Central Diagnostic Laboratory

National Labor Relations Board - Board Decisions

Oct 30, 1973

206 N.L.R.B. 754 (N.L.R.B. 1973)

754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Diagnostic Laboratory and Miscellaneous
Warehousemen, Drivers & Helpers Local 986, Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America. Case 31-
CA-3227
October 30, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS KENNEDY
AND PENELLO
On May 30, 1973, Administrative Law Judge Mau-
rice M. Miller issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting, brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Central Diagnostic Labora-
tory, North Hollywood, California, its officers, agents
successors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon a
charge and amended charge, filed on July 20 and September
25, 1972, respectively, and duly served, the General Counsel
of the National Labor Relations Board caused a complaint
and notice of hearing dated September 29, 1972, to be issued
and served on Central Diagnostic Laboratory, designated as
Respondent within this Decision. Therein, Respondent was
charged with the commission of unfair labor practices af-
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty 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, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined
the record and find no basis for reversing his findings
fecting commerce within the meaning of Section 8(a)(1) and
(5) of the National Labor Relations Act, as amended. 61
Stat. 136, 73 Stat. 519. Through its answer, duly filed, Re-
spondent has conceded certain factual allegations within
General Counsel's complaint, but has denied the commis-
sion of any unfair labor practices.
Pursuant to notice, a hearing with respect to the issues
herein was held at Los Angeles, California, between No-
vember 28 and December 1, 1972, before me. The General
Counsel and, Respondent were represented by counsel.
Each party was afforded a full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evi-
dence pertinent to the issues. Since the hearing's close, com-
prehensive and well-documented briefs have been received
from General Counsel's representative and Respondent's
counsel; these briefs have 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:
I JURISDICTION
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 thereof,
which are conceded to be correct and upon which I rely, I
find that Respondent herein was, throughout the period
with which this case is concerned, and remains an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business operations which affect commerce
within the meaning of Section 2(6) and (7) of the statute.
Further, with due regard for presently applicable jurisdic-
tional standards, I find assertion of the Board's jurisdiction
in this case warranted and necessary to effectuate statutory
objectives.
II. THE LABOR ORGANIZATION INVOLVED
Miscellaneous Warehousemen , Drivers & Helpers Local
986, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, designated as Com-
plainant Union within this Decision , is, and at all times
material herein has been, 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
Within his complaint, General Counsel contends that
since a specific June 1972 date the Complainant Union has
been designated or selected by a majority of Respondent's
delivery drivers as their collective-bargaining representa-
tive; that Complainant Union has requested Respondent to
bargain collectively with respect to their rates of pay, wages,
hours of employment, and other terms and conditions of
206 NLRB No. 114
CENTRAL DIAGNOSTIC LABORATORY 755
employment; that Respondent's management, through vari-
ous statements and conduct which General Counsel's com-
plaint sets forth and describes in detail, has manifested its
refusal to bargain collectively with Complainant Union de-
spite its representative status; that Respondent's manage-
ment has interfered with, restrained, and coerced delivery
drivers with respect to their exercise of statutorily guaran-
teed rights; that management representatives, further, have
sought to undermine Complainant Union's majority repre-
sentative status by urging and assisting various delivery
drivers to withdraw their previous designation of Complain-
ant Union as their collective-bargaining spokesman; and
that Respondent's course of conduct, because of its perva-
sive nature, has rendered "impossible" the holding of a fair
and reliable Board election for the purpose of determining
Complainant Union's representative status. With respect to
these various contentions, Respondent's duly filed answer,
previously mentioned, proffers general denials.. Within his
brief, Respondent 's counsel suggests further that should a
determination be reached, nevertheless, that unfair labor
practices were committed they would not be sufficiently
substantial to warrant a bargaining directive.
B. Facts
1. Background
a. Respondent's business
Respondent maintains its principal office, together with
a laboratory facility, in North Hollywood, California, where
it is engaged in the processing of blood, urine , and tissue
specimens, serving physician customers. Pickup and deliv-
ery service, which Respondent maintains in connection with
its laboratory work, was, throughout the period with which
this case is concerned, provided by some 12 full-time or
regular part-time drivers. Most of these drivers provided
their own cars; these drivers received a stated hourly wage,
plus a mileage allowance. During the latter part of June
1972, when the particular situation with which we are herein
concerned developed, two delivery men drove so-called
"company" cars; they merely received a fixed hourly wage.
During the period since June 1972 with which this case
deals, Dr. Allen N. Levy functioned as Respondent's chief
pathologist and medical director; the record warrants a de-
termination, which I make, that Dr. Levy was the firm's
responsible managerial head, and still functions in that ca-
pacity. Richard Kirshbaum was throughout the same period
the firm's comptroller; Delivery Department Head George
Hamilton, herein designated Respondent's chief dispatcher,
directly supervised the firm's delivery drivers. Respondent's
counsel has conceded, for present purposes, that Dr. Levy,
Kirshbaum, and Hamilton were, throughout the period with
which this case is directly concerned, supervisors within the
meaning of the statute.
b. Complainant Union's designation by Respondent's drivers
Respondent's drivers first sought union representation
early during June 1972; driver Michael Gleeson first com-
municated with Complainant Union's representative fol-
lowing a discussion with several fellow drivers regarding
their need for such representation. On June 8, John LeFlore,
Complainant Union's organizer, met with Respondent's
drivers during evening hours at Complainant Union's Los
Angeles, California, hall. Ten drivers were present when
their meeting began; the 11th, Steven Theodore, arrived
later. (On the date designated, Respondent employed 12
full-time or regular part-time delivery drivers. The single
driver who did not attend Complainant Union's meeting,
Hassan Sagheb, seems to have taken little or no part, what-
soever, in subsequent developments. Dwight Chapman,
Respondent's newly hired janitor, though he sometimes
made special pickups and was carried on Respondent's de-
livery department payroll roster, likewise failed to attend
the meeting now under consideration.) LeFlore detailed, for
those present, various benefits which they could hope to
derive from union membership. He distributed union au-
thorization cards, which Respondent's 11 drivers read,
signed, and returned. These cards contained the following
printed declaration:
I, the undersigned employee of [Central Diagnostic
Laboratory] authorize Teamster Local 986 to represent
me in negotiations for better wages, hours and working
conditions. I further understand that the signing of this
authorization is the same as a vote for the union and
that if enough cards are signed Local 986 may become
the bargaining agent and Union at my place of employ-
ment without an election. My signature is set below,
free of any coercion or intimidation from any source
and with full knowledge and understanding of its con-
tents.
The drivers were told that within 30 days thereafter
"some proceedings would be taking place" looking toward
their union representation; the record warrants a determi-
nation , which I make, that they were told a certification
petition would be filed with this Board's Regional Office,
pursuant to which a representation vote might be conduct-
ed. LeFlore, concededly, did not recapitulate verbally the
specific declaration found in the cards that should enough
of them be signed, Complainant Union might become their
signers' collective-bargaining representative without an
election . Considered in totality, however, his remarks, so I
find, contained no representation, express or implied, that,
Complainant Union would use these signed cards "solely"
to procure a representative vote.
c. Respondent's personnel manual
Meanwhile, shortly before Complainant Union' s June 8
meeting, during late April and May 1972, pursuant to direc-
tion, Respondent's comptroller, Richard Kirshbaum, had
prepared a draft "Personnel Manual" for distribution to
Respondent's employees. On June 7, Kirshbaum's third and
final draft had been distributed to Respondent's various
department heads, for whatever "comments, corrections, or
additions" they might wish to proffer. During a department
head meeting which followed, held on June 8 at 2 o'clock,
the manual had been "accepted" for duplication and distn-
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bution to Respondent's employees, save for two minor
changes. With these changes made, Respondent' s manual
was distributed. Though some of Respondent's workers
may have received copies that very day, the laboratory de-
livery drivers, so the record shows, received copies which
were left in their message boxes on June 9 sometime during
the morning.
In relevant part, Respondent' s manual contained certain
provisions which can be summarized as follows: Respon-
dent set a 60-day probation period for newly hired workers;
such workers were notified that salary increases would be
"considered" by their supervisor, following the completion
of their initial 60-day probationary period. They were told,
further, that "cost of living" raises might also be given fol-
lowing Respondent's annual performance review, and that
other salary' adjustments would be made when warranted by
promotion, some change in their basic responsibilities, or
other exceptional circumstances. Respondent's employees
were notified that they were covered by a Company-paid
life insurance program. With respect to health insurance,
they were told that they were "eligible" for self-only cover-
age for which Respondent would pay, under the firm's Blue
Cross Group Health and Hospital Insurance plan, following
their 60-day probationary period; those who desired cover-
age for dependents, however, would have to "assume [that]
expense" themselves. With respect to various personnel
benefits generally, part-tune employees working 32 hours
per week or more would be considered "eligible" for 4/5
benefits plus total Blue Cross coverage; part-time employ-
ees Working "regular" hours which totaled 20 hours per
week would be considered eligible for, 1/2 benefits plus Blue
Cross coverage. Other part-time hourly paid workers, how-
ever, were declared not eligible for paid holidays, sick leave,
leaves of absence, vacations, or any other regular employee
benefits. With respect to vacations, particularly, full-time
workers were declared eligible for 2 weeks following the
completion of their first year of service, and following or
during each year of continuous service thereafter. Eight
paid holidays per year were designated; probationary peri-
od employees, however, were declared "not eligible" for
such paid holidays.
The record warrants a determination, which I make, that
delivery drivers who reported for work on June 9 received
their manual copies on that date; no determinations can be
considered warranted,, however, with respect to whether
particular drivers personally reviewed or studied
Respondent's manual thereafter.
d. Complainant Union's demand for recognition
On June 27, Complainant Union dispatched a letter to
Respondent, stating that it represented a majority of the
firm's delivery drivers and demanding recognition as their
collective-bargaining representative. On June 28, Com-
plainant Union likewise filed a petition for certification with
the Regional Office {Case 31-RC-3152), seeking to repre-
sent Respondent's delivery drivers. The Regional Office's
notice to Respondent with respect thereto was dispatched
that same day.
The present record provides no definitive clue with re-
spect to precisely when Respondent received these docu-
ments. Comptroller Kirshbaum testified, merely, that he
first "saw"'the Regional Office notice with respect to Com-
plainant Union's petition, fortuitously, resting on Office
Manager Audrey Schirmer's desk; this took place "possibly
June 29th" according to Kirshbaum's recollection. Dr. Le-
vey saw the petition, so Kirshbaum recalled, that, same day.
One day later, "possibly June 30th," Kirshbaum concededly
received Complainant Union's letter demanding recogni-
tion.
2. Respondent's reaction to Complainant Union's
petition
a. Preliminary statement
Thus far, within this Decision, my factual determinations
regarding Complainant Union's designation by
Respondent's drivers, followed by that organization's writ-
ten demand for recognition and concomitant certification
petition, have been derived from documentary materials,
proffered for the record in connection with substantially
uncontradicted and unchallenged testimony. With respect
to subsequent developments, however, General Counsel's
presentation reflects some partially divergent testimony,
proffered by Respondent's present and former drivers.
Respondent's defense, presented through Dr. Levy, Kirsh-
baum, and Hamilton, particularly, reflects their substantial
concurrence with General Counsel's witnesses regarding
various factual matters while revealing, in connection there-
with, their divergent recollections with respect to further
matters of substance, the general "ambience" within which
various challenged conversations were conducted, and their
relevant background. Regarding many significant develop-
ments, General Counsel's witnesses were somewhat vague
with respect to dates and relevant sequences; their several
recollections, with respect to some matters of substance,
were frequently different. The record, considered in totality,
constrains me to conclude, therefore, that no single witness,
regardless of partisanship, can legitimately claim more than
a partial recollection with regard to matters of present con-
cern. Further, with respect to some witnesses, subconscious
rationalizations, within my view, may well have colored
memory.
Necessarily, therefore, the present record seems to call for
factual determinations based, not upon'ome complete tes-
timonial recital which one particular witness or several mu-
tually corroborative witnesses deemed generally credible
may have proffered, but upon a reasonable synthesis, de-
rived from the complete testimonial record, with due regard
for such a composite's internal consistency, the possibility
of so-called "external" verification, and the natural logic of
probability. Universal Camera Corporation v. N.L.RB., 340
U.S. 474, 496 (1951). See Galpin Motors, Inc., 183 NLRB
447, enfd. 81 LRRM 1494 (C.A. 9, 1972); Inter-Mountain
Dairymen, Inc., 157 NLRB 1590, 1609-10; Phaostron Instru-
ment and Electronic Company, 146 NLRB 996, enfd. 344
F.2d 855 (C.A. 9, 1965); Southeastern Motor Truck Lines,
113 NLRB-1122,1124-27, citing N.L.R.B. v. Universal Cam-
era Corporation, 179 F.2d 749 (C.A. 2, 1950). Compare N.L.
R.B. v. J. P. Stevens & Company, Inc., 464 F.2d 1326 (C.A.
2, 1972). My determinations herein derive from such a syn-
CENTRAL DIAGNOSTIC LABORATORY 757
thesis; whenever necessary, however, reasons for particular
factual conclusions will be noted.
b. The interrogation of Enyeart
Upon receiving notice on June 29 with respect to Com-
plainant Unions petition, Kirshbaum first asked Chief Dis-
patcher Hamilton whether he knew anything regarding the
matter; the latter suggested that driver Richard Enyeart
should be questioned. When summoned by Hamilton to
Kirshbaum's office, Enyeart was told that complainant'
Union's petition had been received; he was asked whether
he knew anything about it. Enyeart responded affirma-
tively; Hamilton then asked him what was happening, The
driver replied, however, that he could not discuss the situa-
tion because he had signed a designation card saying that
he desired union representation. He added that he would
have to discuss the matter with his fellow drivers. Upon this
note, the conversation now in question terminated. When
this interrogation took place, Enyeart was a regular driver,
working substantially full time. The record warrants a deter-
noina tion,which I make, that he had twice previously
worked elsewhere with Respondent's chief dispatcher; the
men were on friendly terms. Sometime during July 1972,
shortly following the conversation with which we are now
concerned, and some 4 months before this case was heard,
Hamilton formally designated Enyeart his assistant dis-
patcher.
Kirshbaum, so he testified, thereafter sought counsel
from a person reputedly knowledgeable with respect to la-
bor relations matters. The fruits of his consultation were,
subsequently, communicated to Dr. Levy; Respondent's
medical director then requested Kirshbaum to get in touch
with Respondent's legal counsel. This Respondent's comp-
troller did; he subsequently reported the "advice" which he
then received to Respondent's medical director. (The latter,
so Kirshbaum testified, subsequently reported that'he had
likewise contacted Respondent's legal counsel; he declared
that he had been counseled "along the same lines" which
Respondent's comptroller had reported) Later that day,
June 29, Respondent's department heads met. Respondent's
comptroller and chief dispatcher have proffered divergent
testimony regarding the discussions which then took place;
I find consistently with Hamilton's testimony which I con-
sider more plausible, that Complainant Union's petition,
though it was not displayed, was mentioned by
Respondent's medical director.
c Dr. Levy's first conference with Respondent's drivers
Shortly thereafter, Dr. Levy, Respondent's medical direc-
tor, convened a meeting with the laboratory's delivery driv-
ers. Most of them were present; the record, however,
warrants a determination that Theodore was not. The meet-
ing was held in Respondent's conference room. Kirshbaum
and Hamilton, Respondent's officials, were likewise pre-
sent. Most recollections were less than clear with respect to
precisely when this conference was held. With due regard
for logical probabilities, deduced from, the composite testi-
monial record, plus determinations herein made with re-
spect to the meeting's total context and subsequent
developments, I conclude and find that it was held on Fri-
day, June 30, presumably during the late afternoon. Dr.
Levy reported that he had received notice from the Board's
Regional Office regarding Complainant Union's petition;
he declared that he was surprised and not "very happy" that
Respondent's drivers had gone to some "outside" party
without discussing their problems with him first.
Respondent's medical director then stated that he had been
in contact with legal counsel, and that he "understood" he
could not bargain with them or make promises. He de-
clared, however, that his purpose in calling the meeting was
to find out "what the problems were" within Respondent's
facility and to open up lines of communication.
At some point, so Kirshbaum testified, with Dr. Levy's
partial corroboration, the Respondent's medical director
declared that he didn't know what the firm's drivers had
gotten into. He requested the drivers to determine whether
it was "necessary" for them to be represented by a third
party, or whether they could still represent themselves; the
drivers were told they should "check and see if they [could]
represent themselves" and that they should let him know if
this could not be done.
Dr. Levy then asked what was wrong. When confronted
with "hushed" silence, Respondent's medical director re-
quested a reply from some group spokesman. No one re-
sponded. Hamilton thereupon suggested that the person
who "got [Complainant Union] started" should come for-
ward and speak for the drivers. Both Dr. Levy and Kirsh-
baum, however, promptly countered Hamilton' s suggestion.
Respondent's medical director specifically and strongly dis-
claimed any desire to "seek out the person" who had con-
tacted Complainant Union's representative. The
testimonial record, however, warrants a determination,
which I make, that Dr. Levy did, inter alia, reveal curiosity
with respect to how Respondent's drivers had come to con-
sider the possibility of union representation. Driver Al Fo-
gle replied that one of their number had an uncle within the
union movement. Sometime previously, so the record
shows, the Respondent's chief dispatcher had been told,
during a casual conversation, that driver Michael Gleeson's
uncle was a union official. Finally, several drivers did volun-
teer statements : driver Steven Hendricks reported that he
and his fellow drivers had been "unhappy" because, for one
reason, they had "heard" that their mileage compensation
would be cut from 10 cents to 8 cents per mile. Dr. Levy
replied that, though the matter had been discussed during
a department head meeting several weeks previously, he had
then vetoed any mileage reduction. The minutes which were
prepared following Respondent's June 8 department head
meeting, previously noted herein, do, indeed, so show. They
likewise reveal a decision by Respondent's management to
minimize "mileage" payments to drivers by purchasing,
more "company" vehicles.'
Driver William Gleeson then declared that other labora-
tories within their territory were paying more money for
delivery drivers. Respondent's medical director stated, by
way of reply, that he did not know what rates Respondent's
various drivers were then being paid; further, he comment-
ed that he did not know either how much drivers for other
laboratories were currently receiving. While repeating his
prior declaration that he could 'not bargain with them and
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not make promises, Dr. Levy, told Respondent's driv-
ers that he felt he had "always been fair" previously; that
he would continue trying to be fair; that he would "check
into" the rates which various other laboratories were paying
drivers; and that, within his view or philosophy, their pay
should match the "average pay" which drivers for such
other laboratories received. The record, which reflects a
concession by Respondent's medical director, warrants a
determination, which I make, that hedid order Comptroller
Kirshbaum, during the meeting or, later, to check the going
pay rates for drivers with other laboratories. Driver, Vincent
Marrone mentioned that the drivers had sought union rep-
resentation because they were not receiving medical bene-
fits. Dr. Levy professed surprise; he requested Kirshbaum
to check Respondent's personnel manual so that he could
"find out where [Respondent], stood" with respect to medi-
cal insurance benefits for drivers. Respondent's comptrol-
ler, so I find, read from the manual, which had been
distributed on June 9 previously, those paragraphs which
detailed the eligibility of part-time workers for
Respondent's Blue Cross coverage. One driver commented
that they had not known about their coverage when they
sought Complainant Union's help, since the manual had not
yet been distributed. Further comments were made, howev-
er, that these manual provisions, with particular reference
to medical insurance coverage, had never been made effec-
tive with respect to them. Someone mentioned vacations;
Kirshbaum cited the personnel manual's provision which
defined the eligibility of part-time workers for paid vaca-
tions. Stythe Elliott, the driver who had raised the subject,
was told, however, that he had not been with the firm suffi-
ciently long to "deserve a vacation" with pay, since he was
still serving his probationary period. Dr. Levy concluded
the meeting, so I find, with a suggestion that Respondent's
drivers "get together and find a spokesman" who could
present their problems; he suggested that they could have
another meeting within a few days.
d. Subsequent conversations with Drivers Joy and Marrone
Later that day, sometime around 7 or 8 o'clock in the
evening, Dr., Levy encountered driver Eddie Joy within
Respondent's laboratory. Reiterating his desire "get some
[man-to-man] communication going" with Respondent's
drivers, Dr. Levy renewed his queries regarding the drivers'
complaints and problems. Replying, Joy mentioned his de-
sire for higher pay, medical insurance coverage, paid holi-
days, and vacations. Dr. Levy asked whether Joy thought
Respondent's drivers would be "satisfied" should these des-
ignated problems be resolved, and whether they would then
relinquish their interest in unionization. Joy declared that
he could not respond. Dr. Levy then inquired whether he
would present these questions to his fellow drivers. Joy de-
murred, suggesting that driver Vincent Marrone would be
more likely heeded. Both men then sought Marrone, seated
in Respondent's "lunch break" room nearby. (Marrone and
Joy were, so the record shows, the drivers with most seniori-
ty, save for Hassan Sagheb possibly, among Respondent's
12 full-tune and regular part-time drivers.) When queried by
Dr. Levy regarding the drivers' problems, Marrone likewise
mentioned money [higher pay], plus their lack of paid vaca-
tions, or medical insurance coverage. Dr. Levy inquired
whether these problems could be resolved "without having
to go through" the Complainant Union herein; he referred
to Respondent's personnel manual, suggesting that it should
be read. Marrone, replying, pointed out that Respondent's
manual had been distributed following the drivers' June 8
meeting with Complainant Union's representative; further,
he commented that-directly following the manual's distri-
bution-he had queried Respondent's office manager, Au-
drey Schirmer, regarding the firm's failure to provide
drivers with the various fringe benefits described therein.
The latter, so Marrone reported, had merely replied that she
was "checking into" their' situation. Respondent's medical
director, inter alia, renewed his request that Joy and Mar-
ron conduct a survey of their fellow drivers to determine
whether the rest of them shared'the specific discontents
which had been mentioned. Both drivers, so I find, signified,
tacitly or specifically, their willingness to do so.
Despite General Counsel's reliance upon further purport-
ed recollections which driver Joy proffered, the record con-
sidered in totality, within my view, warrants determinations,
consistently with Dr. Levy's testimony, that he did not spe-
cifically ask Joy or Marrone whether they were union sup-
porters; that he did not solicit the names of union
supporters within Respondent's delivery driver comple-
ment; that he did not request Marrone or Joy to speak with
any specific number of fellow drivers; and that he did not,
jokingly or otherwise, threaten them with discharge should
they fail or refuse to pursue his requested survey. Toward
the close of Dr. Levy's evening conversation with these
drivers, so the record shows, they were joined by Chief
Dispatcher Hamilton; he heard much of what was said.
Respondent's chief dispatcher, however, did not, so I find,
proffer any significant comments.
Following Dr. Levy's departure, Hamilton, Marron, and
Joy left Respondent's premises together. Before they parted,
there was a brief conversation. Hamilton's testimony with
respect thereto, which I credit, reads as follows:
We were talking, and they said, "You know, we hope
things will get better." And I said, "What do you guys
want?" And I said, "After all, what do you guys think
is fair?" . . Both of them [replied]. That they thought
that a certain amount-I can't remember at this time-
would be fair . . . I said, "Well, that doesn't sound too
unreasonable." . . . Well, they said, "Well, why
haven't we got it before?" And I said, "Well, now we
know, I don't see that there is going to be any trouble."
The subject under discussion, so Hamilton testified, was
wages. He specifically countered or denied testimony,
which Joy had previously proffered, that, during this con-
versation, he had solicited their statements regarding
changes which might serve to forestall unionization; that he
had referred to a drivers' list which he purportedly carried,
or that he had, following such a reference, promised them
certain designated hourly rate increases. With due regard
for the record considered in totality, his denials, in this
connection, have been credited.
CENTRAL DIAGNOSTIC LABORATORY
e. Dr. Levy's second conference with Respondents drivers
On Monday, July 3, so I find, Dr. Levy convened a sec-
ond meeting with Respondent's drivers, Comptroller Kirsh-
baum and Chief Dispatcher Hamilton were likewise
present. According to driver Richard Enyeart, whose testi-
mony in this connection I credit, Dr. Levy, recapitulated
when the meeting began his previous comment that, consis-
tently with legal counsel which he had received, he could
make no promises . Specifically, Enyeart reported that:
Dr. Levy said that he couldn't promise anything be-
cause of what his lawyers had told him; but, he said he
would be fair if we did decide to settle without the
union . . . [H]e emphasized that he would rather solve
the problems within the company without having out-
side help. ,
Respondent's medical director then asked whether the driv-
ers present had designated a spokesman. During the discus-
sion which followed, particularly with reference to
Respondent's various fringe benefit programs, the drivers
were asked whether they had read Respondent's personnel
manual. One driver, citing the manual's reference to medi-
cal insurance coverage, declared that Respondent's drivers
had never been requested to complete the "application" or
"eligibility" cards presumptively prerequisite for such cov-
erage. Dr. Levy queried Respondent's comptroller. Kirsh-
baum reported that "the guys were covered" nevertheless;
he conceded, however, that such cards were indeed re-
quired. He declared that the cards had not been distributed,
since the particular "secretary" responsibile for their distri-
bution, Audrey Schirmer, was then vacationing. Dr. Levy
thereupon requested that these required cards be distributed
forthwith.
Comptroller Kirshbaum did distribute them, with
Hamilton's help, directly following the meeting' s conclu-
sion . Some drivers received their cards directly; others
found the cards, subsequently, within their company mes-
sage boxes . Thereafter, someone, the record suggests that it
was a driver, asked Dr. Levy how he could "get out of the
union" personally. Respondent's medical director replied,
substantially, that such withdrawals might be possible,
should the firm's drivers so desire, but that he could proffer
no advice with respect thereto since he "didn't know how"
withdrawals could be effectuated. Upon this note, presum-
ably, the meeting terminated.
3. The withdrawal of union authorization cards
Some 2 or 3 days later, Driver Enyeart approached Kirsh-
baum; Respondent's comptroller was asked how the drivers
could withdraw their union authorization cards. Kirshbaum
told Enyeart initially that he did not know how this could
be done; he declared, however, that should the driver re-
quest him to do so he would communicate with
Respondent's counsel, and that, possibly, he would then be
able to detail whatever action could be taken. The driver
requested Kirshbaum to make the inquiry. Shortly thereaf-
ter, having communicated with his Company's counsel,
Kirshbaum told Enyeart that he and his fellow drivers could
759
write letters requesting the withdrawal of their authorization
cards; Respondent's comptroller, further, gave Enyeart the
written addresses of the Board's Regional Office and Com-
plainant Union herein to which letters could be sent.
Later that day, or possibly the next day, Respondent's
executive secretary, Virginia Arnold, asked Kirshbaum
whether she could type some letters which Enyeart had
requested. Respondent's comptroller told her that if she had
the time to type them and could do so without interfering
with her other work she could proceed. (The secretary in
question, Virginia, regularly attends and takes minutes
when Respondent's department heads meet; she had been
present, so the record shows, during a department head
meeting on June 29, during which Complainant Union's
petition had been discussed.) Virginia mentioned that the
letters would concern Complainant Union; she asked
Kirshbaum what she should say therein. Respondent's
comptroller advised her that she should draft letters con-
taining whatever Enyeart wished to say. Pursuant to'
Kirshbaum's suggestion, Virginia composed and typed two
identically worded letters which Enyeart thereupon signed.
Both letters, dated July 6, were directed to William Foun-
taine , Jr., Complainant Union's representative. They rer _i
as follows:
To Whom It May Concern:
This is to inform you that I would like to withdraw my
authorization card from the National Labor Relations
Board, effective July 6, 1972.
Enyeart returned the letters to Respondent's secretary. She
had prepared two envelopes, addressed to Fountaine and to
the Board's Regional Office, respectively; the letters were
inserted. Virginia put them through Respondent' s postage
meter and dispatched them through the mails. Respondent's
secretary, so the record shows, retained copies.
The following day, so I find, Virginia asked Kirshbaum
whether she could type similar letters for others.
Respondent's comptroller told her that she could do so if
her time permitted. Meanwhile, Enyeart had solicited au-
thorization card withdrawal letters from Marrone, Joy, and
three more drivers, Allen Rosten, Al Fogle, and Pete Marti-
nez. Subsequently, when, requested or shortly thereafter,
these five drivers signed duplicate sets of letters which
Respondent's executive secretary had prepared. Most of the
letters, so the record suggests, were signed in Virginia's of-
fice.
Summoned as General Counsel' s witness, Martinez testi-
fied in this connection that Enyeart had solicited his card
withdrawal during a conversation in Respondent's supply
room, some 5 days after Dr. Levy's July 3 driver conference,
with Chief Dispatcher Hamilton and Driver Fogle present.
Martinez, so he recalled, had replied that he would have to
talk with his fellow drivers; Hamilton had then commented
that raises would be granted as soon as their "union hassle"
was concluded. Martinez' testimony, particularly with re-
spect to Hamilton's purported remark, cannot be consid-
ered worthy of credence. Fogle, who testified later,
proffered no corroborative, testimony; Enyeart, summoned
finally as Respondent's witness with particular reference to
this conversation, contradicted Martinez' purported recol-
760 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD
lections. Hamilton noted a categorical denial . Generally
speaking, I found Martinez' recollection , with respect to
relevant developments, rather hazy and limited. He re-
called, first, that he had signed his withdrawal letter follow-
ing the conversation summarized herein ; then he testified
that his letter had been signed beforehand . Though I believe
he was sincerely trying to be truthful , his proffered recollec-
tions, within my view, cannot be considered reliable.
Fogle, Marron, and Joy signed letters with July 7 dates,
which Virginia sealed , then put through Respondent 's post-
age meter, and mailed that day. However, Martinez ' letters,
which likewise bore a July 6 date, were mailed July 11;
Rosten's letters , which bore a July 6 date , were not mailed
until July 12, 6 days thereafter . Respondent 's executive sec-
retary, likewise , retained copies of these letters ; the record,
however, warrants a determination , which I make , that her
decision to retain copies did not derive from instructions
received.
4. Respondent 's fringe benefit programs
Previously, within this Decision, reference has been made
to Respondent's personnel manual which the laboratory
drivers had received on June 9. Within a few days thereaf-
ter, so his credible testimony shows, driver Stythe Elliott
asked Chief Dispatcher Hamilton whether Respondent's
drivers would be paid for their recent Memorial Day holi-
day. Hamilton replied , however, that Respondent's drivers
would not receive pay for that day ; Elliott recalled the chief
dispatcher's comment that the firm 's personnel manual
would not be considered retroactively effective before its
June 9 distribution date.
Respondent 's payroll register for the previous pay period
ending March 15 does show holiday pay for Chief Dispatch-
er Hamilton, plus a second laboratory employee, D. La-
Vallee ; with respect to these payments , however, the record
provides no definitive rationale. Possibly, Hamilton and
LaVallee were being given deferred compensation for their
Washington's Birthday holiday. Respondent's payroll regis-
ter for the pay period ending May 31, 1972, lists Enyeart as
Respondent's sole recipient of Memorial Day holiday pay.
The record herein suggests that Respondent's manage-
ment-before the June 8 personnel manual 's adoption-
may have limited holiday pay to full-time workers. Enyeart
was by then a full-time worker.
Respondent's chief dispatcher declared , nevertheless,
that, since the firm 's personnel manual would govern fringe
benefit matters thereafter , the drivers would receive Fourth
of July holiday pay. Respondent's payroll register for the
pay period ending July 15 does, indeed , reveal-though
some drivers, while testifying, could not recall the fact that
every driver did receive Fourth of July pay, save for Dwight
Chapman , William Cunningham, and Pete Martinez partic-
ularly. These three, then, were Respondent's most recent
hires; presumably, they had not yet completed their 60-day
probation period and were not, therefore , considered eligi-
ble for holiday pay.
With respect to medical insurance coverage,
Respondent's belated distribution of required "application"
or "eligibility" cards, directly following Dr. Levy's July 3
conference, has been noted . These cards were subsequently
completed by Respondent 's drivers ; they were then re-
turned. The record suggests that they were collected and
held by a subordinate of Office Manager Schirmer , pending
her return from vacation ; presumably they were then for-
warded to Respondent's insurance carrier . Respondent's
counsel and General Counsel's representative have stipulat-
ed that the Company's records show medical insurance cov-
erage, presumably for all of- Respondents drivers, did
become effective thereafter ; particular drivers received cov-
erage on various dates between July 1 and July 23, with a
single exception . Driver Fogle 's coverage did not become
effective until August 18, belatedly since he made a delayed
decision to purchase coverage for his dependents, with pay-
ments for such coverage to be deducted , thereafter, from his
compensation . Those drivers who signed the requisite cards
ultimately received booklets from Respondent 's insurance
carrier which detailed the medical insurance benefits pro-
vided.
With respect to Respondent's various other fringe bene-
fits listed within its personnel manual-sick leave, paid va-
cations, workmen's compensation , and leaves of absence
with or without pay-the present record is largely silent; so
far as can be determined , no driver sought such benefits, or
purposefully raised significant questions with respect there-
to during the period with which we are now concerned. (The
record does show that Driver Mike Gleeson was vacation-
ing during Respondent's July 1-15 pay period; his regular,,
hours worked during that period were significantly reduced.
No determination would be warranted , however, that Glee-
son then had been taking a paid vacation.)
Respondent's personnel manual sets 1 year's continuous
service as prerequisite for paid vacations ; during the period
with which we are now concerned, Marrone , Joy, and possi-
bly Sagheb, would have been the only drivers qualified by
their service records who could have claimed this particular
fringe benefit. While a witness, Hamilton conceded that he
had, himself , reminded Marrone and Joy, shortly following
their June 30 conversation with Dr. Levy previously noted,
that they would be entitled to paid vacations ; subsequently,
Hamilton queried Respondent 's office manager with re-
spect to how many paid vacation hours Marrone and Joy
would be entitled to claim. He told them, following the
consultation, that they would be entitled to vacation pay for
25 hours. The record provides no clue, however, with re-
spect to when, if ever, such vacations were taken.
5. Wage increases granted
a. Discussions with regard to possible raises
On various occasions, during the 2-week period which
followed Dr . Levy's July 3 conference, several drivers, so I
find , discussed raises with Respondent's chief dispatcher:
The record with regard to these various conversations re-
veals , significant conflicts . These conflicts have, however,
been resolved herein, with due regard for those consider-
ations which conventionally contribute to credibility resolu-
tions. I have considered : The witness chair demeanor of the
various witnesses ; their demonstrated capacity or lack of
capacity for accurate perception, recollection , and commu-
nication ; their several opportunities and incentives for per-
CENTRAL DIAGNOSTIC LABORATORY
ceiving the matters covered by their testimony; the likeli-
hood that they would remember any matters thus per-
ceived; and their possible motivations, interest, or bias.
Further, divergent or contradictory testimonial recitals,
dealing with particular conversations, have been reviewed
with due regard for their inherent plausibility and logical
probability, given the factual context within which such
conversations allegedly took place.
Driver Fogle was, so I find, told, sometime during July's
first 2 weeks, that his pay rate would be raised 25 cents per
hour effective July 1, the first day of Respondent's then
current July pay period. The circumstances which moti-
vated this change, initiated by Chief Dispatcher Hamilton,
whose testimony I credit in this connection, will be noted
subsequently herein. Shortly thereafter, so Hamilton testi-
fied, Fogle asked whether other drivers would be receiving
raises. Hamilton replied that-though Dr. Levy had, some
2 months previously, sanctioned raises for some drivers-he
(Hamilton) had never, because of his workload, reviewed
Respondent's wage schedule to determine which increases
should be given. Fogle was told, therefore, that "at that
time" no further raises would be given.
Fogle, while a witness, charged Hamilton with a state-
ment, inter alia, that Dr. Levy had sanctioned raises for
some delivery drivers, but that such raises could not be
granted "now" because of what had happened with regard
to Complainant Union's representation claim.
Respondent's chief dispatcher reiterated, so Fogle testified,
that "he [had seen] a list in a drawer somewhere" setting
forth raises which were to be granted some 2 weeks later, but
that none could be granted until Respondent knew "what
was going to happen" with regard to Complainant Union's
claim. Considered in totality, the present record, within my
view, warrants a rejection of Fogle's testimony noted.
While a witness, Fogle likewise recalled two conversa-
tions with Hamilton dealing with raises. He dated their
"general" conversation before Hamilton's declaration that
he would be receiving ,a 25 cent hourly raise. However,
Hamilton's contradictory chronology, previously noted
herein, seems more plausible; I find, consistently therewith,
that Fogle was told about his forthcoming raise before he
queried Hamilton regarding possibly comparable raises for
his fellow drivers.
Driver Mike Gleeson testified that sometime in July, pre-
sumably between Respondent's regular July 7 and July 21
paydays, he (Gleeson) had asked Hamilton, while they were
standing in Respondent's parking lot, what would happen
if Complainant Union did/not "[get] into" the Company.
Hamilton had replied, so Gleeson purportedly recalled, that
possible raises calculated to grant all drivers a $3 hourly rate
"would be a pretty sure thing" thereafter. Confronted with
this testimony, Hamilton noted a categorical denial. With
due regard for the record, his denial is credited.
The record reflects driver Stephen Theodore's testimony
that, sometime during Respondent's first July pay period,
the firm's chief dispatcher had approached him within one
of the laboratory's rooms, commenting that he had been due
for a raise:
He said I was due up for a raise before the union thing
came up; and that he couldn't do anything about it
until it was all' cleared up.
761
Theodore, so he testified, had vouchsafed no reply. His
proffered recollection regarding Hamilton's comment-
first summarized in direct testimony and then detailed dur-
ing his cross-examination-stands without Hamilton's con-
tradiction or denial. Nevertheless, his testimonial report,
within my view, cannot be credited. Though I am convinced
that Theodore sincerely considered his testimony truthful,
I am satisfied that he was either confused, or possibly misled
by rationalizations. Hamilton had previously mentioned the
possibility that he would be given a company car with a
concomitant change in compensation; the driver may have
noted that-despite this contingent commitment he did
not thereafter receive a company car to drive. Further,
Theodore's testimony lacks plausibility; Hamilton's re-
mark, reported by him, stands in splendid isolation, without
any relevant context calculated to suggest its possible gene-
sis. Finally, I note, with due regard for the record consid-
ered in totality, that Hamilton's contemporaneous conduct,
generally with respect to granting raises, belies any purport-
ed suggestion, chargeable to him, that they were being with-
held.
The record finally warrants a determination-which I
make-that, sometime during Respondent's first July pay
period, driver Stythe Elliott told Chief Dispatcher Hamilton
that he wanted the raise which he had been previously
promised when he was hired. When Hamilton questioned
his status, Elliott contended that his 60-day probationary
period had been completed. (Elliott, so the record shows,
had previously requested the promised raise . Hamilton had
countered that previous request by reminding him that
Respondent's workers had to pass a 60-day probationary
period, which, so far as Elliott was concerned, had not yet
been served.) According to Elliott, Hamilton replied , never-
theless, that no raises were then being granted during the
"disagreement, deal, [labor dispute], or whatever" generated
by Complainant Union's representation claim. Elliott's tes-
timony regarding this conversation, however, cannot be
considered worthy of credence. The record warrants a de-
termination that directly thereafter the chief dispatcher, de-
spite his purportedly negative response, had promptly
checked Respondent's personnel records, determined that
Elliott had indeed completed his 60-day period of proba-
tionary service, and concluded that he might well be eligible
for a previously promised raise.
The background circumstances in this connection-
which had prompted Elliott's raise request-will be dis-
cussed, infra, within this Decision. My textual reference
thereto has been proffered for the present merely to buttress
my conclusion, contrary to Elliott's purported recollection,
that Hamilton did not, preliminarily, declare Respondent's
purpose to deny Elliott's request, for reasons connected
with Complainant Union's representation claim.
Hamilton, when queried with respect to Elliott 's testimo-
ny, did proffer a substantially corroborative recital; he did
not, however, concede that he had preliminarily rejected
Elliott's raise request because Complainant Union's repre-
sentation petition was pending. His relevant testimony, in
this connection, reads as follows:
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He [Elliott] took me aside and said that he couldn't
keep working for that; and that he wanted more mon-
ey-a quarter an hour. . . . I said, "Why?" And he
said that his probationary period was up. . . . I said,
"Have you been here that long?" I went on into person-
nel and checked his hire-in date. . . . I went into
Audrey's office and asked if I could look at his person-
nel file.... He was two weeks late getting his raise
.. I went back out into the coffee room. And at that
time Mr. Kirschbaum was walking in from another
entrance at the same time. . . . I said, "Mr. Kirsch-
baum, Tom Elliott has asked for a raise, and I have
checked his records and his probationary period is up."
and Mr. Kirschbaum stated "Well, if his probationary
period us up, and'you are going to keep him, give him
a raise."
Hamilton's recital, which parallels Elliot's save for his limit-
ed denial of the driver's testimony herein noted; is credited.
Elliott was thereafter granted his previously promised 25
cent hourly rate raise, payable July 21 for Respondent's first
July pay period, plus a payment calculated to carry his raise
back retroactively to the date on which his 60-day proba-
tionary period had been completed.
b. Wage increases granted
During the period with which we are now concerned,
specifically July 1972 plus the 2 months which directly fol-
lowed, Respondent employed eight drivers with periods of
service which had commenced before April 1, 1972. These
drivers, so the record shows, had all been hired for part-time
work driving their own cars. The record warrants a determi-
nation, which I have previously made, that their compensa-
tion when hired had been set at $2 per hour, plus 10 cents
per mile.
Six of these drivers had, however, received hourly rate
raises before June 1, at various times. As of the date when
most of them signed Complainant Union's designation
cards:
1. Marrone, presumably Respondent's senior driver,
had already received two basic rate raises, totaling 35
cents hourly.
2. Sagheb had recently received a 25-cent raise.
3. Enyeart had received two recent raises in fairly
quick succession, totaling 25 cents hourly.
4. Joy, presumably Respondent's second most senior
driver, had received two 1972 raises, totaling 20 cents
hourly.
5. Theodore and Hendricks had recently received 15-
cent raises.
On their June 22 payday, which covered Respondent's first
June pay period, Mike and William Gleeson both received
comparable 15-cent hourly rate raises; Mike Gleeson, so I
find, had been previously advised such a raise would be
granted. With these last-noted increases granted,
Respondent's eight most senior drivers were being paid fix-
ed hourly rates greater than their starting $2 hourly rates,
plus mileage.
Concurrently, so the record shows, Respondent laborato-
ry employed four less senior drivers with post-April 1 hire
dates. Three of these Rosten, Fogle, and Martinez, drove
their own cars; according to Respondent's payroll register,
all had been hired for $2 per hour, plus mileage.
The fourth, Stythe Elliott, had been hired on or about
April 20; he had been designated to drive a Company-
owned vehicle. Though first listed on Respondent's relevant
payroll register with a flat $2 hourly rate, Elliott,subsequent-
ly received a pay adjustment. For Respondent's first May
pay period his compensation was computed with a $2.25
hourly rate; further he received a so-called "miscellaneous"
check which carried his revised pay-rate back retroactively
to his April hire date.
Of this group, Rosten alone had received a wage increase
during June. On Respondent's June 22 payday, which cov-
ered the firm's first June pay period, he received a 25-cent
raise . The present record suggests-though it will not sus-
tain a definitive conclusion-that Rosten had been hired
first when Respondent, during April previously, had hired
three drivers. His total regular hours, during Respondent's
second April pay period, had significantly exceeded those
which Elliott and Fogle had logged.
General Counsel does not herein challenge the legitimacy
of these various raises during the first 6 months of the calen-
dar year; so far as the record shows, they were determined,
promised, and thereafter granted before Respondent's man-
agement learned of Complainant Union's representation
claim.
However, during July 1972, four drivers received raises.
Respondent's payroll register for the firm's second June pay
period, with a July 7th payday, shows a $2.50 pay rate for
Michael Gleeson, with no supplementary mileage payment.
(This figure reflects a 35-cent raise in Gleeson' s regular
hourly rate. The record warrants a determination, which I
make, that Gleeson had been given a Company-owned car
to drive; hence, the change with respect to his compensa-
tion. No determination can be considered warranted based
upon the present testimonial ;r documentary record, with
respect to precisely when Gleeson received his "company"
delivery vehicle. Respondent's payroll register suggests,
however, that Respondent's change was probably effectuat-
ed concurrently with the commencement of the firm's sec-
ond June pay period; Gleeson received no mileage
payments whatsoever during the period in question.)
Respondent's payroll register for the firm's first July pay
period, with a July 21 payday, reveals a second 25-cent raise
for Gleeson; between the designated pay, period's com-
mencement and Gleeson's subsequent August 25 resigna-
tion from Respondent's service, he was paid $2.75 per hour.
The circumstance which generated his second raise will be
discussed further within this Decision.
During Respondent's first July pay period likewise three
drivers, Fogle, Elliott, and Martinez, received 25-cent raises.
Fogle and Martinez, who were still driving their own cars,
were therefore being paid $2.25 per hour, plus mileage.
(Martinez, so he testified, was by then making deliveries full
time.) Elliott's raise, previously noted within this Decision,
CENTRAL DIAGNOSTIC LABORATORY
gave him $2.50 per hour; further, so the record shows, he
received a so-called "miscellaneous" salary check, calculat-
ed to carry his newly fixed rate back, retroactively, to what-
ever June date had marked the completion of his 60-day
probationary period. Meanwhile, Respondent hired two
new part-time drivers. Both men, William Cunningham and
L. B. Stout, were placed on Respondent's relevant payroll
registers for July 1972 pay periods, with basic $2 hourly pay
rates, plus mileage as previously noted. During August,
Hendricks and Enyeart were shifted to newly purchased
company cars. Hendricks' regular pay rate was raised 60
cents hourly; he was, therefore, being paid $2.75 per hour,
though he no longer received a mileage payment. (Since his
regular delivery route takes him through Watts in south
central Los Angeles, Hendricks was further granted a sup-
plementary raise, which gave him 50 cents more per hour,
designated as hazard pay.)
Enyeart, who had sometime during the latter part of July
specifically been formally designated Hamilton's assistant
dispatcher, received a 75-cent raise; he was, therefore, being
compensated with a fixed $3 hourly rate. His duties, so the
record shows, were redefined so that his time was no longer
devoted to deliveries primarily, though he did not give up
his route until 2 or 3 months later.
In September, Joy's compensation was raised from $2.20
to $2.45 per hour, plus mileage. And, sometime during Oc-
tober or November, Marrone, who was then being paid
$2.35 per hour, received a further raise, not specified within
the present record. (With respect to Rosten, the present
record reflects no basic pay rate change subsequent to his
June raise, previously noted. For some reason, never ex-
plained within this record, his name does not appear within
Respondent's payroll register for July's second pay period.
When this case was heard, however, Rosten was still in
Respondent's employ.)
Driver Stephen Theodore, who had received his last raise
during April 1972, as previously noted, resigned in October;
he did not wish to take a San Diego route which
Respondent's management was proposing to give him. He
was, however, rehired in November, driving a Los Angeles
County route, with his compensation reset at $2.40 per hour,
plus mileage.
Sometime, during this period, so the record shows, Re-
spondent likewise granted Martinez a pay adjustment, ret-
roactively. Since receiving his 25-cent hourly raise
previously noted, which covered services rendered during
Respondent's first July pay period and thereafter, Martinez
had been contending that Responde'nt's chief dispatcher
had hired him with the promise that he would receive a
starting rate of $2.10 hourly, plus mileage; he maintained,
therefore, that his compensation received, between his hire
date and July 1st, had been computed at $2 hourly, plus
mileage, mistakenly. Hamilton confirmed Martinez' con-
tention with regard to his hire rate. Finally, therefore, the
driver received a supplementary check,; shown on
Respondent's payroll register for the firm's second Septem-
ber pay period, which covered the further compensation he
should have received, computed at 10 cents per hour, be-
tween his date of hire and July 1, when his raise, previously
noted, had become effective.
763
C. Discussion and Conclusions
1. Interference, restraint, and coercion
a. Interrogation
Within his brief, General Counsel notes, cogently, that
managerial interrogation directed to employees with respect
to their union sympathies cannot be considered in and of
itself, violative of the statute. However, such interrogation
when conducted systematically for purposes not recognized
as legitimate, couched in coercive terms, or comprised with-
in a broader course of conduct generally calculated to re-
strain or coerce will clearly merit statutory proscription.
N.L.R.B. v. Dale Industries, Inc., 355 F.2d 851, 852 (C.A. 6,
1966); Blue Flash Express, Inc., 109 NLRB 591, 593. The
ultimate test, with respect to challenged employer questions,
has been formulated as follows: Whether, under all the
circumstances, the considered interrogation reasonably
tends to restrain or interfere with employees in their exercise
of rights statutorily guaranteed. Blue Flash Express, Inc.,
supra; compare N.L.R.B. v. Henry Colder Company, 416
F.2d 750, 753 (C.A. 7, 1969); N.L.R.B. v. Wagner Iron
Works, 220 F.2d 126, 139-140 (C.A. 7, 1955) in this-connec-
tion.
With this "settled principle" fixed in mind, I have re-
viewed the limited interrogation which the present record
reveals. Despite General Counsel's strongly stated conten-
tion-that certain questions propounded by Dr. Levy,
Comptroller Kirshbaum, and Chief Dispatcher Hamilton
should be considered clearly coercive-close judgment calls
with respect to their legitimacy, within my view, will be
required.
On balance, however, I am persuaded that Kirshbaum
and Respondent's chief dispatcher, when they questioned
Enyeart with regard to his knowledge of Complainant
Union's petition, did transgress permissible limits. True,
their question doubtless reflected a spontaneous reaction,
generated by the Regional Office's notice, rather than a
calculated probe couched in coercive terms. Nevertheless,
Enyeart was realistically being requested to disclose wheth-
er Complainant Union's petition had driver support. Fur-
ther, he was necessarily being queried, though not perhaps
in so many words, regarding the real extent of Complainant
Union's representational interest. Respondent's driver,
while conceding his personal involvement, did refuse to
discuss the matter; conceivably he may not have felt person-
ally coerced. I conclude and find, however, that his subjec-
tion to questioning, conducted in Kirshbaum's office under
conditions of subtle pressure, lacked a legitimate purpose;
carried no concurrent reassurance that reprisals would not
be taken against him or his fellow union supporters; marked
the commencement of Respondent's campaign to forestall
unionization; and, therefore, should be considered deserv-
ing of Board interdiction.
Respondent's medical director, so I have found, further
queried Respondent's drivers, directly or suggestively, with
respect to how they had come to consider unionization.
With due regard for their total contest, his queries were,
within my view, reasonably calculated to call forth re-
sponses which would effectively designate the principal
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union protagonist within-Respondent's driver complement.
Credible testimony, previously noted herein, does war-
rant a determination that Dr. Levy and Comptroller Kirsh-
baum both voiced prompt disclaimers when Chief
Dispatcher Hamilton, somewhat ingenuously, specifically
requested Complainant Union's principal employee 'sup-
porter to speak for his fellow drivers. The record shows,
however, that Dr. Levy's subsequent confession of curiosity
regarding his listeners' initial decision to seek some union
contact did generate a direct response which, taken in con-
text, realistically served to pinpoint driver Mike Gleeson as
the probable instigator responsible for Complainant
Union's representational claim. I conclude, therefore, that,
despite his possibly innocent motivation, Dr. Levy's con-
duct, like that chargeable to Kirshbaum and Hamilton
when Enyeart was questioned, did have a reasonable ten-
dency "under all the circumstances" to restrain, interfere
with, or coerce Respondent's drivers with respect to their
exercise of rights statutorily guaranteed.
b. The solicitation of grievances and promises of benefit
The solicitation of employee grievances by management
representatives has not normally been considered violative
of law, save when such solicitation has been accompanied
by some promise of benefits, express or implied, specifically
calculated to interfere with, restrain, and coerce concerned
employees with respect to their exercise of rights statutorily
guaranteed. ITT Telecommunications, A Division of Interna-
tional Telephone and Telegraph Corporation, 183 NLRB
1129. This Board has, however, found the solicitation of
grievances properly subject to proscription whenever a rele-
vant context sufficient to warrant such a determination has
demonstrably been present. Swift Produce, Inc., 203 NLRB
No. 60. The Board's decision, within the cited case, notes
that:
There is no evidence that the Respondent was in the
habit of soliciting grievances from its employees and,
inasmuch as the timing of the solicitation of grievances
directly coincided with the origination of employee
union activity, it is not unreasonable to draw the infer-
ence of improper motivation and improper interference
with employee freedom of choice . Further, the solicita-
tion of employee grievances , in the circumstances pre-
sented here , carried with it the implied promise that
such grievances would 'be remedied . (Case citation)
Such conduct is clearly unlawful.
In short whenever a respondent firm , confronted with some
labor organization 's representation claim, displays a new-
found concern with reported employee grievances , there is
a strong inference that the particular employer 's declara-
tions of concern carry a promise to correct whatever
grounds for complaint he may discover through his queries;
this, together with a further inference , that his concerned
workers are really being told his combined program of soli-
citation and prospective or promised correction will make
their collective representation unnecessary . N.L.R.B. v.
WKRG-TV, INC., 470 F.2d 1302 (C.A. 5, 1973); Landis Tool
Company, A Division of Litton Industries v. N.L.R. B., 460
F.2d 23 (C.A. 3, 1972); N.L.R.B: v. Eugene Yokell, d/b/a
Crescent Art Linen Co., 387 F.2d 751, 755 (C.A. 2, 1967);
N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344, 345 (C.A. 6,
1965); Ring Metals Company, 198 NLRB No. 143; compare
Reliance Electric Company, Madison Plant, Mechanical Driv-
ers Division, 191 NLRB 44,: Respondent's management,
therein, was found to have held several "communications
type" meetings); Associated Mills Inc., 190 NLRB 113. See,
also, Raytheon Company, 188 NLRB 311: (Chairman Miller,
concurring in part), in this connection.
The present record fully warrants a determination, which
I have herein made, that Respondent' s medical director,
during his June 30 conference talk, and his subsequent eve-
ning conversation with Respondent's two senior drivers,
together with his final July 3 conference remarks, did solicit
driver complaints, which Respondent's management was
concurrently proposing to satisfy. Dr. Levy's several com-
ments, however, conveyed something more than promises
implied, merely. Despite his proclaimed reliance upon legal
counsel, which he concededly coupled closely with a decla-
ration that Respondent could not bargain, negotiate or
promise changes, the laboratory's medical director specifi-
cally reiterated his dedication to fairness, declared his readi-
ness to check those compensation levels which comparable
delivery drivers for Respondent's competitors enjoyed; and
freely stated his personal belief that Respondent's drivers
should receive compensation which matched "the average
pay" levels prevalent for such work within Respondent's
competitive territory. A statutorily proscribed "promise of
benefit" could hardly be more precisely conveyed.
Dr. Levy was, clearly, trying to phrase his comments in
circumspect terms; however, his deliberately cautious lan-
guage, though it may not have committed Respondent to
proffer specific raises, nevertheless carried a clear sugges-
tion that general compensation levels for the firm's drivers
could, conceivably, be lifted. And, since I have found that
Respondent's medical director coupled his suggestion, sev-
eral times , with manifestations of hope that corrective ac-
tion, calculated to satisfy his drivers' reported grievances,
would forestall unionization, determination seemed clearly
warranted, now, that his solicitation of grievances, coupled
with his "promise" that grievances would be remedied,
constituted a proscribed interference with employee free-
dom of choice. I so find.
c. Fringe benefits promised and granted
When Respondent's drivers, during their several confer-
ences with Dr. Levy noted, mentioned their dissatisfaction
with management's failure to grant them vacations or holi-
days with pay, together with their lack of medical insurance
coverage, they were referred to Respondent's personnel
manual.
That document, together with the policies set forth there-
in, had, cclearly, been "drafted" and "adopted" before
Respondent's drivers took their first steps looking toward
union representation: The manual, further, had been distri-
buted, promptly,- following its promulgation; there can be
no doubt, upon the present record, with respect to its distri-
bution long before Respondent's management learned of
Complainant Union's representation claim.
CENTRAL DIAGNOSTIC LABORATORY
General Counsel suggests, nevertheless, that Dr. Levy's
personnel manual references, which Comptroller Kirsh-
baum buttressed with specific citations, constituted prom-
ises of benefit, proffered during a representation petition's
pendency, which were reasonably calculated to dissuade
Respondent's drivers from supporting Complainant Union
herein. Construed thusly, so General Counsel contends, the
medical director's comments regarding Respondent's per-
sonnel manual should be considered statutorily proscribed
interference, restraint, and coercion.,
The contention, within my view, merits rejection. This
Board has held, frequently, that benefits reaffirmed or con-
ferred on the basis of previously announced plans, pursuant
to previously established practice, or because of some busi-
ness necessity, will not be considered violative- of the
statute's mandate, Pacific, Southwest Airlines, 201 NLRB
647; Delmar Gardens, Inc., 198 NLRB No. 57, fn. 1; Leslie
Metal Arts Company, Inc., 194 NLRB 137, enfd. 472 F.2d
584 (C.A. 6, 1972); D & C Textile Corp., 189 NLRB 769;
Selb Manufacturing Company, 172 NLRB 1993; Champion
Pneumatic Machinery Co., 152 NLRB 300. That decisional
principle, clearly, must be considered dispositive herein.
Substantially, Respondent's management representatives
were, so I find, merely reminding their delivery drivers that,
with particular reference to compensation for holidays, va-
cations, and health insurance coverage, their sense of griev-
ance lacked a factual justification.
General Counsel does suggest, however, that, when
Respondent's medical director and comptroller cited the
firm's recently distributed personnel manual in this connec-
tion, their comments were calculated to put a quietus upon
possible unionization; therefore, such comments, so Gener-
al Counsel contends, should be considered unlawfully moti-
vated. I have not been persuaded. True, Respondent's
receipt of notice with respect to Complainant Union's repre-
sentation petition had generated Dr. Levy's several confer-
ences; those conferences had revealed that most of
Respondent's delivery drivers lacked knowledge with re-
gard to their vacation and holiday pay rights. I cannot,
however, conclude, merely because Respondent's medical
director and comptroller moved promptly, under these cir-
cumstances, to reiterate and publicize such previously
granted fringe benefits, that their personnel manual refer-
ences should be considered merely a deliberate "strategic
incitement" calculated to persuade their listeners that un-
ionization would be neither desirable nor necessary.
General Counsel notes, in this connection, that
Respondent's personnel manual, though formally "adopt-
ed" following a June 8 decision, bore a printed "May, 1972"
date. Further, he cites Respondent's failure, nevertheless, to
grant I 1 delivery drivers Memorial Day holiday pay. Final-
ly, he notes Respondent's conceded failure to notify drivers,
Marrone and Joy, directly following the personnel manual's
June 8 promulgation, with regard to their vacation rights.
With these matters of record for his premise, General Coun-
sel contends that Respondent kept its various fringe benefit
programs "under wraps" deliberately; that management's
failure or refusal to grant paid holidays or vacations, in
timely fashion, derived from conscious policy; and that
Respondent's final determination to grant drivers their
Fourth of July holiday pay, together with paid vacations for
765
those currently qualified, derived from statutorily pros-
cribed considerations. I cannor concur. The record, rather,
warrants determinations, which I make, that the so-called
"May, 1972" date shown on Respondent's personnel manu-
al merely designated a preliminary draft formulation, which
Respondent's comptroller had, presumably without
thought, permitted to stand without change; that none of
Respondent's drivers, save Enyeart solely, had really been
eligible for Memorial Day holiday pay, pursuant to compa-
ny policies which 'were then, being applied; and that
management's failure to notify Drivers Marrone and Joy,
during June specifically, with regard to their vacation eligi-
bility derived from Chief Dispatcher Hamilton' s negligent
oversight merely.
With respect to health insurance coverage, Respondent's
medical director, when advised that his drivers had'not been
supplied with certain "application" or "eligibility" cards
which, presumably, they would be required to complete
before their coverage could be confirmed, merely directed
his subordinates to set up, review and complete the required
documentation. Such a directive, within my view, reflects no
promise or grant of newly provided benefits.
While employers may not promulgate or promise new
benefits reasonably calculated to influence their employees'
free choice with respect to unionization, they need not con-
ceal the current availability of benefits lawfully decided
upon previously. They are privileged, so relevant decisional
doctrine teaches, to inform their employees regarding the
full range of benefits which may have been previously pro-
vided for them, lawfully, since such information would be
clearly relevant to their decision with respect to whether
they would, nevertheless, band,together collectively to bar-
gain with their employer for new or better benefits. Rennie
Manufacturing Company, Inc., 202 NLRB 1117, fn, 2. Simi-
larly, within my view, concerned employers, when apprised
that benefits previously conferred have not been effectuated
properly, may take steps, legitimately, looking toward their
previously promulgated program's genuine effectuation.
Compare Tommy's Spanish Foods, Inc., 187 NLRB 235
(Chairman Miller, dissenting in part), enfd. with modifica-
tions 463 F.2d 116 (C.A. 9, 1972). The Court's decision,
therein, reflects a partial concurrence with Chairman
Miller's dissent, which it quotes, in relevant part, as follows:
The conception of the [Respondent's employee insur-
ance] program having been legitimate, the Respondent
was entitled at the end of the gestation period, to effect
a normal delivery. The General Counsel has submitted
no evidence that a Ceasarean section was performed in
order to influence a possible second election . . . and
I would find that Respondent acted within its rights in
implementing the program.
Carrying forward Chairman Miller's metaphor, I suggest
that, when Respondent's medical director, herein, learned
that Respbndent's program of medical insurance coverage
for delivery drivers, legitimately conceived, had not yet
been delivered normally, he merely directed that measures
should be taken which would induce labor. When he did so,
I conclude and find, no statutory proscriptions were flouted.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
d. Promises and forecasts with respect to wage increases
While a witness, Chief Dispatcher Hamilton conceded
that, when Drivers Marrone and Joy, responding to his
query, cited the basic hourly rate which they would consider
fair, he commented that Respondent's compliance with
their conception of fairness would present no problem. His
testimonial concession, detailed verbatim previously within
this decision, clearly constituted a promise of benefit, reaf-
firming Dr. Levy's prior commitment to continue his pro-
claimed "fairness" policy. I so find.
Within his brief, General Counsel cites, further, testimo-
ny proffered by Driver Mike Gleeson that Hamilton had
suggested Respondent would be paying "about $3.00 per
hour" should Complainant Union fail to win representative
status. Previously, however, within this decision, my reluc-
tance to credit Gleeson's testimony in this connection has
been noted. Some further discussion, detailing my reasons,
may be warranted. Dr. Levy, when wage rates were being
discussed during his June 30th conference, had been nota-
bly circumspect; no figures had been mentioned.
Respondent's chief dispatcher, certainly, would not have
possessed more definite information with respect to
Respondent's prospective compensation policy. Further,
whatever figure he may have been prepared to cite would
presumably have been below Gleeson's $3 quotation; credi-
ble testimony, herein, warrants a determination, which I
make , that , when Respondent's management representa-
tives discussed possible raises, $2.75 was the highest hourly
rate mentioned. My rejection of Gleeson's testimony with
respect to Hamilton's purported promise, therefore, will be
reaffirmed.
Within his brief, General Counsel charges, further, that,
during subsequent conversations with several other drivers,
Respondent's chief dispatcher tried a slightly different tack.
Reliance is placed upon some circumstantially parallel testi-
mony, which Drivers Fogle, Elliott, and Theodore prof-
fered, that Hamilton told them previously planned or
scheduled raises could not be given until Complainant
Union's representation claim was resolved. General Coun-
sel contends that, within the situational context which
Respondent's concurrent unfair labor practices provided,
these drivers could, reasonably, consider such statements
"threats" that wage increases would be withheld while they
supported Complainant Union, coupled with concommi-
tant "promises" that raises would be granted upon Com-
plainant Union's rejection.
The record, however, provides no reliable, probative or
substantial support, within my view, for such a contention.
Previously, within this decision, my rejection of relevant
testimony, which Fogle, Elliott, and Theodore proffered,
has been noted; with respect thereto, however, some further
comment may be warranted. Respondent's drivers could
not definitively "date" their chief dispatcher's purported
statements , either chronologically or relatively, with rela-
tion to concurrent developments. Were I to deem their testi-
mony credible, therefore, I would have to find, necessarily,
that Hamilton's remarks followed Rosten's 25-cent raise,
reflected in his June 22 paycheck, together with
Respondent's decision to grant Mike Gleeson's raise to
$2.50 per hour, when he was transferred to a company-
owned vehicle. Gleeson's hourly rate was changed, so the
record shows, concurrently with the commencement of
Respondent's second June pay period; on July 7, he re-
ceived his first paycheck which reflected the raise.
Respondent's decision to grant the raise would have had to
predate that designated payday. However, sometime during
this period, Fogle and Martinez were both notified that they
would receive raises, effective upon the commencement of
Respondent's first July pay period, calculated to match
Rosten's 25-cent hourly rate raise previously granted. And
Elliott, when he protested, during this same period, that his
previously promised hourly rate increase was past due, re-
ceived notice forthwith that his scheduled raise would be
granted. Concurrently, under circumstances which will be
discussed hereinafter, Mike Gleeson's pay was raised, con-
sistently with a promise which Hamilton had previously
made. Upon this record, determination seems warranted
that Respondent's course of conduct, with respect to raises
particularly, clearly belied any purported determination
that previously promised or scheduled raises should be with-
held. I consider it most unlikely that Hamilton was, during
this period, making statements which Respondent's demon-
strated policy, with respect to raises, contradicted. General
Counsel's presentation, calculated to suggest the propriety
of such a determination, must, therefore, be rejected.
e. Wage increases granted
(1) Preliminary statement
Chief Dispatcher Hamilton's testimony, which I credit in
this connection, reveals his hire in October, 1971; he was
designated a department head some 2 months later. In April
1972, Respondent's management, so he testified, requested
him to conduct a wage review, with respect to delivery
drivers, and to recommend raises should he deem such ac-
tion warranted. Thereafter, so the record shows, six senior
drivers-Marrone, Joy and Theodore, Hendricks, Enyeart,
and Sagheb-received raises; these raises became effective
during Respondent's second April pay period. Subsequent-
ly, Enyeart received a second raise, previously noted herein,
which became effective during Respondent's second May
pay period. The Gleeson brothers later received raises, dur-
ing June's first pay period. These raises were, so I find,
granted pursuant to Hamilton's discretion. Clearly, all of
them predated Respondent's knowledge with respect to
Complainant Union's representation claim.
(2) Raises following probationary periods
Concurrently with his April wage review, so Hamilton
testified , credibly and without contradiction, the chief dis-
patcher determined to institute a so-called 60-day proba-
tionary policy, whereby drivers retained following that
designated period of service would receive 25-cent hourly
rate raises . The record warrants a determination , which I
make, that Respondent's chief dispatcher first communi-
cated this policy to newly hired drivers, thereafter, when
Rosten, Fogle and Elliott were engaged.
Rosten and Fogle were hired at $2 per hour, plus mileage,
CENTRAL DIAGNOSTIC LABORATORY
and were required to drive their own cars. Elliott was hired
with a $2.25 hourly rate, since he would be driving a compa-
ny car; however, he was told, specifically, that Hamilton's
25-cent raise policy would provide him with a $2.50 rate,
following the completion of his probationary period. Marti-
nez, hired shortly thereafter, was likewise told about
Respondent's 60-day probationary period. He, too, was
promised a raise to $2.25 per hour, plus mileage , following
that period's completion.
Rosten, whose precise hire date cannot be determined,
from the data provided for this record, may have received
his postprobation raise slightly beforehand; the record war-
rants a determination that his first paycheck with a $2.25
hourly rate, which he received on June 22, covered
Respondent's first June pay period. General Counsel does
not contend, however, that Rosten's wage increase was "ac-
celerated" for statutorily proscribed reasons.
Thereafter, Fogle and Elliott both received raises, consis-
tently with Hamilton's prior commitments. True, both driv-
ers reminded Respondent's dispatcher when their
previously promised raises were due; the record warrants
determinations , which I make , that these reminders were
proffered, during July's first pay period, sometime after,
their respective probationary periods had, presumably, been
completed . Hamilton may have been somewhat negligent or
remiss with respect to marking their completion of proba-
tionary service; with respect to Elliott's situation, particular-
ly, this seems to have been true. Nevertheless, I find
nothing, within the present record, sufficient to warrant a
determination that, following Respondent 's receipt of no-
tice with respect to Complainant Union 's representation
claim, these drivers received raises which they would not
otherwise have been given. Certainly, they did not receive
"accelerated" raises.
Within his brief, General Counsel notes, correctly, that,
when wage increases are granted directly following a labor
organization°s representation petition , the concerned em-
ployer bears the burden of showing their legitimacy. Inter-
national Shoe Company, 123 NLRB 682. However, with
matters in their present posture, particularly with respect to
those raises which Fogle and Elliott received, the General
Counsel's suggestion herein , that Respondent has failed to
carry its burden, must be rejected.
With respect to Martinez, the record is somewhat less
clear. Presumably , since he was hired sometime early in
May, his 60-day probationary period would have been com-
pleted sometime during Respondent 's first July pay period.
The record shows, however, that his newly set hourly rate,
when granted, was made effective with that pay period's
first day. Nevertheless, no invidious conclusions, within my
view, can properly be drawn; Martinez' effective raise date
may have been advanced some few days merely for admin-
istrative convenience. For lack of sufficient data, then, no
determination can be considered warranted that he was
granted ai, previously-promised raise prematurely.
The record does show that Martinez, because of his prior
experience , had been hired at $2.10 per hour , plus mileage;
throughout his probationary period, however, he had, mis-
takenly, been compensated at Respondent's regular $2
hourly starting rate. Followinghis confirmed raise to a $2.25
rate, he ultimately received a supplementary check calculat-
767
ed to make up, retroactively, for Respondent's prior payroll
error. Nothing in this transaction, within my view, suggests
that Respondent's retroactive adjustment, with respect to
Martinez' compensation, derived from statutorily pro-
scribed motives.
Within his brief, General Counsel notes that none of
Respondent's eight senior drivers, Marrone, Joy, Theodore,
Hendricks, Mike Gleeson, Enyeart, William Gleeson, or
Sagheb, received comparable July raises, premised upon
their prior completion of probationary service. Further, he
(General Counsel) notes that, with Respondent's July raises
granted, three senior drivers, Joy, Hendricks and Theodore,
were still being paid less that $2.25 per hour , plus mileage.
Presumably, the General Counsel's representative wishes
this Board to conclude that Respondent's discriminatory
failure to grant equalizing driver raises "across-the-board"
renders its motivation for three postprobation raises, grant-
ed within July's first pay period, suspect. The logical justifi-
cation for such a suggestion, however, escapes me.
I do, however, note, in this connection, that Respondent's
payroll register shows two part-time drivers, Cunningham
and Stout, listed as new July hires. Their starting rates, $2
per hour plus mileage, reflect no change in Respondent's
basic compensation policy.
With matters in this posture, I conclude and find that
Respondent's July determination to grant Fogle, Elliott,
and Martinez their postprobation raises derived from Chief
Dispatcher Hamilton's previously formulated compensa-
tion policy, which antedated Complainant Union's repre-
sentation claim, and reflected management's compliance
with commitments which had previously been made. Gener-
al Counsel's contrary contention that these raises were
"carefully timed" to promote withdrawals from Complain-
ant Union herein, and that they were purposed to interfere
with, restrain, or coerce Respondent's drivers with respect
to their exercise of statutorily guaranteed rights carries no
persuasion.
(3) Raises for company car drivers
Similar conclusions, within my view, must be considered
warranted with respect to Respondent's further raises,
granted during succeeding July/August pay periods, for
drivers transferred to company-owned vehicles. These rais-
es were, so the record shows, likewise premised upon mana-
gerial decisions which had been reached before Respondent
learned of Complainant Union's claim, coupled with specif-
ic promises or commitments made consistently therewith.
Comptroller Kirshbaum and Chief Dispatcher Hamilton
both testified, credibly and without contradiction, that, to-
ward the end of May 1972, they had decided to grant raises
whenever currently employed drivers were transferred to
company-owned vehicles. Following their review of
Respondent's payroll records, these management represen-
tatives decided that $2.75 per hour would constitute a fair
level of compensation for drivers thus transferred, since
such transferred drivers would no longer be receiving mile-
age allowances.
On various occasions, shortly after Kirshbaum and Ham-
ilton reached their decision, the latter told several senior
drivers, so I find, that some company cars were being or-
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dered ; "sooner or later" they would receive such a car for
their delivery routes; and Respondent 's management had
determined $2.75 would be a reasonable hourly rate of pay
for company car drivers , which they could expect following
their try nsfer . Enyeart was , however , told that, since he was
considered the chief dispatcher 's assistant , he would receive
$3 per hour when transferred , to differentiate his status
from that of Respondent 's other drivers, and to show his
authority.
The record , considered in totality , warrants a determina-
tion that Chief Dispatcher Hamilton communicated this
prospect to Respondent 's several drivers , most particularly
Mike Gleeson , on or about May 22 ; I so find.
When , shortly thereafter , Gleeson was designated to drive
a newly purchased company car , commencing with
Respondent 's second June pay period , his hourly rate was,
indeed, raised ; his July 7 paycheck , however, reflected
merely a $2 .50 hourly rate . When Gleeson , subsequently,
learned that Elliott ,.with lesser seniority , would be compar-
ably paid following his postprobation raise , he reminded
Hamilton of his prior "promise" that previously employed
drivers transferred to company cars would receive $2.75 per
hour . On July 14, so the record shows, Respondent 's chief
dispatcher notified Gleeson that he would receive a further
25-cent-per-hour raise , which would be made effective ret-
roactively to the commencement of July 's first pay period,
then in progress . The driver was told , specifically , that this
adjustment would make "valid" Hamilton 's prior commit-
ment, proffered during their May 22 conversation.
Subsequently , commencing with August 's first pay peri-
od, Enyeart and Hendricks were , likewise , designated to
drive company cars . Consistently with Hamilton's prior
commitment , Enyeart's hourly rate was raised to $3 per
hour.
General Counsel suggests that Enyeart was granted this
premium rate as reward for his solicitation of fellow drivers
to sign and send their union designation . card withdrawal
letters , previously noted . The record , within my view, pro-
vides no reliable , probative , or substantial evidence which
would warrant such a conclusion.
Hendricks was designated to receive $2.75 hourly, plus 50
cents per hour in supplementary hazard pay , previously
noted within this decision . Thereby, he became
Respondent 's highest paid driver . General Counsel does not
contend that Respondent 's decision to grant Hendricks sup-
plementary compensation was improperly motivated.
Since these wage increases for newly designated company
car drivers, clearly, were made ( 1) pursuant to managerial
decisions which had been reached before Respondent's
drivers displayed any concern with unionization ; (2) consis-
tently with commitments which , so I find , were made before
Complainant Union 's representation claims were communi-
cated ; and (3 ) concurrently with significant changes in their
recipients ' working conditions , the raises in question can-
not, within my view , be considered violative of law.
(4) Subsequent raises
Within the 2-month period which followed , Marrone and
Joy received their first raises since April , previously. Theo-
dore , Respondent 's third most senior driver , resigned during
October ; he was, however, rehired several weeks later, with
a 25-cent higher basic hourly rate, plus mileage.
Within his brief , General Counsel notes, correctly, that
Respondent has not , upon the present record , justified these
raises. Conversely , however, General Counsel has not, with-
in my view , persuasively demonstrated their illegitimacy.
Basically, herein , General Counsel has challenged
Respondent 's postpetition raises primarily because , chrono-
logically, they were "given in the context of discussions
concerning the Union" following Dr. Levy's solicitation of
driver grievances . By September , however, that context had
become remote . Respondent 's initial reflexive reaction,
when confronted with Complainant Union's representation
petition , had run its course . Whatever Respondent 's motiva-
tion may have been, for this latter group of raises , no Board
determination would currently be warranted , within my
view , that they were purposed to interfere with, restrain, or
coerce Respondent's drivers , with respect to their freedom
of choice for or against unionization , or that they should be
considered reasonably calculated to promote such a statuto-
rily proscribed result.
f. The withdrawal letters
The record considered in totality , within my view, war-
rants a determination , consistently with General Counsel's
contention , that Respondent 's role , with respect to prepar-
ing and dispatching designation card withdrawal letters,
transgressed permissible limits.
Respondent 's medical director did not, so I have found,
directly suggest that such letters should be written or dis-
patched ; when questioned by Respondent 's drivers in this
connection , however , he couched his reply in terms which
did suggestively imply that driver inquiries properly direct-
ed, which sought information regarding the procedures re-
quired to confirm withdrawal , would prove fruitful.
Thereafter, Driver Enyeart did solicit such information
from Respondent 's comptroller ; he was given two address-
es, Complainant Union's, together with that of this Board's
Regional Office , specifically , where designation card with-
drawal letters could be sent. Respondent 's executive secre-
tary, with Comptroller Kirshbaum 's permission,
subsequently composed and typed the letters ; when six driv-
ers had signed them , following Enyeart's direct solicitations,
she put them through Respondent 's postage meter , mailed
them, and retained copies.
Within his brief, General Counsel notes that
Respondent 's executive secretary believed "obviously" that
she was acting in Respondent's behalf when she prepared
and dispatched these withdrawal letters. I concur. More
importantly , however , I conclude and find that Executive
Secretary Arnold 's conduct was reasonably calculated to
persuade the drivers who signed the letters that
Respondent 's management had both "aided and abetted"
their designation card withdrawals . The present record will
not, within my view , sustain a determination, consistently
with General Counsel's contention, that Enyeart was "act-
ing on [Respondent 's] behalf" when he solicited his fellow
drivers' signatures for the letters now under consideration.
There can be no doubt , however, that Respondent 's comp-
troller, when he knowingly permitted Executive Secretary
CENTRAL DIAGNOSTIC LABORATORY 769
Arnold to participate in their preparation and subsequent
dispatch, created a situation wherein those drivers who
signed letters could reasonably consider Respondent their
cosponsor.
If Respondent 's management , when confronted with
Complainant Union's representation petition , had done
nothing more than provide a helping hand , pursuant to
request , when certain concerned drivers, motivated by self-
generated afterthoughts , later sought to withdraw their
union designation cards previously signed , I would hesitate
to find Respondent guilty of statutorily forbidden "assis-
tance" because of such conduct , solely. Upon this record,
however, Kirshbaum 's cooperative stance , when he re-
sponded to Enyeart's query, coupled with Executive Secre-
tary Arnold' s subsequent course of conduct, must be
considered part and parcel of Respondent 's negative reac-
tion to Complainant Union's representation claim , herein
found, partially, deserving of statutory proscription. Com-
pare Royal Himmel Distilling Company, 203 NLRB No. 62;
Dayton Blueprint Company, Inc., 193 NLRB 1100. So con-
strued , Kirshbaum's conduct, together with Executive Sec-
retary Arnold's subsequent follow through, contributed to
Respondent 's statutory violations; I so find.
2. The requested bargaining order
a. Preliminary statement
Respondent does not challenge General Counsel's con-
tention, herein , that its laboratory "delivery drivers" consti-
tute a single employee group , appropriate for
collective-bargaining purposes . Confronted , however, with
General Counsel 's claim that "at all times since June 8,
1972, and continuing to date" the Complainant Union has
been the majority representative of these drivers , Respon-
dent has noted its denial.
The present record , within my view , dictates that denial's
rejection . On June 29, when Respondent received notice
with respect to Complainant Union's representation peti-
tion , the laboratory employed 12 full-time and regular part-
time drivers . General Counsel has produced I 1 designation
cards, signed by these drivers, for the record ; taken at face
value , these cards clearly support Complainant Union's
claim that it possessed majority representative status when
it requested recognition and concurrently filed a representa-
tion petition.
Respondent . contends , nevertheless, that these signed
cards should not be considered sufficient to support Gener-
al Counsel 's request for a bargaining order:
... since the Union representative told the drivers that
an election would be held at the Company . The repre-
sentative failed to tell the drivers that they could be
represented without an election if they signed the cards.
Such conduct should be equated to a representation
that the "sole" purpose of the cards was to obtain a
National Labor Relations Board election.
With due regard for Complainant Union's designation card
language , plus the total context within which Union Repre-
sentative Le Flore solicited signatures for those cards, I find
these contentions lacking in merit . The drivers testified,
uniformly, that, before they signed, they read Complainant
Union 's proffered cards. Nothing in LeFlore's presentation,
before or after the cards were distributed , suggested that his
listeners should "disregard and forget the language" which
preceded their signatures . N.L.R.B. v. Gissel Packing Co.,
395 U.S. 575, 606. Though Complainant Union' s business
representative may have stated , directly or tangentially. that
his organization 's designation cards, when signed, would
generate a procedure whereby a representation vote could
be held, the Supreme Court has held that, "[T]here is noth-
ing inconsistent in handing an employee a card that says the
signer authorizes the Union to represent him and then tell-
ing him that the card will probably be used first to get an
election." See N.L.R.B. v. Gissel Packing Co., supra, p. 607,
in this connection.
With matters in this posture, I find, contrary to
Respondent's contention , that , when Complainant Union's
demand for recognition reached Respondent herein, that
organization held 11 valid authorization cards , whereby a
majority of Respondent's delivery drivers had effectively
designated it their collective -bargaining representative.
b. The bargaining order remedy
General Counsel contends that Respondent was duty-
bound to recognize and bargain with Complainant Union
herein , since June 27 when its letter requesting recognition
was dispatched,because a delivery driver majority had des-
ignated Complainant Union as their bargaining represen-
tative prior thereto. Employers confronted with union
recognition requests, however , can disregard such requests
and require the requesting labor organizations to pursue
statutory election procedures, "unless [they engage] in con-
temporaneous unfair labor practices likely to destroy the
union's majority and seriously impede the election."
N.L.R.B. v. Gissel Packing Co., supra, p. 600. Thus, employ-
er misconduct , during a labor organization 's campaign or
thereafter, will not, necessarily, support a bargaining order.
The paramount question to be determined is whether the
unfair labor practices are such as to undermine the union's
majority status and preclude the holding of a fair and free
election.
Within his brief , General Counsel suggests that
Respondent's unfair labor practices, herein , were sufficient-
ly "outrageous" and "pervasive" to require a bargaining
order . With due regard for my factual conclusions previous-
ly set forth, such pejorative language may not, really, be
warranted. Nevertheless, this case could, arguably, be con-
sidered a classic situation , warranting a Gissel type remedial
directive . Complainant Union won majority representative
status; subsequent unfair labor practices were committed;
thereupon , employee support was lost. More , however, must
be considered here . Upon this record , Complainant Union's
loss of driver support can, arguably, be found derivative
from developments beyond the National Labor Relations
Act's proscriptive reach. True, the limited "interrogation"
chargeable to Respondent 's comptroller , Chief Dispatcher
Hamilton , and Respondent 's medical director has been
found, within its context, violative of law. Dr. Levy's solici-
tation of grievances , coupled with his suggestion that
Respondent's management was prepared to review and pos-
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sibly revise drivers' compensation rates, likewise trans-
gressed permissible limits. The record considered in totality,
however, suggests, rather clearly, that a substantial number
of Respondent's drivers lost their previously manifested in-
terest, with respect to unionization, when they were remind-
ed that Respondent's management had, through its own
initiative, previously publicized their right to participate in
various fringe benefit programs, and that Respondent was
prepared to satisfy, consistently with its personnel manual
provisions, their particular grievances with regard to holi-
days, vacations with pay, and health insurance coverage.
Further, a deduction seems clearly warranted that when
Respondent proceeded to grant various raises, consistently
with compensation policies previously adopted, personal
commitments previously made, and demonstrable changes
in working conditions, various drivers may have been per-
suaded to withdraw their previously proffered union sup-
port. The fact that Respondent's comptroller, possibly
through negligence or lack of foresight, thereafter permitted
a subordinate to provide clerical "assistance" with respect
to their withdrawal letters, though significant, cannot rea-
sonably be considered crucial.
On balance, I conclude and find that Respondent' s limit-
ed resort to unfair labor practices, found herein, did not
contribute significantly to Complainant Union's loss of
driver support. I conclude and find, further, that
Respondent's unfair labor practices, herein found, are hard-
ly likely to be repeated, and that their residual impact, cur-
rently, can be dispelled by the posting of proper notices. In
sum, I reject General Counsel's contention that
Respondent's misconduct would prevent the holding of a
fair election, when its presumptive effects have been dissi-
pated. Compare N.L.R.B. v. Ship Shape Maintenance Com-
pany Inc,, 474 F.2d 434 (C.A.D.C., 1972); Daisy's Originals,
Inc. v. N.L.R.B., 468 F.2d 493 (C.A. 5, 1972); N.L.R.B. v.
General Stencils, Inc., 472 F.2d 170 (C.A. 2, 1972); Olin
Conductors, Olin Mathieson Chemical Corporation, 185
NLRB 467; Blade-Tribune Publishing Company, 180 NLRB
432, on reconsideration of 161 NLRB 1512 in this connec-
tion. Accordingly, I find no bargaining order warranted, in
this case.
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon the
entire record in this case, I make the following conclusions
of law:
1. The Respondent, Central Diagnostic Laboratory, is an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce, within the meaning of Section 2(6) and (7) of the
Act, as amended.
2. Miscellaneous Warehousemen, Drivers & Helpers Lo-
cal 986, International Brotherhood of Teamsters, Chauf-
feurs,, Warehousemen & Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act,
as amended, which admits certain of Respondent's employ-
ees to membership.
3. Respondent's management representatives, when they
questioned Respondent's drivers with regard to Complain-
ant Union's representation petition, or the circumstances
under which they had contacted union representatives;
when they solicited statements with respect to employee
grievances, and thereafter promised to consider changes in
delivery driver compensation levels; and when they permit-
ted a subordinate to assist Respondent's drivers with respect
to their preparation and dispatch of letters withdrawing
their support from Complainant Union herein, interfered
with, restrained, and coerced such drivers, with respect to
their exercise of rights statutorily guaranteed. Thereby, Re-
spondent engaged in, and continues to engage in, in unfair
labor practices affecting commerce within the meaning of
Sections 8(a)(1) and 2(6) and (7) of the Act, as amended.
4. Respondent did not violate Section 8(a)(5) of the Act,
by refusing to recognize and bargain with Complainant
Union as the collective-bargaining representative of a ma-
jority of its delivery drivers.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommended
Order:
ORDER1
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's course of conduct set forth in section III,
above, since it occurred in connection with Respondent's
business operations set forth in section I, above, had, and
continues to have, a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States;
absent correction, such conduct would tend to lead to labor
disputes burdening and obstructing commerce, and the free
flow of commerce.
THE REMEDY
Since I have found that Respondent engaged, and contin-
ues to engage , in certain unfair labor practices which affect
commerce, I shall recommend that it be ordered to cease
and desist therefrom , and to take certain affirmative action,
including the posting of appropriate notices, designed to
effectuate the policies of the Act, as amended.
Respondent, Central Diagnostic Laboratory, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Questioning employees with regard to their union
sympathies, their knowledge of union representation claims,
or their contacts with union representatives.
(b) Soliciting statements from employees with regard to
their complaints or grievances, within a context of union
organizational activity, conjoined with promises, tacitly or
specifically proffered, reasonably calculated to persuade
them that their representation by a labor organization
would no longer be necessary.
1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
CENTRAL DIAGNOSTIC LABORATORY
(c) Providing assistance, directly or through subordi-
nates, with respect to their employees' preparation and/or
submission of letters withdrawing previously submitted in-
dicia of union support.
(d) Interfering with, restraining, or coercing employees,
in any like or related manner, with respect to their exercise
of the rights to self-organization, to form labor organiza-
tions, to join or assist the above-named labor organization,
or any other labor organization, to bargain collectively
through representatives of their own free choice; and to
engage in other concerted activity for the purpose of collec-
tive bargaining or their mutual aid or protection, or to re-
frain from any and all such activities, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of em-
-ployment, authorized in Section 8(a)(3) of the Act, as
amended.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act.
(a) Post, within its North Hollywood, California, labora-
tory, copies of the attached notice marked "Appendix." 2
Copies of the notice, on forms provided by the Regional
Director for Region 31, as the Board's agent, shall be, post-
ed, immediately upon their receipt, after being duly signed
by Respondent's representative. When posted, they shall
remain posted for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that these notices are not
altered, defaced, or covered by any other material.
(b) File with the Regional Director for Region 31, as the
Board's agent, within 20 days from the date of this Order,
a written statement setting forth the steps which Respon-
dent has taken to comply, herewith.
2 In the event thatthe Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the, National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
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 an un-
771
fair labor practice. In order to remedy such conduct, we are
being required to post this notice. We intend to comply with
this requirement, and to abide by the following commit-
ments:
WE WILL NOT question our employees regarding their
Union sympathies, their knowledge of Union represen-
tation claims, or their contacts with Miscellaneous
Warehousemen, Drivers & Helpers Local 986, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, or any other labor
organization.
WE WILL NOT solicit, or promise to adjust, within a
context of union organizational activity, complaints,
and grievances from our employees, for the purpose of
reducing or eliminating their support for the above-
named Union, or any other labor organization.
WE WILL NOT promise our employees raises, within a
context of union organizational activity, to persuade
them that their representation by a union will no longer
be necessary.
WE WILL NOT assist employees with respect to their
preparation or dispatch of letters dealing with their
withdrawal or continuation of support for the above-
named Union, or any other labor organization.
WE WILL NOT, in any like or related manner, interfere
with, restrain, or coerce our employees, with respect to
their exercise of rights which Section 7 of the National
Labor Relations Act guarantees.
All our employees are free to become, remain, or refrain
from becoming or remaining members of any labor organi-
zation, except to the extent that this right may be effected
by an agreement requiring membership in a labor organiza-
tion as a condition of employment, authorized in Section
8(a)(3) of the National Labor Relations Act, as amended.
Dated By
CENTRAL DIAGNOSTIC
LABORATORY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Federal Building, Room 12100,
11000 Wilshire Boulevard, Los Angeles, California 90024,
Telephone 213-824-7357.