Waters Distributing Co.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 967 (N.L.R.B. 1970)

WATERS DISTRIBUTING CO.
Waters Distributing Company and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen and
'Helpers of America, Local Union , No. 537. Case
27-CA-27551
June 2, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On December 31, 1969,' Trial Examiner Herman Marx
issued, his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices alleged in
the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. There-
after, the Respondent filed exceptions to the Decision
and a supporting brief, and the General Counsel filed
a brief in reply to Respondent's exceptions.
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 con-
nection with this case to a three-member panel.
The Board has, reviewed the rulings of the Trial Exam-
iner, made 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 and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, as herein mod-
ified.
1. The Trial Examiner found that Respondent violated
Section 8(a)(1) of the Act by distributing a letter just
prior to the election which enumerated various existing
benefits, including sick pay, Christmas bonus, Christmas
party, paid insurance, and paid vacation, and went on
to state, "We can continue these benefits if we remain
a non-union company." In adopting the Trial Examiner's
finding we agree that these statements constituted an
implied threat that benefits would be reduced or eliminat-
ed if a majority of employees voted for the Union
in the election.
2. The Trial Examiner also concluded that the same
letter further violated Section 8(a)(1) through promises
of a group health program and a paid vacation if employ-
' The complaint in the instant case was originally consolidated by
the Regional Director with the related representation proceeding in
Case 27-RC-3644 because the objections to the election therein raised
issues of fact in common with the unfair labor practice proceeding.
Since the election had been conducted under a consent-election agree-
ment entered into by the parties pursuant to Sec 102 62 (a) of the
National Labor Relations Board Rules and Regulations , Case 27-RC-3644
was upon issuance of the Trial Examiner's Decision severed from
Case 27-CA-2755 and remanded to the Regional Director for determina-
tion Thereafter we were administratively advised that the Regional
Director by his supplemental report on objections dated March 5,
1970, has set aside the election conducted in Case 27-RC-3644
967
ees rejected the Union. Concerning the paid vacation,
Respondent's statement in this regard was not alleged
in the complaint or litigated as an unlawful promise
of benefit. Moreover, in his answering brief; the General
Counsel stipulates that this statement was consistent
with Respondent's preexisting policy. Accordingly, we
reverse the Trial Examiner, but only insofar as he finds
that the reference to vacation policy constituted an
unlawful promise of benefit.
The Trial Examiner, in addition to finding that the
preelection letter's reference to group insurance consti-
tuted an unlawful promise of benefit, also found that
Respondent subsequently violated Section 8(a)(1) by
institution of such a plan ' shortly after the election
and while the Union's objections were pending. In
excepting to these findings, Respondent contends, inter
alia, that it had intended to provide health coverage
to its employees prior to the , advent of the Union,
had discussed this intention with employees, and had
made contacts with various insurance companies in the
interest of securing an appropriate health benefit plan.
Respondent explains the timing of its implementation
of the plan in the following terms: "That's the time
that we had everything set up to go and that we had,
that they [apparently the insurance carriers] set up a
plan that they [apparently the employees] would like
to take." We find no merit in Respondent's exceptions.
While the record reveals that, for some time, Respond-
ent had been considering the establishment of a group
insurance plan and had discussed this possibility with
employees, such discussions dated back fora period
of almost 6 years. Yet, prior to the filing of the election
petition, no' specific plan had been selected, nor did
Respondent, at any time' prior to the election, enter
any binding commitment to provide insurance coverage.
The uncertainty that existed among employees as to
when or whether Respondent would grant such a program
is evidenced by the discussion between employee Stanley
and a union representative, in which Stanley made sever-
al inquiries concerning the Union's position on health
and welfare programs, while indicating that Respondent
had no such program. As a result of this conversation,
Stanley executed an authorization card, resulting in the
Union's representation of three of the five employees
in the appropriate unit. Thereafter, on July 7, 1969,
Respondent distributed the aforementioned letter, for
the first time stating that a specific insurance program
had been selected and that this benefit would be available,
"Should we remain a non-union company." In the subse-
quent election, conducted on July 11, 1969, the Union
was defeated by the margin of a single vote. In our
opinion, the foregoing amply demonstrates that the pree-
lection promise of an insurance program, like the threat-
ened impairment of benefits, was calculated to influence
the outcome of the election and violated Section 8(a)(1).
Accordingly, and as we agree with the Trial Examiner
for the reasons stated by him, that Respondent failed
to offer any reasonable explanation for the timing of
the subsequent grant of said benefit during the period
when objections to the first election were pending, we
further find that the coverage was put into effect in
182 NLRB No. 141
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1969 in order to influence the employees' vote
in the event that Union's objections resulted in a rerun
election and that Respondent thereby further violated
Section 8(a)(1) of the Act.
3. We also agree with the Trial Examiner's finding
that the aforedescribed unfair labor practices were calcu-
lated to undermine the Union's majority and could only
be redressed effectively through the finding of an 8(a)(5)
violation and the issuance of a bargaining order.2
Although the preelection unfair labor practices were
contained in a single communication, the threats involved
covered a broad range of terms and conditions of employ-
ment. The insurance coverage, unlawfully promised
before the election and unlawfully granted after the
election, represented a benefit that had been a focal
point of employee interest, and Respondent's action
wi*h respect thereto was likely to have had significant
impact, on the first, or any rerun, election. Clearly,
the preelection unfair labor practices rendered the first
election an inaccurate register of employee desire on
the question of union representation , and, as the effects
of the subsequent grant of insurance coverage could
not be expunged through application of conventional
Board remedies, it is highly unlikely that a second
election would reflect a free and uncoerced employee
choice. Accordingly, we are satisfied that the policies
of'the Act would not be effectuated through direction
of a second election but that effect should be given
to the card majority possessed by the Union before
Respondent embarked on its unlawful course of conduct.
We therefore find, in agreement with the Trial Examiner,
that Respondent violated Section 8(a)(5) and (1) of the
Act by refusing to bargain upon the Union's demand
for recognition and by unilaterally establishing a health
insurance program without consulting with the Union,
as exclusive representative of its employees.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board adopts as its Order the Recommended Order
of the Trial Examiner, and hereby orders that the
Respondent, Waters Distributing Company, Denver, Col-
orado, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recom-
mended Order.
s N.L R.B. v Gissel Packing Company, 395 U S. 375.
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
HERMAN MARX, Trial Examiner: On July 11, 1969,
pursuant to an agreement for a consent election under
the Board's auspices in Case 27-RC-3644 between an
employer known as Waters Distributing Company (herein
the Company or Respondent ') and a labor organization
named International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America, Local
Union No. 537 (herein the Union), the Board conducted
a representation election among the employees of the
Company in an appropriate bargaining unit , with the
result that of the five eligible voters , two voted in
favor of the Union , and three against it.
The Union filed timely objections in the representation
proceeding on July 17, 1969, alleging misconduct by
the Company affecting the election results in that it
had threatened its employees with loss of benefits, and
had promised them benefits , to influence them to reject
the Union , and had "favorably " changed benefits and
working conditions , for them in order to dissipate the
Union ' s majority status. On the same date , the Union
initiated Case 27-CA-2755 by filing an unfair labor prac-
tice charge against the Company , and on September
5, 1969 , the Board ' s General Counsel issued a complaint
based on the charge . As subsequently amended, the
complaint alleges, in material substance , that the Union
has been the collective -bargaining representative of the
employees in the appropriate unit (notwithstanding the
election results) at all times since May 22 , 1969; that
the Company has refused to recognize and bargain collec-
tively with the Union as such representative , thus violat-
ing Section 8(a)(5) and ( 1) of the National Labor Relations
Act2 (herein the Act); and that the Company has violated
said Section 8(a)(1) by threatening employees with repris-
als, and promising and granting them rewards and ben-
efits, in order to dissipate the Union ' s majority status
and induce employees to refrain from membership in,
or activities on behalf of , the Union. ,
The Company has filed an answer denying , in sub-
stance , the commission of the alleged unfair labor prac-
tices.
The complaint and the . objections include substantially
common allegations of unfair labor practices, and, fol-
lowing an investigation , the Regional Director for Region
27 issued a report on the objections , dated September
5, 1969 , and, by an order bearing that date , directed
that Case 27-CA-2755 and Case 27-RC-3644 be "consol-
idated for the purposes of hearing , ruling, and decision
by a Trial Examiner. "3
Such a hearing was held before me as duly designated
Trial Examiner at Denver, Colorado , on October 28,
1969. The General Counsel and the Respondent appeared
' Waters Distributing Company is not a legal entity but a trade
name for an individual , Donald Parker Waters, who owns and operates
the enterprise , and is the actual employer involved here In the absence
of a motion by any party, I refrain from amending the caption of
this proceeding or any pleading to reflect the individual ' s status as
employer or respondent Such a motion may appropriately be addressed
to the Board following issuance of this decision In any case, as
used herein , the trade name and the terms "Respondent " and "Compa-
ny" also refer to Donald Parker Waters, doing business as Waters
Distributing Company
229USC 151,etseq
Copies of the charge , the complaint , the Regional Director's report
on the objections , his order of consolidation , and a notice of hearing
in the consolidated proceedings have been duly served on the Respond-
ent
WATERS DISTRIBUTING CO. 969
through respective counsel, and all parties were afforded
a full opportunity to adduce evidence, examine and
cross-examine witnesses, and submit oral argument and
briefs.
Upon the entire record, from my observation of the
demeanor of the witnesses, and having read an consid-
ered the briefs submitted to me since the hearing, I
make the following findings of fact:
FINDINGS OFFACT
I: NATURE OF THE COMPANY'S BUSINESS; JURISDICTION
OF THE BOARD
Donald Parker Waters (also Waters herein), under
the trade name and style of Waters Distributing Compa-
ny, is engaged' in the sale and distribution of dairy
products and other foods, at wholesale, in Denver,
Colorado, where he maintains an office and place of
business, including a warehouse;, employs individuals
in his enterprise; and is, and has been at all times
material here, an employer within the meaning of Section
2(2) of the Act.
In the course and conduct of his business operations
in Colorado,, Waters -annually" purchases products
worth in excess of $50,000 from suppliers located outside
that State and causes such products to be shipped into
Colorado. By reason of said purchases and shipments,
Waters is, and has been at all material times, engaged
in interstate commerce and in operations affecting such
coli'inierce, within the meaning of Sections 2(6) and
2 (7) of the Act. Accordingly, the Board has jurisdiction
over the subject matter of this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
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
As the record establishes, without dispute, all employ-
ees employed by Donald Parker Waters, doing business
as Waters Distributing Company, at his business premis-
es in Denver, Colorado, excluding all office clerical
employees, salesmen, guards, professional employees,
and supervisors as defined in the Act, constitute, and
have constituted at all material times, a unit appropriate
for the purpose of collective bargaining, within the mean-
ing of Section 9(b) of the Act.
At all such times, the unit has consisted of five
employees. These, as well as a sales manager, Ray
Henson, who is not in the unit, work under the supervi-
sion of Waters. Henson, like Waters, is, and has been
at all material times, a supervisor within the meaning
of Section 2(11) of the Act.
In January 1969,4 Waters instructed Henson to secure
information from several insurance companies regarding
a group medical insurance program covering employees
and management personnel of the enterprise. Henson,
assisted by Waters' secretary, Bernice Rose (also, like
Henson, not in the bargaining unit), complied, with
the result that between the latter part of January and
the early part of May various insurance agents submitted
proposals to the management. The Company adopted
none of these.
On May 14, an insurance agent named Middel under-
took, in a conversation with Waters, to prepare a group
medical insurance plan for submission to the employees
in the unit, and in a subsequent conversation, held
on May 17, agreed with Waters to meet with the employ-
ees for a discussion of the proposed program.
On May 20, Middel submitted such a plan to the
Company, and, as agreed by him and Waters, he met
with Waters and the employees on May 23. As the
General Counsel and the Respondent have stipulated,
"various plans" were discussed at the meeting. Details
of the discussion do not appear, but, in any case,
the stipulated fact is that "the employees made no
decision as to the selection of a plan." (There is, in
fact, no evidence that any plan was submitted to them
for their "decision" on the occasion.)
About a week before the meeting , on May 16, two
employees in the bargaining unit defined above, Pedro
J. Arroyo and Santiago D. Montoya, completed, execut-
ed, and mailed cards to the Union, each of the two
men thereby authorizing the organization to represent
him as his "collective bargaining agent." The cards
were received by the Union on May 19.
On May 22, a third employee in the unit, Ron Stanley,
completed, signed, and gave the Union a card in its
office , similarly authorizing the organization to act as
his collective-bargaining representative. While at the
office, apparently before signing the card, Stanley had
a conversation with a representative of the Union,
George Sersante, centering mainly on the Union's
"health and welfare" program. Stanley stated that the
Respondent had no such program, and asked Sersante
whether the Union, in the event it secured "bargaining
rights" as a result of execution of the card, would,
in contract negotiations, attempt to secure application
of the Union's medical insurance program, with which
he had become familiar in another employment, to the
Respondent's employees. Sersante replied that the Union
would try to do so.
With the delivery of the third card, the Union held
authorizations from a majority of the employees in
the unit, and on the following day, May 23, the organiza-
tion mailed a letter to the Company, stating that a
majority of the employees in the unit had authorized
the Union "to represent them on all matters pertaining
to their wages, hours of work and other terms and
conditions of employment," and that the Union was
"in a position to prove" its representative status; and
' Unless otherwise specified, all dates mentioned below occurred
in 1969
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requesting a meeting at a specified date, time, and place
for the purpose of negotiating an agreement covering
terms and conditions of employment of the employees
in the unit The Company received the letter in "due
course of the mails" or, in other words, on May 24
or 25
On May 26, Henson, on behalf of Waters, prepared
and mailed a reply to the Union, asserting that the
Respondent had "a good faith doubt" that the Union
then represented a majority of the employees in an
appropriate bargaining unit, suggesting that the Union
avail itself of the National Labor Relations Board's
procedures "to resolve" the claim of representation,
and stating that Waters was then out of the city, and
that the Union's letter would be referred to him on
his return
The Union filed its representation petition in Case
27-RC-3644 with the Board's Denver Regional Office
on June 6, and on June 19 Waters and the Union
entered into an agreement for a consent election, to
be held on July 11, under the Board's auspices 5
On July 7, which was payday for the employees
in the unit, Waters placed in their respective pay enve-
lopes identical copies of a letter addressed to "Dear
Employee," and signed by him as "Don " The pertinent
portions of the letter follow
As owner of Waters Distributing Company, I
feel you will find the following advantages in remain-
ing non-union We have a small concern and we
are trying to build a good, solid company We
feel our employees are working to build the compa-
ny, rather than just having a job
With our personal interest in you as an individual,
and as a small, non-union company, in the past
we have paid our employees when they have been
sick or absent from work for some reason We
have paid a bonus at Christmas time and held
a company Christmas party In addition, after work-
ing for the company for a year, you will receive
two weeks vacation with pay We can continue
with these benefits if we remain a non-union compa-
ny
As you all know, three months ago you asked
that we find a group health insurance for you
Each of you signed up for this benefit After survey
ing all health insurance policies, we have presented
to you the one which seems most beneficial This
policy would cover health and accident, disability
and life insurance Should we remain a non-union
company, the company would pay for the individual
employee' s premiums for sickness, accident, disa-
bility and life insurance You would pay the premi
um for coverage for the rest of your family As
3 The form of execution of the agreement for the Employer is Waters
Distributing Co By Donald P Waters President For reasons previously
indicated I treat the agreement as one between Waters as the Employer
and the Union
the company prospers, we hope to pay the entire
amount for you As [sic] the moment, however,
we cannot begin the plan because of the possibility
of an unfair labor practice charge
The election was held on July 11 with the results
previously mentioned, and was followed by the Union's
objections under consideration here
On July 28, Middel and Waters met again with the
employees in the unit It does not appear who initiated
the meeting and details of what took place are scant,
the record establishing no more than the stipulated fact
that "the employees filled out applications for medical
insurance and other benefits " However, as I infer from
a stipulation in the record, the applications were for
a group health, accident, disability, and life insurance
policy which the Respondent put into effect on August
1, without any consultation with the Union The policy
covers all of the employees in the bargaining unit (but
no dependents), as well as Waters, Henson, and Rose
The employees in the bargaining unit contribute nothing
to the cost of the policy, the Respondent bearing the
total premium cost
B Discussion of the Issues, Concluding Findings
The General Counsel's allegations of unlawful promis-
es and threats by the Respondent center on two of
the three paragraphs excerpted above from Waters' letter
of July 7 One of the two paragraphs in question in
effect recalls for each recipient employee that he had
received the "benefits" of paid time when absent for
such a reason as illness, an annual Christmas bonus,
and "a Company Christmas party", then promises that
"in addition, after working for the Company for a
year, you will receive two weeks vacation with pay",
and closes with a statement that the management "can
continue with these benefits if we remain a non-union
company "
The letter makes no explicit reference to the election,
but, taking its timing and setting into account, there
can be no doubt that it was designed to influence the
employees' votes in the election, which was then only
a few days off With that in mind, it is clear that
the promise of a paid vacation was bait to induce the
employees to reject the Union
Moreover, the concluding sentence in the paragraph
to the effect that the Respondent "can continue" the
specified benefits if the enterprise remains "non-union"
was directed to the same end The statement was no
privileged prediction that the economic consequences
of unionization would preclude the continuance of the
benefits, for the test for application of such a privilege
is whether the language used was "carefully phrased
on the basis of objective fact to convey (the) employer's
belief as to demonstrable consequences (of unionization)
beyond his control" (N L R B v Gissel Packing Co ,
395 U S 575, 618) The language in question conveys
no meaning, "on the basis of objective fact," that
the employees' choice of the Union as their bargaining
representative would require the elimination of the exist-
ing benefits On the contrary, the employees would
WATERS DISTRIBUTING CO.
reasonably be warranted in reading the sentence, in
its context, and in the light of the impending election,
as a warning that what the Respondent "can" bestow,
he "can" also withhold and as a threat to do the
latter if they voted for the Union. The concluding sen-
tence, like the promise of a paid vacation that preceded
it, was, in short, coercive, and unlawful.
I reach the same result with the other paragraph
in question, which contains a promise that in the event
"we remain a non-union company," or, in other words,
if the employees reject the Union in the election, the
Respondent "would pay for the individual, employee's
premiums for sickness, accident, disability, and life
insurance."' To this is joined an intimation of an added
reward, expressed as a "hope," to the effect that in
the additional event that the Respondent's business pros-
pered, he would assume the premium cost of including
the employee's family in the insurance coverage.7
Summarizing the matter, I find that the Respondent
interfered with, restrained, and coerced employees in
the exercise of rights guaranteed them by Section 7
of the Act, thereby violating Section 8(a)(1) of the
statute, as a result of (1) the promise of a paid vacation;
(2) the statement to the effect that the specified benefits
"can" be continued, provided the enterprise remained
"non-union"; (3) the promise to pay the "individual
employee's premiums" should the enterprise "remain
. . . non-union"; and (4) the expressed "hope," partially
conditioned as it was, by implication at least, on rejection
of unionization, that the paid coverage would be extend-
ed to include the employees' respective families."
In his brief, the Respondent, noting that insurance benefits provided
by a contract between the Union and an association of employers
in the same industry as the Respondent are substantially larger than
those contemplated by him, views the relevant remarks as merely
a factual comparison between the contractual benefits and those he
had in mind The short answer is that the letter makes no reference
to the contractual benefits and that, contrary to the Respondent, it
is not established that all of the unit employees were aware of these
But even if one assumes such knowledge, the fact remains that the
plain thrust of the relevant statement is a promise of insurance benefits
conditioned on rejection of the Union The language used speaks for
itself and is a clear interference with the electoral process, and the
subjective guess, implicit in the Respondent's position, that the promise
had no impact on the employees is beside the point
' There is no evidence to support the statement in the relevant
paragraph that the employees had "asked" the management to "find
group health insurance" for them or that each had already "signed
up for this benefit " Waters testified 'that he did not himself discuss
any of the insurance plans with any of the unit employees and that
the various plans were submitted to them on July 26 (meaning, perhaps,
at the meeting of July 28, attended by Middel) The stipulated fact
is, moreover, that the employees signed applications for group insurance
at the July 28 meeting, some 3 weeks after they were given copies
of the July 6 letter In any case, the self-serving statements in the
letter that the employees "asked" that a group insurance plan be
found and that they "signed up for this benefit" do not affect the
results in this proceeding
" I find no effective point in a position, expressed by the Respondent's
counsel at the hearing, that there is no evidence that the employees
actually read the letter of July 6. It would seem to be obvious that
the Respondent enclosed a copy of the letter in each employee's pay
envelope on July 6 as a potent means of bringing the contents of
the letter to the employees' attention in advance of the election and
with an intended impact on the election results. In the absence of
evidence to the contrary, it is fair to conclude, and I find, that each
recipient employee became aware of the contents at some point after
971
These findings require denial of validity to the election
results. Although the preelection misconduct was encom-
passed in a single communication to the employees,
the language of promise and threat it contained covered
a' substantial range of terms and conditions of employ-
ment , some , at least , such as the paid vacation and
group health insurance benefits, of manifest importance.
The coercive statements warrant invalidation of the elec-
tion results with or without evidence of the interest
of any employee in the benefits , but it is nevertheless
worth noting that the Union represented a majority
of the unit as of the time of execution of an authorization
card by Stanley on May 22 and that ; on that occasion,
he evinced an interest in securing medical insurance
coverage through union representation.
I find that the allegations of the objections to the
effect that the Company threatened a loss of benefits
in the event of "acceptance of the . . . Union," by
the employees , and promised a "gain of benefits condi-
tioned upon rejection . . . of the . . . Union as the
employees ' bargaining agent ," are sustained ; and that
by such conduct , found above to be unfair labor prac-
tices, the Respondent prevented a fair election . Accord-
ingly, I shall recommend that the election be set aside.'
Moreover, I am in accord with a position of the
General Counsel to the effect that it would be inappropri-
ate to hold another election , that effect should be given
to the Union ' s card majority , and that the Respondent
has unlawfully refused to bargain with the Union. On
that score , the Respondent's claim that it had, or has,
a good -faith doubt of the Union ' s representative status
is immaterial , for, under doctrine ' recently expressed
by the Supreme Court in N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575, the test of the continuing efficacy
of the Union's card majority is not the Respondent's
conception of the Union ' s status, but whether he has
engaged in "practices which . . . have the tendency
to undermine majority strength and impede the election
processes . . . . If the Board finds that the possibility
of erasing the effects of past practices and of ensuring
a fair election (or a fair rerun) by the use of traditional
remedies , though present , is slight and that employee
sentiment once expressed through cards would , on bal-
ance, be better protected by a bargaining order, then
such an order should issue " ( id. at 614-615).
Applying that test here , and taking into account the
broad compass of benefits affecting the entire unit that
were the subject of threat or promise, or both, in the
letter of July 6, one could fairly argue that the unfair
labor practices embodied in the letter were of sufficient
gravity to preclude the "laboratory conditions " neces-
he received his copy and before he voted.
9 It is not 'clear what is meant by a claim in the objections that
the Company "favorably changed the monetary benefits and working
conditions of its employees " Obviously, the claim does not refer
to the group insurance which was instituted some weeks after the
objections were filed Perhaps the reference is to the promise of paid
vacations, but that falls within the scope of the allegation of "promises
of benefits," as to which findings have been made. In the absence
of explication of the reference to "favorably changed . . monetary
benefits and working conditions ," I treat the relevant allegations as
surplusage , and make no findings thereon.
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary for a fair rerun election , but I deem it unnecessary
to decide that point , for the Respondent ' s misconduct
did not end with the letter , but was compounded by
the timing of the group insurance policy which went
into effect on August 1, while the objections to the
results of the election were awaiting resolution.
It is beside the point that Waters had been interested
in a group insurance program prior to any indication
of prounion sentiment among his employees , and had
previously been exploring the cost of such a program,
for, granting the innocence of his prior interest, the
question of his motive for putting the program into
effect when he did still remains.
Asked to explain the timing of the alleged submission
of the program to the employees " in late July " (meaning,
presumably , at the July 28 meeting), he testified that
"that ' s the time that we had everything set up to go
and that we had, that they set up a plan that they
would like to take ." It is not quite clear whether by
"they " he means his rank-and-file employees or his
sales manager and secretary who had both been looking
into various plans for him . If his reference is to the
employees , there is no evidence , apart from his conclu-
sional statement , that they " set up anything" before
they "signed up" on July 28 . Henson and Rose did
not testify , and Waters admittedly did not disucss any
of the "various plans" with any of the employees in
the unit prior to July 28 . What is more , we are not
told what took place at the meeting of July 28 , except
that the employees "filled out applications," a fact
that does not of itself establish the Respondent ' s claim,
expressed in his brief , that "the employees chose to
adopt an insurance plan which they , themselves , select-
ed," and that "(i)t was not a plan selected by (the)
Employer . " 10 Without implying that any participation
by any or all of the unit employees in the choice of
the plan would have the effect of exonerating the
Respondent from the consequences of the timing and
payment for the program , the sum of the matter is
that the record amply warrants a conclusion, and I
find, that the Respondent initiated and sponsored the
insurance program which went into effect on August
1, and was responsible for its timing.
To say, as Waters does, that the plan was "submitted"
at the July 28 meeting because " that 's the time that
we had everything set up" is practically meaningless
in terms of the relevant issue , for the explanation leaves
one in the dark as to the reason why the Respondent
chose to put the insurance into effect while the objections
were pending, rather than after their disposition. To
be sure , Waters subsequently added that his sales manag-
er and secretary were covered by other medical insur-
'" On Waters ' direct examination by his counsel he was asked "why
the insurance plan which was ultimately adopted by the men was
submitted to them in late July" and he gave the reply previously
described The reference to "the insurance plan ultimately adopted
by the men " incorporated an alleged fact not in evidence , and was
obviously improper , and, plainly , the reply, which purported to state
the reason for the alleged submission of the insurance program to
the men, will not support a finding that the employees, rather than
the Company , "selected" the plan
ance , that premium payments were due from them on
that insurance on August 1, and that "one of the reasons''
the new plan was put into effect on that date was
"so they could save their payment on the one they
were carrying" (by reason of their coverage by the
new policy for which the Company would thenceforth
pay). But this appears to me to be glib rather than
candid . As is evident from his letter of July 6 , Waters
was aware that the institution of an insurance program
during the pendency of a question of representation
might be viewed as an unfair labor practice , and thus
one would think that in the interests of a fair rerun
election, in the event the objections were sustained,
he would permit his secretary and sales manager to
continue paying their own insurance premiums for a
while longer. And if he wished to spare them the cost
of premiums on their existing coverage after August
1, as he claims in effect , he could simply have assumed
the cost pending the disposition of the objections. In
short, I do not credit the reasons Waters offers for
providing the insurance for the employees in the bargain-
ing unit when he did.
The total record tells us the real reason. The Respond-
ent's preelection misconduct , including a promise of
a comprehensive group insurance program for his
employees , without cost to them , and an intimation
that such free coverage could in time be extended to
their family members, had been followed by rejection
of the Union by a majority of the unit by a margin
of one vote . Then came the objections . If they were
sustained , and another election ordered , the establish-
ment of the program would probably be no less useful
in subverting a second election than the promise of
the program in undermining the first . Although it would
appear from Waters' preelection letter that he visualized
the possibility that a grant of such benefits in the setting
of a question of representation might be regarded as
an unfair labor practice , it is also likely that he felt
it to be a risk worth taking, as was plainly the case
with the unfair labor practices in which he engaged
almost on the eve of the election . His failure to give
a plausible explanation of the timing of the insurance
policy adds weight to a conclusion that an ulterior motive
underlay the action , and I am persuaded , and find,
in the light of the full record , that the coverage was
put into effect when it was in order to influence the
employees' vote in the event the objections resulted
in a rerun election; and that by such conduct, the
Respondent interfered with , restrained , and coerced
employees in the exercise of Section 7 rights, and thereby
violated Section 8(a)(1) of the Act.
The Respondent makes no claim that the authorization
cards were improperly secured ; their language of designa-
tion of the Union as bargaining representative is clear
and unequivocal; and, as the signatory employees consti-
tuted a majority of the relevant unit with the execution
of the third card , I find that the Union was the duly
authorized bargaining representative of all the employees
in the unit as of the time of the bargaining request
of May 23 , and, of Henson 's reply of May 26, which
WATERS DISTRIBUTING CO 973
amounted to a refusal by the Respondent to recognize
and bargain with the Union
The unfair labor practices that followed were tanta-
mount to rejections of the collective-bargaining principle,
and to refusals to bargain, and were of sufficient gravity
to render it unlikely that a rerun election would be
free of their taint, even if the Respondent is required
by order of the Board to cease and desist from such
practices in the future To withhold a bargaining order
in the face of the clear evidence of the Respondent's
disposition to interfere with the electoral process is
to invite additional frustration of the policies of the
Act (Gissel at 610-611), and it appears to me that the
way "to effectuate employee rights [here] is to re-
establish the conditions as they existed before the
employer' s campaign" (id at 612) These conditions
included representation by the Union of a majority
of the unit, by force of the executed authorization
cards, and I hold, in short, that that status should
be given continuing effect
In sum, as regards the bargaining issues, I find, for
the reasons stated, that the Union is, and has been
at all material times since May 22, 1969, the exclusive
representative of the relevant unit for collective-bargain-
ing purposes, within the meaning of Section 9(a) of
the Act, and that by the refusals to bargain, including
the establishment of the group insurance policy for
such employees without consultation with the Union,
the Respondent has violated Section 8(a)(5) of the Act,
and has interfered with, restrained, and coerced employ-
ees in the exercise of Section 7 rights, thereby violating
Section 8(a)(1) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
1 Donald Parker Waters, doing business as Waters
Distributing Company, is, and has been at all material
times, an employer within the meaning of Section 2(2)
of the Act
2 The Union is, and has been at all material times,
a labor organization within the meaning of Section 2(5)
of the Act
3 All employees of Donald Parker Waters, doing
business as Waters Distributing Company, employed
at his business premises in Denver, Colorado, excluding
all office clerical employees, salesmen, guards, profes-
sional employees, and supervisors as defined in the
Act, constitute and have constituted at all times material
here, a unit appropriate for collective bargaining, within
the meaning of Section 9(b) of the Act
4 The said Union is, and has been at all material
times, the exclusive representative of all the employees
in the aforesaid appropriate unit for the purposes of
collective bargaining , within the meaning of Section
9(a) of the Act
5 By refusing to bargain collectively with the Union,
as the exclusive representative of the employees in
such unit, as found above, the Respondent has engaged,
and is engaging, in unfair labor practices within the
meaning of Section 8(a)(5) of the Act
6 By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed them
by Section 7 of the Act, as found above, the Respondent
has engaged, 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 commerce within the meaning of Sec-
tion 2(6) and 2(7) of the Act
RECOMMENDED ORDER
The activities of the Respondent set forth in Section
III, above, occurring in connection with the operations
of the Respondent described in Section I, above, have
a close, intimate, and substantial relation to trade, traffic,
and commerce among the several states, and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce
V THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices violative of Sections 8(a)(1) and
8(a)(5) of the Act, and in misconduct affecting the results
of the election, I shall recommend below that the
Respondent cease and desist from the unfair labor prac-
tices found and take certain affirmative actions designed
to effectuate the policies of the Act, and that the election
be set aside
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
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
proceeding, I recommend that Donald Parker Waters,
doing business as Waters Distributing Company, his
agents, successors, and assigns, shall
I Cease and desist from
(a) Promising, offering, or granting any benefit or
improvement in any terms or conditions of employment
in order to induce or encourage any employee to refrain
from membership in, or support or activities on behalf
of, any labor organization
(b) Warning, threatening, or otherwise informing any
employee in any manner, directly or indirectly, that
any benefit or term or condition of employment may
or will be withheld, denied, or altered in any manner
if any employee joins, supports, or engages in any
activity on behalf of any labor organization
(c) Refusing to bargain collectively with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No 537, as
the exclusive bargaining representative of his employees
in a bargaining unit consisting of all employees employed
by him at his business premises in Denver, Colorado,
excluding all office clerical employees, salesmen, guards,
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
professional employees, and supervisors as defined in
the National Labor Relations Act, with respect to wages,
hours of work, and any other terms and conditions
of employment of such employees.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
any 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 Act:
(a) Upon request, bargain collectively with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No.
537, as the exclusive representative of the employees
in the bargaining unit found appropriate above, with
respect to their wages, hours of work, and any other
terms and conditions of employment; and if an agreement
is reached, embody it in a signed contract.
(b) Post in conspicuous places at his place of business
in Denver, Colorado, includng all places where notices
to employees are customarily posted, copies of the
said notice attached hereto. Copies of the said notice
to be furnished by the Regional Director for Region
27 of the National Labor Relations Board, shall, after
being signed by the said Respondent, or his duly author-
ized representative, be posted by him immediately upon
receipt thereof, and maintained by him for 60 consecutive
days thereafter in such conspicuous places. Reasonable
steps shall be taken by the said Respondent to insure
that said notices are not altered, defaced, or covered
by any other material."
(c) Notify the said Regional Director, in writing, with-
in 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply therewith."
11 In the event no exceptions are filed as provided by Sec. 102.46
of the Rules and Regulations of the National Labor Relations Board,
the findings , conclusions , recommendations , and Recommended Order
herein shall, as provided in Sec . 102 48 of the Rules and Regulations,
be adopted by the Board and become its findings, conclusions, and
order, and all objections thereto shall be deemed waived for all purposes
In the event that the Board's Order is enforced by a Judgment of
a United States Court of Appeals, the words in the notice reading
"Posted by Order of the National Labor Relations Board" shall be
changed to read "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations
Board "
12 In the event that these recommendations are adopted by the Board,
par. 2(c) thereof 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 therewith."
APPENDIX
the National Labor Relations Board has found that
I have violated the National Labor Relations Act,
and has ordered me to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mutual
aid or protection
To refrain from the exercise of any or all
such activities
I WILL NOT promise , offer, or grant any benefit
or improvement in any term or condition of employ-
ment in order to induce or encourage any employee
to refrain from membership in, or support or activi-
ties on behalf of, any labor organization.
I WILL NOT warn, threaten, or otherwise inform
any employee, in any manner, directly or indirectly,
that any benefit or any term or condition of employ-
ment will be withheld, denied, or changed in any
way if any employee joins, supports, or engages
in any activity on behalf of any labor organization.
I WILL NOT refuse to bargain collectively regard-
ing wages , hours of work , and any other term
or condition of employment with International
Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , Local Union No.
537, as the exclusive bargaining representative of
all my employees at my business premises in Den-
ver, Colorado , excluding clerical employees , sales-
men, guards , professional employees , and supervi-
sors as defined in the National Labor Relations
Act.
I WILL NOT in any other like or related manner
interfere with any employee's exercise of any of
his rights described above.
I WILL, upon request , bargain collectively with
International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America,
Local Union No. 537, as the exclusive bargaining
representative of all the employees in the said
bargaining unit.
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
I hereby notify my employees that:
After a hearing at which all sides had an opportu- Dated By
nity to present evidence and state their positions,
DONALD PARKER
WATERS, DOING BUSINESS
AS WATERS
DISTRIBUTING COMPANY
(Employer)
(Representative) (Title)
WATERS DISTRIBUTING CO 975
This notice must remain posted for 60 consecutive or compliance with its provisions , they may communicate
days from the date of posting and must not be altered, directly with the Board 's Regional Office, Room 260,
defaced, or covered by any other material New Customs House, 721 19th Street, Denver, Colorado
If employees have any question concerning this notice 80202, Telephone 297-3551