Eastern Washington Distributing Co., Inc.

National Labor Relations Board - Board Decisions

Mar 18, 1975

216 N.L.R.B. 1149 (N.L.R.B. 1975)

EASTERN WASHINGTON DISTRIBUTING COMPANY, INC. 1149
Eastern Washington Distributing Company, Inc. and
Teamsters, Chauffeurs, Warehousemen & Helpers
Local Union No. 524, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Independent . Case 19-CA-6779
March 18, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On October 31, 1974, Administrative Law Judge
Henry S. Sahm issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
1. The General Counsel contends that the Re-
spondent and the Union entered into a series of oral
collective-bargaining agreements between 1965 and
1973 covering the Respondent's long-haul drivers
and that the Respondent violated Section 8(a)(5) of
the Act by refusing to reduce to writing, at the
Union's request, the oral contract in effect on
November 16, 1973. The Administrative Law Judge
found that none of the Respondent's actions was a
basis for inferring that such agreements had been
reached and, therefore, did not reach the question of
whether Respondent was obligated to reduce the oral
agreement to writing. Based on all the facts as set
forth by the Administrative Law Judge, and as
appears from the undenied testimony in the record,
we find merit in the General Counsel's contention
with regard to the existence of oral collective-
bargaining agreements between 1965 and 1973.
Contrary to the General Counsel, however, we find
no merit in the position that Respondent violated
Section 8(a)(5) of the Act by refusing to reduce an
oral contract to writing on or about November 16,
1973.
Eastern Washington Distributing Co., Inc., herein
referred to as the Respondent or EWD, has been
owned by Cedric Clark since 1962. All of EWD's
unit employees with the exception of one mechanic
are long-haul drivers." The Respondent is also doing
business as Yakima County Beverage Company,
Inc., herein called YCII, and, as such, is engaged in
the wholesale distribution of beer and wine products
in the Yakima area. All of the employees of YCB are
classified as driver-salesmen, or local route drivers,
and have been represented separately from the long-
haul drivers.
Since 1962, YCB, as a member of Allied Employ-
ers, Inc., has been a party to a multiemployer
collective-bargaining agreement with the Union
herein covering hourly paid driver-salesmen only,
and did not include the Respondent's long-haul
drivers involved herein, who are paid on a mileage
basis. The most recent agreement covered the period
from May 1, 1971, to May 1, 1974, and was referred
to as the Beer Agreement.2 The agreement contained
detailed provisions for wages, hours, and working
conditions of the local driver-salesmen, included a
union-security clause, and also provided for pension
and hospitalization plans which are jointly adminis-
tered by the Western Conference of Teamsters and
representatives of the industry.
The long-haul truckdrivers unit came into existence
in July 1965 when Clark hired Leon Nalley, a union
member, to drive a leased long-haul truck. On
August 16, 1965, H. A. O'Reilly, the Union's business
representative, sent a letter to Clark requesting that
he sign a supplemental agreement covering his long-
haul operation. The proposed agreement included
terms for mileage rates and worktime,3 and was to
become effective on August 1, 1965, and run until
January 1, 1966. The proposal also stated that all
other terms and conditions of the Beer Agreement
would apply. The mileage rates proposed were in line
with those in effect in an area agreement covering
certain other companies which ran "irregular routes"
hauling produce comparable to that hauled by the
Respondent. Since the area contract was due to
expire on November 1, 1966, it seems reasonable that
O'Reilly sought a supplemental agreement of such
short duration. While Clark did not sign the
proposed agreement, he did meet with O'Reilly to
discuss the terms set forth in the Union's letter. The
parties appear to have reached agreement on
virtually all the critical items at issue with the
exception of the worktime guarantee question, but no
written contract was entered.
Since 1962, Respondent has been making pay-
ments into the jointly administered trust funds on
I The long-haul drivers referred to herein are more commonly known as date of this agreement.
over-the-road drivers . The unfair labor practices alleged herein concern 3 Worktime is the amount of time drivers spend in assisting the loading
only the unit of long-haul drivers. or unloading of their trucks , for which they are paid an hourly wage.
2 The hearing in the instant proceeding was held prior to the expiration
216 NLRB No. 186
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
behalf of its YCB local driver-salesmen who are
covered by the Beer Agreement. Each month the
fund administrators mailed to YCB trust forms
listing the names of their employee driver-salesmen
and the amount due to be mailed to said fund by the
10th of the following month. After Nalley was hired,
Clark, without a written agreement with the Union
covering the long-haul drivers, instituted the practice
of routinely adding the names of his long-haul
drivers to YCB's list of employees entitled to
pension, health, and welfare benefits under the trust
funds mentioned above.4 Clark testified that he
instituted the above practice, which allowed long-
haul drivers to receive pension and hospital protec-
tion, for reasons of convenience for both the
Respondent and the long-haul drivers .5 Clark also
testified that he thought that all of his long-haul
drivers had been members of the Union at some
time,6 and that it was his understanding that the
long-haul drivers had to be union members in order
to be eligible for the fringe benefits provided for
under the jointly administered trust funds.
Following O'Reilly's letter of August 16, 1965, and
the discussions between him and Clark which
followed, the Respondent paid the proposed contract
rates and, as discussed above, continued to make the
fringe benefits payments for the newly hired long-
haul driver. O'Reilly testified that he considered all
of the terms of the proposed supplemental agree-
ment, with the exception of the worktime guarantee
question, to be in effect. According to the General
Counsel, O'Reilly decided not to pursue the written
agreement at that time because he had effectively
gained his objective of maintaining area standards.
This informal relationship continued harmoniously,
and in 1966 O'Reilly sent a second letter to Clark
advising him of increases in the "irregular route"
contract mileage rates and in the hourly rates for
worktime. When O'Reilly was advised by an employ-
ee that the requested mileage rates were being paid
by Clark, he concluded that the informal agreement
was still operative and that, therefore, he had no
cause for further investigation . In 1968, the long-haul
operation expanded to include several drivers, each
of whom was automatically included on the trust
fund reports. On December 10, 1969, O'Reilly wrote
Clark for the third time advising him of further
increases in area standard rates and once again
4 By adopting this procedure , Clark was apparently acting contrary to
Sec. 302(cX5) of the Labor-Management Relations Act, 1947, which
requires a written agreement before trusts can accept such payments. See
Moglia Y. Geoghegan, 267 F.Supp. 641 (D.C.N.Y., 1%7), affil. 403 F.2d 110
(C.A. 2, 1968), cert. denied 394 U.S. 919 (1%9). The General Counsel states
that it was not until that case that the problem came to the attention of the
legal community.
5 It appears that the fund administrators had no knowledge that the
names added by Clark to the trust forms were not those of employees
covered under the Beer Agreement. As set forth infra while union
requesting that he sign the proposed agreement.
Clark did not sign the supplemental agreement but
did adjust the hourly wage rates in January 1970 to
meet the Union's new demands.
In January 1970, O'Reilly contacted Clark by letter
after one of the long-haul drivers filed a grievance
over his discharge. Clark responded to the letter by
going to O'Reilly's office and presenting evidence to
justify his discharge of the employee without notice.
The employee was accused of having falsified a
social security number in order to obtain money for
unloading and Clark discharged him, relying on a
provision in the Beer Agreement which makes prior
notice unnecessary when a discharge is for dishones-
ty.7 Although the date is uncertain, one other
grievance was processed during the 6-year period
from 1965 to 1971 when O'Reilly was the business
representative. It involved vacation rights for Nalley.
O'Reilly handled the matter by dealing directly with
the office personnel and Nalley was granted his
vacation pay as called for by the Beer Agreement.
Clark offered testimony, and the Administrative
Law Judge found, that Respondent's vacation plan
for long-haul drivers was different from the plan
provided for YCB's driver-salesmen under the Beer
Agreement. The Administrative Law Judge also
found that Respondent did not provide sick leave,
jury duty pay, or funeral leave to long-haul drivers,
as it did for driver-salesmen covered under the Beer
Agreement; however, there is no indication in the
record as to whether any long-haul driver had ever
requested or had actually been denied any of these
latter benefits.
John Edgar replaced O'Reilly as business repre-
sentative in 1971. In August 1972, Edgar directed
Fred Wehde, the secretary-treasurer of the local, to
send two separate letters to the Respondent demand-
ing enforcement of the union-security provision then
in effect. Clark testified that both letters were
received by Respondent, and that they were deliv-
ered to the employees involved by the "office girl."
Clark admits speaking to one of the employees
involved "about the fact that he hadn't joined the
Union and that he probably was going to have to if
he wanted to get his fringe benefits. . . ." Clark also
testified that the other employee left Respondent's
employ, thus mooting the union-security issue. No
protest regarding the effect of this clause was made
representatives were aware of this fact, they claimed that they were not
aware that a written agreement was required until it was called to their
attention in 1973.
6 One long-haul driver, DeJong, who was hired in July 1973, was not a
union member. DeJong asked Clark not to make such payments for hun
and his request was honored.
r It would appear that Clark would not have discussed the matter with
O'Reilly if he had not considered him the proper representative of the
employee involved.
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC.
by the Respondent at that time . In fact, as noted
above , Respondent had admitted believing that all
the long-haul drivers had to belong to the Union in
order to receive the fringe benefits.
On October 25, 1972, Edgar wrote Clark for the
first time to request that he sign a supplemental
agreement covering the long-haul operation. A new
"irregular route" area agreement had become effec-
tive during the preceding summer , and Edgar's letter
to Clark was an attempt to have the new wage
package applied to the unit members. Edgar learned,
however, before mailing his proposal to Clark, that
Respondent had already put the new rates into
effect.8 Once again , Clark did not respond immedi-
ately to the letter, but he did speak with Edgar in
December 1972, at which time he indicated that his
signature was unnecessary since the new wage rates
were already in effect .9
Pursuant to the Union's request, a meeting took
place on November 16, 1973, between Edgar and
Fred Wehde, the local's secretary-treasurer, for the
Union and Clark and Joe Folk representing Respon-
dent. At that meeting, Clark was handed a copy of
the October 25, 1972, letter proposal of a supplemen-
tal agreement , and was told by Edgar that the joint
Employer-Union trust funds, to which Respondent
had been making payments on behalf of his long-
haul drivers since 1965, could no longer accept such
payments unless a written agreement was executed.
The Union claimed that it had just recently been
called to its attention that Section 302(c)(5) of the
Labor-Management Relations Act, 1947, requires a
written agreement before trust funds can accept such
payments on behalf of any employees. Clark then
looked over the October 25 letter and stated that,
while he had agreed to pay the proposed mileage
rate, he did not feel that he could go along with some
of the other suggested provisions . At that point,
Wehde indicated that some of the points were
negotiable , but Clark did not express a willingness to
pursue the matter . Clark's only response was that he
wanted to discuss the matter with his attorney and
that he would get back to them. No further
communications between the parties herein have
taken place.
Based on the foregoing and the record as a whole,
we find, contrary to the Administrative Law Judge,
that a valid and binding oral collective -bargaining
s Respondent contends that its September 1, 1972, pay increase was
unrelated to the increase in the relevant area contract rates . The terms of the
increase, however , were identical to those terms proposed by Edgar in the
October 25 letter . The Administrative Law Judge concluded that "this was
merely a temporal coincidence and not the consequence of any assent or
accord on the part of Respondent ." In view of the timing , amount, and
circumstances under which Respondent 's pay increase was granted, we find,
contrary to the Administrative Law Judge , that it is more reasonable to
conclude that the pay increase was granted in direct response to the increase
1151
agreement was in effect between the parties on
November 16, 1973, for a separate unit of long-haul
drivers, when Edgar approached Clark. It is clear
that for an 8-year period, from 1965-1973, Clark
dealt with the Union with respect to the long-haul
drivers. Specifically, wage rates were discussed on
numerous occasions; new employees were reported
to the trust funds for fringe benefit coverage; 10 and a
grievance was discussed on its merits and was
resolved. In addition, Clark assumed that his men
had to be union members; and his clerical employees
processed union-security clause enforcement letters
with his knowledge. Also Respondent consistently
met the contractual wage rates and, in December
1972, Clark told Edgar that a written contract was
not necessary because he was already paying the
wages sought by the Union in its latest contract
proposal. While it is true that the oral agreements
reached by the parties fell short of meeting all the
contract demands made by the Union, we are
persuaded that the parties had reached an accord at
various times during their relationship and that they
did in fact have an oral agreement as to the working
conditions as they existed at the time of the
November 16, 1973, request by the Union to enter a
written agreement.11
However, contrary to the General Counsel, we find
no violation by the failure of the Respondent to
execute a written agreement incorporating the terms
of the prior oral understanding. On November 16,
the Union requested the Respondent to sign a
written agreement. But the proposed agreement
would also have covered an additional matter,
mileage and worktime rates for long-haul drivers, and
thus would have modified the existing oral agree-
ment by providing for a worktime rate guarantee.
Clark responded to the Union's request by stating
that, while he had already put the mileage rates into
effect, he did not feel that he could go along with the
worktime proposal. As more fully set forth above,
Clark ended the meeting by stating that he wanted to
discuss the matter with his attorney and would get
back to them, and Wehde indicated that some of the
points in the proposed agreement were negotiable.
Thus, at the time of the Union's request for a written
agreement on November 16, the parties left open the
possibility of modifying their oral agreement at least
with respect to the worktime guarantee question.
in the relevant area contract rates.
9 It is noted that , while Clark did put the basic wage rates into effect, he
did not agree orally or otherwise to all of the proposals made by Edgar.
10 We disagree with the Administrative Law Judge's observation that this
carries no legal connotation or implication that Respondent was recognizing
the Union as the legal representative of the long-haul drivers.
11 It is undisputed that the Union enjoyed majority support on the date
of its request for a written agreement.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
guarantee question. However, the parties did not, in
fact, reach any agreement on the worktime guarantee
issue and, as it is clear that the Union was insisting
that the worktime guarantee proposal be a part of the
written agreement offered to the Respondent for
execution, it cannot be said that the Respondent was
under any obligation to execute an agreement
containing a provision which had not been previous-
ly agreed to by the parties. Accordingly, we find no
violation of Section 8(a)(5) of the Act in the
Respondent's refusal to sign a written agreement at
that time.12
2. The General Counsel further contends that the
Respondent violated Section 8(a)(5) and (1) of the
Act by its direct dealing with unit employees between
November 16 and 23, 1973; by its refusal to meet
with and bargain collectively with the Union as the
exclusive collective-bargaining representative of the
unit employees from and after November 23, 1973;
and by its unilateral institution of an insurance
program on December 1, 1973, covering the unit
employees. The General Counsel also contends that
the Respondent independently violated Section
8(a)(1) of the Act by offering the unit employees an
alternate insurance program on November 23, 1973,
if the employees would renounce their membership
in the Union; by polling and interrogating the
employees concerning their membership and support
for the Union on November 23, 1973; and by
instituting a new insurance plan on December 1,
1973. The Administrative Law Judge rejected the
General Counsel's contentions and recommended
that the complaint be dismissed in its entirety. We
find merit in the General Counsel's exceptions to the
Administrative Law Judge's conclusions.
Following the November 16 meeting, Clark told
"some of his older" long-haul drivers about the
necessity of his signing a union contract in order for
them to continue to be covered under the Teamsters
Health and Pension Fund. As a result of a series of
direct conversations with these employees, Clark
announced that he would try to find an alternate
plan to replace the union plan. Clark then contacted
representatives from New York Life Insurance
Company to ascertain whether they could offer a
"comparable" plan with benefits "at least as good"
as those provided by the Teamsters plan.
On November 23, 1973, Clark held a breakfast
meeting for all his long-haul drivers to allow
representatives of New York Life Insurance Compa-
ny to present an alternate insurance plan to the one
12 X. K. Porter Company, Inc., Disrton-Danville Works v. N.LRB., 397
U.S. 99 (1970).
13 The new plan presented at the meeting offered the unit employees
increased insurance benefits.
14 The Administrative Law Judge states that this poll complied with
available under the Teamsters fund. At this meeting,
Clark informed the unit employees that he had
requested an insurance agent to draft an alternative
insurance plan and that the purpose of the meeting
was to have the agent present the plan to them. Clark
told the employees that "they could take it or leave it,
and that the choice was up to them." After being
introduced by Clark, the insurance agent spoke with
the employees and presented them with the insurance
package that he had put together at Clark's request.
During his presentation, the features of both plans
were compared,13 and time was provided for employ-
ee questions and comments. After the presentation
was completed, Respondent's counsel, Wesley M.
Wilson, advised employees that the Respondent had
received a demand from the Union for a written
agreement covering the unit and that he, Wilson,
wanted to know whether the employees desired to be
represented by the Union. He further advised the
employees that the Respondent had reason to doubt
whether the Union represented the employees and
therefore it desired to have a secret poll to determine
the truth of the Union's claim of majority. After
assuring employees that no reprisals would be taken
against them, Wilson passed out ballots marked
"yes" and "no." Before the balloting commenced, all
nonunit individuals left the meeting room and,
following a 15-minute discussion by unit members, a
poll was conducted.14 After the balloting, Wilson
returned to the room, counted the ballots, and noted
that the 11 employees had voted unanimously
against the Union.
Most recently in Bartenders, Hotel, Motel and
Restaurant Employers Bargaining Association of Poca-
tello, Idaho and its Employer-Members, 213 NLRB
No. 74 (1974), a Board panel reviewed the underlying
legal principles to be applied in situations where an
employer - seeks to withdraw recognition from an
established bargaining representative. In that case,
the panel reaffirmed the principles set forth in Terrell
Machine Company, 173 NLRB 1480, 1480-81 (1969),
enfd. 427 F.2d 1088 (C.A. 4, 1970), where the Board
stated:
It is well settled that a certified union, upon
expiration of the first year following its certifica-
tion, enjoys a rebuttable presumption that its
majority representative status continues.' This
presumption is designed to promote stability in
collective-bargaining relationships, without im-
pairing the free choice of employees.2 According-
ly, once the presumption is shown to be operative,
Board procedural requirements and no exception was taken thereto.
However, we note that the record does not provide sufficient information to
determine whether this is so, since it is not clear that each individual marked
his ballot in such circumstances that he could not be observed.
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC. 1153
1
a prima facie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful. The prima facie case may be
rebutted if the employer affirmatively establishes
either (1) that at the time of the refusal the union
in fact no longer enjoyed majority representative
status; 3 or (2) that the employer's refusal was
predicated on a good-faith and reasonably
grounded doubt of the union's continued majority
status. As to the second of these, i.e., "good faith
doubt," two prerequisites for sustaining the
defense are that the asserted doubt must be based
on objective considerations4 and it must not have
been advanced for the purpose of gaining time in
which to undermine the union.5 [This second
point means, in effect, the assertion of doubt must
be raised "in a context free of unfair NLRB 573,
fn. 1 (1969), enfd. in part 444 F.2d 11 (C.A. 4,
1971).]
1 Celanese Corporation ofAmeriea, 95 NLRB 664,671-672.
sId
s "Majority representative status" means that a majority of
employees in the unit wish to have the union as their representative for
collective-bargaining proposes. Id
See Laystrom Manufacturing Company, 151 NLRB 1482, 1484,
enforcement denied on other grounds (sufficiency of evidence) 359
F.2d 799 (C.A. 7, 1966); United Aircraft Corporation, 168 NLRB No. 66
(TXD); N.L.R.B: v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5,
1966), enfg. 147 NLRB 997. And cf. United States Gypsum Company,
157 NLRB 652.
5 C A C Plywood Corporation, 163 NLRB No. 136; Bally Case and
Cooler, Inc., 172 NLRB No. 106.
The Board applies these same standards in situa-
tions where the presumption of continuing majority
status arises from a bargaining history which has not
originated , as in the case at hand, with a Board
certification . 15 The existence of a prior contract,
lawful on its face, is sufficient to raise a dual
presumption of majority, first that the Union had
majority status when the contract was executed and
second that the majority continued at least through
the life of the contract .16 Following the expiration of
the contract, the presumption continues, and the
burden of rebutting it rests , of course, on the party
who would do so.17
Applying these principles to the instant case, the
existence of the oral agreement , which we have
heretofore found was in effect on and after Novem-
ber 16 , 1973, gives rise to the presumption of
majority representative status discussed above. The
presumption exists even if we were to assume that the
oral contract was terminated on November 16 when
the Union informed the Respondent that it could no
longer accept trust fund payments on behalf of the
Respondent's long-haul drivers unless a written
agreement were executed. The General Counsel has
thus made out a prima facie case that the Union was
the majority representative of the employees in this
unit and that Respondent was obligated to continue
to bargain with it. Therefore, it was incumbent upon
the Respondent, in defending its refusal to bargain
with the Union, to demonstrate either that the Union
did not in fact enjoy majority support at the time of
the refusal to bargain, or that it had reasonable
doubts based on objective considerations for believ-
ing the Union had lost its majority status when it
refused to bargain. For the reasons set forth in
subpart 2, d, below, we conclude that the Respon-
dent has failed to rebut the presumption of the
Union's continued majority representative status,
and therefore we find numerous violations of Section
8(a)(5) and (1) of the Act. We also find a number of
independent violations of Section 8(a)(1) discussed
below, which conduct interfered with the employees'
Section 7 rights, whether or not any oral collective-
bargaining agreement was ever reached by the
parties herein, and whether or not the Union
achieved or maintained majority representative
status. These various aspects are discussed chrono-
logically.
a. Respondent's direct dealings with employees
between November 16 and 23, 1973
In the context of an attempt by the Union to seek
further negotiations with the Respondent on the
subject of reducing the collective-bargaining agree-
ment to writing, Clark admitted having several
discussions with his more senior unit employees
concerning his problem with the Union. He advised
them that he would attempt to find an alternative
insurance package, which would make further
dealing with the Union unnecessary. Following these
discussions , Clark continued to bypass the Union by
holding a meeting for all unit employees on Novem-
ber 23 for the purpose of presenting an alternative
insurance plan. Respondent engaged in these activi-
ties at a time when the Union, as noted above,
enjoyed a presumption of its continuing majority
representative status and notwithstanding the Re-
spondent's assertion that it wished to discuss with its
attorney the Union's request as to one contract
provision. As will be discussed hereinafter, it is clear
that Respondent acted without any basis for rebut-
ting that presumption. Thus, Respondent was obli-
is Bartenders, Hotel, Motel and Restaurant Employers Bargaining Associa- Chem Company, 169 NLRB 376 (1968), enforcement denied 418 F.2d 127
Lion of Pocatello, Idaho and its Employer Members, supra q Emerson (C.A. 5, 1969).
Manufacturing Company, Inc., 200 NLRB 148 (1972). 17 Barrington Plaza and Tragniew , Inc., 185 NLRB 962 (1970), enforce-
1e Shamrock Dairy, Inc., 119 NLRB 998, 1002 (1957) and 124 NLRB 494 ment denied in part on other grounds sub nom . N.LRB. v. Tragmew, Inc.,
( 1959), enfd . 280 F.2d 665 (C.A.D.C.) cert. denied 364 U.S. 892 (1960); Ref- and Consolidated Hotels of California, 470 F.2d 669 (C.A. 9, 1972).
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gated to bargain with the Union during the period
between November 16 and 23. By failing to do so
under the circumstances described above, we find
that the Respondent violated Section 8(a)(5) and (1)
of the Act.18
b. Offer of new insurance plan on November
23, 1973
Clark admittedly called the unit employees to a
breakfast meeting on November 23 for the purpose
of introducing a new insurance plan to replace the
one which had theretofore been provided by the
Union. Even if this had been an initial organization
effort and there had been no union demand for
recognition or negotiations, Respondent would be
under a legal obligation to refrain from using its
economic power to influence the choice of its
employees. Here, the promise of a new insurance
plan, with increased benefits, was offered in an
obvious attempt on the part of the Respondent to
wean the employees away from the Union. Clark's
own words used in introducing the plan made his
intention clear: "I think [the insurance company
agents ] have an insurance plan to present to you that
you will like." The offer of the plan patently was
intended to and did carry with it the clear message
that the employees could avoid the necessity of
paying union dues if they accepted the proposal.
Without relying on the prior recognition of and the
oral agreement with the Union, we find that, by
making such an offer in an attempt to discourage
unionization, Respondent violated Section 8(a)(1) of
the Act.
c. Poll of employees conducted on November
23, 1973
The Board , in Struksnes Construction Co., Inc.,19
held that:
Absent unusual circumstances, the polling of
employees by an employer will be violative of
Section 8(a)(1) of the Act unless the following
safeguards are observed: (1) the purpose of the
poll is to determine the truth of a union's claim of
majority, (2) this purpose is communicated to the
employees, (3) assurances against reprisal are
given , (4) the employees are polled by secret
ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a
coercive atmosphere.
is Medo Photo Supply Corporation v. N.LR.B., 321 U.S. 678, 683484
(1944).
15 165 NLRB 1062, 1063 (1967).
20 As noted above , in fn. 14 , the stipulation indicating that the employees
There is no question but that Wilson, Respondent's
attorney, clearly had the above safeguards in mind
when he informed the unit employees that Respon-
dent had reason to doubt whether the Union
represented the employees, and that it therefore
desired to conduct a secret ballot election to
determine the truth of the Union's claim of majority.
In view of our findings above, with respect to the
Respondent's direct dealings with unit employees
and with its illegal offer of a new insurance plan, we
are not convinced that the stated purpose of the poll,
i.e., to determine the truth of the Union's claim of
majority, was actually the motive behind it. It was
stipulated by the parties that Wilson gave the
employees assurances against reprisals and that the
polling was by secret ballot.20 The fifth criterion, that
the employer has not engaged in unfair labor
practices or has not otherwise created a coercive
atmosphere, has not been satisfied. As we discussed
above, immediately preceding the poll, Respondent
made an illegal offer of an alternative insurance plan
to the employees if they rejected unionization and in
fact the poll was to determine whether this alterna-
tive plan was to be adopted. Thus, immediately after
listening to an insurance agent attempt to sell his
plan by making direct comparisons with the existing
union coverage, the employees clearly understood
that they were being asked to vote on whether they
wanted to abandon the Union and be rewarded with
the new insurance plan, or whether they wanted to
continue to support the Union and thus retain the
existing trust fund coverage. Under these circum-
stances, we find that the Respondent's poll herein,
which resulted in a unanimous vote against the
Union, was illegal and in violation of Section 8(a)(1)
of the Act. For the same reasons as set forth above
with respect to Respondent's offer of new insurance
plan on November 23, our finding with regard to the
poll is in no way dependent on our findings above
that an oral agreement existed between the Respon-
dent and the Union, and that the Union enjoyed an
unrebutted presumption of its continuing majority
status.
d. The refusal to bargain and unilateral
change
We have already indicated that, at the time of the
Respondent's refusal to bargain on and after Novem-
ber 23, the Union herein continued to enjoy a
rebuttable presumption that its majority representa-
tive status continued. Therefore, before refusing to
bargain, it was incumbent upon the Respondent to
were polled by secret ballot does not show whether , in fact, the polling
actually met the Board 's rigid standards with regard to secret ballot
elections.
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC. 1155
rebut that presumption either by showing (1) that at
the time of the refusal the Union no longer enjoyed
majority representative status , or (2) that its refusal
was predicated on a good-faith and reasonably
grounded doubt of the Union's continued majority
status.
Respondent argues, in support of its refusal, that
the Union did not in fact represent a majority of the
unit employees on November 23. Respondent em-
ployed nine drivers at the time of the Union's
demand on November 16. The record shows that
Respondent hired a tenth driver on November 16,
and that two of the other nine drivers left the
Respondent's employ prior to the November 23
meeting . It appears , however, that between Novem-
ber 16 and 23 Respondent hired a mechanic and two
replacement drivers. Thus, on November 23, the unit
consisted of 11 men, of whom 5 were union members
and 5 were new hires still within the 30 -day grace
period. The Board, with court approval, has held that
a showing of less than a majority of the employees in
the unit who are members of the Union is not the
equivalent of showing a lack of majority support.
The theory behind this principle is that no one can
know with certainty how many employees who favor
union representation do not become or remain
members of the union.21 Furthermore, there is a
presumption that new employees will support the
union in the same proportion as those employees
with more seniority.22 The Respondent has not
submitted any evidence, other than the poll which we
have heretofore found unlawful, to rebut that
presumption.
Respondent also asserts that its refusal was
predicated on a good-faith and reasonably grounded
doubt of the Union's continued majority status. In
support of this assertion , the Respondent cites
employee discontent and the results of the poll
conducted on November 23 as evidence. As indicat-
ed in footnote 6, above, the record shows that, during
the 8-year period from 1965 to 1973, only one
employee, Steve DeJong , requested that the Respon-
dent not place his name on the trust fund forms, as
he did not wish to belong to the Union. There is no
evidence of any other expression of employee
dissatisfaction with the Union prior to the poll
conducted on November 23.23 As we have found the
poll to be in violation of Section 8(a)(1) of the Act,
the Respondent cannot rely on its results to support a
reasonably based doubt of continued majority
support.24 Accordingly , Respondent's claim is not
supported by the record.
21 N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588, 591 (C.A . 5, 1966).
22 Harpeth Steel, Inc., 208 NLRB 545 (1974).
23 The record does not indicate whether any employee actually expressed
Relying on the results of this same poll, Respon-
dent instituted the new insurance program on
December 1, 1973. For the reasons discussed above,
with regard to the refusal to bargain after November
23, we find that Respondent's unilateral change, in
the face of an unrebutted presumption of the Union's
continuing majority representative status, further
violated Section 8(a)(5) and (1) of the Act. Even if
the presumption of the Union's continuing majority
representative status was unavailable herein, we
would still find, nevertheless, that the implementa-
tion of the insurance plan on December 1, 1973,
constituted an independent violation of Section
8(a)(1) of the Act. As with the offer, the granting of
the plan in the face of the Union's claim was an
unlawful attempt on the part of the Respondent to
discourage unionization.
In sum, we conclude that the Respondent has not
shown either that the Union no longer commanded
majority support or that Respondent, in good faith,
had a reasonably based doubt supported by objective
considerations for believing that the Union's majori-
ty status had ceased. Therefore, we find that
Respondent was obligated to continue bargaining
with the Union and its refusal to do so, its
withdrawal of recognition, its bypassing the Union,
and its unilateral grant of a new insurance plan
violated Section 8(a)(5) and (1) of the Act, and its
offer of benefit, its unilateral actions, and its poll of
the employees independently violated Section
8(a)(1).
3. In view of the foregoing, we have found,
contrary to the Administrative Law Judge, that the
Respondent has engaged in unfair labor practices
within the meaning of the Act. Therefore, we shall
order the Respondent to cease and desist therefrom
and take certain affirmative action designed to
effectuate the policies of the Act. Further, having
found that the Respondent has unlawfully with-
drawn recognition from the Union, and has failed
and refused, upon demand, to bargain collectively
with the Union as required by the Act, we will order
the Respondent to recognize and, upon request,
bargain with the Union as exclusive representative of
the employees in an appropriate unit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Eastern Washington Distributing Company, Inc.,
dissatisfaction with the Union during the conversations initiated by Clark
after the Union 's demand for a written agreement on November 16.
24 Medo Photo Supply Corporation v. N.LR. B., 321 U.S . 678 (1944).
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yakima, Washington, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with the aforesaid Union,
upon its request, as the exclusive representative of
the following appropriate bargaining unit:
All long-haul truckdrivers and mechanics em-
ployed by the Respondent at its Yakima, Wash-
ington, facility, excluding all other employees,
office clerical employees, professional employees,
guards, and supervisors as defined in the Act.
(b) Attempting to bargain directly with its employ-
ees instead of their designated bargaining representa-
tive.
(c) Putting into effect, or directly or indirectly
promising , assuring, or holding out in prospect to
any of its employees, any insurance plan, or other
benefit or thing of value, conditioned upon his
withdrawal from or rejection of, or in order to induce
him or other employees to refrain from, union
membership, affiliation, sympathy, support, assist-
ance , or activity, but nothing herein shall be
construed to require the Respondent to revoke any
insurance plan or other benefits which have been put
into effect prior to this Order.
(d) Unlawfully polling its employees with regard to
their desires for union representation.
(e) In any like or related manner interfering with,
restraining , or coercing employees in the exercise of
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Recognize and, upon request, bargain collec-
tively with Teamsters, Chauffeurs, Warehousemen &
Helpers Local Union No. 524, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, Independent, as the exclusive
representative of all employees in the appropriate
unit, described above, with regard to rates of pay,
hours of employment, and other terms and condi-
tions of employment and, if an understanding is
reached, embody such understanding in a signed
agreement.
(b) Post at its Yakima, Washington, facility copies
of the attached notice marked "Appendix." 25 Copies
of said notice, on forms provided by the Regional
Director for Region 19, after being duly signed by
Respondent's authorized representative , shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
25 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Teamsters,
Chauffeurs, Warehousemen & Helpers Local
Union No. 524, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Independent, as the exclusive repre-
sentative of the following appropriate bargaining
unit:
All long-haul truck drivers and mechanics
employed by the Respondent at its Yakima,
Washington, facility, excluding all other
employees, office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
WE WILL NOT attempt to bargain directly with
our employees instead of their designated bar-
gaining representative.
WE WILL NOT put into effect, or directly or
indirectly promise, assure, or hold out in prospect
to any of our employees, any insurance plan, or
other benefit or thing of value, conditioned upon
his withdrawal or rejection of the Union.
WE WILL NOT unlawfully poll our employees
with regard to their desires for union representa-
tion.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed under Section
7 of the Act.
WE WILL recognize and, upon request, bargain
collectively with the aforesaid Union as the
exclusive representative of all employees in the
appropriate unit, described above, with regard to
rates of pay, hours of employment, and other
terms and conditions of employment and, if an
understanding is reached, embody such under-
standing in a signed agreement.
EASTERN WASHINGTON
DISTRIBUTING COMPANY, INC.
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC. 1157
The Evidence
DECISION
STATEMENT OF THE CASE
HENRY S. SAHM, Administrative Law Judge: This
proceeding was heard at Yakima, Washington, on Febru-
ary 20, 1974, pursuant to a charge filed on December 4,
1973,i by Local 524 of the Teamsters Union, herein
referred to as both the Union and Charging Party. The
complaint, as amended, which issued on January 15, 1974,
alleged that the Respondent Company engaged in unfair
labor practices proscribed by Section 8(a)(1) when it
bypassed the Union and polled its employees to ascertain
whether they wished to be represented by the Union. It is
charged also that Section 8(aX5) of the National Labor
Relations Act, as amended, was violated when Respondent
refused to bargain with the Union. Respondent answered
denying the commission of any unfair labor practices.
Upon the entire record in this proceeding, including
observation of the witnesses as they testified, and consider-
ation of the briefs filed by counsel for the General Counsel
and Respondent's counsel on April 1, 1974, I hereby make
the following:
FINDINGS OF FACT2
Respondent, a Washington corporation, has its principal
place of business in Yakima, Washington, where it is
engaged in the hauling of beer, wines, and fruits. During
the past year, a representative period, Respondent pur-
chased goods, services, and materials outside the State of
Washington valued in excess of $50,000, and is therefore
engaged in commerce within the meaning of Section 2(6)
and (7) of the National Labor Relations Act, herein
referred to as the "Act."
The Charging Party Union, Local 524 of the Teamsters,
is a labor organization within the meaning of Section 2(5)
of the Act.
The complaint alleges that Respondent violated Section
8(a)(1) of the Act when it dealt directly with its long-haul
drivers who operate trucks in interstate commerce. It is
also alleged that the Respondent committed unfair labor
practices when it unilaterally instituted its own insurance
program for said truckdnvers by offering to replace an
existing insurance plan of the Union and in furtherance of
this, it polled the drivers to ascertain whether they wished
to be represented by the Union. The complaint also recites
that Respondent violated Section 8(ax5) of the Act when it
refused to bargain with the Union, which it is alleged is the
exclusive bargaining representative of the long-haul drivers
and mechanics, stipulated to be an appropriate unit within
the meaning of Section 9(b) of the Act.
i All dates herein refer to the year 1973, unless otherwise indicated
2 The Respondent 's motion to correct the transcript is hereby granted.
3 Teamsters Local 524 (Yakima County Beverage Company), 212 NLRB
908 (1974).
4 The "beer agreement" is a multiemployer agreement covering only
driver-salesmen of beer and other beverage distributing companies. It
appears, although it is not clear , that the term "supplemental" means
The Eastern Washington Distributing Company, Inc.,
herein referred to both as the Respondent and EWD, has
been owned by Cedric Clark since 1962. It also does
business under the name of Yakima County Beverage
Company, Inc., herein called both Yakima and YCB,
which is engaged in the wholesale distribution of beer and
wine products in the Yakima area. It employs route drivers
who sell and deliver bottled drinks to retail stores in the
Yakima area. Since 1962, YCB has been a member of
Allied Employers, Inc., and has been a party to a
multiemployer collective-bargaining agreement with the
Union herein. The current collective-bargaining agreement
covering the period May 1, 1971, to May 1, 1974, is known
as the beer agreement.3 This agreement has detailed
provisions, inter aha, for wages, hours, and working
conditions of these local driver-salesmen including a
union-secunty clause, and it also provides for pension and
hospitalization plans which are administered by the
Western Conference of Teamsters and representatives of
the industry. This so-called beer agreement's coverage does
not include long-haul drivers but is limited to driver-
salesmen employees of beer, wine, and other beverage
distributing employers who are wholesale dealers in these
products.
In 1965, Respondent EWD leased a truck for use in long-
haul operations and the following year it bought another
interstate truck; both were driven by Clark, who owned all
the stock of EWD, and an employee. This interstate
operation expanded until late 1973, at which time EWD
employed a mechanic and 10 truckdnvers who hauled fruit
to California and Chicago and on the return trip to
Yakima, beer and wine.
On August 16,, 1965, shortly after EWD began its long-
haul interstate operation, H. A. O'Reilly, the business
representative of the Charging Party, Local 524 of the
Teamsters Union, mailed a letter to Clark and proposed
that "Yakima County Beverages Company, Inc., sign a
supplemental agreement covering your long-haul opera-
tions ...." The letter stated that the "Supplemental
Agreement" would "embody" wage rates for Respondent's
long-haul drivers which were specified in the said letter and
"All other terms and conditions of the beer agreement to
apply." O'Reilly testified that when Clark did not reply to
his August 16 letter, he contacted him in September about
signing the proposed supplemental agreement but Clark
refused .4
It should be noted that the terms of the beer agreement
not only provide that it shall apply only to local driver-
salesmen , but also that their pay is computed on an hourly
basis whereas long-haul drivers are paid on a mileage basis.
It appears that for employers engaged in long-haul
operations, it is union policy to execute a standardized type
of collective-bargaining agreement known as an "irregular
something extra, added to, annexed, or perhaps completing Whether what
the Union attempted to do, under the circumstances herein , can be so
accomplished as a matter of law , is not here decided inasmuch as it would
appear there may be a question regarding the appropriateness of a unit of
long-haul drivers being incorporated into the beer agreement which covers
local driver-salesmen.
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
route contract" which applies only to long-haul interstate
drivers. The record is silent as to the reason this prototype
interstate contract was not proposed by the Union with
respect to Respondent's long-haul operations.
As mentioned above, all the collective-bargaining agree-
ments executed by the Union and Yakima County
Beverages which covered its local driver-salesmen con-
tained a provision for pension, health, and welfare benefits.
The Western Conference of Teamsters, together with
representatives of employers, maintain jointly administered
trust funds for providing pension and health benefits for
employees. Since 1962, Respondent has been making
payments into this fund on behalf of its YCB local driver-
salesmen who are covered by the "beer agreement." The
procedure followed was that each month the Northwest
Trust Fund administrators mailed to YCB trust forms
listing the names of their employee driver-salesmen and the
amount due to be mailed to said fund by the 10th of the
following month.
Beginning in 1965, when Respondent EWD established
its long-haul interstate operation, it instituted the practice
of routinely adding to these trust forms sent to YCB the
names of drivers hired by EWD and in this manner,
making payments into the fund for EWD's long-haul
drivers and thus placing them under the contract covering
the YCB local salesmen-drivers. When Clark was being
examined by the General Counsel's representative he asked
him how this practice began of adding long-haul drivers of
EWD to the YCB monthly list mailed to the Northwest
Trust Fund. Clark answered that it was a convenience
from the standpoint of keeping records because "We were
already involved in this insurance plan with the Teamsters
since 1962" with respect to YCB's driver-salesmen. Thus, it
seems , it was a convenience for EWD and also for
interstate driver-employees who had pension and hospitali-
zation protection.
It will be recalled that Clark had declined to accept the
proposed "supplemental" agreement which O'Reilly, the
Union's business representative, had sent him on August
16, 1965. On December 10, 1969, approximately 3-1/2
years later, O'Reilly again sent a similar letter to Clark,
addressed to Yakima County Beverage Company demand-
ing that he sign a "supplemental agreement covering your
long-haul operations ...." O'Reilly testified that during
his tenure as business representative and up until his
retirement on April 1, 1971, that he wrote Clark on three
occasions requesting him to sign such a contract but each
time Clark refused.
Approximately 3 years later, another letter dated
October 25, 1972, was sent by John Edgar, the Union's
business representative who was O'Reilly's successor,
addressed to "Cedric Clark, Yakima County Beverage,"
making the same request of Clark that he "sign a
5 The phrase "over-the-road drivers" is synonymous with "long-haul
drivers "
6 The record reveals that at no time did Clark ever agree to pay the
"work-time" rates requested by the Union. On cross-examination, Clark
testified he told the union officials that he could not afford to pay some of
the monetary proposals detailed in the Union's letter of October 25, 1972
(G.C. Exh. 10). The union officials testified that they then told Clark it was
"negotiable."
supplemental agreement covering your long-haul opera-
tions which would embody" proposed wage provisions for
Respondent's interstate truckdrivers. The Union's letter
concluded by stating: "We propose the above [pay] items
as a supplemental agreement to the State Beer and Wine
Agreement, that currently is in effect. The Supplemental
Agreement would cover those terms and conditions as
outlined above. All other terms and conditions embodied
in the State Beer and Wine Agreement also would apply to
your `over-the-road drivers.' 5 After reviewing our proposal,
will you please contact me so that we may arrange a
meeting at your earliest convenience?"
Clark's testimony is uncontradicted that at various times
between August 1965 and November 16, 1973, he had
discussed the Union's contract proposals with O'Reilly and
Edgar, its two business representatives, but "there was
never anything put in writing and I never agreed to
anything." It was stipulated also that the Respondent
EWD neither signed an agreement with the Union
covering the unit found to be appropriate herein, nor did
Clark ever agree to sign such an agreement with the Union.
On November 16, 1973, Clark and his manager, Folk,
met with union officials, Edgar and Wehde. Clark was
informed that the administrators of the Teamsters' Trust
Fund would no longer accept payments on behalf of
Respondent's long-haul drivers unless he signed a contract
with the Union covering said drivers. No agreement was
reached .6 The meeting concluded with Clark stating he
would not sign "any kind of an agreement" until he first
talked to his lawyer.
After the November 16 meeting, Clark told "some of his
older" long-haul drivers about his conversation with the
union officials on November 16, regarding the necessity of
his signing a union contract in order for them to continue
under the Teamsters' health and pension fund under which
Respondent's long-haul drivers were enrolled.? Clark
testified that he and the drivers he spoke to decided "We
were going to get a proposal from an insurance company to
see what kind of an insurance program we could come up
comparable to the one we have [with the Union]." Clark
then contacted the New York Life Insurance Company to
ascertain if it could offer a plan "comparable" to and "at
least as good" as the benefits provided by the Teamsters'
plan and to present the features of their plan to the long-
haul drivers.
A breakfast meeting at a restaurant was held on
Thanksgiving Day, November 23, at which time all of the
unit employees were present. Also in attendance were two
representatives of the insurance company, as well as Clark
and his attorney, Wilson. Clark informed the employees
that the purpose of the meeting was to present for their
consideration a "tentative" insurance plan as an alternative
to that of the Teamsters' health and pension fund .8 He told
7 One long-haul driver had asked Clark not to make such payments for
him which request was honored.
8 When the General Counsel called Clark as his witness, the following
colloquy ensued:
Q. Did you say anything further as to why it the alternative
insurance program] was being presented to them , that this was an
opportunity that they could have this program?
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC. 1159
them that at his request the insurance company representa-
tives had prepared for their consideration a group
insurance plan comparable to the Teamsters'. Clark "said
they could take it or leave it." Clark then introduced the
insurance company representatives who proceeded to
explain their plan, comparing its essential features with the
Teamsters' health and pension plans. At the end of their
presentation they invited and responded to questions and
comments from the employees. At the conclusion of the
meeting, Attorney Wilson advised the unit employees that
Respondent had received a demand from the Union that it
sign a collective-bargaining agreement covering the unit
employees and it was, therefore, necessary for him to know
whether they desired to be represented by the Union.
Wilson stated that since he had reason to doubt whether
the Union represented a majority of the employees and in
order to determine their wishes, a secret ballot election
would be held. He assured them that the result would not
in any way affect their job security. Wilson then distribut-
ed ballots marked only "Yes" and "No," explaining that a
"Yes" vote meant they desired to be represented by the
Union. Everyone except the employees withdrew from the
room. In the secret poll, which followed, the II unit
employees voted unanimously against the Union.
When Clark was asked by the General Counsel's
representative whether he had refused to negotiate with the
Union subsequent to the November 23 meeting, he
answered in the affirmative. Clark also testified that he
"didn't feel the Union was in control of the membership at
that time" and that he never notified the Union about this
November 23 meeting. On December 1, 1973, the new
insurance plan became effective.
On December 4, 1973, the Union filed a charge and the
complaint issued on January 15, 1974. On January 23,
Respondent filed its answer denying the commission of
any unfair labor practices and as an affirmative defense it
alleged that on December 13, 1973, it had filed a petition
for an election among the employees in the stipulated
appropriate unit. The day before the complaint issued, the
Regional Director dismissed the petition on January 14,
and the Board affirmed on March 11, 1974, in a ruling
which stated:
Having duly considered the Employer -Petitioner's
Appeal from the Regional Director's dismissal of the
instant petition , the Board concluded that a question
concerning representation cannot be raised at this time
in view of the pending litigation based upon the
complaint in Case 19-CA-6779 which alleges the
Employer violated Section 8(a)(1) and (5) of the Act by
refusing to meet and bargain with the Union since on
or about November 1, 1973, and by engaging in other
alleged violative conduct including, inter alia, unilater-
ally instituting benefits , and bargaining directly with
unit employees . Thus, if the allegations of the com-
plaint be proved, the appropriate remedy would
A I think most of them knew that they could have this program if
they so desired , if they wanted it, if it was acceptable . If it wasn't
acceptable to them , I didn't want it either.
Q And that was an alternative to continuing on with the union
and the union 's program?
A That is right
include an affirmative bargaining order. In these
circumstances, to find the existence of a real question
concerning representation on the basis of the instant
petition, in the face of the pending litigation in the
complaint case of the Employer's alleged unlawful
conduct described above would, in the Board's opinion,
be contrary to the statutory scheme of the Act. The
Board believes that the orderly procedure of collective
bargaining under the Act requires that the employees
be bound by their choice of representatives during the
period of litigation of the bona fides of an employer's
bargaining efforts.
Contentions
The representative of the General Counsel maintains
that the Respondent EWD by its owner Clark's actions
and conduct had orally agreed to recognize and to be
bound by the "Supplemental Agreement which would
embody its long-haul operation . . . with all other terms
and conditions of the beer agreement to apply." This, he
contends, is evidenced by Clark, beginning in 1965 to add
the names of his long-haul drivers on the monthly forms
sent by Yakima County Beverages to the Teamsters'
health, welfare, and pension funds and making payments
into said funds, which he had been doing since 1962 on
behalf of YCB's local driver-salesmen under the provisions
of the "beer agreement ." Also, contends the General
Counsel, the long-haul employees at the November 23
meeting understood that they were being asked to vote on
whether they intended to "abandon" the Union and thus
were put to the choice of either voting against the Union in
order to obtain the new insurance plan presented to them
by Clark or continuing "to support" the Union and thus
remain with' the existing trust fund coverage of the
Teamsters. This direct dealing by Clark with the unit
employees concerning an insurance plan, argues the
General Counsel, was "an unlawful promise of benefit," at
a time when EWD had a duty to bargain with the Union
and was thus violative of Section 8(a)(1) of the Act.
Respondent denies that it ever recognized the Union as
the representative of its long-haul employees. Corrobora-
tive of this conclusion, states Respondent, is its good-faith
doubt that the Union represented a majority of the unit
employees which doubt was confirmed by polling the long-
haul drivers and mechanic at the November 23 meeting.
This poll, asserts Respondent, was conducted in accord-
ance with the safeguards prescribed by Board decisions.
Moreover, claims Respondent, some of the wage scales,
including layover subsistence and worktime pay which
were proposed in the various Union's letters sent to
Respondent between 1965 and 1972 inclusive, were not the
same wage scales as it was paying its long-haul drivers
during that same period of time. Furthermore, declares
Respondent, the "beer agreement" covering YCB's driver-
salesmen which provides that employees shall be reim-
Q. You think that most of them understood that?
A. 1 am sure they talked among themselves . They knew why they
were there They wouldn't get up and come down to breakfast at 7 30
without knowing why.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bursed for sick and funeral leave and jury duty were never
paid by Respondent to its long-haul drivers. Also, claims
Respondent, the method for calculating the amount of
vacation time to which its long-haul drivers were entitled,
was computed differently from the formula prescribed in
the "beer" contract between the Union and Yakima
County Beverages.
Conclusions
The essential relevant facts are mainly undisputed. It is
stipulated that Respondent never signed an agreement with
the Union covering the unit employees nor did it ever agree
to sign such an agreement . Basically, the parties disagree
with respect to whether a legally effective, valid, and
enforceable oral collective-bargaining agreement covering
the unit employees existed on or before November 23,
1973. There is also disagreement as to whether the Union
represented a majority of the unit employees on November
23, which ordinarily would be a prerequisite to Respondent
according recognition to the Union. The General Counsel
concedes, however, in his brief that in order to fmd an
8(aX5) violation, it must be shown that the Union
represented a majority of the unit employees on November
23.
Succinctly, the salient issues are whether Section 8(aXl)
was violated when Respondent polled the employees and
whether an oral collective-bargaining agreement was ever
reached by the parties which, in turn, requires a fording
that the Union represented a majority of the unit
employees on November 23, when it is alleged in the
amended complaint that Section 8(aX5) of the Act was
violated.
The evidence delineated above reveals that none of
Clark's actions are a basis for inferring that he ever agreed,
between 1965 and 1973, to the Union's various oral or
written proposals for "supplemental" agreements. On the
contrary, the testimony negatives any such intention or any
such agreement on the part of Clark. Furthermore, a
purported waiver of a statutory right must, to be effective,
be expressed in "clear and unmistakable terms." O The
totality of Clark's actions require such a fording and the
"belief' of O'Reilly, the Union's business representative,
that there was such an agreement is without substance.10 It
should be borne in mind and this is acknowledged by the
General Counsel's representative that there was no union
dues checkoff clause applicable to Respondent's long-haul
drivers as contrasted with Yakima County Beverage's
driver-salesmen,, who were covered by the so-called "beer
agreement" which provided for both a union-security
clause and dues checkoff provision. Nor was there
evidence adduced probative of the fact that Clark knew
which of his unit employees were union members. To the
contrary, Clark's testimony stands uncontradicted that he
9 International Union, United Automobile, Aerospace & Agricultural
Implement Workers v. N.L.R. B, 381 F .2d 265, 267 (C.A.D.C., 1967), cert.
denied 389 U.S. 857.
10 The General Counsel's contention that G.C. Exh. 8 and 9, show per se
that there was agreement, is without merit . Neither of these union letters to
"Yakima County Beverages" have any probative value with respect to
whether agreement was reached by the parties regarding Respondent 's long-
haul drivers.
11 In Pacific Iron and Metal Co., 175 NLRB 604 (1969), the Board held
ever told any unit employees they must join the Union or
be terminated .11 As mentioned above , the record is silent
with respect to the Union 's reason for persisting in
requesting the Respondent to embody the provisions of the
YCB driver-salesmen "beer agreement" into a "Su-
pplemental Agreement" which specified the wage rates to
be paid Respondent's long-haul drivers when there was
already in existence an "irregular route" agreement which
the Union used with respect to those interstate truckers
with whom it had collective -bargaining agreements . Refut-
ing the Union's allegation that Respondent orally agreed to
be bound by the Union's proposed wage rates, and to
embody those pay rates into the "beer agreement," is the
undisputed fact that many of the Union 's allegedly agreed
upon definite and precise wage rates and other working
condition proposals were neither paid nor granted by
Respondent to its long-haul drivers . For example, reim-
bursement for sick and funeral leave and jury duty were
not paid by Respondent to its long-haul drivers, although
the YCB driver-salesmen were so paid under the provisions
of the beer agreement . Also, subsistence pay and worktime,
including delay and layover time proposed by the Union,
were never accepted by Respondent , as well as employees'
vacation time which was computed differently by Respon-
dent from those same provisions in the Union's collective-
bargaining agreement with the YCB driver-salesmen.
Furthermore, the Board has held it will not permit
parties to include employees , such as the long-haul drivers
here, who it is stipulated are an appropriate unit, into the
local driver-salesmen unit of the beer agreement without a
proper assessment of employee sentiment as to representa-
tion. The Board stated in Melbet Jewelry Co., Inc., 180
NLRB 107, 110 ( 1969):
We will not , however, under the guise of accretion,
compel a group of employees, who may constitute a
separate appropriate unit , to be included in an overall
unit without allowing those employees the opportunity
of expressing their preference in a secret election or by
some other evidence that they wish to authorize the
Union to represent them.12
The practice of routinely adding the names of EWD's
long-haul drivers to the Union's trust forms sent to YCB
under the beer agreement for its local driver -salesmen
carries no legal connotation or implication that Respon-
dent EWD was thereby recognizing the Union as the
representative of its unit employees . It follows, therefore,
that it was not incumbent for Respondent EWD to consult
the Union with respect to any changes in said long-haul
drivers' terms and conditions of employment for the
reasons explained below.
Assuming arguendo that some of the Union's proposed
wage rates were the same as Respondent 's long-haul
that a union-security provision may be oral but to find so it is necessary that
the proponent must satisfy a stringent burden of proof in establishing the
existence of such a clause and that the employees were unmistakably
notified thereof.
12 Houston Division of the Kroger Co., 208 NLRB 927 (1974). It would
seem, therefore, that Respondent's polling of its long-haul employees, which
it is found infra, was conducted in accordance with Board requirements,
absolves it of the charge that it thereby committed unfair labor practices.
EASTERN WASHINGTON DISTRIBUTING COMPANY, INC.
drivers received, at most , this was merely a temporal
coincidence and not the consequence of any assent or
accord on the part of Respondent . Moreover, the record is
clear that Respondent never agreed to pay the pay rate
proposals specified in the various union letters which
requested that Respondent "sign" a so-called "supp-
lemental" agreement covering its long-haul drivers, includ-
ing a provision that "All other terms and conditions of the
beer agreement to apply." It is found therefore, that the
General Counsel has not shown by a preponderance of the
substantial evidence that the parties ever agreed upon any
mutually acceptable collective-bargaining contract at any
time between 1965 and 1973, inclusive , which encompassed
the wages and working conditions of Respondent 's long-
haul drivers.
A concomitant determination for finding a violation of
Section 8(a)(5) is to establish that the Union represented a
majority of Respondent EWD's unit employees on Novem-
ber 23. Under Section 8(aX5) of the Act, it is an unfair
labor practice for an employer "to refuse to bargain
collectively with the representative of his employees .... "
Accordingly, the General Counsel has the ultimate burden
of proving that the Union had been designated by a
majority of the unit employees as their bargaining
representative on the critical date .13 The record shows that
on November 23, the date the 8(aX5) violation is alleged to
have occurred, that of the 11 unit employees, 5 were union
members .14 On the same date, of the 11 employees who
were polled by secret ballot, 6 did not belong to the Union,
which is less than a majority of the bargaining unit of 11
employees . '5 In the context of the circumstances under
which this poll was conducted and its compliance with
Board requirements , it is found for the reasons stated
below, that the rejection of the Union by those employees
who voted is valid. This, in turn , lends credence to
Respondent 's assertion that the motivation for its poll was
a good-faith doubt of the Union's majority and it is so
found.'6 This conclusion is based on the finding made
above and below that the polling of the unit employees was
held in accordance with the applicable requirements and
safeguards enunciated by Board decisions .17 See Viking
Lithographers, Inc., 184 NLRB 139, 140, (1970), citing
Lloyd McKee Motors, Inc., 170 NLRB 1278 (1968). It is
found therefore that not only was there no meeting of the
minds with respect to a collective-bargaining agreement,
but also the Union did not represent a majority of the unit
employees on November 23, 1973. Accordingly, there was
no refusal to bargain within the meaning of Section 8(aX5)
of the Act, because the Union did not represent a majority
of the employees on November 23. This conclusion is
based on the sound policy that to find an unfair labor
practice without clear indication that a majority of the
employees desire union representation would be contrary
13 N.L.R.B. v. Dayton Motels Inc., d/b/a Holiday Inn of Dayton, 474 F.2d
328 (C .A. 6, 1973); Stoner Rubber Company, Inc., 123 NLRB 1440, 1445
(1959).
14 Bowden, Fife, Readell , Trip, and Prece.
15 Prather, Rogers, Smith, Stephens , DC Jong , and Garman.
Is Printers Service, Inc., 175 NLRB 809, 811 ( 1969). In the case at bar,
there was a rapid turnover of long -haul drivers in 1972-73 . See Ray Brooks
v. N.LR.B., 348 U.S. %(1954); N.LRB. v. Frick Company, 423 F.2d 1327,
1330 (C.A. 3, 1970).
1161
to Section 7's explicit guarantee of the right of employees
to refrain from representational bargaining.18
The amended complaint alleges also that Respondent
committed an unfair labor practice and thereby violated
Section 8(axl) of the Act when it promised its unit
employees a health and pension plan to replace the
Union's insurance plan; that it bypassed the Union in
unilaterally instituting its own insurance plan and illegally
polled the unit employees to ascertain whether they wished
to be represented by the Union.
An employer may poll employees regarding union
sentiment if the poll complies with the following require-
ments enunciated by the Board in Struksnes Construction
Co. Inc., 165 NLRB 1062 at 1063:
Absent unusual circumstances, the polling of em-
ployees by an employer will be violative of Section
8(a)(1) of the Act unless the following safeguards are
observed: (1) the purpose of the poll is to determine the
truth of a union's claim of majority, (2) this purpose is
communicated to the employees , (3) assurances against
reprisal are given, (4) the employees are polled by
secret ballot, and (5) the employer has not engaged in
unfair labor practices or otherwise created a coercive
atmosphere.
It is clear Respondent complied with all these require-
ments . In order to find such a violation it must be
bottomed on the twin premise that the Respondent had not
only agreed to accept all the Union's contract proposals for
a "supplemental" agreement, but also that the Union
represented a majority of the unit employees on November
23. However, such findings would be contrary to the facts
and conclusions reached above. Consequently, there was
no valid reason to prevent Respondent from dealing
directly with its unit employees by polling them in order to
ascertain their wishes regarding union representation in the
context of its not having committed any unfair labor
practices.
The predicament in which Respondent found itself of
having to find an insurance plan for its unit employees was
not caused by its own doing but eventuated when the
Union warned the Respondent that unless it "signed" its
"supplemental" contract , the unit employees would not be
permitted to continue to participate in the Union's health
and pension programs . This union ultimatum placed
Respondent on the horns of a dilemma in that recognizing
the Union and entering into a collective-bargaining
agreement which contained a union -security clause and a
recognition clause , thereby making the Union the exclusive
bargaining agent at a time when the Union had not
established that it represented a majority of the unit
employees , and without the Respondent first resolving its
good-faith doubt that the Union did represent a majority
17 Johnny 's Poultry Co., 146 NLRB 770 (1964). Struksnes Construction
Co., Inc., 165 N.L,R.B. 1062 (1967). Accord: N.LRB v. Gissel Packing
Company, Inc., 395 U.S. 575, 609 (1969); N.L.R.B. v. Super Toys, Inc., 458
F.2d 180, 182 (C.A. 9, 1972).
18 Food Store Employees Union, Local 341 , Amalgamated Meat Cutters
and Butcher Workmen of North America, AFL-CIO v. N.LRB., 476 F.2d
546, 549-550 (C.A.D.C., 1973). Cf. American Enterprises, Inc., 191 NLRB
866 (1971); Brooks v . N.LRB., 348 U.S. at 104. See N.LRB. v. Gu nt
Hotel Company, 362 F.2d 588 , 589 (C.A. 5, 1966).
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its unit employees, would have been a violation of the
Act.19 It was necessary, therefore, in order to obviate this
anomalous situation which placed Respondent in jeopardy
of committing an unfair labor practice that it extricate
itself from this dilemma by conducting a poll of its unit
employees to determine not only their wishes but also
whether or not the Union represented a majority of its
employees .20 See the last sentence of the Board's ruling,
supra, and National Cash Register Co. v. N.LR.B., 494 F.2d
189 (C.A. 8, 1974).
The complaint alleges, however, that this poll violated
Section 8(axl) of the Act when Respondent "polled and
interrogated its employees concerning said employees'
membership in and sympathy in and for the Union." In
view of the determination , supra, that the polling of the
employees was conducted under the circumstances de-
tailed above and in accordance with the safeguards
promulgated by Board decisions , it is found that this
allegation is without merit, as it is found the poll had no
detrimental effects upon the unit employees for the
following reasons.
Attorney Wilson, who conducted the poll, explained to
the unit employees at the November 23 meeting that the
purpose of the secret poll was to determine the validity of
the Union 's claim that it represented a majority of the unit
employees . He assured them that there would be no
reprisals . The record reveals that the poll was conducted in
a noncoercive atmosphere and with an absence of any
restraint or coercion in, the exercise by the employees of
their statutorily guaranteed Section 7 rights . Moreover,
Respondent sustained its burden of showing that it had an
objective basis for its good-faith doubt of the Union's
majority. Among the meaningful indicia attesting to this
are expressions of the employees and their unanimously
rejecting the Union , Clark's consistency over the years in
not agreeing to union demands , and the appreciable
turnover of unit employees in 1973 . To test this belief, the
Respondent decided to conduct a poll of employee
19 International Ladies' Garment Workers' Union AFL-CIO v. N.LRB.,
366 U .S. 731 (1961 ), Local Lodge No. 1424 International Association of
Machinists, AFL-CIO, et a!, 362 U .S. 411 (1960); Suburban Transit Co. v.
N.LRB., 499 F .2d 78, In. 13 (C.A. 3, 1974).
20 Local 510, Hotel & Restaurant Employees Union, 213 NLRB No. 74, In.
3, which defines "majority representative status."
21 See Linden Lumber Division, Summer & Co., 190 NLRB 718, 720-721
(1971); Arthur F. Derse, Sr., President, and Wilder Mfg. Co., Inc., 198 NLRB
sentiment which it has been found was conducted in
accordance with the safeguards required by the Board for
holding private polls. Accordingly, it is recommended, for
the reasons stated above, that the alleged 8(a)(1) violations
be dismissed.
It would seem, although it is not clear, that the General
Counsel might be arguing that the long-haul drivers were
an accretion to the original unit of the local driver-
salesmen who were employees of Yakima Beverages and
thus covered by the Union's "beer agreement." If so, such
a contention is without merit as the interstate drivers
comprised a separate, independent bargaining unit with
working conditions separate and distinct from YCB's local
driver-salesmen . It was therefore necessary for the Union
to establish its separate majority status in the long-haul
unit before it could lawfully claim recognitional rights for
the employees in that unit. This, the General Counsel
failed to establish as the record is to the contrary.
Moreover, Respondent, in order to obviate the very
situation which gave rise to this proceeding, and which
finds it charged with violating the Act, filed a petition for
an election, the acknowledged superior method of deter-
mining majority, which under the circumstances here
revealed, is not only evidence of its good faith but belies
the contention that it refused to bargain within the
meaning of Section 8(a)(5).21
It is found, therefore, upon the basis of the entire record
and the applicable law, that the General Counsel has failed
to sustain the burden of proving by a preponderance of the
substantial evidence that the Respondent Company violat-
ed Section 8(axl) and (5) of the Act. In view of the
foregoing conclusions, it will be recommended that the
complaint be dismissed in its entirety.
ORDER 22
It is hereby recommended that the complaint be, and it
hereby is , dismissed.
998 (1972).
22 The holding herein , it would appear , is consistent with the Board's
decision in Taft Broadcasting, WDAF-TV, AM-FM, 201 NLRB 801 (1973).
See also Terrell Machine Company, 173 NLRB 1480, 1481(1969); Celanese
Corporation of America, 95 NLRB 664, 671, 672, 673 (1951); Laystrom
Manufacturing Co., I51 NLRB 1482, 83 (1965); Bally Case and Cooler, Inc.
v. N.LRB., 416 F.2d 902 (C.A. 6, 1969).
a U S. GOVERNMENT PRINTING OFFICE . 1976 0-201-571