concerned, and remains , an employ-
er within the meaning of Section 2(2) of the Act, engaged
in commerce and business operations which affect com-
merce within the meaning of Section 2(6) and (7) of the
statute. Further, with due regard for presently applicable
jurisdictional standards, I find assertion of the Board's ju-
risdiction in this case warranted and necessary to effectu-
ate statutory objectives.
11. COMPLAINANT UNION
Professional Office & Industrial Division, Marine Engi-
neers Beneficial Association, designated as Complainant
Union within this Decision , is a labor organization within
the meaning of Section 2(5) of the Act, as amended, which
admits certain of Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Issues
This case presents a limited number of substantive ques-
tions, which have been exhaustively litigated. For present
purposes , those questions may be summarized as follows:
1. Whether Gerald Ross, Respondent's freight docu-
mentation department manager , questioned an employee
concerning his union activities and sympathies, or the
union activities and sympathies of his fellow workers.
2. Whether Ross declared, inter alia, that promotions
and pay increases for Respondent 's workers were "frozen"
because of Complainant Union's organizational campaign.
3. Whether John J. Fenton, Respondent's director of in-
dustrial relations, questioned a company employee con-
cerning her union sympathies, together with her knowledge
of presumed union activity by certain of her fellow work-
ers.
4. Whether Stephen Widnes, Respondent's newly desig-
nated assistant manager within the firm's data processing
department, told a subordinate , Randall Smith, that he
(Smith) faced discharge because of his union sympathies.
5. Whether Smith was, shortly thereafter, discharged be-
cause of his participation in Complainant Union 's organi-
zational campaign.
With respect to these questions, General Counsel, of
course , seeks affirmative responses ; Respondent requests
this Board, however, to reject General Counsel 's conten-
tions . More particularly , Respondent seeks a determina-
tion that Smith was discharged for cause , contending that
he possessed a so-called "abrasive" personality, that he
could not "accept" constructive criticism, that his work re-
flected a general "lack of willingness" to cooperate with his
supervisors and fellow workers , that he was reluctant to
discharge more than a bare minimum of his job-related
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibilities , and that, consequently, his continued re-
tention was considered detrimental to departmental mo-
rale.
B. Facts
1. Background
a. Respondent 's business
Respondent, a Nevada corporation , maintains a fleet of
steamships which transport freight cargo primarily be-
tween the West Coast of the United States, Canada, and
various Far Eastern ports.
The firm's headquarters are located at 320 California
Street, San Francisco, California, with a subsidiary facility
located at Pier 80-A on San Francisco 's waterfront, some
3-1/2 miles distant . Further, Respondent maintains port
offices in Seattle , Washington ; Portland , Oregon ; Los An-
geles and Long Beach, California; and Tokyo, Japan; to-
gether with a temporary Bath , Maine, location . When this
case was heard , Respondent was currently operating nine
vessels . During 1973's first 5 months, the firm had 13 ves-
sels in service . Two were, shortly thereafter, withdrawn
from service and placed in layup status ; concurrently, both
were scheduled for repair . During December 1973 bare-
boat charter contracts were negotiated for two more com-
pany vessels . Further, Respondent negotiated a time char-
ter for one vessel ; pursuant thereto , Respondent continued
to furnish the vessel's crew , plus all their requirements,
while the charterer was committed to supply all required
fuel and pay Respondent a contractually determined daily
"charter hire" fee. The circumstances which purportedly
dictated this reduction with respect to Respondent's cur-
rent operating fleet will be discussed , further , within this
Decision.
Within its various west coast and Far Eastern offices,
during the forepart of the period with which this case is
concerned, Respondent employed some 233 people; of
these 160 worked within the firm 's two San Francisco loca-
tions.
With respect to some 11 designated bargaining units,
Respondent 's seagoing and shoreside workers are repre-
sented by eight different labor organizations; inter alia,
Complainant Union 's parent body , Marine Engineers Ben-
eficial Association , represents Respondent's port engineers
and licensed vessel engineers. However , the firm's office
clerical workers-with whom we are , herein, directly con-
cerned-currently have no collective -bargaining represen-
tative.
Within its California Street headquarters location, Re-
spondent employed, during 1973 particularly, some 130
persons . The firm's freight documentation , sales , and data
processing departments are located on the building's fourth
floor, while its various executive offices, together with its
finance , traffic , and data analysis departmental personnel
occupy space on the building's eighth floor. Fenton,
Respondent 's director of industrial relations , has an eighth
floor office . Respondent 's data processing department con-
sists of some 10 employees . This group, throughout the pe-
riod with which we are concerned, compassed two pro-
grammers , one control clerk , one assistant control clerk,
three keypunch operators plus a keypunch supervisor, and
two computer operators. Thomas W. Dowling has been,
throughout , the department's designated manager . Randall
Smith, described within General Counsel's present com-
plaint as discriminatorily discharged, was before his termi-
nation one of Respondent 's two computer operators; the
second was Stephen Widnes, currently designated as the
department's assistant manager.
b. Complainant Union's organizational campaign
During July, 1973, Complainant Union commenced a
campaign , directed toward Respondent's San Francisco of-
fice clerical personnel , seeking representative status . Sever-
al employee meetings were held , none of them within
Respondent's California Street facility, after working
hours.
Among the firm's clerical workers, there were several
prime movers with respect to unionization; these union
protagonists included General Counsel's claimed discrimi-
natee, Randall Smith, previously noted, Dorothy Sechrest,
a clerical worker in Respondent's freight documentation
department, and Andrew Hatchett, a clerk in Respondent's
marine personnel department who likewise functioned as
the firm's mail messenger. Smith, so the record shows, pro-
vided Gladys Moffat, Complainant Union's business rep-
resentative, with a list of Respondent's San Francisco cleri-
cal employees. Further, he distributed Union designation
cards within Respondent's California Street headquarters.
Concurrently, Complainant Union mailed organiza-
tional literature several times to Respondent 's listed cleri-
cal workers; such literature, when received in Respondent's
California Street mailroom, reached designated worker ad-
dressees , through Respondent 's regular mail distribution
system, within their respective departments. Those employ-
ees who might wish to designate Complainant Union as
their collective-bargaining representative were requested to
sign the authorization cards which had been distributed,
and to return them by mail. The cards, inter alia, provided
a space within which signatory employees were requested
to note their home addresses. Later union mailings directly
to card signatories were sent to these home addresses,
shown on their designation cards. However, those clerical
workers who had not yet signed cards continued to receive
union bulletins and literature , while at work, through
Respondent's mail distribution system.
On August 15, 1973, Complainant Union filed a repre-
sentation petition (Case 20-RC-11567), seeking Board cer-
tification within a bargaining unit confined to
Respondent's San Francisco clerical workers. Following a
hearing, sometime thereafter , the Board's Regional Direc-
tor issued his October 19 decision; therein, he directed a
representation vote for Respondent's San Francisco work-
ers within the designated group.
Respondent's management representatives , so I find,
had previously learned about Complainant Union's organi-
zational campaign, shortly following its commencement.
Within a memorandum dated August 28, directed to
Respondent's clerical workers, Director of Industrial Rela-
tions Fenton reported Respondent's knowledge regarding
STATES STEAMSHIP COMPANY 1257
Complainant Union's prior letter-writing campaign. Fur-
ther , Respondent 's declared "convictions" and professed
"feelings" with respect to Complainant Union's campaign
were detailed . General Counsel makes no contention, here-
in, that Fenton 's declarations , within his memorandum,
were calculated to interfere with, restrain , or coerce
Respondent 's clerical workers with respect to their exercise
of statutorily guaranteed rights . The firm 's clerical employ-
ees were told , however , that Respondent's management
representatives would be acting illegally should they threat-
en, coerce , or promise benefits in an effort to interfere with
the self-organization rights of their subordinates-but that
nothing prohibited management 's expression of views, ar-
gument or opinion, unless such expressions contained a
threat of reprisal or promise of benefit.
Concurrently, Fenton caused a memorandum to be dis-
tributed , throughout Respondent 's managerial hierarchy,
supplemented with a supervisor's meeting, wherein the
firm's supervisors were told that, during meetings or con-
versations with company employees throughout the cam-
paign then current , they should be careful not to question
employees with regard to their union sympathies , their par-
ticipation in Complainant Union's organizational cam-
paign , or their knowledge of union activities , generally.
Respondent's supervisors were further told, however, that
they could respond to workers ' questions, discuss their rea-
sons for opposing the unionization of clerical workers, and
comment regarding the "undesirability" of union activity
within Respondent 's office . Further , they were told that:
You can and should continue to listen to anything
said of any possible area of concern about our em-
ployee relations, including pay, benefits , etc. But do
not ask direct questions in the above area or make
statements to [employees ] that may appear to be coer-
cive.
Finally , the firm's supervisors were told that they could
also state "directly and forcefully" how they and
Respondent's management felt about having office clerical
workers unionized, and how they would vote if they were
in the employees ' shoes.
Following Complainant Union's August 15 petition for
certification , several lunchtime and dinner union meetings
were conducted ; most of them were held in nearby restau-
rants. These union meetings were well publicized ; the re-
cord , considered in totality , warrants a determination,
which I make , that Respondent 's various management rep-
resentatives were fully cognizant with respect to them.
On October 31, 1973, one such union -sponsored dinner
meeting was held at Henry's Fashion restaurant, near
Respondent 's California Street headquarters. Some 25
workers , presumptively concerned with Complainant
Union's campaign , met. Further, two confidential execu-
tive secretaries , who worked for high-ranking corporate of-
ficers , were present . Clerical worker Spencer Rice , who had
been present finally testified , despite some initial lack of
certainty, that this particular dinner meeting took place
November 13; however, Andrew Hatchett's testimony, tak-
en in conjunction with the documentary record, persuades
me that October 31 was the meeting's correct date . During
this meeting , so I find , various clerical employees were ten-
tatively designated by secret vote to serve as members of
Complainant Union's prospective "negotiating" commit-
tee. The record, however, does not within my view warrant
a determination that such a committee was formally consti-
tuted, or that it functioned thereafter.
Meanwhile, Respondent had requested a Board review
regarding the Regional Director's Decision and Direction
of Election; the record does not clearly reflect
Respondent's ground for requesting review. The request
was subsequently denied, by the Board's direction, within a
telegram November 21. On November 28, therefore, the
Board's Regional Director sent out copies of the formal
notice of election which Respondent's representatives
would be required to post; the prospective representation
vote was scheduled for December 5, thereafter. However,
later that same day, November 28, Complainant Union re-
quested permission to withdraw its petition for certifica-
tion. The Regional Director promptly "approved" this
withdrawal request, with prejudice.
Under current Board procedures, Complainant Union
was, thereby, barred from filing a new petition-specifical-
ly concerned with Respondent's San Francisco clerical
workers-for 6 months from the November 28 date of the
Regional Director's order permitting withdrawal, save
upon some sufficient showing of good cause with respect to
why a new petition, filed before the expiration of that 6-
month period, should be processed. Complainant Union
did file a new petition subsequently; that petition, however,
was not filed until some time in May 1974, presumably
following the expiration of this Board's 6-month time bar.
Thereafter, under circumstances which have not been de-
tailed for the present record, Complainant Union's second
petition was likewise withdrawn.
c. Respondent's knowledge of Complainant Union's
campaign
The present record, considered in totality, warrants a
determination, which I make, that, throughout Complain-
ant Union's organizational campaign , Respondent's man-
agement representatives were cognizant , generally , regard-
ing its course . In this connection , several witnesses, whose
testimony I credit in this connection, reported:
First, that various union bulletins and literature which
Respondent's clerical employees had received, while at
work, through the firm's mail distribution system were later
transmitted , by some of their recipients , to departmental
supervisors. Some of these, possibly most of them, found
their way, finally, to Respondent's director of industrial
relations.
Second, that Freight Documentation Department Man-
ager Ross, during a conversation with employee Spencer
Rice, declared that most of his departmental workers were
"leaving early and coming back late" when Complainant
Union's luncheon meetings were being conducted , and that
he (Ross) was getting "pretty darn fed up" with the situa-
tion.
Third, that employee Albert Hotlen, shortly following his
selection for service on Complainant Union 's negotiating
committee, during the October 31st dinner meeting, told
his departmental supervisor, Del King, and Director of In-
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dustrial Relations Fenton, what had transpired, while indi-
cating that he was no longer "interested " with respect to
Complainant Union's bid for representative status.
Fourth, that employee Andrew Hatchett did-within 2
days following Complainant Union's October 31 dinner
meeting previously noted-provide Director of Industrial
Relations Fenton with a notice, regarding a forthcoming
union meeting, which he (Hatchett) had personally pre-
pared for general distribution. Hatchett testified credibly
that, when he encountered Fenton fortuitously, later that
day, within the elevator in Respondent's headquarters
building, the latter declared he was "sorry" that Hatchett
had gotten "mixed up" with Complainant Union, that he
felt Respondent had been "more than fair" with Hatchett,
and that he was sorry Hatchett hadn't shown comparable
"loyalty" with respect to the Company.
However, save for Respondent's previously distributed
August 28 memoranda, noted herein, the record reflects no
significant campaign, mounted by Respondent's manage-
ment, calculated to forestall Complainant Union's bid for
representative status. General Counsel contends merely
that particular management representatives-Ross, Fen-
ton, and Widnes-did, nevertheless, transgress permissible
limits on certain specific occasions during Complainant
Union's campaign and thereafter. These contentions will
be considered, further, within this Decision.
2. Claimed interference, restraint, and coercion
a. Spencer Rice
Within his brief, General Counsel contends that various
"threats" and "questions" which Freight Documentation
Department Manager Ross directed to employee Spencer
Rice constituted statutorily proscribed interference, re-
straint, and coercion, reasonably calculated to prejudice
Complainant Union's campaign.
Rice had been hired August 1, 1972; he had been a
claims adjuster, within the firm 's insurance and claims de-
partment, headquartered at Respondent's Pier 80-A facili-
ty. When a cargo expediter's vacancy developed in
Respondent's freight department during April 1973, Rice
sought the position and received a May 1 promotion; Ross
became his departmental manager . Rice's direct supervi-
sor, however, was Ernest Wilson, quartered at
Respondent 's Pier 80-A facility. Regarding his pay, Rice
testified that:
[When] I was originally hired by personnel, they told
me that after six months I would have a job evalua-
tion, and I would be eligible for a $50.00 increase at
that time . . . [After] six months , I was given a form
which I completed, and it was a written job evaluation
which I put down what I felt about my abilities for the
company . . . I was given a $50, pardon me, a $35.00
increase. When I took the cargo expediter's job, I was
told that after six months, I would again be given a
review and if I was performing my job satisfactorily,
at the end of that time, I would also be eligible for a
$50.00 increase. [Emphasis supplied.]
That pay increase, Rice testified, would have been due No-
vember 1, 1973; however, he did not receive it. The cargo
expediter-having heard nothing, before the date designat-
ed, regarding a new job evaluation-queried Ernest Wil-
son, his immediate supervisor. The latter suggested that
Rice should wait until November 15th, when the raise
might materialize.
When he received no November 15th raise, the cargo
expediter telephoned Respondent's freight documentation
department manager. Ross, so Rice testified, declared, inter
alia, that:
[The] reason for that was that the union, there was a
pending election and that all raises and promotions
were frozen until after the election ... .
The following day, when the cargo expediter visited
Respondent's California Street headquarters for a regular
sales meeting , he conferred with Ross personally. The lat-
ter, according to Rice, confirmed Respondent's position
with respect to current raises , detailed during their previous
day's telephone conversation.
The cargo expediter had, previously, signed Complain-
ant Union's designation card. He had, likewise, attended
one lunchtime union meeting, plus the evening dinner
meeting at Henry's Fashion restaurant. While a witness,
Rice, despite some preliminary lack of certainty, finally
fixed November 13th as this dinner meeting's date. Previ-
ously, within this decision, however, I have found his pur-
ported recollection mistaken; October 31st was, so I find,
the date when the dinner meeting was held.
The following day, so Rice testified, Ross summoned
him to Respondent's California Street headquarters, for the
purpose of discussing some "administration" problems.
Following their business conversation (so the cargo expedi-
ter recalled) he was asked whether he had attended Com-
plainant Union's prior dinner meeting; he said he had.
Rice, then, testified further: That Ross had asked him
whether he would name other clerical workers who had
been present; that he (Rice) had refused; that Ross had,
then, questioned him regarding the number of people pres-
ent; that he (Rice) had not responded; and that Ross had,
then, asked him how many union meetings he had attend-
ed, declaring that it was "very vital" for Respondent to
know how many clerical workers were prounion. Finally,
Respondent's cargo expediter, while a witness, quoted Ross
as follows:
And, he said that if I had not made up my mind about
it one way or the other, that he felt that if I thought
about it, in the best interests of the company, I should
not vote for the union, and further that I should not
associate with those that were known agitators within
the company because it was a very touchy thing with
the company at that time. He felt that in the best inter-
ests of my position with the company, I shouldn't as-
sociate with these people . . . Oh, yes. He merely said
that I should make it quite clear to the union adher-
ents that I was not for the union . . . .
According to Rice, Ross had asked whether he had partici-
pated in any other union activities; the cargo expediter had
declared that he had not, but that he was merely attending
union meetings to find out what the issues were.
STATES STEAMSHIP COMPANY 1259
During this same conversation , Rice testified, he was
asked what he felt Complainant Union had to offer. He
mentioned several compensation and fringe benefits im-
provements which unionization might produce , comment-
ing, inter alia, that American President Lines ' comparable
cargo expediter had a better salary , plus an expense ac-
count . Ross replied , according to Rice 's proffered recollec-
tion, that he was "sure" certain members of Respondent's
managerial hierarchy could get an expense account for
their cargo expediter authorized. The following week (so
Rice testified) he was invited to lunch with Ross, Binns
Cox, then assistant to Respondent 's vice president in
charge of traffic, one William Meijer, and Henry (Del)
King . Those present discussed , among other things , Rice's
request for an expense account allowance . He was told that
his request was granted.
Ross , when summoned in Respondent 's defense , denied
categorically that he had questioned Rice regarding Com-
plainant Union 's campaign , or his participation therein.
Respondent's departmental head testified , rather, that-
during the conference of supervisors which Director of In-
dustrial Relations Fenton had conducted-the firm's de-
partmental managers had been advised how they should
maintain a neutral posture throughout Complainant
Union's campaign; further, Ross declared that he had con-
sidered Fenton's concurrent August 28 memorandum-
which dealt with "questioning" workers-a controlling
statement of Respondent 's policy . Then , when queried,
specifically, with respect to whether, despite Respondent's
declared policy, he had ever discussed Complainant
Union's campaign or sought information regarding the
names or total number of union sympathizers during con-
versations with Rice , Ross declared that Respondent's car-
go expediter had himself broached the subject by soliciting
his department head 's speculation with respect to "how"
his departmental subordinates would vote . Ross , so he tes-
tified, had merely replied, shortly, that he had "no idea"
with respect to their Union sympathies.
With respect to Rice 's further testimony regarding his
failure to receive a job review and purportedly promised
merit increase following 6 months of service as
Respondent's cargo expediter , Ross testified that Rice had
requested a raise , bottomed upon his claimed "under-
standing" that Respondent 's workers who were transferred
or promoted to new positions were supposed to receive
merit increases within 6 months thereafter , but that he was
told he had misconstrued Respondent's policy.
Respondent's freight department manager told Rice, in-
stead , that newly hired clerical workers , following their 6th
month of service , were routinely given job evaluation re-
views , looking toward their possible qualification for merit
raises , but that workers already filling positions in
Respondent's hire , when transferred or promoted to new
positions , received no comparable job reviews or pay raises
following their 6th month of service . While a witness, Ross,
when requested to define Respondent 's policy more pre-
cisely, declared , with corroboration from Respondent's di-
rector of industrial relations , that Respondent 's manage-
ment representatives do routinely give their new workers a
6-month review , but that no stated policy provides compa-
rable merit increase reviews for recipients of lateral or pro-
motional transfers.
Respondent's freight department manager conceded his
personal knowledge that promises of financial reward-
should they be proffered during a labor organization's
campaign for representative status, for the purpose of per-
suading workers to forego such representation-would be
considered violative of law . Ross denied , however, that
Rice was ever told , consistent with his understanding, that
Respondent 's office worker pay scales were frozen because
of Complainant Union 's campaign.
Ross, finally , corroborated Rice 's testimony , generally,
regarding the luncheon meeting during which the cargo
expediter's previously requested expense account was dis-
cussed . He disclaimed knowledge , however , with respect to
whether Rice 's request , proffered shortly before their lun-
cheon discussion , was granted , conceding merely that
Binns Cox had promised Rice a favorable recommenda-
tion.
The testimonial record , with matters in this posture, rais-
es a relatively simple , clearcut credibility question. Does
Spencer Rice 's testimony , with respect to Ross' purported
questions , Respondent 's failure to consider his raise re-
quest , and the matter of his expense account grant, merit
credence?
Credited , the cargo expediter 's proffered recollections
would warrant determinations : ( 1) that Respondent's
freight documentation department manager-shortly fol-
lowing Complainant Union 's dinner meeting during which
a limited number of Respondent 's workers had been pres-
ent-questioned him intensively with respect to whether he
had been there , whether he could name other workers who
had been present , whether he could designate their num-
ber, and whether he had participated , otherwise , with re-
spect to Complainant Union 's campaign ; (2) that he was
denied a job evaluation review and possible raise, for
which he could conceivably have qualified , merely because
raises for Respondent 's non-represented office personnel
were "frozen" pending a disposition of Complainant
Union's representation petition ; and (3) that he was , never-
theless, promised a personal "expense account" allowance,
shortly following a conversation with Ross during which
his views regarding the possible benefits of clerical worker
unionization had been solicited.
The record , considered in totality , persuades me, howev-
er, that Rice 's presently detailed recollections derive from
memories which have been colored and influenced by his
afterthoughts . The cargo expediter 's testimony , though
seemingly proffered with self-righteous conviction, lacks
verisimilitude.
With respect to his claim that Respondent 's freight doc-
umentation department manager sought "vital" data re-
garding Complainant Union 's campaign , I note : first, that
Rice was never, so far as the record shows , really one of
Complainant Union's principal protagonists ; second, that
Ross would not have been likely to consider him a prime
informational source (The cargo expediter 's desk and prin-
cipal place of work was located at Respondent 's Pier 80-A
facility. Most of Respondent 's personnel complement di-
rectly concerned with Complainant Union 's campaign,
however, were stationed within the firm 's California Street
headquarters , which Rice merely visited , periodically, pur-
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suant to business requirements .); third, that no pervasive or
sustained campaign seems to have been mounted or main-
tained, whereby Ross or Respondent's other department
heads , routinely or persistently , sought discovery with re-
spect to their subordinates' prounion sentiments ; fourth,
that General Counsel 's presentation , considered in totality,
suggests no convincing reason why Respondent 's freight
documentation department manager , particularly, might
have felt constrained, nevertheless , to pursue a statutorily
proscribed program of questions which Respondent's su-
pervisors , generally , had, without doubt , been directed,
specifically , to eschew ; fifth, that Respondent's managerial
hierarchy could presumably have determined the identity
and number of those present , during Complainant Union's
October 31 dinner meeting , had they decided to pursue
such a course , without soliciting such information from
Respondent 's cargo expediter by questioning two confi-
dential executive secretaries who had concededly been
present . Finally, Rice's persistent failures of memory with
respect to the proper temporal placement of various con-
versations should be noted . I would not routinely consider
failures of recollection with respect to specific dates, per se,
sufficiently serious to raise doubts regarding a witness' gen-
eral credibility ; considered within their total context, how-
ever , Rice 's patently mistaken chronologies have but-
tressed by conclusion , herein , that his testimonial
recollections-with respect to his supervisor 's purported
queries particularly-provide no reliable , probative, or
substantial basis for factual determinations consistent
therewith.
With respect to Rice 's further testimony that he was de-
nied a previously promised job evaluation review and pos-
sible merit increase because all raises and promotions for
Respondent 's headquarters personnel were frozen pending
some disposition of Complainant Union's representation
petition , I note the cargo expediter 's failure to specify who
"told" him that, 6 months after his promotion , he would
"again" receive a job review and could possibly qualify for
a raise . Rice's testimonial recital , therefore , provides no
persuasive support for a determination that his belief-re-
garding a possible pay increase contingent upon his satis-
factory job performance-derived from some authoritative
source . Further , General Counsel 's presentation , consid-
ered in totality, provides no persuasive basis-testimonial
or documentary-for rejecting Respondent's contention
that employees promoted or transferred laterally were not
routinely given job reviews or considered for possible raises
following their 6th month of service in new positions. Dis-
passionately considered, such a policy might arguably mer-
it characterization as rigid , restrictive , and lacking in wis-
dom; no determination can legitimately be deemed
warranted , however, that Respondent 's failure to provide
for job reviews and possible merit because for promoted
workers or lateral transferees lacks rational justification, or
that Ross' corroborated testimony with respect thereto
should , therefore, be considered unworthy of belief . Final-
ly, I note testimony-which Respondent's freight docu-
mentation department manager proffered herein without
challenge or contradiction-that a clerical worker within
his department , Sandra Johnson , did receive her "six
month review raise" following her trial period 's conclusion,
pursuant to Respondent's normal procedure, while Com-
plainant Union was pursuing its representation campaign.
Clearly, Respondent's regular "review and raise" policy,
particularly with respect to newly hired workers who had
completed their 6-month trial period, was never suspended.
With matters in this posture, I conclude, consistent with
Respondent's contention , that Rice's failure to receive a
job evaluation review and merit increase raise, following
his promotion, did not reflect a deviation from
Respondent's normal procedure bottomed upon statutorily
proscribed considerations.
The record clearly does warrant a determination, which
I make, that Rice did, sometime during a November con-
versation with Respondent's freight documentation depart-
ment manager, manifest his desire for a confirmed "ex-
pense account" grant. With matters in their present
posture, however, no conclusion could be considered justi-
fied that Respondent's cargo expediter proffered a specific
"expense account" request during a conversation wherein
his views concerning possible unionization benefits were
being canvassed. While a witness, Rice testified that, when
he was first notified that his presumptive "expense ac-
count" request would be granted, he did not consider
Respondent's grant a bribe, calculated to persuade him
that Complainant Union's representation bid should be re-
jected; concededly, Respondent's cargo expediter reached
no such subjective conclusion until several months later.
Further, I note with respect thereto that Rice was told his
request would be granted, or possibly that it would be
transmitted to higher management with a favorable recom-
mendation, during a luncheon meeting whose precise date
he could not fix. Subsequently, however, Binns Cox fixed
December 3 as their luncheon's date; his testimony stands
without challenge or contradiction. December 3, we should
note, followed by 5 days the date on which Complainant
Union had previously withdrawn its representation peti-
tion, with prejudice. With due regard for this chronological
sequence, I find myself constrained to conclude, despite
General Counsel's contrary contention, that Respondent's
decision to grant Rice's conceded expense account request,
thereafter, was not reasonably calculated to coerce, inter-
fere with, or restrain his pursuit of rights statutorily guar-
anteed.
b. Caroline Vela
Before her February 28, 1974, termination, Caroline
Vela had been a secretary working for Don Sinclair
Respondent's northern California district sales manager,
together with his sales staff. On February 5th or 6th, Vela
overheard a conversation in Respondent's coffee room be-
tween some California Street workers, which indicated that
two designated freight department employees had just re-
ceived raises. Since Vela had (so she contended) previously
been promised a raise, she called upon Jack Dore,
Respondent's general sales manager and Sinclair's superi-
or, reported the coffee room conversation which she had
overheard, and queried Dore with respect to why she had
not received her promised raise. Dore told her that inqui-
ries would be made. With respect to subsequent devel-
opments, however, the secretary's testimonial recollections
read as follows:
STATES STEAMSHIP COMPANY 1261
[Around] February 11 or 12, Mr. Jack Dore came to
my desk and asked me to go see Mr . John Fenton, the
personnel manager-that Mr . Fenton wanted to talk
to me . . . I went to Mr. Fenton 's office on the eighth
floor . . . I told him that Mr. Dore had sent me to talk
to him regarding my raise . He then asked me how I
had found out about raises , and I told him that I had
been walking by the coffee room and overheard the
conversation about the raises . He then asked me who
the people in the coffee room were that said this, and
I told him I didn't know because I was merely walking
by, going back to my desk. Then he said, "Well, don't
you believe that this [conversation about raises in
Respondent 's coffee room ] is a union activity? That
this is just something to upset all the employees?" And
I told him that I didn't know anything about that. I
just had simply heard this conversation . . . I told Mr.
Fenton that I did not know what he was talking
about ; and then , before I knew it , he was angrily
pounding on his desk , and then the next thing I knew,
he had stood up and he put his hands to his hips and
pointed at me and said to me , "You tell me who the
union instigators are,"-and I just stared at him and
told him , "Mr. Fenton , I do not know any union insti-
gators at all. I wasn ' t aware of this at all." . . . He
then said to me, "Do you really expect me to believe
that?" And I said, "Mr. Fenton, I do not know any-
thing about any union instigators ." . . . I said, "Mr.
Fenton, I do not know why we are talking union activ-
ities. I was just asked by Mr. Dore to come here and to
talk to you regarding my raise . I don't know anything
about union instigators or anything like that. I just
came here to talk about my raise ." . . . He then said
that he thought that I was aware who the union insti-
gators were , and I told him that I didn ' t know; that I
was just here to talk about my raise.
Respondent's director of industrial relations , then, told
Vela that one office worker , Henry King had received a
promotional raise , and that another worker , John Hanok
(?), had recieved the regular 6-month raise which newly
hired workers receive following their probationary period's
satisfactory completion. Vela was told , further, that no
raises were currently being granted because Respondent's
salary committee had not met.
Fenton commented , so Vela testified , that he felt "this
whole thing about raises " had been instigated by Com-
plainant Union , and that, so far as he was concerned,
Complainant Union would never win representative status.
Vela declared her regret with respect to their misunder-
standing , reiterated her prior declaration that she knew
nothing about Complainant Union , and commented that,
should there be "anything [she] could do to cooperate"
with Respondent 's director of industrial relations, he
should not hesitate to call on her. Upon this note, their
conversation (so Vela testified) terminated.
Confronted with Vela's testimony, Director of Industrial
Relations Fenton categorically denied certain portions;
with respect to some details, however , he merely professed
failures of recollection . He corroborated Vela's testimonial
declaration that she had been seeking information with re-
gard to her promised raise ; when queried, however, with
respect to whether their meeting had been tense, Fenton
declared merely that from his point of view there had been
no tension.
Vela's proffered witness-chair recollections within my
view merit credence. She testified straightforwardly, with
simple, ingenuous candor; throughout, she persuasively
maintained her testimony's correctness, despite a searching
cross-examination by Respondent's counsel. Her testimo-
nial declaration that she subsequently reported the sub-
stance of her conversation with Respondent's director of
industrial relations to her two direct superiors, General
Sales Manager Dore and Respondent's northern California
district sales manager, promptly following her departure
from Fenton's office, stands without challenge; neither
Dore nor Sinclair were summoned for testimony with re-
spect thereto. Further, within a short time thereafter (so
Vela's rebuttal testimony shows) she repeated "everything
that had happened in Mr. Fenton's office" during a coffee-
room conversation with Dorothy Sechrest and Rita Doch-
ery, two fellow workers. (Both Sechrest and Dochery were
present, within the hearing room, when Vela testified re-
garding her conversation with them. Respondent's counsel
never called them to probe or challenge Vela's recital.) The
secretary's testimony warrants a determination, which I
make, that these several conversational recapitulations,
wherein she detailed her strained confrontation with
Respondent's director of industrial relations, derived from
"shock" which had been generated, within her, by his sur-
prising conversational gambit. Without regard for the cor-
rectness of her subsequent verbal reports, the very fact,
never disputed, that she felt sufficiently shocked and dis-
turbed to seek some catharsis, thereby persuasively but-
tresses my conclusion that her present testimonial recitals
deserve belief.
When Fenton, during Vela's February 1974 visit, de-
manded that she name "those union instigators" who had
been discussing raises within Respondent's California
Street coffeeroom, Complainant Union's campaign for rep-
resentative status had, for some time, been moribund,
though susceptible to possible renewal within some 4
months thereafter. Clearly, Respondent's director of indus-
trial relations was concerned that Complainant Union's
campaign might possibly be revived. In this connection,
Vela was told, so I find, that:
. .. one of the reasons that morale was low in the
Company was due to the fact that many of the older
employees had not received raises except for cost of
living raises, but not merit raises, for quite a long time
Thus, according to Fenton, discussions within
Respondent's headquarters with regard to raises could,
conceivably, have been contrived by prounion provocateurs
seeking to generate employee discontent. This belief, with-
in my view, motivated Fenton's vigorous reaction when
Vela mentioned, en passant, that she had overheard a con-
versation dealing with pay increases. (The word "instiga-
tor" normally denotes a person who provokes, incites or
encourages others to initiate particular actions, which may
often be questionable actions undertaken with dubious in-
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tentions . Websters New International Dictionary, Third Edi-
tion. However , it may likewise denote a person who has
been "prompting , furthering , encouraging or nurturing"
some current activity.)
His concern with respect to this possibility, I find, led
Respondent's director of industrial relations to query Vela
vigorously, while seeking to determine which of her fellow
workers had, through their casual coffeeroom conversa-
tion, prompted her to seek a clarification with respect to
Respondent's current pay raise policy. Fenton's questions,
within my view, were clearly calculated to interfere with,
restrain, and coerce Vela, particularly with respect to her
exercise of statutorily guaranteed rights. I note further, in
this connection, the secretary's testimony that both of her
superiors , General Sales Manager Dore and Respondent's
northern California district sales manager, clearly implied
or suggested-when they were told about Fenton's angry
questions-that she might be well-advised to reconsider
her failure or refusal to designate who those coffee room
"instigators" were . Such comments , severally chargeable to
Dore and Sinclair respectively, were not specifically desig-
nated as statutorily proscribed, within General Counsel's
present complaint. Thus, findings herein with respect to
their propriety would, within my view, constitute mere sur-
plusage.
Upon this record, therefore, I find, consistent with Gen-
eral Counsel 's contention , that , when Respondent 's direc-
tor of industrial relations pressed Vela to name the particu-
lar "instigators" whose coffeeroom conversation she had
overheard, and further challenged her responsive protesta-
tion that she did not know their names, his course of con-
duct transgressed permissible limits.
3. Randall Smith's discharge
a. Background and chronology
(1) Smith's work history
Randall Smith, designated a discriminatorily discharged
worker within General Counsel's complaint herein, had
been hired by Respondent's data processing department
manager, Thomas Dowling, in January 1972; throughout
the period with which we are concerned, he was a comput-
er operator receiving a monthly salary. Together with Ste-
phen Widnes, then Respondent's senior computer opera-
tor, he performed various assigned tasks, within
Respondent's computer room, with IBM data processing
machines. Smith's previous work experience with comput-
ers-so his credible, undenied, testimony shows-covered
some 16 years; 3 of these, which directly preceded his em-
ployment with Respondent herein, had been spent with
American President Lines, another steamship company,
where "very similar" data processing machines were main-
tained.
When he started work, Smith and Widnes had worked
overlapping shifts; the senior computer operator had
worked a 7 a.m.-3 p.m. shift, while Smith had worked from
11 until 7 o'clock. Sometime during 1973' s summer
months, however, Dowling had asked Smith whether he
would be willing to work an 8:30 a.m.-5 p.m. shift, primar-
ily because Widnes would, thereby, be freed to take over
certain departmental administrative responsibilities, while
Dowling would concurrently be left free to create, modify,
and refine Respondent's various computer programs.
Smith, I find, concurred with Dowling's shift change re-
quest.
(2) Smith's union activity
While working for American President Lines, Smith had
joined Complainant Union; the organization then had a
collective-bargaining agreement with that firm. When Re-
spondent hired him, however, Smith had permitted his
union membership to lapse. Sometime during July 1973,
nevertheless, Smith visited Complainant Union's down-
town San Francisco headquarters which were located near-
by; there he discussed the possible unionization of
Respondent's local office workers with Henry Dooley,
Complainant Union's vice president, and Gladys Moffitt,
Complainant Union's business representative. Mrs. Moffitt
asked Smith whether he would be willing to distribute
"pledge" cards. When he declared his willingness, he was
given a small supply of designation cards, together with
return envelopes.
Thereafter (so his credible, undenied testimony shows)
the computer operator discussed unionization with a num-
ber of his fellow workers within Respondent's data pro-
cessing department, clericals within the firm's freight docu-
mentation and mail departments, one secretary, and
several workers in Respondent's payroll department. Dur-
ing these discussions, I find, he declared himself favorably
disposed with regard to union representation.
One night, following his completion of some overtime
work, Smith distributed his limited supply of union pledge
cards and return envelopes, leaving them on the desks of
various workers who had expressed some interest during
their prior discussions. (The computer operator never did
learn (so he testified) whether these distributed cards were
ever signed or mailed back to Complainant Union herein.
The record, however, warrants a determination, which I
make, that his particular role in connection with their dis-
tribution was known, specifically by those interested work-
ers with whom he had discussed union representation.)
Further, Smith managed to procure a copy of
Respondent's headquarters telephone directory, wherein
the firm's California Street and Pier 80-A facility employ-
ees were listed. This directory, with the names of known
supervisors stricken, was subsequently transmitted to Com-
plainant Union's business representative; Mrs. Moffitt
was, thereby, provided with a mailing list of Respondent's
San Francisco personnel, whose support could be solicited,
thereafter, through a letter campaign.
Previously, within this Decision, reference has been
made to Complainant Union's several lunch-hour meetings
for Respondent's employees. Smith, so the record shows,
merely attended two such luncheons, during July and Au-
gust , presumably. (The computer operator lunched be-
tween I and 2 o'clock, routinely; his senior fellow worker,
Widnes, lunched regularly during the preceding hour.
When he wished to attend Complainant Union's previously
set luncheon meetings, Smith requested Widnes to switch
STATES STEAMSHIP COMPANY 1263
lunch hours. On both occasions when he requested such a
switch his request was honored.)
Following his return from one luncheon meeting (so
Smith's testimony, which I credit, shows) his departmental
manager, Dowling, commented that "going to all those
lunches" would make Smith fat. When the computer oper-
ator replied that he would be glad to lunch with Dowling,
should the latter wish to invite him, Respondent's depart-
mental manager, somewhat disturbed, suggested, testily,
that he (Smith) should be "more loyal" to his company.
While a witness, Dowling denied Smith's recapitulation of
their conversation; his denials, however, were monosyllab-
ic and perfunctory. With due regard for his witness-chair
demeanor while so testifying, Dowling's denials, within my
view, merit rejection.
The record further warrants a determination, which I
make, that, while Complainant Union's representation
campaign was in progress, .... campaign was a frequent
subject of discussion among Respondent's data processing
department personnel. Smith, so his credible testimony
shows, participated in these discussions; his union sympa-
thies were, I find, generally known.
Particularly, during several conversations with Stephen
Widnes, then his fellow computer room worker, Smith's
prounion views were manifested. Widnes, however, clearly
took a contrary stance. Once, during a conversation with
Smith, he described a situation which had disturbed and
distressed him, concerning his contacts with a labor organi-
zation while working elsewhere. Upon this record, then,
determination would seem to be clearly warranted that
Smith and Widnes held diametrically divergent views, re-
garding the desirability of unionization for Respondent's
clerical workers, with respect to which both were cogni-
zant; I so find.
Smith's testimony will, further, support a factual conclu-
sion that the computer operator was present during Com-
plainant Union's October 31 dinner meeting at Henry's
Fashion restaurant. The record is silent , however, with re-
gard to his participation in Complainant Union's campaign
thereafter.
Previously, within this decision, reference has been made
to the fact that a representation vote, scheduled for De-
cember 5 pursuant to Complainant Union's petition and
the Regional Director's decision bottomed thereon, never
took place because Complainant Union's petition was
withdrawn. While a witness, Andrew Hatchett, previously
designated a principal union protagonist herein, testified
that Complainant Union' s petition was withdrawn on No-
vember 28th, specifically, because Respondent's workers
feared "that if the election were held on the 5th, the com-
pany wouldn't pay the [customary] Christmas bonus on the
fifteenth" thereafter. Certainly, following the withdrawal of
Complainant Union's petition, that organization's full-
scale bid for employee support subsided for a while. Neces-
sarily, Randall Smith's participation therein was likewise
suspended.
(3) Respondent's retrenchment program
Concurrently with these developments, so the record
shows, Respondent's management, confronted with a sub-
stantial drop in Respondent's profitability, was both plan-
ning and carrying forward a significant retrenchment pro-
gram . The firm's shipping fleet in'service was being signifi-
cantly reduced. Further, plans were being made for a
substantial reduction in force, which would significantly
affect Respondent's San Francisco headquarters personnel.
During calendar year 1973's first 6 months, Respondent
had lost approximately $4 million. A decision was, there-
upon, made to reduce the firm's operating fleet, which then
consisted of 13 vessels, down to 8 vessels. Consistently
therewith, two ships were withdrawn from service during
June and July; specifically, they were placed in layup sta-
tus and were concurrently scheduled for repair. Captain
J. W. Dickover, then Respondent's vice president in
charge of operations, was directed to sell or time-charter
three more ships. During December 1973, Dickover negoti-
ated a time-charter for one vessel and bareboat charters for
two more. By year's end, however, Respondent's operating
losses for the 12-month period had reached $7.5 million.
Sometime during this period, then, Respondent's man-
agement decided, inter alia, that whenever office personnel
vacancies developed-whether because of retirements, res-
ignations or dismissals for cause-such vacancies would
not be filled with replacement workers, save in specific
cases wherein replacements had been "approved" through
Respondent's personnel committee. Subsequently, howev-
er, Respondent's committee determined that such a pro-
gram of shrinkage through attrition would not suffice, and
that some planned reduction in personnel would be re-
quired, because of Respondent's reduced service fleet size.
During January 1974, Director of Industrial Relations
Fenton was, therefore, directed to survey Respondent's dis-
trict managers and department heads "to come up with the
people that they thought they could lay off, and yet contin-
ue to operate their particular department, or their district
office, efficiently . . . . " Fenton's survey, when completed,
produced recommendations for a proposed reduction of
13-14 workers, within the firm's various Pacific coast of-
fices. Respondent's management, however, considered this
reduction less than sufficient.
Pursuant to decisions reached on February 13, 1974, the
firm's various departments and divisions were finally re-
quested to terminate 27 workers, effective March 1st there-
after. For each department or division, separate specifica-
tions, fixing the number of those scheduled for
termination , were provided.
The scheduled reduction in force covered Respondent's
San Francisco, Seattle, Portland, Los Angeles, and Tokyo
offices, within which 233 persons were then working. Dis-
missals, calculated to leave Respondent with 206 office and
clerical workers-distributed throughout the firm's various
offices, divisions and departments-were directed.
Respondent's various department heads, functioning in
conjunction with the firm's director of industrial relations,
were to designate whatever particular workers were sched-
uled for separation.
Inter alia, the firm's data processing and cost analysis
departments, wherein 17 persons worked, were scheduled
for one termination, merely. That projected staff reduction,
however, compassed no data processing departmental
worker. According to Raymond Donohue, Respondent's
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary-treasurer, the decision to exclude data processing
personnel from the projected reduction in force was made,
deliberately, because the firm could not "afford" staff re-
ductions within that department. Donohue testified:
I felt, and in many discussions with Tom [Dowling],
we felt that we were operating at bare bones in Data
Processing . . . When I came with the company .. .
there were fifteen or sixteen people in the Data Pro-
cessing Department . . . I felt, and Tom also felt from
the beginning, that that was too many for the size of
the company that we had, and the size of the workload
that we had. So over the years, we have been able to
reduce, by improving the internal systems . . . the in-
ternal computing systems . . . and by developing new
programs . . . We were able to not replace program-
mers , computer operators, and keypunch girls, as they
transferred to other departments or resigned . . . Res-
ignations and transfers we did not replace . . . There
were some involuntary terminations, along the way,
that were generally replaced. But we had come down
to a position of ten people including the manager.
And, no matter how we tried to figure it, we could not
figure a lower number and still get through the work-
load that was considerable, going through that depart-
ment, both in programming new systems, and in get-
ting through the operation of the systems that were
already programmed.
Thus, by February 19 or 20, when final preparations were
being made to notify those workers who had been desig-
nated for separation, no layoffs within the firm's data pro-
cessing department were even being considered.
(4) Smith's termination
On February 19th, Secretary-Treasurer Donohue
learned-during a conversation with Ed Johnson, then
Respondent's executive vice president-that he (Johnson)
had just been dismissed, together with his confidential ex-
ecutive secretary. These high-level terminations, which
J. R. Dant, Respondent's president, had presumably effec-
tuated personally, seem to have generated some tension
and concern within the firm' s managerial hierarchy; cer-
tainly Donohue's testimony, considered in totality, would,
within my view, warrant such a conclusion.
With matters in this posture , I find , Respondent's secre-
tary-treasurer and Director of Industrial Relations Fenton
were conferring, within Fenton's office , sometime during
the midafternoon hours of February 20; they were review-
ing the presumptively "final list" of workers scheduled for
subsequent February 28 terminations, and completing ar-
rangements for the simultaneous distribution of their ter-
mination notices , together with "complete information as
to retirement plans, severance pay, and severance pay-
checks, as well as their accrued vacation paychecks-as
well as information with regard to insurance and benefit
plans" which Respondent' s management planned to pro-
vide in some orderly manner, so as to minimize any possi-
ble shock consequences or confusion. The conferees de-
termined that, wherever possible, workers being terminated
should be notified, personally, by their supervisors and de-
partmental managers; pursuant to this decision, Donohue,
so he testified, would himself be required to notify four
employees, within various departments which he super-
vised, with service records of 3 years, 12 years, 17 years and
22 years, respectively. At this point, so Donohue testified:
... Mr. Dowling appeared at the door of the office.
As it turned out, he had been in a meeting in the office
next door; and when he came out, he saw me in there;
and he had some matter to take up with me-I don't
remember at this point, what it was. And so he entered
the room. At that point, we were going over this final
list and making sure that it was complete, and think-
ing about who was going to be told, and how. And I
questioned Tom, again, realizing that his was one of
the departments that was not being hit by this cut-
back. I asked him if he wasn't sure that there wasn't
somebody who could be let go, in that department. He
confirmed again that he needed everybody he had
down there, and even then it was going to be extreme-
ly difficult to keep the flow of work going, through
that department, with the people that he had there.
But in the course of that conversation, he mentioned
again that he was having problems with Mr. Smith-
particularly with Mr. Smith's cooperation. In a tight
department like that, with so few people and so much
work to do, everybody has got to cooperate and help
everybody else. Tom had advised me previously-and
at this point he advised me more specifically, that Mr.
Smith just didn't cooperate. That he didn't want to
work any overtime if he didn't have to. He just wanted
to do his job, and nobody else's job-and we couldn't
have that, in that type of a situation. The Executive
Vice President had just been fired from the company,
and we were going to lay off almost thirty people the
next week-and everybody had to pull together. We
were losing money, and were projecting that we were
going to lose more money-and we just could not tol-
erate a situation like that , in such a department . . . I
told Mr. Dowling to fire him . . . So then we dis-
cussed with John Fenton, as to how, and when, this
should take place. We were in the midst of planning a
general lay-off; and the suggestion was made that he
should be a part of the general lay-off . . . Mr. Dowl-
ing and I advised [Fenton] that we didn 't want that as
a part of the general lay-off; because this would have
made the number, that was 27, into 28. And, with the
Personnel Committee's bind, we never would have
been able to replace that job without a lot of argument
with the Personnel Committee. So I said, "If we have
cause to fire this man, we'll fire him-we will not lay
him off. Because we are going to have to replace this
job, almost immediately. And we have already decid-
ed that we cannot get by with any less than the people
we had in that department . . . The instructions to
[Dowling] were to terminate Mr. Smith prior to the
general termination of the other 27 people; and the
actual time of his termination was left to Mr.
Dowling's discretion.
While witnesses, Dowling and Fenton confirmed
Donohue's testimony, generally. The director of industrial
STATES STEAMSHIP COMPANY 1265
relations recalled , however , that Respondent's secretary-
treasurer , when confronted with Dowling 's recital , had re-
sponded, testily and succinctly, with, "God damn it, fire
him!" With due regard for Donohue's description of his
troubled situation , which he clearly found personally dis-
tressful , I credit Fenton 's proffered recollection that
Respondent 's secretary -treasurer delivered his discharge
directive forcefully.
Late that afternoon , close to 5 o 'clock-so Smith testi-
fied-Stephen Widnes returned to the department, follow-
ing a temporary absence ; he asked the computer operator,
without any conversational prelude, what he had heard
from "his" union. (Effective February 1, 1974, Widnes had
been formally promoted to a newly created position. When
the conversation now under consideration took place, he
was the data processing department 's designated assistant
manager.)
When Smith asked Widnes what his question signified,
the latter declared , according to the computerman, that
Respondent's management knew he (Smith ) had distribut-
ed Complainant Union's designation cards; that he was
suspected of sending Complainant Union the firm 's Cali-
fornia Street and Pier 80-A personnel list; and that he
(Smith) had attended Complainant Union's luncheons.
Smith 's testimony regarding their further conversation,
then , reads as follows:
And I asked Mr. Widnes: "What are you trying to
say?" And he replied: "Well, if I were you, I would be
looking for another job." And he continued: "Just as
soon as these year-end reports are completed , most of
those employees active in the union deal are going to
be terminated , one way or another."
While a witness, herein , Smith opined that these comments
had been proffered smugly ; Widnes' manner , so the com-
puter operator testified , had generated a subjective "im-
pression" within him that Respondent 's newly designated
assistant manager would be relieved , should he (Smith), be
terminated.
When summoned in Respondent 's behalf , Widnes cate-
gorically denied any February 20 conversation with Smith,
during which the computer operator 's presumptive union
sympathies were mentioned , or during which references
were made to his possible termination . However , his deni-
als within my view carry no persuasion . Rather , the record,
considered in totality, will preponderantly support a deter-
mination , which I make , that Widnes had, some time previ-
ously , become fully cognizant with respect to Smith's union
sympathies. (Before his promotion Widnes had , like other
workers in Respondent's data processing department, re-
ceived Complainant Union's mailings . That organization's
representation campaign had, clearly , been discussed with-
in the department . During such conversations-with re-
spect to which both Widnes and Smith had participated-
the senior computer operator had, patently , manifested his
negative reaction to Complainant Union's bid for represen-
tative status.)
Though Widnes, while testifying , disclaimed any direct
knowledge-derived from a definitive source during Feb-
ruary 20th's late daytime hours-that Smith himself faced
discharge , rumors were concededly prevalent within
Respondent's California Street headquarters corps that
some forthcoming layoffs were being planned. The data
processing department 's newly designated assistant manag-
er, certainly, would have heard such rumors, from his supe-
rior or subordinates. And, since Widnes, while in the wit-
ness chair, did, within my view, display somewhat brash,
tactless mannerisms-which suggest a certain lack of re-
straint on his part and some limited capacity for discern-
ment-Smith's testimony, which clearly reflects the assis-
tant manager's disposition to needle, fluster, or disconcert
his fellow computerman within a situational context rife
with disquieting rumors, comports with logical probability.
Further, Smith's recitals previously detailed herein-which
purport to set forth their February 20th conversation-
were, within my view, proffered straightforwardly, precise-
ly, and with self-confident, righteous conviction; I find
them worthy of credence. Widnes' denials, with respect
thereto, I reject.
My credibility resolution with respect to this portion of
General Counsel's presentation, however, carries no factu-
al determination , consistent with his further contention,
that Widnes' comments should be considered persuasively
revelatory of Respondent's basic motivation for Smith's
discharge, which was consummated, so the record shows, 2
days later. General Counsel's position with respect thereto
will be considered, subsequently, within this Decision.
On February 22, during the afternoon, Smith did receive
his notice of discharge. The testimonial record, herein, re-
flects several divergent recitals with respect to Dowling's
final conversation with Respondent's computer operator;
these testimonial recitals reveal disparate recollections with
respect to certain matters of substance, with respect to the
general "ambience" which characterized their conversa-
tion , and with respect to that conversation's relevant back-
ground. Mindful of those frailties which plague human
memory . I am persuaded that no single witness
herein-regardless of partisan posture-can legitimately
claim a complete, coherent recollection with regard to what
was said. Further, with respect to some testimony, subcon-
scious rationalizations, within my view, may well have col-
ored memory. Necessarily, therefore, such a record would
call for factual determinations based, not upon some com-
plete, self-contained testimonial recital which a particular
witness-or several mutually corroborative witnesses-
deemed generally credible, may have proffered, but upon
some reasonable synthesis derived from the full record,
with due regard for such a composite 's internal consisten-
cy, susceptibility to possible "external" verification, and
the natural logic of probability. Universal Camera Corpora-
tion v . N.L.R.B., 340 U.S. 474, 496 (1950). See Galpin Mo-
tors, Inc., 183 NLRB 447, 456, enfd. April 6, 1972 (C.A. 9,
unreported); Inter-Mountain Dairymen, Inc., 157 NLRB
1590, 1609-10 (1966); Phaostron Instrument and Electronic
Company, 146 NLRB 996 (1964), enfd. 344 F.2d 855 (C.A.
9, 1965); Southeastern Motor Truck Lines, 113 NLRB 1122,
1124-27 (1955), citing N.L.R.B. v. Universal Camera Corpo-
ration, 179 F.2d 749 (C.A. 2, 1950). Compare N.L.R.B. v.
J. P. Stevens & Co., Inc., 464 F.2d 1326 (C.A. 2, 1972). My
determinations, herein , derive from such a synthesis;
whenever necessary , however , reasons for particular factu-
al conclusions will be noted.
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sometime during February 22nd 's midafternoon hours, I
find , Widnes told Smith that he was wanted in Manager
Dowling's office . When the computer operator entered, he
saw Dowling holding an envelope , within which a pay-
check had been , or was being, inserted . Smith commented,
"Mr. Dowling , you don' t have to tell me what this means.
This is a lay-off or a termination ." The departmental man-
ager declared that Smith was not being laid off ; that he
would be replaced. When the computer operator protested
that he had worked hard and done quality work, Dowling
replied substantially that Smith 's qualifications were not
being questioned , and that he (Dowling) had no com-
plaints regarding either the quality or quantity of Smith's
work . The computer operator then requested the reason for
his discharge . The departmental manager , I find , proffered
a general statement , merely , that Smith had not been
"cooperating" while refraining from "doing any more work
than he was absolutely" required to perform.
When first queried , herein , Smith testified that Dowling
had said he was being replaced because Respondent's
management knew he had been "instigating" worker "in-
terest" with respect to union matters . The record, however,
reflects his subsequent contention-proffered during a
postdischarge conversation with Director of Industrial Re-
lations Fenton particularly-that Dowling had given him
no reason for termination . Further, Smith 's testimony re-
flects no postdischarge contention , proffered during vari-
ous subsequent conversations with Respondent 's manage-
rial personnel , that he had really been terminated, or
considered himself terminated , because of his union sym-
pathies . If Dowling had, really , cited such a reason for his
discharge , the computer operator, I am sure , would have
pursued the matter with his departmental manager 's supe-
riors ; he never protested , however , that he was being termi-
nated for statutorily forbidden reasons . Upon this record,
Smith 's present testimony that Dowling specifically told
him he would be replaced because he had been Complain-
ant Union 's protagonist within the firm's data processing
department merits no credence.
The computer operator then requested a letter of refer-
ence , so that he could obtain work elsewhere . Dowling
agreed to provide such a letter; when drafted, that docu-
ment characterized Smith as "reliable and hard working"
while recommending him for future employment in some
similar position.
While waiting for his requested letter , Smith declared
that he wanted to discuss, with Fenton , the possibility that
his termination could be considered a layoff, since such a
characterization would forestall difficulties which might,
otherwise , hamper his collection of State of California un-
employment compensation benefits . With Dowling's per-
mission , then , he left the department.
When Smith reached Fenton 's eighth -floor office, he re-
newed his query with respect to Respondent 's reason for
his termination . Respondent 's director of industrial rela-
tions , presumably taken somewhat aback, asked whether
Dowling had not given him a reason . The computer opera-
tor replied that "no reason" had been stated. Fenton never-
theless declared (so I find) that Smith knew "damn well"
why he was being discharged. The computer operator then
asked whether Respondent could designate his termination
a layoff, so that he could thereafter qualify without ques-
tion for state unemployment compensation benefits. Fen-
ton replied that he would discuss the request with
Respondent's president, and that he would, shortly thereaf-
ter, let Smith know. When Respondent's director of indus-
trial relations asked Smith where he could be reached, the
latter replied that he was returning to Dowling 's office.
Fenton declared, so I find, that he would notify Dowling,
by telephone, when he received President Dant's decision.
The computer operator then returned to Dowling's office
where his previously requested letter of reference had been
completed. Further, he relinquished his two office keys to
Respondent's departmental manager.
With respect to certain developments which directly fol-
lowed , the record herein reflects a further testimonial con-
flict. Smith declared that Dowling received a telephone call
while they were talking, following which he reported that
Fenton had declared "lay-off status" for Smith would be
"all right" with Respondent, should [Dowling] concur. Spe-
cifically for the purpose of permitting Smith to collect un-
employment compensation benefits , he was told, Respon-
dent would designate his termination a layoff, should
anyone call with respect thereto. However, Fenton testified
contrariwise , with Dowling 's corroboration , that , when he
telephoned the data processing department's manager, he
was told Smith had already left Respondent's California
Street premises . According to Dowling, Fenton neverthe-
less asked him during their conversation whether he would
object to Smith's claiming layoff status when applying for
unemployment compensation . The departmental manager,
so he testified, replied that Respondent 's reaction would be
"entirely" for Fenton to decide; he could not, however,
recall Fenton's declaration with regard to what
Respondent's decision would be. The record herein shows
that Smith finally did, subsequently, claim layoff status
when filing his State of California unemployment compen-
sation claim. I am satisfied that-having raised the ques-
tion , himself, in the first instance-he would not have done
so without having received some reassurance, from a re-
sponsible source , that Respondent's management would
not contest his declaration. The record considered in totali-
ty, therefore, warrants a determination that, before he left
Respondent's headquarters, Smith was indeed told by his
departmental manager that he could consider himself laid
off for unemployment compensation purposes.
When told that Respondent would consider his dis-
charge a layoff should some report or characterization be
solicited with respect thereto, the computer operator left
Dowling's office, cleared out his desk, and left
Respondent's California Street headquarters.
Meanwhile, so I find, Respondent's secretary-treasurer
had requested Department Manager Dowling to provide
him with a statement setting forth Respondent 's rationale
for Smith's termination. Consistent with Donohue's direc-
tive, Dowling prepared a memorandum report. That docu-
ment , though dated Friday, February 22, was prepared,
typed, and dispatched early the following Monday, Febru-
ary 25; copies were sent to Secretary-Treasurer Donohue
and Respondent 's director of industrial relations.
Dowling's memorandum read as follows:
STATES STEAMSHIP COMPANY 1267
As we previously discussed, Randall Smith will be dis-
charged today. The reasons are:
1. Basically, very poor attitude towards supervision.
2. Bad influence on department morale.
3. Unwillingness to do any more than absolutely nec-
essary , especially if he considered task or assignment
to be outside his job classification.
4. Inability to accept constructive criticism.
5. General lack of cooperation with supervision and
with fellow workers.
As a result of this action , certain D/P personnel
changes are required as outlined in the separate at-
tached memo.
Early Monday morning, February 25, before Dowling's
statement had been received by Respondent's director of
industrial relations , Smith sought a conference with
Respondent's Vice President Robert Mayer; he requested
reinstatement . Mayer declared , however , that Smith's re-
quest fell within Fenton's jurisdiction, and conducted the
firm 's former computer operator to Fenton's office . There,
I find , Smith renewed his reinstatement request. He was
told, however, that he could not have his job back; that
"the die [had ] been cast" with respect thereto.
(5) Subsequent developments
With Smith terminated , Respondent 's management (so
the record shows) found itself constrained to make certain
departmental staff readjustments . Dowling's newly desig-
nated surrogate , Widnes , was initially requested to resume
direct responsibility for Respondent's computer room
functions. Concurrently, Altha Curtis, then a keypunch op-
erator within the department , was designated a computer
trainee ; she was to be trained as Smith 's replacement. After
some 10 weeks , however , Curtis was transferred back to
keypunch work; Dowling and Widnes, so she testified, told
her that they could not consider her qualified for computer
operations . Eventually , Respondent hired a qualified com-
puter operator not previously connected with the firm.
Meanwhile , shortly following his termination, Smith
filed a State of California claim for unemployment com-
pensation benefits . He reported that h e, had been "laid off"
because of Respondent 's reduction in force. (This declara-
tion , I find , derived solely from Smith 's good-faith belief
that Respondent 's management would not protest his
claimed reason for separation.) Nevertheless , when con-
tacted subsequently by State Department of Human Re-
sources Development personnel , Respondent's manage-
ment representatives reported that Smith had been
discharged because of his "unsatisfactory relations with
fellow workers" though he had never been advised that his
conduct was considered less than satisfactory . With mat-
ters in this posture, Smith was found "not eligible to re-
ceive benefits" for a 2-week disqualification period, be-
cause he "knew or reasonably should have known" that his
termination had involved discharge rather than a layoff,
merely; the computer operator was told he had not
"shown" that his misstatement of material fact concerning
his eligibility had been proffered for purposes other than to
obtain benefits.
Discussion and Conclusions
Contentions
General Counsel's basic charge herein that Randall
Smith was terminated for statutorily proscribed reasons de-
rives, primarily, from his contention that Respondent's
proffered justification should be considered contrived and
pretextual. More particularly, General Counsel's represen-
tative, within his brief, suggests: that, throughout the July-
November 1973 period during which Complainant Union
first sought representative status, Smith had been a prime
union protagonist; that his union sympathies had been
known to various management representatives, particularly
Widnes, his senior fellow worker and subsequently his su-
pervisor, Dowling, his departmental manager, and
Respondent's director of industrial relations; that
Respondent's various management representatives had,
throughout Complainant Union's representation cam-
paign, manifested their concern and distress with respect
thereto; that both of Smith's direct supervisors, Widnes
and Dowling, had specifically notified the computer opera-
tor, shortly before and concurrently with his termination,
that he was considered persona non grata because of his
union sympathies; and that:
... the reasons proffered by Respondent for Smith's
discharge were grossly lame and even ludicrous .. .
specious and trivial . . . wholly contrived for the pur-
pose of dissembling Respondent's discriminatory mo-
tives . . . .
With Respondent's congeries of reasons, proffered tojusti-
fy Smith 's termination , characterized as less than suffi-
cient, when dispassionately reviewed, to warrant a dis-
charge decision , General Counsel 's representative argues
that those reasons could "only" have been pretextual. And,
since a respondent employer's reliance upon pretexts, when
justifying a termination, may legitimately be considered
substantial "evidence" with respect to his unlawful motiva-
tion when "the surrounding facts tend to reinforce" deduc-
tive inferences that such a motive was operative (Shattuck
Denn Mining Corporation (Iron King Branch) v. N. L. R. B.,
362 F.2d 466, 470 (C.A. 9, 1966); Idaho Frozen Foods, Divi-
sion of Consolidated Foods Corporation, 173 NLRB 1322
(1968), General Counsel contends, finally, that Smith's ter-
mination must have been motivated by statutorily proscribed
considerations.
Respondent's counsel has submitted no brief. Neverthe-
less, when requested to provide a preliminary statement
with respect to Respondent 's defensive contentions, coun-
sel suggested, first, that Smith's discharge should be con-
sidered within its relevant context . In this connection,
counsel noted: that Respondent had sustained substantial
monetary losses during the calendar year which preceded
Smith's termination; that a retrenchment program, com-
passing both a fleet reduction and prospective layoffs for
Respondent's shore side personnel, had been planned, and
was being implemented; that, because Respondent found
itself constrained to computerize more paperwork, Depart-
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment Manager Dowling was being required to spend more
time developing new programs and systems analyses; that,
consequentially , Widnes had been designated to serve as
Dowling 's departmental administrative surrogate; and
that:
Mr. Smith . . . refused to cooperate with Mr. Widnes,
and this was part of an ongoing problem which the
company had with Mr. Smith with his failure to coop-
erate with the company. The matter came to a head in
a meeting that was not called for that purpose, that the
name of Mr. Smith came up and the management peo-
ple felt that in view of the great financial losses of the
Company [plus] the fact that they were losing, or hav-
ing to terminate, layoff, 29 people
they did not wish to continue employing a person who
would not "cooperate" while performing Respondent's
work. When requested, subsequently, to specify Smith's
particular deficiencies , Respondent contended , inter aiia,
that he possessed a so-called "abrasive" personality; that
he was reluctant to take on more than the bare minimum
of his job-related responsibilities; that he had revealed
himself to be both a disgruntled and frustrated worker;
that he resented constructive criticism; and that his behav-
ior had been creating a departmental morale problem. For
these reasons, Respondent contends, Smith had finally
been terminated.
Discussion
When requested to particularize, testimonially, with re-
spect to Smith's purportedly questionable behavior (which
Dowling had finally characterized, in patently conclu-
sionary terms, within his previously noted discharge mem-
orandum) various company witnesses cited several "inci-
dents" which, so they claimed, reflected the computer
operator's poor job adjustment and lack of cooperative
spirit. Though recapitulated with some circumstantial de-
tail, for the present record , most of these several "inci-
dents" need not be described, comprehensively, herein. For
present purposes , their summarization-save for one mat-
ter noted below-should suffice:
1. Smith , so Respondent's witnesses declared , had re-
fused to handle or shelve blank IBM punchcards or depart-
mental paper stock; further, he had refused once to bring
down such IBM cards, which the department's keypunch
operators required, from shelves which were beyond their
reach.
2. The computer operator, so Fenton claimed, had re-
fused once to clean the magnetic recording head within a
computer room tape machine with which he worked.
3. Smith, so Widnes testified, had refused once to per-
form a simple computer room task which he had never,
previously, been requested to perform; that task would
have required him to use a keypunch machine for the pur-
pose of transferring certain information from Respondent's
documentary records to some eight IBM cards, for subse-
quent computer insertion. According to Widnes, Smith had
declared that he would not take on such work, which his
newly designated supervisor had previously performed, un-
less he got more money.
4. Shortly after the year-end holidays, when a keypunch
operator requested Smith to carry a dying Christmas tree
from their workroom to some nearby hallway, from which
a building janitor could thereafter remove it, the computer
operator, so Dowling reported, had refused, declaring that
such tasks were not his responsibility, and that the
building's janitor could remove it from wherever it then
stood.
5. The computer operator, so several witnesses testified,
had complained once that he was given responsibility for
various computer room tasks which Widnes had previously
performed, following the senior computer operator's pro-
motion; Smith, so Respondent's witnesses recalled, had de-
clared his willingness and readiness to discharge these new
responsibilities , but had contended that he should be re-
ceiving higher pay.
6. One Friday, so Widnes and several other witnesses
reported, Smith had rejected a request to report, the follow-
ing day, for some overtime work; he had declared forceful-
ly-but speciously, within Widnes' view-that he had
something else to do.
7. The computer operator-so Dowling testified, with
Widnes' corroboration-had displayed a subtly critical
and disrespectful reaction, once, when criticized severely
for a seemingly negligent mistake . Sometime during calen-
dar year 1973, Smith had been requested to run a particu-
larly large program, which required a special procedure,
through Respondent's computer. While doing so, he had
concededly failed to notice a problem which had devel-
oped, and consequently failed to take necessary corrective
action with respect thereto. His failure had resulted in the
"deletion" or complete "erasure" of several "files" which
constituted the computer's operating system. Approximate-
ly 1-1/2 hours had been required for their reconstruction
and replacement. Dowling, so the record shows, had
strongly reprimanded Smith; his voice had, concededly,
been raised. According to Respondent's departmental
manager , "He [Smith] got very emotional about it, and
said, 'I'm sorry.' But he said it in a very obsequious man-
ner. He started bowing and scraping and practically touch-
ing the floor-saying, 'I'm sorry-I'm sorry-I'm sorry-
I'm sorry!' Bending over, and making a big scene." Dowl-
ing had considered Smith's overly apologetic response
emotionally charged; the computer operator's whole de-
meanor and posture, so Respondent's departmental man-
ager declared, had reflected a contrived "obsequious" reac-
tion, which suggested his complete lack of respect.
8. During a June 1973 conference between Smith and
Secretary-Treasurer Donohue, which had been primarily
concerned with the computer operator's queries regarding
a possible merit raise , and his prospects for promotion,
Smith had purportedly proffered some critical views rela-
tive to Dowling's supervisory capabilities, with particular
reference to his "manner" or "style" when discharging his
managerial responsibilities. Donohue, so his testimony
shows, had concluded, from Smith's derogatory comments,
that he was a disaffected worker.
Contrary to General Counsel's contention, Respondent
does not, herein, concede that these demonstrations of pur-
portedly questionable behavior were trivial. Respondent's
witnesses have, however, conceded that Smith was never
chided for these behavioral demonstrations; he was never,
STATES STEAMSHIP COMPANY 1269
so the record shows, reprimanded or warned prior to his
termination that his purportedly poor "attitude" toward
supervision , resentment of proffered "constructive" criti-
cism, or failure to display a cooperative spirit called for
correction, or might jeopardize his continued tenure. No
critical memoranda , calculated to suggest managerial dis-
pleasure with Smith's performance, were written for
Respondent's personnel files before his discharge. He re-
ceived a July 1973 merit raise . Upon this record , determi-
nations seem warranted, clearly, that Smith's superiors
never did, really, consider his behavior, at the time, suffi-
ciently disturbing or disruptive to require chastisement or
correction; I so find.
Fenton's testimony, considered in totality, reflects his
conceded responsibility, while functioning as Respondent's
personnel manager , for conferring with employees whose
work performance records reveal a failure to meet compa-
ny standards, for the purpose of stimulating them to do
better. No managerial representative, however, seems to
have brought Smith's purported behavioral deficiencies,
whenever they were manifested, to Fenton's notice.
Respondent's director of industrial relations, therefore, was
never called upon to confer with the computer operator
relative to complaints which his departmental superior had
forwarded ; no effort whatsoever seems to have been made
calculated to correct his purportedly questionable conduct.
Mindful of these considerations , I conclude , consistent
with General Counsel's contention, that Smith's various
behavioral lapses, though perhaps mildly peccant, hardly
merit those generalized animadversions which
Respondent's managerial representatives , testifying herein,
have freely proffered. More particularly: The record, with-
in my view , will not sustain Respondent 's judgmental con-
tention that Smith possessed a so-called "abrasive" person-
ality. Respondent's keypunch operators, clearly, found him
a relatively pleasant fellow worker; none characterized him
as vulgar, abusive, overbearing, demanding, or hypercriti-
cal. Widnes , though he testified with regard to several pur-
ported manifestations of Smith 's noncooperation, never
claimed while a witness that his fellow computer operator
had been quarrelsome . Further: Respondent's present con-
tention that Smith was a disgruntled and frustrated worker
derives, presumably, from Donohue's subjective judgment
in that regard which he reached, presumably, following
their June 1973 conference. With the secretary-treasurer's
recapitulation of their conversation taken at face value,
however, Smith's reported comments within my view can-
not reasonably be considered reflective of disgruntlement
or frustration. They may have been poorly timed; further,
the computer operator's remarks, communicated so freely
to his supervisor's managerial superior , might conceivably
deserve characterization as reflective of poor judgment.
Nevertheless, they were not within my view, consciously or
calculatingly proffered for disruptive purposes.
Respondent 's secretary-treasurer concededly noted them
casually; Dowling was never told that Smith should be
considered a disaffected subordinate . Finally,
Respondent's several further contentions , that Smith's
work-related behavior constituted a constant source of irri-
tation, that he lacked the capacity to accept constructive
criticism , and that he was creating a departmental morale
problem-when reviewed with due regard for several pur-
ported "incidents" previously noted which have been cited
as their supportive justification-reflect hyperbole. Fur-
ther, within my view, they represent post hoc rationaliza-
tions merely, rather than reasonably warranted judgments
with regard to particular work-related developments con-
temporaneously reached.
Nevertheless, despite my concurrence with General
Counsel's general contention that Respondent's presently
proffered justifications for Smith's termination merit char-
acterization as lame, specious, and trivial, I find his com-
prehensively briefed "therefore" less than persuasive.
The computer operator may have been a prime mover
with respect to Complainant Union's bid for representative
status; his testimony-proffered, herein, without challenge
or contradiction-certainly warrants such a conclusion.
Further, his departmental manager, Dowling, may have
been cognizant with respect to Smith's union sympathies;
the present record, within my view, certainly provides a
sufficient basis for that determination. Finally, Dowling's
professed fears, laid bare for Respondent's secretary-trea-
surer, during their February 20th conversation-that
Smith's required departmental "cooperation" would not be
forthcoming, thereafter, following Respondent's planned
reduction in force-may well have reflected the data pro-
cessing supervisor's purely subjective, but poorly ground-
ed, reaction when confronted with a subordinate's seem-
ingly questionable behavior; I have so found.
However, I cannot pole vault from these premises to
General Counsel's suggested conclusion that Dowling must
have been seeking Smith's termination, or that Donohue
must have directed his dismissal, knowingly, for statutorily
forbidden reasons. Compare Metal Processors' Union Local
No. 16, AFL-CIO [Poray, Inc.] v. N.L.R.B., 337 F.2d 114,
117-118 (C.A.D.C., 1964); Cedar Rapids Black Co., Inc.,
and Cedar Sand and Gravel Co. v. N.L.R.B., 332 F.2d 880,
884 (C.A. 8, 1964) in this connection. With respect to
Respondent's February 20th discharge decision, General
Counsel's representative, within his brief, declares:
. .. that if this [February 20th] meeting occurred at
all, it was to discuss the terminations and when Dono-
hue heard that Smith had been a chief union spark-
plug, a fact well known to Dowling and Fenton, he
reacted, "God damn it, fire him." This partially ex-
plains why no one tried to work with Smith to improve
his attitude as per Respondent's policy. The other part
of the explanation is that the alleged problems with
Smith were contrived and, in fact, did not exist. In any
event, the revelation to Donohue that Smith was the
union instigator had to be the thing which triggered his
wrath. . . . Respondent's action of discharging Smith
is too severe to have been prompted by the lame "rea-
sons" proffered by Respondent. The only plausible ex-
planation is that Respondent's wrath was prompted by
the same Union activities which caused Donohue to
violently state, "That's it, God damn it, fire him."
[Emphasis supplied.]
These suggestions , however, lack record support. Conced-
edly, Respondent's secretary-treasurer had known about
Complainant Union's previous representation bid; pre-
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sumably , when his February 20th conversation with Dowl-
ing took place , Donohue was likewise cognizant that Com-
plainant Union's petition had been withdrawn 2-1/2
months previously . While a witness , however , he denied
having had personal knowledge with regard to Smith's ear-
lier role as Complainant Union 's protagonist . Nothing in
the present record would warrant his testimony 's rejection;
General Counsel 's representative , indeed , has essentially
conceded its likely truth , proffering the suggestion within
his brief that Respondent 's secretary-treasurer first
"heard" that Smith had been a so-called "chief union
sparkplug" during the crucial discharge conversation now
under consideration . That suggestion , however, derives,
within my view , from pure speculation ; Respondent's wit-
nesses have denied , categorically , that Smith 's union sym-
pathies were mentioned . General Counsel 's reconstruction
of the record derives , merely , from his professed belief that
Secretary-Treasurer Donohue would not have become very
"angry and upset" solely because of Smith 's minor behav-
ioral peccadilloes ; ergo, so his brief suggests , some revela-
tion with respect to Smith 's union sympathies and prior
activities "had to be the thing" which provided Donohue's
true motive for a discharge directive . I cannot concur. The
line between speculation and legitimate inference, bot-
tomed upon proven record facts , may sometimes be diffi-
cult to draw ; within my view , however, that line has been
overstepped, particularly in this connection.
Donohue's directive , I find , derived straightforwardly
from his negative "flash" reaction, triggered by Dowling's
conversational reference to Smith's purported lack of coop-
erative spirit . And, despite General Counsel 's contrary
contention , I find , further, that when he directed the com-
puter operator's termination , the secretary-treasurer had
no "personal" knowledge regarding Smith 's prior union ac-
tivities which could , arguably , have prompted his discharge
decision.
General Counsel contends, nevertheless , that Respon-
dent should be considered responsible for a statutorily pro-
scribed discharge , since Smith 's direct superior-who,
General Counsel suggests , recommended the computer
operator 's dismissal-did know about his prior union ac-
tivities , and since those disfavored activities were the real
"moving cause" which prompted Respondent's Data Pro-
cessing Manager "to bring Smith's name to Donohue's at-
tention" for a termination decision . Compare Douglas
Electric Cooperative, Inc., 194 NLRB 821 , 826 (1972).
Therein, the Board concurred with a Trial Examiner's de-
termination that:
The evidence is clear that the board of directors decid-
ed to discharge Kuyper because of his defects as an
employee reported to them by Lang and not because
of any union activity , which none of them knew about
at the time they made the decision. It is also clear that
the board acted pursuant to the recommendation of
Lang . The remaining question, therefore, is whether this
effective recommendation was not motivated by the
manager's desire to chill unionism , the various legitimate
reasons assigned being mere pretext, or whether his rec-
ommendation was made for nondiscriminatory reasons.
[Emphasis supplied.]
Further, compare Transport Clearings, Inc., 133 NLRB 607,
614-615 , 616-618 (1951) (Lindsey' s discharge), enfd. in
pertinent part 311 F.2d 519 (C.A. 5, 1972); Stewart & Ste-
venson Services, Inc., 164 NLRB 741, 743, 766-767 (1967).
But see International Ladies Garment Workers' Union,
AFL-CIO, 142 NLRB 82, 94-97 (1963) (Sedares' dis-
charge), petition for review denied 339 F.2d 126 (C.A. 2,
1964), in this connection.
General Counsel 's contention , however , must be reject-
ed. His legal premise may be sound ; his factual premises,
however, lack record support.
First: I note that no record justification , whatsoever, can
be found for General Counsel's suggestion that Dowling
specifically "recommended" Smith's termination . Rather,
when requested to declare whether any data processing de-
partment workers could be spared in connection with
Respondent 's planned reduction in force , the department's
manager reiterated a prior contention-with respect to
which Donohue had concurred-that staff reductions with-
in his department would seriously prejudice its capacity to
handle prospective workloads . (While a witness , Dowling
conceded that, when directed to effectuate Smith 's termi-
nation , he had received Donohue 's decision with a sense of
welcome relief . The present record , however, clearly war-
rants a determination, which I make that he had neither
solicited nor recommended his subordinate 's dismissal.)
General Counsel could , conceivably , contend that
Dowling's plaint had been provocatively proffered, with
some sub silentio hope that Respondent's secretary-treasur-
er would react negatively . Such a contention , however,
would be bottomed upon sheer surmise. When
Respondent 's various departmental heads were requested
to reconsider their staff requirements-before higher
management 's final February 13 reduction in force deci-
sions were reached-Dowling could have , specifically or
obliquely, suggested Smith's separation ; he did not. And,
when Donohue , during their spur-of-the -moment February
20 conversation , requested Dowling to reconsider their
prior consensus that no data processing department per-
sonnel could be spared , Smith could have been designated;
he was not . With due regard for the departmental
manager's failure to tap Smith , openly , for layoff-twice-
when he could have done so, I cannot conclude that he
was, nevertheless , seeking the computer operator's dis-
charge with subtle Machiavellian suggestions.
Second: Despite my concurrence with General Counsel's
charge that Respondent 's presently proffered litany of
complaints , with respect to Smith 's performance, should be
considered overblown , the record herein-within my
view-will not support his further contention that the com-
puter operator's union activities were the "moving cause"
which prompted Dowling to bring his name to Donohue's
notice during their February 20 conversation. Compare
Burdett Oxygen Co. of Cleveland, Inc., 213 NLRB 19 (1974).
Though Smith 's superior had concededly cautioned his
subordinates previously that unionization would not be
wise, his declared "views , argument and opinion" had
transgressed no statutory limitation . His sole comment di-
rected to Smith , personally , with regard to Complainant
Union's campaign, had reflected wry disparagement rather
STATES STEAMSHIP COMPANY 1271
than perfervid opposition . Further , nothing in the present
record would warrant a determination that Dowling had
ever considered Smith directly responsible for Complain-
ant Union 's presence ; nor would a factual conclusion be
warranted that his presumptive readiness to help forestall
clerical worker unionization had focused upon Smith per-
sonally.
General Counsel suggests , inter alia, that Widnes, who
had discussed clerical worker unionization with Smith sev-
eral times, could have prompted Dowling's negative reac-
tions, generating his managerial superior 's purpose of re-
prisal thereby. I cannot concur. The record may well
warrant a deductive inference , certainly, that Widnes,
while a senior computer operator, had frequently reported
whatever knowledge he may have gained with regard to
Complainant Union's campaign within Dowling's depart-
ment. However, no definitive determination would be justi-
fied, within my view, that Dowling ever was, thereby, spe-
cifically motivated to recommend Smith 's termination.
True, I have found previously herein that Widnes told
Smith, during the late afternoon of February 20, that he
would be well advised to seek other work , since union sup-
porters in Respondent's hire would shortly face discharge.
Those comments clearly conveyed a statutorily proscribed
threat . With due regard for their context , however, I can-
not find them sufficient to warrant determinations, bot-
tomed upon speculation merely, that Dowling had prompt-
ly reported Donohue's prior discharge directive to Widnes,
or that Respondent's department head had really cited
Smith 's antecedent union activities as the precipitating
cause for his prospective termination. Rather, mindful of
Widnes ' previously declared antiunion sentiments, I find
his remarks reflective of nothing more than a disposition to
discombobulate Smith, gratuitously, bottomed upon the
"reduction in force" rumors which were then current with-
in Respondent's headquarters facility. Though his com-
ments did convey a threat, they cannot legitimately be con-
sidered , within my view , vicarious "admissions" probative
with respect to Respondent 's motivation for the computer
operator's subsequent discharge.
Finally, I note that Complainant Union's petition for
certification had been withdrawn some 2-1/2 months be-
fore Dowling's February 20 complaint that Smith lacked
cooperative spirit. Complainant Union's previously sus-
tained campaign for representative status was no longer
being pressed . With due regard for this circumstance, I
cannot conclude that Dowling's conceivable but never
proven "animus" toward Smith, supposedly bottomed
upon the computer operator's previously reported union
sympathies, would have survived Complainant Union's
withdrawal from the field.
True, Complainant Union did, ultimately, file a new pe-
tition during May 1974. The record herein, however, re-
flects no testimonial suggestion whatsoever that overt cam-
paign activities , looking toward a renewal of Complainant
Union's representation bid, were already under way during
February, 1974, more than 3 months beforehand.
General Counsel suggests, however , that Respondent's
department head was , throughout, determined to discharge
Smith , but "temporized" with his initial termination deci-
sion for two reasons: First, because the computer
operator's services were required to complete a major proj-
ect, the year-end payroll; Second, because delay would
"create a hiatus in time" calculated to reasonably "give the
appearance" that Smith's discharge was not being bot-
tomed upon his prior course of conduct as Complainant
Union's protagonist. The charge that Smith's superior
"temporized" for such reasons carries no persuasion, how-
ever. If Dowling had merely been postponing a decision,
previously made, that Smith deserved discharge for statu-
torily proscribed reasons, he could have achieved his pur-
pose-without revealing his purportedly covert motiva-
tion-by recommending Smith for layoff on February 28
before Respondent's final February 13 reduction-in-force
decision, or during his February 20 conversation with
Respondent's secretary-treasurer. Nevertheless, he made
no such recommendation.
Respondent's generalized justification, presently prof-
fered, for Smith's discharge-though bottomed upon what
I would consider relatively flimsy, inconsequential
grounds-cannot, within my view, be considered pretex-
tual. Dowling's final complaint with regard to Smith's pur-
ported lack of cooperative spirit-which, so far as the rec-
ord shows, triggered Donohue's discharge directive-was, I
find, spontaneously proffered; I am satisfied upon this rec-
ord that he really considered it legitimate. Respondent's
departmental manager, though without doubt a qualified,
competent technician, patently lacks savoir faire with re-
spect to managerial, administrative matters; he could nei-
ther cope effectively with, nor tolerate, behavior by subor-
dinates which he personally found disturbingly
idiosyncratic.
Respondent's secretary-treasurer, though he presently
professes "high regard" for Dowling's ability generally, has
conceded that he considers the data processing department
manager a much better technician and data processing
man than a personnel man. While a witness, Dowling like-
wise conceded, consistent with Donohue's declared view,
that his technical responsibilities, directly related to the de-
velopment of new computer programs and systems analy-
ses, were, during this period, absorbing most of his time;
his testimony, further, reflects a suggestion that he found
"administrative" tasks generally burdensome. And the rec-
ord, indeed, provides a clear indication that Widnes was
designated the department's assistant manager, pursuant to
Dowling's suggestion, precisely because he was considered
qualified to handle delegated responsibility for the latter's
diurnal administrative functions. See "Labor Letter," Wall
Street Journal, page 1, eighth paragraph, February 11,
1975, in this connection. Thus, with due regard for those
insights which the present record provides, particularly
with relation to Dowling's character, capabilities, and mo-
tivation, I am satisfied that his particular February 20 com-
plaint-that Smith would be difficult to work with under
prospective pressure conditions-was sincerely presented.
A supervisor with greater self-confidence, possessing a
more equable temperament, plus some expertise within the
field of personnel management, would probably have con-
sidered Smith's purported behavioral quirks permissibly
within "normal" limits, or worthy of nothing more than
mild admonition; there can be no doubt, however, that
Dowling did personally find them troublesome. And situa-
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions which some other supervisors might readily "take in
stride" without recrimination , he did consider dangerous
for departmental morale . Dowling 's syndrome, with partic-
ular reference to handling subordinates , has within my
view been classically defined . See L. J. Peter and R. Hull,
"The Peter Principle," pp. 24-26 (Bantam Ed., 1970), re-
printed from Management Review, February 1969. Therein,
supervisors who consider means and methods, formally
correct behavior, and proper rituals more important than
ends have been described:
The competence of an employee is determined not by
outsiders but by his superior in the hierarchy . If the supe-
rior is still at a level of competence , he may evaluate
his subordinates in terms of the performance of useful
work-for example , the applying of medical services
or information , the production of sausages or of table
legs or achieving whatever are the stated aims of the
hierarchy. That is to say, he evaluates output. But if the
superior has reached his level of incompetence , he will
probably rate his subordinates in terms of institutional
values : he will see competence as the behavior that
supports the rules, rituals and forms of the status quo.
Promptness , neatness , courtesy to superiors , internal
paper work , will be highly regarded. In short, such an
official evaluates input .... "Rockman is dependa-
ble." "Lubrik contributes to the smooth running of the
office." "Mrs. Friendly cooperates well with col-
leagues." . . . In such instances , internal consistency is
valued more highly than efficient service: this is Peter's
Inversion . . . . [Such a supervisor] has inverted the
means-end relationship.
See, further, Arnett v. Kennedy, 416 U.S. 134, 204-205
(Douglas, J., dissenting) (1974) in this connection . Mindful
of these precepts, I might well consider Dowling 's conclu-
sionary rationalizations , belatedly proffered to justify
Smith 's discharge, poorly grounded ; I cannot, however,
find them contrived to mask a forbidden motivation.
Smith's termination-though probably undeserved , within
my view-cannot be considered demonstrably bottomed
upon statutorily proscribed considerations. Compare
N.L.R.B. v. Ace Comb Co. and Ace Bowling Co., Division of
Amerace Corp., 342 F.2d 841, 847 (C.A. 8, 1965); N.L.R.B.
v. T. A. McGahey, Sr., et al. d/b/a Columbus Marble
Works, 233 F.2d 406, 413 (C.A. 5, 1956) and cases therein
cited in this connection . Victims of corporate bureaucracy,
however unfortunate their situation , cannot properly
claim-without reliable, probative, and substantial evi-
dence which preponderantly supports their contention-
that invidious treatment has, per se, deprived them of statu-
torily guaranteed rights.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
Respondent 's course of conduct set forth in section III,
above, occurring in connection with Respondent's business
operations described in General Counsel's complaint, and
concededly described correctly therein, has had, and con-
tinues to have , a close , intimate, and substantial relation to
trade , traffic, and commerce among the several States;
and, absent correction, such conduct would tend to lead to
labor disputes burdening and obstructing commerce, and
the free flow of commerce.
CONCLUSIONS OF LAW
In view of these findings of fact , and upon the entire
record in this case, I make the following conclusions of
law:
1. Respondent , States Steamship Company, is an em-
ployer within the meaning of Section 2(2) of the Act, en-
gaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended.
2. Professional Office & Industrial Division, Marine En-
gineers Beneficial Association, is a labor organization with-
in the meaning of Section 2(5) of the Act, as amended,
which admits certain employees of States Steamship Com-
pany to membership.
3. When Respondent's director of industrial relations
queried a company secretary, Caroline Vela, seeking to de-
termine the names of certain "instigators " whom he con-
sidered union protagonists, and further challenged her re-
sponsive protestation that she did not know their names,
Respondent interfered with, restrained, and coerced her,
with respect to her exercise of rights statutorily guaranteed.
Further, when Stephen Widnes, newly designated assistant
manager in Respondent's data processing department, ad-
vised Randall Smith that he should seek another job be-
cause union activists in Respondent's hire would shortly
face termination , his statements , likewise, constituted inter-
ference , restraint , and coercion . Thereby, Respondent did
engage , and continues to engage, in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1)
and Section 2(6) and (7) of the Act, as amended.
4. General Counsel has not, herein, produced reliable,
probative, or substantial evidence sufficient to justify a de-
termination that Respondent 's management representa-
tives, when they terminated Randall Smith particularly,
discriminated against him with regard to his employment
tenure, for the purpose of discouraging union membership.
Thus, General Counsel has not proven, by a preponder-
ance of the evidence, that Respondent did thereby engage,
or continues to engage, in unfair labor practices affecting
commerce , within the meaning of Section 8(a)(1) and (3)
and Section 2(6) and (7) of the Act , as amended.
THE REMEDY
Since I have found that Respondent has committed, and
has thus far failed to remedy, certain specific unfair labor
practices which affect commerce , I shall recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action, including the posting of appropri-
ate notices, designed to effectuate the policies of the Act, as
amended.
[Recommended Order omitted from publication.]
SUPPLEMENTARY DECISION
On February 28, 1975, my decision issued, with respect
to this case. Therein, I noted, inter alia, that Respondent's
STATES STEAMSHIP COMPANY 1273
counsel had filed no brief. Since the decision's promulga-
tion and service , I have been notified by Respondent's
counsel that he did file a timely brief, which should have
been considered.
Investigations which were initiated promptly following
my receipt of counsel's report have revealed: That
Respondent's counsel did, indeed, submit a brief which
was deposited in the mails on September 6, 1974, within an
envelope addressed to Michael K. Schmier, General
Counsel's representative , at the San Francisco Office of the
Board's Region 20; that his brief was received by Region
20 on September 6th, at 12:30 p.m.; that, had the brief
been directed to me, in care of the Board's Division of
Judges, San Francisco Branch Office, it would likewise
have been received on September 6th; that receipt on that
date would have been timely, within the limit previously set
for the submission of briefs; but that no copies of
Respondent's brief were forwarded.
My decision reflects a dismissal of General Counsel's
8(a)(3) charges and certain 8(a)(1) charges; other 8(a)(1)
charges, set forth within General Counsel's complaint,
were , however, found supported by the record.
Since I have now been supplied with copies of
Respondent's brief, I have reviewed my decision and
Respondent's brief with respect to those particular com-
plaint allegations which I found meritorious. I have found
no contentions or statements of position in Respondent's
brief, however, which I had not considered, upon my own
motion, prior to drafting my decision; nor have I found
counsel's arguments, set forth therein, sufficient to per-
suade me that my findings and conclusions, with respect to
certain 8(a)(1) violations, should be changed. Those find-
ings and conclusions are, herewith, reaffirmed.
* U.S. GOVERNMENT PRINTING OFFICE: 1976 0-204-292