Evergreen Rambler, Inc.

National Labor Relations Board - Board Decisions

Sep 2, 1966

160 N.L.R.B. 864 (N.L.R.B. 1966)

864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization , to bargain collectively through representatives of their own
choosing , and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as guaranteed in Section 7 of the
Act.
WE WILL offer to Theodore Switzer and Louis Bryant immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights and privileges.
WE WILL make whole Louis Bryant and Theodore Switzer for any loss of
wages or other earnings they may have suffered as the result of the discrimina-
tion against them.
WE WILL NOT discriminate against any employee in regard to hire or tenure
of employment or any term or condition of employment because of member-
ship in, or activity on behalf of, any labor organization.
All our employees are free to become, remain , or to refrain from becoming or
remaining , members of any labor organization.
TRANSWAY, INC.,
Employer.
Dated--------- ---------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans , Louisiana 70113,
Telephone 527-6391.
Evergreen Rambler, Inc. and Garage Employees ' Local Union No.
44, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , Independent . Case 19-CA-
2958. September 2,1966
DECISION AND ORDER
On May 26, 1965, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor practices, and
reconunending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief.
On November 2, 1965, the Board entered an Order reopening the
record and remanding the proceeding to the Regional Director for a
further hearing before the Trial Examiner to receive evidence from
the parties relevant to the issue of whether Respondent and the insur-
ance carrier initially agreed that Respondent would defray the total
premium cost of the improved medical plan.
On May 9, 1966, the Trial Examiner issued his Supplemental Deci-
sion , in which he found that the Respondent and the insurance car-
rier had not initially agreed that the premiums for the improved
medical plan would be paid entirely by Respondent, but that the
Respondent changed the plan from a contributory to a noncontribu-
160 NLRB No. 57.
EVERGREEN RAMBLER, INC. 865
tory basis after it discovered that the Union desired recognition. The
Respondent filed exceptions to the Trial Examiner's Supplemental
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations A-ct, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, his Supplemental Decision, the exceptions and
briefs, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations i of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
IIn adopting the Trial Examiner's recommendations , we do not place any reliance on
his comments concerning the absence of McBride as a witness in the second hearing. We
also adopt the Trial Examiner ' s finding discrediting witness Mesher ' s testimony.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
1. PREFATORY STATEMENT
On May 26, 1965, following a hearing on the issues in this proceeding , I issued
a decision containing findings , conclusions , and recommendations . Upon exceptions
by the Respondent , Evergreen Rambler, Inc. (herein the Company), the Board, on
November 2, 1965, entered an order remanding the case, reopening the record of
the hearing upon which the decision had been based, and directing a further hear-
ing for purposes to be described at a later point . Although the decision sufficiently
details the material evidence upon which it is based , the following summary of the
findings and conclusions made there is appropriate for the purpose of narrative
continuity here.
For some time prior to July 7, 1964, the Company had had in effect a group
medical benefits insurance policy covering employees, including those in a unit
found in the decision to be appropriate for bargaining purposes (and termed unit
employees here). The premium payments were "contributory," that is, paid in part
by the Company and in part by the covered employees from monthly deductions
from their wages.
On July 7, 1964, the Company put into effect an improved medical benefits
policy (and other group insurance not material here), having negotiated the cover-
age, through its president, George R. Hughes, with Dean H . McBride , an agent of
the carrier, Industrial Hospital Association (herein IHA); and paid a $25 deposit
on account of premiums. The last wage deduction for the previous policy had been
made a few days earlier . Had that policy continued in effect the next deduction
would have been made on August 7, 1964.
On the day the new policy went into effect , in connection therewith and upon
McBride 's initiative, unit employees executed cards (described as "applications" in
the record, although they do not, in terms , apply for anything), each setting forth
information pertinent to the signatory employee , and authorizing the Company "to
deduct monthly from my wages, for the Industrial Hospital Association, the sum
required for the medical coverage indicated."
On August 3, 1964, agents of Local 44,1 the bargaining representative of the
unit employees , called on Hughes and requested that the Company bargain regard-
ing terms and conditions of employment of the employees . Hughes expressed dis-
belief that the Union represented the employees, and its representatives thereupon
1 The name Local 44 refers to Garage Employees ' Local Union No. 44, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America , Independent.
257-551--67-vol . 16 0-5 6
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showed him proof of representation in the form of authorization cards signed by a
majority of the employees. The upshot of the discussion was that Hughes said that
be would have to sign a contract if the Union represented the employees, but that
be could not do so without consulting a business associate.
On the following day, Hughes discussed the subject of unionization with one of
the employees in the unit, Bruno Wattenberg, who has minor supervisory functions
(although not a supervisor within the meaning of the Act), had recently incurred
heavy medical expenses in his family, had, for that reason, been attracted to Local
44's medical insurance program, and had been primarily responsible for the success
of the Union's efforts to organize the unit employees. Hughes asked Wattenberg
why he and others wished "to join the union," and Wattenberg replied that he had
heard that he and his family would receive medical benefits from his union dues
payments. Hughes stated that it was up to Wattenberg and the others whether they
wished to join the Union, that he "would let them decide and give me their answer,"
but that they should study the contract terms offered by the Union, and that the
Company had new group life, medical, and disability policies, but had deferred
presentation of the new program to the employees pending the receipt of one of
the policies. Wattenberg conveyed the information to others in the unit, with the
result that all, except one, notified Hughes on August 5, 1964, that they did not
desire union representation.
On the same day, the Company paid the balance due on the first month's pre-
mium for the new medical insurance, making no deductions from the employees'
wages, and it has since continued to defray the full premium cost of the policy.
As more particularly set forth in the Decision, I concluded that the wage deduc-
tion authorizations evidenced an intention by the Company as of July 7, 1964, the
date of their execution, to have the employees contribute to the premium cost of
the new medical benefits policy, as they had with respect to the predecessor policy;
that the management changed that intention following Local 44's bargaining request
of August 3, 1964, altering course by assuming, the full cost of the policy begin-
ning with the payment made on August 5, 1964, the day after the conversation with
Wattenberg; that such cost assumption was a benefit granted by the Company to
dissipate the unit employees' interest in union representation in order to avoid
bargaining with Local 44, and thus abridged Section 7 rights of the employees in
violation of Section 8 (a) (1) of the Act; and that the refusal to bargain with the
Union that followed was not rooted in a good-faith doubt of its representative
status, but in rejection of the collective-bargaining principle, and thus violated
Section 8 (a)(5) and (1) of the Act The Decision included a recommended order
that the Respondent cease and desist from the violations found, and bargain with
Local 44.
The order of remand directs that I hold "a further hearing . . . to receive evi-
dence from the parties relevant to the issue of whether the Respondent and the
insurance carrier initially agreed that the premiums for the improved. medical plan
would be paid entirely by Respondent or whether Respondent changed the plan
from a contributory to a noncontributory basis after it discovered the Union
(Local 44) desired recognition"; and that I prepare and issue a supplemental deci-
sion containing findings, conclusions, and recommendations as may be appropriate
in the light of the evidence received at the additional hearing.
Pursuant to notice duly served on all parties, a hearing, as required by the
Board's Order, was held before Trial Examiner Herman Marx, on January 4, 1966,
at Seattle, Washington. All parties appeared through, and were represented by,
counsel.
At the hearing, the General Counsel took the position, in substance, that while
he had the ultimate burden of proof, the record of the first hearing supported the
allegations of the complaint, and the Respondent, having by its exceptions, secured
an additional opportunity to adduce evidence of its agreement with the insurance
carrier, had the duty of going forward with the evidence in question.
The Respondent, although noting that it was not admitting that it had such a
duty, undertook to present evidence of its arrangements with the carrier.
Upon the entire record, from my observation of the witnesses at both hearings,
and having read and considered all briefs filed with me , I make the following:
It. FINDINGS OF FACT
In support of its claim that the new medical benefits policy was "noncontributory"
from its inception , the Respondent called "a field representative" of IHA, Edward
EVERGREEN RAMBLER, INC. 867
Mesher, who had not testified at the first hearing; and also recalled Hughes. Mesher
identified various documents pertaining to the new group medical insurance, includ-
ing the "certificate" (or policy); a "supplementary certificate"; an endorsement
entitled "Group Supplemental Major Medical Endorsement"; related applications
executed by the Company; a work sheet containing "employee data" and premium
cost figures entered by Mesher; and a printed form bearing the caption "Major
Medical Quotation Request," containing various entries made by him.
According to Mesher, whose headquarters are in Portland, Oregon, he conducted
negotiations with McBride prior to July 7, 1964, the effective date of the insurance,
and spoke to Hughes and various unit and other covered employees on that date
at the Company's premises in Seattle. He also gave testimony to the effect that he
secured the execution of two of the employees' "application" cards in evidence, and
that he explained the new insurance program to these and other covered employees,
and told them what their benefits would be, and that there would be "no cost to
them as employees."
It may be stated at the outset in passing on the issue posed by the remand, that
there is nothing in the policy certificates, or in the Company's applications for them,
to show that the Company "initially agreed" with the carrier either on a "noncon-
tributory" plan or a "contributory" one. In contrast, the execution by unit employees
of the wage deduction authorizations is an objective factor pointing to an intention
by the Company to make the new medical insurance plan, like the old, a "contribu-
tory" one. That conclusion remains after an examination of the case the Respondent
would make to the contrary, for the testimony of its witnesses, taken as a whole,
does not hang together in material respect, reflecting significant discrepancies and
contradictions.
These characteristics become evident upon consideration of the two hearings
together, particularly in the light of the remand and its origin. There is no reason
to doubt that McBride, whom Hughes requested, by letter dated May 15, 1964, to
furnish a cost estimate on improved medical and other insurance, consulted Mesher
about the new medical coverage, and that Mesher played a role in processing it,
but it is quite another matter to believe Mesher's account of his alleged activities
at the Company's premises on the day the employees signed their "application"
cards. The fact is that his testimony is much out of kilter with that of McBride,
Wattenberg, and Hughes in various respects.
To begin with, McBride's testimony, given at the first hearing, would lead one to
believe that it was he who made the arrangements on July 7, 1964, to have the
relevant employees sign the cards containing the wage deduction authorizations, for
he testified, in that regard, that he asked "the employer" (Hughes, presumably) to
"have the men come in for the enrollment," or, in other words, to sign the cards.
Moreover, McBride, and not Mesher, appears as "IHA Field Representative" on the
policy application signed by Hughes that day; and McBride, unlike Mesher, does not
quote himself as telling any of the employees that the medical insurance would not
cost them anything. It may be noted, too, that McBride's testimony not only fails
to place Mesher at the Company's place of business that day, but does not mention
him by name in any connection, nor, for that matter, does any other witness at the
first hearing, including Hughes.2
Mesher, on the other hand, testified that it was he who obtained Hughes' signa-
ture on the policy application, that he was told by Hughes "to explain" the medical
insurance program to the employees and given a room for that purpose by Hughes,
and that he (Mesher) did so, securing the execution of some of the "application"
cards, and telling employees what the medical insurance benefits would be, and
that the program would be free of cost to them. Oddly enough, although McBride
appears on the policy application as the "IHA Field Representative," and would lead
one to believe that it was he who "asked to have the men come in" to execute the
"application" cards, one would be hard put to it to determine on the basis of
Mesher's testimony what it was that McBride did there on July 7, apart from being
present during the discussion with Hughes that Mesher describes. On direct exami-
nation, Mesher did not even mention McBride's presence, and he turned vague when
asked, under cross-examination, about McBride's participation in the discussions
' Substantially the only reference to any insurance representative other than McBride
at the first hearing is his testimony that following the Company 's request for premium cost
quotations in May 1964 , he "called a broker in Portland who handles this sort of hospital-
life coverage.,'
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with employees, stating that McBride did not do so "on my portion of the pro-
gram," and that McBride attended to "other matters which were nonc of my con-
cern," "may have" spoken to employees about the medical coverage, and "may
have sat in on one or two" of the conversations.
Significantly, too, Mesher's claim that both he and McBride were jointly instructed
by Hughes "to explain" the new medical policy benefits to the employees does not
quite fit with the testimony of Wattenberg (who executed one of the insurance
"application" cards) and Hughes describing their conversation of August 4, 1964,
for, taking their accounts together, one may fairly infer that Wattenberg had little
or no knowledge of the new medical benefits. He quotes himself as telling Hughes
that the only reason he wished "to go into the union is because I want hospitaliza-
tion," and that "if" Hughes had already secured such insurance "there was no use
in going into the union"; and, according to Hughes, on that occasion, he
"explained" to Wattenberg that the Company had three "new" policies ("hospitali-
zation, life and disability"), and that they had not previously been "presented" to
the employees because the Company was still awaiting the receipt of one of them.
Indeed. Hughes testified at the first hearing that it was during this conversation that
he "announced" the improved medical program to Wattenberg "for the first time."
In short, the very sense of the relevant testimony of Wattenberg and Hughes is
that Wattenberg was previously unaware of the improved medical coverage, although
he had signed an "application" card for it, and I find it difficult to believe, in the
light of his leadership role among the employees and his interest in an improved
program, that he would not have learned at least the significant features of the new
benefits had Mesher explained them to unit and other employees , as Mesher claims.
What is more, bearing in mind the stress the Respondent now places on Mesher's
alleged activities at its premises on July 7, it is odd indeed that the Respondent
neither called him at the first hearing nor now offers any explanation for the omis-
sion ; and, even more singularly , it offers none for its failure to call McBride at
the second, although the very reason for the remand, as is evident from its terms
read in the light of the record of the first hearing, was a ruling made there sustain-
ing an objection to a question put to McBride whether the new medical policy "was
underwritten on a contributory or noncontributory basis." It is a strange use
of the Board's machinery for the Respondent to secure a reopening of the record,
upon the obviously implied premise that it wished to present testimony McBride had
to give, and then not only fail to call him at the second hearing, but offer no expla-
nation for that course. In any case, whatever view one may take of such treatment
of the Board's processes, the discrepancies mentioned above, especially in the light
of the unexplained failure to call Mesher at the first hearing, and to call McBride
at the second , at the very least raise a large question as to the reliability of Mesher's
claims regarding his alleged transactions with Hughes and the employees on the
occasion in question.
But even more pronounced earmarks of unreliability appear in these claims when
they are evaluated in the light of Hughes ' testimony regarding his alleged dealings
with Mesher. As an initial matter in that connection, it may be noted that although
the Respondent 's evident purpose in calling Mesher was to prove that the Company
and the carrier "initially agreed" on a noncontributory medical insurance policy,
Mesher gave no details, on his direct examination, of any conversation with Hughes
or any other member of the management, testifying substantially, in that regard,
to no more than that he had a conversation with Hughes, and that that took place
on July 7, 1964; and it was not until his cross-examination that Mesher pictured
Hughes as telling him and McBride to explain the new medical benefits to the
employees , and inform them that there would be no premium cost to them.
But be that as it may, if Hughes is to be believed , what they discussed on
July 7 were the insurance rates and a complaint by him that they were higher than
previously quoted. It is clear from Hughes' account that nothing was said on the
subject of contribution by the employees, for even after a suggestive question on
his direct examination whether "any reference (was) made to who was to pay the
premiums," he gave testimony, as he had before, to the effect that what was dis-
cussed was the amount of the premiums and his complaint about the matter. To be
sure, Hughes claims that he told McBride in a telephone conversation in May 1964
that the Company was "going to pay the entire premiums for the program," but
Mesher does not tell us that McBride ever conveyed that information to him, and,
moreover, after advancing the claim that he told McBride in May that the Com-
pany was to defray the total cost, Hughes was asked to relate the conversation from
EVERGREEN RAMBLER, INC. 861)
beginning to end , and he proceeded to give a detailed version which contains no
reference to the subject of assumption of the total premium cost by 'the Company.
The fact that no employees were called by the General Counsel on the subject of
Mesher's claimed discussions with them does not inevitably put a seal of credibility
on Mesher's testimony, although, obviously, a factor to be considered in evaluating
its weight. Taking that into account, the fact nevertheless remains that the failure
to produce Mesher at the first hearing , and McBride at the second , is unexplained;
that Mesher claims that it was he who secured Hughes' signature on the insurance
application. although it bears not Mesher's name as the carrier's agent, but
McBride's; that there is nothing in McBride's testimony to indicate that he told
any of the employees that the new medical policy would not cost them anything, or
that either he or Mesher was instructed by Hughes to give that information to the
employees; that Mesher's claim that he and McBride were so instructed on July 7
is in effect contradicted by Hughes himself; and that the very "application" cards
Mesher says he secured from unit employees on July 7 point to an intention to
have the employees share the premium cost. In short, Mesher's claim that Hughes
told him to tell the employees that they would not share the premium cost, and that
he so informed various employees, is so heavily weighted with indicia of unreli-
ability that I do not credit it.
In the light of what has been said, and bearing in mind that there is no evidence
that McBride ever told Mesher that the new medical plan was to be without cost
to the employees, it is a basic fact that the record does not credibly establish that
the Company and the insurance carrier "initially agreed" that the premiums for
the improved medical plan would be "noncontributory."
Such an agreement is not established by the word "gift" entered by Mesher on
an "employee data" worksheet in a space between the phrases "% Participation" and
"100%" (the phrases meaning, obviously, that all of the Company's employees
would be covered by the insurance); nor by an entry "10%" in a space for "Earned
Discount" beneath the phrases "% Participation" and "100%." According to
Mesher, the document reflects the basis for the "rate structure" for the group policy,
and he testified that it was prepared "sometime prior to July 7," that the word
"gift" means "(e)mployer pays all," and that the discount was allowed because the
Company was to bear the full cost of the premiums.
He does not tell us why he put the word "gift" in the indicated space rather than
in another, but, in any case, a number of factors bar the way to acceptance of the
conclusional interpretation he offers. For one thing, there is no evidence that any-
one ever told Mesher prior to July 7 that the policy was to be without cost to the
employees. He admittedly did not speak to Hughes before that date; he does not
say that McBride ever told him that the cost was to be paid entirely by the Com-
pany; and McBride neither testified at the first hearing that he did so, nor appeared
at the second . For another matter, the interpretation of the entries now offered by
Mesher collides with the indisputable fact that the unit employees signed the wage
deduction authorizations on July 7. Mesher was hard put to it to explain the reason
for the cards, offering substantially no more than that the carrier has a "standard
practice . . to have enrollment cards for every covered person ." But the explana-
tion is less than convincing , especially in view of an admission by Mesher that
the coverage of the employees does not depend on their execution of the cards, and
one may readily believe that the "Earned Discount" entry describes a rate reduction
because of "100%" participation by the employees as that it signifies a discount
because the plan was "noncontributory" One may bear in mind in that connection
an admission by Mesher that the insurance carrier looks to the employer for the
premium payments whether or not the employees share the cost. Mesher's testimony,
as a whole, is so deficient in quality that in the absence of any evidence that any-
body told him prior to July 7 that the premium cost was to be "noncontributory,"
it would be a large mistake, in my view, to disregard the hard evidence of the wage
deduction authorizations in favor of Mesher's testimony, offered for the first time
at the second hearing, that he entered the word "gift" prior to July 7, that it means
"(e)mployer pays all," and that the discount was granted because the insurance
was "noncontributory" in nature.3
'To speculate on the meaning and role of the word "gift " in the worksheet would be
an idle venture . It is enough that the witness who defines it has given much untrustworthy
testimony , and that the definition he puts forward runs counter to the weight of the
credible evidence, which includes the hard fact of the wage deduction authorizations
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Finally, what has been said about the relevant entries in Mesher's work sheet
applies with at least equal force to some entries made by him in a printed form
entitled "Major Medical Quotation Request" which, like the "employees data"
sheet, is undated, but, as introduced, is an attachment to the Company's "Applica-
tion for Group Supplemental Major Medical Benefits," which, like the application
for the basic policy, is dated July 7, 1964.4 The entries consist of the word "Yes"
in answer to a question "Is employer to pay all or any portion of the cost of the
plan?" and beneath that the phrase "Employee 100%." According to Mesher, these
entries signify that there was "to be no contribution" (by employees). But this is
only Mesher's claim, and in view of the considerable shortcomings in his testimony,
I see no reason to follow the conclusion he offers rather than to construe the
entries as meaning that the Company was to pay a "portion of the cost," and that
"100%" of the employees were covered by the program. In fact, one may put aside
the substantial infirmities in his evidence previously mentioned, and his own testi-
mony regarding an entry in the "Major Medical Quotation Request" gives the doc-
ument, and the claim he makes regarding the "rate structure," an aura of unre-
liability. The entry is a zero in a space for "Dependents" opposite the phrase
"Employee 100%," and means, according to Mesher, that the benefits provided by
the "Group Supplemental Major Medical Endorsement" do not apply to the covered
employees' dependents. But it is a fact that the "Endorsement," by its very terms,
covers dependents. When this was called to Mesher's attention, he offered the
explanation that the "policies are all preprinted"-an explanation that does not in
the least alter the fact that the Company's application for the "Endorsement" seeks
"major medical benefits" for "eligible employees and the eligible dependents of
employees," and that such benefits are expressly provided for dependents, as well as
employees," by the "Endorsement." 5 There may be a credible explanation for the
evident discrepancy, but I am unable to find it in testimony such as Mesher gave
in this proceeding. In short, I am impelled to deny any weight to the conclusional
and self-serving interpretations he offers for the relevant entries in the "Major
Medical Quotation Request."
Viewing the total record, I find, for the reasons stated, that the Company and
the insurance carrier did not "initially" agree that the Company would defray the
total premium cost of the improved medical plan, and that the Company intended
prior to Local 44's bargaining request to defray part of the cost from deductions
from the unit employees' wages, but changed that intention after, and because of,
Local 44's bargaining request; and I reaffirm and readopt the findings and conclu-
sions made in my previous decision.
RECOMMENDATIONS
On the basis of the foregoing findings and conclusions , I reaffirm the recom-
mendations set forth in the previous decision.
* A copy of the "Major Medical Quotation Request" is also attached to the "Group Sup-
plemental Major Medical Endorsement" in evidence.
5It may be noted, too, that the Company's initial application for group coverage seeks
it for "eligible employees and dependents," and that such coverage is provided by the
"supplementary certificate" which became effective at the same time as the "certificate"
covering the "enrolled" employees.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint alleges that the Respondent, Evergreen Rambler, Inc. (herein the
Company), has refused to recognize and bargain with a labor organization (herein
called Local 44) i as the duly designated representative of an appropriate bargain-
ing unit of employees; and has thus violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.; also called
the Act herein) .2
As used herein, the name Local 44 refers to Garage Employees' Local Union No 44,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Independent.
2 The complaint was issued on November 23, 1964, and is based upon a charge filed
by Local 44 on September 10, 1964, and upon an amendment thereof, filed on November 2,
1964. Copies of the charge, the amendment thereof, and the complaint have been duly
served on the Respondent.
EVERGREEN RAMBLER, INC. 871
The Respondent has filed an answer, which , in material substance , denies the
commission of the unfair labor practices imputed to it in the complaint.
Pursuant to notice duly served by the General Counsel of the National Labor
Relations Board on each of the other parties, a hearing upon the issues in this pro-
ceeding has been held before Trial Examiner Herman Marx, in Seattle, Washington.
Each of the parties entered an appearance and was afforded a full opportunity to be
heard , examine and cross-examine witnesses , adduce evidence , file briefs , and sub-
mit oral argument. I have read and considered the respective briefs of the General
Counsel, Local 44, and the Respondent filed with me since the close of the hearing.3
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS; JURISDICTION OF THE BOARD
The Company is a Washington corporation; maintains a place of business in
Seattle, Washington, where it is engaged in selling new and used automobiles; and
is, and has been at all material times, an employer within the meaning of Section
2 (2) of the Act.
The Company has an annual gross income from its sales of goods and services
in excess of $500,000, and, in the course and conduct of its business, annually pur-
chases from supply sources located outside the State of Washington, and receives
directly from them, automobiles and automotive parts and supplies valued in excess
of $50,000. By reason of its said purchases and receipt of interstate shipments the
Company, as it concedes in its answer, is, and has been at all material times,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
Accordingly, the National Labor Relations Board has jurisdiction of the subject
matter of this proceeding.
H. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and the answer admits, the Union is, and has been at
all material times, a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The issues in this proceeding focus on employees in the Respondent's parts
department and so-called "cleanup" personnel. As the record establishes, all parts
department employees and new- and used-car cleanup men employed by Evergreen
Rambler, Inc., in its business in Seattle , Washington , excluding mechanics, sales
personnel, office clerical employees, and supervisors as defined in the Act, consti-
tute, and have constituted at all times material to the issues, a unit appropriate for
the purposes of collective bargaining, within the meaning of Section 9(b) of the
Act.
As of May 25, 1964, there were five full-time employees in the unit. On that
date, four of them signed forms of application for membership in Local 44, each
containing an authorization for the Union to serve as the signatory 's collective-
bargaining representative. The fifth employee was already a member of Local 44,
and thus represented by the organization as a result of his membership By force
of the authorizations, Local 44 became the representative of a majority in the unit.
It has been at all material times since , and is now, the exclusive collective -bargaining
representative of all employees in the unit , within the meaning of Section 9(a) of
the Act .4
3 The hearing transcript Is garbled at some points , but as the record sufficiently reflects
the material facts and issues, I deem it unnecessary , particularly in the absence of a
motion by any party , to make any corrections of the transcript.
' At the time of execution of the authorizations , there were "two part-time men" who
performed the same work as employees in the unit. There is some suggestion that they were
"temporary" help, but the record Is Insufficient for a determination whether they were in
the unit. No party appears to claim that they should be Included, but whether they are or
not, Local 44's status as representative of the unit is unaffected.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Early in 1964, some months prior to the execution of the union membership
applications (and, so far as appears, before any of the signatories evinced any inter-
est in Local 44), the Company's president, George R. Hughes, had some discus-
sions with an insurance carrier representative, Dean H. McBride, regarding improve-
ments in a medical insurance program that had been in effect for some time
(together with a group life insurance policy not material here) for the Company's
employees, including parts department and cleanup personnel. The medical insur-
ance premiums were jointly paid by the Company and the participating employees,
the contributions of the latter being deducted monthly from their respective pay-
checks.
As a result of the discussions, Hughes wrote to McBride on May 15, 1964,
requesting cost quotations for additional medical and other insurance benefits. The
upshot of the matter was that McBride made arrangements for an improved group
insurance program, to which additional reference will be made below.
On June 7, 1964, the Company, as a result of McBride's efforts, put into effect
a new group insurance program, providing, among other benefits, for improved
medical coverage, and paid a $25 deposit on account of the first premium to
become due on the medical insurance policy. (Life and disability insurance, which
was included in the program, was placed with different carriers and is not material
here.) On the same date, McBride had each employee in the unit execute an "appli-
cation" for the medical insurance, setting forth some pertinent information, and
authorizing the Company "to deduct monthly from my wages, for the Industrial
Hospital Association, the sum required for the medical coverage indicated." 5
Toward the end of July 1964, a representative of Local 44, Ivor Merryfield,
asked Hughes for a meeting to negotiate an agreement pertaining to the parts
department and cleanup employees, stating that Local 44 represented them, and
the upshot was that Merryfield and another representative of the Union met with
Hughes at the latter's office on August 3, 1964.
The meeting lasted about 45 minutes or an hour, and much of what took place
is not in material dispute. The Union's representatives produced a proposed con-
tract, and went over much or all of its provisions with Hughes. There is no dispute
that during the meeting Hughes expressed a doubt or disbelief of the Union's rep-
resentative status, but there is conflict as to the point at which that occurred, and
what was done about the matter.
Merryfield testified that after the terms of the contract proposal had been can-
vassed, Hughes "said he thought (the union) did not represent the men"; that the
signed union membership applications were then produced and turned over to
Hughes who examined them and said that one of the signatories, James Phelps,
"should have been laid off the previous week" (in other words, intimating an objec-
tion to the use of Phelps' authorization); that following the examination, Hughes
stated that if Local 44 represented the men, he would have to sign a contract, but
that he could not do so without discussing the matter with a business associate;
and that the Union should communicate with him in 2 or 3 days.
Hughes denied that any authorizations were shown him, and, according to his
account, he expressed his doubt of the Union's representative status before there
was any discussion of the proposed contract, telling the union representatives that
he had no knowledge of any dissatisfaction or organization among the employees,
and had had no indication that the Union represented them. Hughes also denied
telling the union representatives that he would have to discuss the contract pro-
posal with a business associate.
I am unable to credit Hughes who appeared to me to be an evasive witness,
evidencing a disposition to dodge pertinent questions. There is no dispute that a
copy of the contract was left with him, and the fact that that was done tends to
support Merryfield's claim that Hughes said that he would have to discuss it with
5 McBride was asked at one point whether there was "any agreement" whether the new
program would be "contributory or noncontributory," and he replied, "It had to be non-
contributory." The reply is both vague and conclusional, and there is, in fact, no sub-
stantial evidence that there was any agreement between the Company and McBride or the
medical insurance carrier that the Company alone would pay the relevant premiums 'If
the intendment of McBride's testimony, quoted above, was that there was such an agree-
ment or arrangement at or before the time the new medical insurance went into effect, I do
not credit such a claim, for it runs counter to the deduction provisions of the applications
that McBride himself had the employees sign.
EVERGREEN RAMBLER, INC. 873
a business associate; yet, although denying that he had made such a statement,
substantially all that Hughes could muster as to the reason the contract proposal
was left was "I don't know." Significantly, too, it is evident from Hughes' account
that Phelps' name came up during the discussion, but when interrogation focused
on the context in which the name arose, Hughes turned evasive, initially offering the
vague explanation that the union representatives "were discussing all of these
employees with me," and then responding to additional efforts to determine the
context in which the name of Phelps came up with replies that "I think all of
them (employees' names) did," and "I don't recall." In contrast, Merryfield's account
of the context is plausible and circumstantially detailed.6 In short, I credit Merry-
field's account of the meeting.
On the day after the meeting, Hughes discussed the subject of unionization with
a "cleanup" employee, Bruno Wattenberg, who is their "foreman" (and apparently
has minor supervisory functions, although not a supervisor within the purview of
the Act), and had signed an application to loin Local 44 Wattenberg had recently
incurred heavy medical expenses for his family, had been attracted for that reason
by the Union's medical insurance program, and had been primarily responsible for
the success of the Union's organizational efforts among the employees. Hughes
asked Wattenberg whether he and the other employees in his department wished "to
join the union." Wattenberg replied that he had considered doing so because he had
been told that for his monthly dues of $5 he and his family would receive medical
benefits Hughes said that it was up to Wattenberg and the others whether they
wished to join the Union, and that he "would let them decide and give me their
answer," but that they should study the contract, and that the Company had new
group life, medical, and disability policies, but had deferred making an announce-
ment of the new program pending the receipt of one of the policies. Wattenberg
conveyed the information about the new insurance program to other employees in
the unit, with the result that all in the unit, with the exception of Phelps, decided
that they did not wish union representation and on August 5, 1964, went to Hughes'
office and informed him.
That same day, the Company paid the balance due on the first premium for the
new medical coverage, making no deduction therefor from the wages of the employ-
ees in the unit. The last such deduction had been made on July 2 under the old
policy. Had that remained in effect, the next monthly deduction would have been
made on August 7, several days after Hughes' meeting with the union representa-
tives. Notwithstanding the authorizations given McBride on July 7, no deductions
from the wages of the employees in the unit have ever been made to defray any
part of the cost of their medical insurance.
Merryfield telephoned Hughes regarding the proposed contract on August 6 and
12, and the latter said on each occasion that he had not yet had time to discuss the
matter with his business associate. Merryfield telephoned again on August 14, and
Hughes told him that Local 44 did not represent the employees in the unit, and
that the Company would not negotiate with the Union concerning them.
B. Discussion of the issues; concluding findings
The issues here are (1) whether the Respondent's failure to bargain with Local
44 is lawful, and (2) whether its assumption of the total cost of the medical insur-
ance premiums, in contrast to the "contributory" practice in the past, was designed
to discourage the employees in the unit from joining Local 447
Under well-established principle, the Company was obligated to bargain in
response to Local 44's request, unless it had a good-faith doubt of the Union's repre-
sentative status. Taking the record as a whole, I do not believe that Hughes had
any real doubt about Local 44's representative status at any time during his meeting
8I note, also , that Hughes quotes himself as asking one of the application signatories
on the day following the meeting whether he and the others "were wanting to loin the
union." There is no indication that the union representatives had told Hughes that the
employees had signed applications, as distinguished from authorizations, and thus the very
form of Hughes' inquiry tends to support an inference that Hughes saw the cards
7 The complaint contains an allegation, unsupported by any evidence, that the Company
made an unlawful threat that it would subcontract the cleanup work if employees joined
Local 44 The General Counsel indicated at the hearing that he was abandoning the claim,
and I treat it as abandoned.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on August 3 with its agents. The credited evidence that he went over much or all
of the proposed contract with them before he raised any question about the Union's
bargaining authority suggests that he was concerned with the economic consequences
of dealing with the Union rather than with its authority to represent the employees.
But even if one assumes that at one point or another during the meeting he had
some question about the Union's bargaining authority, it is reasonable to believe,
and I find, that he had no doubt about it upon completion of his examination of
the union membership applications. Significantly, in that connection, according to
the credible evidence, the way the matter was left at the end of the meeting was
not that he would look into the Union's status, but that he would have to consult a
business associate before entering into a contract.
The Company was not relieved of its bargaining obligation by the employees'
statement to Hughes on August 5 that they no longer wished to be represented by
Local 44. On the contrary, the circumstances that led to this disavowal point to a
rejection of the collective-bargaining principle by the Company. For the evidence of
what took place one must rely on the testimony of Hughes and Wattenberg, neither
of whom I am able to regard as a disinterested witness. But even on the basis of
Hughes' testimony, it is evident that he engineered the change of sentiment.
According to Hughes, he spoke to Wattenberg on the morning after the meeting
with the Union's representatives because he happened to encounter Wattenberg
"first," but it is a significant fact that Wattenberg was "foreman" of the "cleanup"
employees, and was obviously in a position of leadership among them. Indeed,
Hughes conceded that Wattenberg's status as "the oldest employee and ... foreman
of that group . might (have) a bearing" on the fact that he spoke to Watten-
berg about unionization of the employees. Be that as it may, Hughes' purpose emerges
from the conversation. Learning from his interrogation of Wattenberg that it
was the Union's medical benefit program that interested Wattenberg in the organiza-
tion, Hughes harnessed a disclosure of the Company's new insurance program to a
suggestion that the employees read the proposed contract, and to an invitation
that they "give me their answer." This was but a way of inviting the employees,
through one of their number with leadership status, to deal with Hughes directly
with a view to having them "answer" with a repudiation of the Union on the basis
of the new insurance program. In the light of this purpose, Hughes' statement to
Wattenberg that it was "all right" with him if the employees "wanted to join a
union" was mere lip service to neutrality. In short, the disavowal of the Union was
a product engineered by Hughes, and to hold that it relieves the Company of its
bargaining obligation is as much as to reject basic premises of the Act.
Plainly, too, the Company's assumption of the full cost of the medical insurance
program was, in substance, a grant of benefits designed to wean the employees away
from Local 44. The Respondent makes a claim in its brief to the effect that the new
insurance was intended to be "non-contributory" from its inception, and that thus,
so the argument appears to be, the omission to make any deduction either on
August 7 or in subsequent months could have had no connection with the bargaining
request. The position, however, founders on the objective fact that on the very day
the new medical insurance went into effect, McBride secured signed authorizations
for future deductions from the employees involved here, and this evidence leads me
to conclude that the Company intended the medical insurance program to be a
"contributory" one, but subsequently altered course. Particularly in the light of
Hughes' conduct in engineering the employees' disavowal of the Union, through
his talk with Wattenberg, I am persuaded, and find, that the Company decided to
forgo the wage deductions at some point between the Union's bargaining request and
August 7, the date when it normally would have made deductions under a "contribu-
tory" medical insurance program; and that it did so in pursuit of a purpose of dis-
couraging membership of employees in the unit in Local 44 in order to avoid bar-
gaining with that organization.8
The sum of the matter is that the Company has failed and refused, since
August 3, 1964, to bargain with Local 44 as the representative of the employees
in the unit, although obligated to do so; that it has violated Section 8(a) (5) of
the Act by such failure and refusal, and by its assumption of the full cost of the
8I note, in passing, that the evidence does not establish whether any employees outside
the unit are covered by a "non-contributory" insurance program ; nor, for that matter,
with any clarity at least, to what extent, if any, such employees are subject to the in-
surance coverage applicable to those in the unit.
EVERGREEN RAMBLER, INC. 875
medical insurance for the employees in the unit; and that by the foregoing conduct
it has interfered with the exercise of rights guaranteed employees by Section 7 of
the Act, thus violating Section 8(a)(1) of the statute.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Company has engaged in unfair labor practices violative
of Section 8(a)(5) and (1) of the Act, I shall recommend below that it cease
and desist therefrom and take certain action designed to effectuate the policies of
the Act.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following conclusions of law:
1. Evergreen Rambler, Inc., is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
2. Local 44 is, and has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
3. All parts department employees and new- and used-car cleanup men employed
by Evergreen Rambler, Inc., in its business in Seattle, Washington, excluding
mechanics , sales personnel , office clerical employees , and supervisors as defined in
the Act, constitute, and have at all material times constituted, a unit appropriate
for the purposes of collective bargaining, within the meaning of Section 9(b) of
the Act.
4. Local 44 is, and has been at all material times, the exclusive representative of
the employees in the aforesaid appropriate unit for the purposes of collective bar-
gaining, within the meaning of Section 9(a) of the Act.
5. By failing and refusing to bargain collectively with Local 44, as exclusive
representative of the employees in the aforesaid unit, as found above, the Company
has engaged, and is engaging, in unfair labor practices within the meaning of Sec-
tion 8(a) (5) of the Act.
6. By interfering with, restraining, and coercing employees in the exercise of
rights guaianteed them by Section 7 of the Act, as found above, the Company has
engaged, and is engaging, in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, I recommend that Evergreen Rambler,
Inc , its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Garage Employees' Local Union No.
44, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Independent, as the exclusive representative of employees in a bar-
gaining unit consisting of all parts department employees and new- and used-car
cleanup men employed by Evergreen Rambler, Inc., in its business in Seattle,
Washington, excluding mechanics, sales personnel, office clerical employees, and
supervisors as defined in the National Labor Relations Act, as amended, with
respect to rates of pay, wages, hours of employment, and other terms and condi-
tions of employment of employees in the said unit
(b) Granting any benefit to any employees or making any change in any term
or condition of employment for the purpose of influencing their choice, acquisition,
or rejection of a collective -bargaining representative , or their decision to join or
support, or refrain from joining or supporting, any labor organization; provided,
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, that nothing contained herein shall be construed as a requirement that
the Company withhold, rescind, or abandon any insurance or other benefit hereto-
fore conferred upon any employees
(c) Or in any like or related manner interfering with, restraining, or coercing
employees in the exercise of rights guaranteed them by Section 7 of the said Act.
2. Take the following affirmative action which, I find, will effectuate the policies
of the said Act:
(a) Upon request, bargain collectively with Garage Employees' Local Union No.
44, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Independent, as the exclusive representative of the employees in,
the appropriate bargaining unit described above, with respect to their rates of pay,
wages, hours of employment, and other terms and conditions of employment; and
if an agreement is reached, embody it in a signed contract.
(b) Post in conspicuous places at its places of business in Seattle, Washington,
including all places where notices to employees are customarily posted, copies of
the attached notice marked "Appendix A." Copies of said notice, to be fur-
nished by the Regional Director of Region 19 of the National Labor Relations
Board, after being signed by a duly authorized representative of the Company,
shall be posted by it immediately upon receipt thereof, and maintained by it for
60 consecutive days thereafter, in such conspicuous places. Reasonable steps shall
be taken by the said Company to insure that said notices are not altered, defaced,
or covered by any other material.io
(c) Notify the said Regional Director, in writing, within 20 days from the receipt
of a copy of this Decision, what steps the Respondent has taken to comply
herewith.ii
0In his brief, the General Counsel requests that the Respondent be directed to "rescind'
the unilateral grant of employer paid insurance benefits." Such a requirement would not,
in my judgment, effectuate the policies of the Act. The Board has comparably not required
the rescission of benefits provided by contract between an employee and an unlawfully
assisted union, although directing the employer not to apply the agreement. As the em-
ployees are represented by a union with which the Company is obligated to bargain, any
appropriate changes in the existing insurance program and the means of paying for it
should be left, in my view, to the process of collective bargaining I see no advantage to
the public interest in the General Counsel's request, and It is, accordingly, denied.
101n the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order," shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's order is enforced by
a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read • "Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX A
NOTICE TO ALL EMPLO-1 [PS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Garage Employees' Local
Union No. 44, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Independent, as the exclusive bargaining
representative of a unit consisting of all parts-department employees and new
and used car cleanup men employed in our business in Seattle, Washington,
excluding mechanics, sales personnel , office clerical employees, and super-
visors as defined in the said Act, with respect to the rates of pay, wages,
hours of employment, and other terms and conditions of employment of the
employees in such unit.
WE WILL NOT grant any benefit to any employees or make any change in
any term or condition of employment for the purpose of influencing their
choice, acquisition, or rejection of a collective-bargaining representative or
their decision to join or support, or refrain from joining or supporting, any
MACMILLAN RING-FREE OIL CO. 877
labor organization ; provided, however , that nothing contained herein shall be
construed as a requirement that we withhold, rescind, or abandon any insur-
ance or other benefit heretofore conferred on any employee.
WE WILL NOT in any other like or related manner interfere with, restrain, or
coerce employees in the exercise of rights guaranteed them by Section 7 of
the said Act.
WE WILL, upon request , bargain collectively with Garage Employees' Local
Union No. 44, International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, Independent , as the exclusive representa-
tive of the employees in the bargaining unit , described above, with respect to
their rates of pay, wages , hours of employment , and other terms and condi-
tions of employment ; and if an agreement is reached , embody it in a signed
contract.
EVERGREEN RAMBLER, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 327
Logan Building, 500 Union Street, Seattle, Washington, Telephone 682-4553.
MacMillan Ring-Free Oil Co., Inc., a Corporation and Oil , Chemi-
cal and Atomic Workers International Union , Long Beach
Local 1-128. Case 21-CA-69299. September 2,1966
DECISION AND ORDER
On April 13, 1966, Trial Examiner Herman Marx issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
mended that they be dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief,
the Charging Party filed cross-exceptions and an answering brief, and
the General Counsel filed cross-exceptions and a reply brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
160 NLRB No. 70.