Texaco Inc.

434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Texaco Inc. (Evansville, Indiana Bulk Station) and Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-3163 September 17, 1969 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND ZAG ORIA On February 6, 1969, Trial Examiner Anne F. Schlczinger issued her Decision 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 Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations he dismissed. Thereafter, the General Counsel and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, the General Counsel filed a reply brief, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel The Board has reviewed the rulings of the Trial Examiner 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 modified herein 1. We find, contrary to the Trial Examiner, and in agreement with the Respondent. that the June 4. 1968,' speech of David Martin, supervisor of Employee Relations and Training for the Respondent's Sales Department, to the assembled employees amounted to no more than an expression of views and opinions as to the advantages and disadvantages of union representation' and did not contain any threats of loss. We therefore find that the speech was within the protection of Section 8(c) of the Act and did not violate Section 8(a)(1) of the Act.' 2. We take however a much more serious view of Martin's conduct after he had concluded his speech on June 4, and his conduct on June 6, when he reassembled the employees for a further discussion 'All dates hereinafter are in 1968 'Howmet Corporation . Austenal Microcast Division, 171 NLRB No V3 'Member Brown, for the reasons set forth in the Trial Examiner's of their grievances. While we have indicated that his earlier remarks found protection as being within the free speech purview of the Act, his subsequent solicitation of employee grievances can no longer be said to fall within the protection of Section 8(c). We note that Martin came to Evansville for the first time to talk to the employees only three working days after he had been advised by Respondent's Supervisor of Employee Relations at its St. Louis division about the filing of a petition by the Evansville employees. After concluding his speech on June 4, Martin invited the employees to present their grievances directly to the Respondent and to discuss them with him. In so doing Martin made clear that he was contemplating bargaining for he stated to the employees that "these matters will have to conic out whether you're union or not union ." To that extent his invitation was not an expression of a simple curiosity as to what in the employees' working conditions disturbed them to the point where they desired to have union representation. I-or it is also clear that he went beyond merely ascertaining the nature of their grievances, but explored with them the means of satisfying then, to a large extent he did just that. Thus, matters such as paying overdue repair bills, repairing or replacing unsafe equipment, and paying employees for past and current meal allowances, about which employees had complained for years, were in a matter of 2 days adjusted to the apparent satisfaction of the employees. It is significant that shortly' thereafter all seven employees who had met with Martin and who had previously signed Union cards sent a letter of withdrawal to the Union The delays in remedying the matters involved in various complaints could hardly be considered as merely an oversight in implementing existing company policies, in view of the fact that solicitation and resolution of the complaints followed quickly upon the employees' indication of interest in unionization and the Respondent's expression of its strong opposition to union organization. In our view. the employees could only look upon the Respondent's actions as an effort by the Respondent to discourage their union activities and to invite direct dealing with the Respondent. In conclusion, there can be no doubt that the purpose of the two "gripe sessions." which were initiated by management, was to undermine the Union by determining what was motivating the employees' organizational efforts, and by impliedly promising that the grievances would be resolved. Solicitation of grievances for such purposes is in itself a violation of Section 8(a)(1)' as was Respondent's discussion and adjustment thereof We therefore agree with the Trial Examiner that Respondent by such conduct violated Section 8(a)( I) of the Act. Decision would find that Martin's June 4 speech was violative of Sec. 8(a)(1) 'Eagle-Picher Industries , Inc , Llectronics Division , Precision Products Department, 171 NLRB No 44 178 NLRB No. 72 TEXACO INC. 43 5 3. The complaint alleged that the Respondent violated Section 8(a)(5) of the Act by its refusal to bargain with the Union as the lawful representatik e of the Respondent's employees in an appropriate unit. The Trial Examiner found otherwise, but we do not agree with her. The critical facts in brief, about which there is no substantial dispute, show that in its letter to the Respondent requesting recognition, and in its petition seeking a representation election, which was filed on the same date as the letter, May 27, the Union described the unit which it sought to represent as: "All drivers and warehousemen at Owensboro, Ky. and Evansville Indiana establishments" excluding "all others, all guards, professional employees, office clerical employees and all supervisors as defined in the Act." In the petition the Union stated the number of employees in the proposed unit was seven. At Owensboro, Kentucky, the Respondent pays a consignee who displays the Texaco trademark and sells Texaco products, for the convenience of keeping a truck and certain products at his premises in Owensboro, because it is a terminal point for distribution of Respondent's products. Two of the Respondent's drivers work out of that location. It appears that Respondent's supervisor Smith in charge of the Evansville operation goes to Owensboro only three or four times a month and that the drivers based at Owensboro come to Evansville infrequently. However, it is agreed that the drivers based at Owensboro are on the Evansville payroll, handle the same products, and have the same wage rates, fringe benefits, uniforms and supervision as the five Evansville employees. The Union's letter and petition were received by Smith and forwarded to the St. Louis office and then sent on to the Respondent's legal department in New York. Respondent's counsel Mitchell, allegedly concerned that the description of the proposed unit might be read as including employees of the consignee at Owensboro, discussed the matter with the Board's Regional Office and also discussed entering into a consent election agreement. Ultimately, the parties agreed to eliminate the reference to an Owensboro "establishment" and to describe the unit as including: "All truck operators and warehousemen of the Employer operating out of its Evansville, Indiana Bulk Station" excluding `'all office clerical employees, and all professional employees, guards and supervisors as defined in the Act." At no time, however, did the Respondent contend that the Respondent's employees based in Owensboro were not part of the proposed unit, nor does it appear that the Union ever sought to represent the consignee's employees. The Union's May 27 request for recognition was never answered by the Respondent. On these facts the Trial Examiner found that the Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain with the U nion. because the Union had failed to define the unit with "clarity and precision" and the Respondent had a good-faith doubt as to the proposed unit. The Trial Examiner further found that the unfair labor practices committed by the Respondent were not sufficient to establish the Respondent's bad faith and vitiate the claim that its failure to recognize the Union was lawfully motivated. For one thing we can see no element of inappropriateness in the unit set forth in the Union's letter requesting recognition and bargaining. The Union's letter referred to "your" employees and the Union's petition stated the number of employees in the unit it sought to represent as seven. The Union did not claim to represent the consignee's employees and there is no eN idence to the contrary. The fact that Respondent's counsel professed to see a possible flaw in the unit as described by the Union, and the fact that the Union agreed to change the description, did not thereby make the Union's original proposed unit inappropriate. In the circumstances we cannot accept the Trial Examiner's finding that the Union's failure to make another demand after the unit had been "clarified" exonerated the Respondent from its obligation to recognize the Union. It is now established that serious illegal activity accompanying an employer's refusal to grant recognition and to bargain with the majority representative of its employees destroys the necessary conditions for the holding of a free and lair election.` Here, the Respondent, upon learning of the Union's petition and letter. immediately dispatched one of its top executives, Martin, to speak to the employees and to urge them to vote against the Union. Martin not only initiated meetings at which he solicited the employees' complaints, but he also promised and took corrective action thereon, and gave the employees his name and New York address as assurance of future adjustments of grievances. Conditions about which the employees had complained for years were changed only after employee complaints were elicited by the Respondent at the same time it was urging the employees to vote nonunion . We can conceive of no conduct which is more calculated to undermine the Union and dissipate its majority than where the employer, as here, solicits and adjusts employees' grievances and engages in collective bargaining with them while conducting a campaign against unionization , particularly where as here the Respondent's efforts were successful. We cannot assume in the face of Respondent's misconduct, that if we were to issue our customary cease-and-desist order and direct an election. the pervasive effect of that misconduct would be erased and the employees would be able to express their true sentiments in respect to the selection of a bargaining agent. In the circumstances of this case 'N L R B v GLvsel Packing Co . Inc. 395 U S 575 436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we have no reason to believe that the authorization cards signed by all seven employees did not reflect their true desires for representation by the Union.' We think that on balance it is more appropriate to protect these employees' statutory rights and interests by directing the Respondent to recognize and bargain with their designated representative than to direct an election. In view of the foregoing and on the record as a whole, we find that by refusing to recognize and bargain with the Union, the Respondent violated Section 8(a)(5) and (1) of the Act, and that the policies of the Act will be effectuated by the imposition of a bargaining order as a remedy for such conduct. THE REMEDY We have found in agreement with the Trial Examiner that the Respondent engaged in conduct violative of Section 8(a)(1) of the Act and accordingly we adopt her remedial recommendations in that regard. However, we have found, contrary to the Trial Examiner, that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. We therefore order that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the record as a whole, we make the following: ADDITIONAL CONCLUSION OF LAW By refusing to bargain collectively with Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of its employees in an appropriate unit composed of "all truck operators and warehousemen of the Respondent operating out of its Evansville, Indiana Bulk Station,' excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act," the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and Section 2(6) and (7) of the Act. 'Member Zagoria adopts the Trial Examiner 's finding as to the validity of the authorization cards obtained from employees Blackburn, Kirkpatrick, and Halden Garrett, in the absence of exceptions In any event, the Union's majority is unaffected 'As set forth above, the record shows that the parties understand and have agreed that the unit as thus described includes the Respondent's employees based at Owensboro, Kentucky ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Texaco Inc. (Evansville, Indiana, Bulk Station), Evansville, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of its employees in an appropriate unit composed of "all truck operators and warehousemen of the Respondent operating out of its Evansville, Indiana Bulk Station, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. (h) Promising and granting benefits, and soliciting the presentation of grievances and adjusting such grievances, to discourage its employees' designation of a union representative. (c) Interrogating employees in a manner which constitutes interference in violation of Section 8(a)(1) of the Act. (d) In any like or related manner interfering with the rights of employees guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request. recognize and bargain collectively with Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the aforesaid unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed contract. (b) Post at its place of business in Evansville. Indiana, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 25, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, 'in the event that this Order is enforced by a decree of a United States Court of Appeals there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order ' TEXACO INC. what steps the Respondent has taken to comply herewith. IT IS'FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges that the Respondent violated Section 8(a)(I) of the Act by Respondent's June 4 speech. MEMBER ZAGORIA, dissenting in part. I agree with Member Fanning, for the reasons set forth in the majority opinion, that supervisor Martin's speech of June 4, 1968, was protected by Section 8(c) of the Act. However, I disagree with my colleagues' conclusion that the Respondent's unfair labor practices were of sufficient gravity to justify a bargaining order. The Respondent's sole infraction of the law was to inquire into its employees' grievances, and, in several minor respects. to satisfy them In my view, the effects of these unfair labor practices can readily be dissipated by our usual cease and desist order, and the posting of a remedial notice. I therefore would adopt the' recommendation of the Trial Examiner that the 8(a)(3) allegation be dismissed, and dissent from the contrary finding of my brethren. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order 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 WILT on request recognize and bargain with Chauffeurs. Teamsters, & Helpers Local Union 215. a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in a unit composed of all truck operators and warehousemen operating out of our Evansville. Indiana, Bulk Station, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the aforesaid Act, regarding their rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody the same into a signed contract. WE WILL NOT promise and grant benefits, or solicit grievances and adjust such grievances, to discourage our employees' designation of a union representative WE WILL NOT, interrogate our employees in a manner which constitutes interference in violation of Section 8(a)(1) of the Act WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act, as amended Dated By TEXACO I.C. (EVAN SvILIE, INDIAN A BULK STATiON) (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered. defaced, 437 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, 614 ESTA Center, 150 West Market Street, Indianapolis , Indiana 46204. Telephone 317-633-8921. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE. ANNE F. SCH LEZINGER. Trial Examiner: Upon a charge filed on June 17, 1968, by Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffers, Warehousemen and Helpers of America, referred to herein as the Union, the Regional Director for Region 25 (Indianapolis, Indiana) issued a complaint on September 6, 1968, alleging that the Respondent had engaged in conduct violative of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. In its duly filed answer, the Respondent admitted certain allegations of' the complaint but denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before me on November 12 and 13. 1968, in Evansville, Indiana. All parties were represented and were afforded full opportunity to be heard and to examine and cross-examine witnesses. The General Counsel and the Respondent have filed briefs which I have fully considered.' Upon the entire record in the case and from my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THL RESPONDENT The Respondent, a Delaware corporation, maintains its principal office and place of business at Houston, Texas. It operates facilities throughout the United States, including the facility and bulk station at Evansville, Indiana, here involved, where it is engaged in the manufacture, sale, and distribution of petroleum products. During the past year, the Respondent purchased. transferred, and delivered to its Evansville facility goods and materials valued in excess of $50,000 which were transported to said facility directly from States other than Indiana, and it sold and distributed at said facility products valued in excess of $50,000 which were shipped from said facility directly to States other than Indiana. I find that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE I ABOR ORGANIZATION INVOLVED The Respondent in its answer admits. and I find, that Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act III THE LNFAIR TABOR PRACTICES The issues herein arc (A) whether the Respondent engaged in conduct which interfered with, restrained. and 'the General Counsel's motion to file a reply brief, received January 30, 1969, is hereby denied J E Cole, 101 NLRB 1486 438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced its employees in violation of Section 8(a)(1) of the Act, and (B) refused to bargain with the Union since on or about May 28, 1968, in violation of Section 8(a)(5) of the Act A. Interference, Restraint , and Coercion 1 Martin's June 4 speech On May 27, 1968. the Union sent the Respondent a letter requesting recognition, and also filed a petition for an election A hearing on the petition was scheduled to be held on June 14 ' On June 4, David Martin, who for a number of years has been in charge of labor relations for the Respondent's sales department, came from his New York office to Evansville to make a speech to the employees. This was Martin's first visit to Evansville. He was accompanied by Robert Morgan, supervisor of employee relations of the Respondent's St. Louis Division, which includes the Evansville operation; Marvin Dimond, sales supervisor of the St Louis Division, Paul Garrett, sales manager of the Evansville District, and Paul Smith, who is in charge of the Evansville operation. Martin testified that it was his practice to make such a speech at any operation of the Respondent where an election was pending,' and that he had made this type of speech about 20 times. He did not have a prepared text but spoke from notes he uses on such occasions. The following summary and excerpts are based upon Martin's testimony. Martin began by telling the employees that he was there to ask them to vote nonunion should there he an election, but that he was not going to promise any benefits or make any threats to induce them to do so, and that the Respondent would bargain in good faith if the employees voted for the Union He stated that the Respondent's policy as to wages and fringe benefits was to maintain rates in line with competitors in the area: that it did so whether the operation in question was union or nonunion: that unions and employees had tried unsuccessfully to have this policy changed: and that when employees at Louisville, Kentucky, for example, asked for the same wage rates being paid in Cincinnati, Ohio, which were SIO-15 higher, they were refused on the ground they were competing against companies in the Louisville, not the Cincinnati, area. Martin also pointed out that, at every installation of the Respondent which was represented by the Union, the Union had accepted the Respondent's employee benefit plans as more desirable than its own plans, and that, if the employees would check the Work Policies and Practices' which the Respondent has put into effect at Evansville, they would find they had as good conditions as those in any union-negotiated labor agreement. 'Case 25-RC-3801 The hearing was postponed indefinitely 'Martin denied telling the employees he was making the speech because "the employees were in the union,' and testilied that "I had no idea if any body belonged' 'The Respondent has adopted written Work Policies and Practices at its nonunion terminals Those for Evansville are set forth in a document dated August 26, 1966, signed by Division Sales Manager Gunnels , and were reviewed by -Martin before adoption Gunnels is responsible for implementing the Work Policies at Evansville but his work covers many States Therefore , according to Martin, Morgan would "probably handle employee relations matters in behalf of the Division Sales Manager' and so would be the one implementing the Evansville Work Policies Although Morgan is under Martin' s "outline direction,' he makes no reports to Martin went on to state that an employee will be discharged only for dust cause whether the Respondent is operating under a labor agreement or Work Policies. that a union cannot prevent an employer from laying off employees if there is a lack of work. and that the best security employees can have is the security that they generate for themselves and that the employer generates through investments. Martin also stated that as far as he knew the Respondent has never removed, disciplined, or warned a supervisor "in any way merely because of a union complaint." He continued: "However, that did not mean that we did not want good relationship between our supervisors and our employees. we did. But most certainly this was an area that only we could do anything of material benefit to them about should there be problems with local supervisors." Martin stated further that, when employees elect a union representative, the Respondent must deal with a third party and "we cannot any longer deal with them on an individual basis . . 1 also spoke of the fact that they lose their individual freedom which is related to this third party thing. But as I told them, 'I think this freedom is something you should not give up easily.' "Martin further commented that -generally we do have poorer relations in union terminals than non-union terminals, and I think it's mainly because we're not dealing with our employees any longer, w'e're dealing through a third party " Martin, who estimated that the speech took more than an hour, also talked at some length about " union power," which he referred to as "something I speak of in each and every talk 1 make." lie stated in this reward that a union can first seek to bargain, but an employer may turn down any union proposal as long as it is acting in good faith. He stated further that the only other avenue available to a union is a threat of a strike or an actual strike, and that "the strike action represented the union power." He then went on to give as an example of union power the United Automobile Workers which "to my knowledge represents all of the production employees at Ford Motor Company. Now, assume that they strike Ford Motor Company. There we have an example of a large company being without any production, and we have a large group of men being without income, so you essentially have two gigantic forces working against each other " He went on to contrast this situation with the one at Evansville. As Martin testified, "1 asked it in the form of a question. 'Would you seven employees striking a $6.000,000,000.00 corporation have the same power that the United Auto Workers have when they strike Ford'? After all, there would be another 30,000 or more employees working, and worldwide we have 70 or 80 thousand employees. So you answer for yourself', you're the one that has to make the decision. Would you have real power it you went out on strike9',"` Martin proceeded to discuss what would occur it the Evansville employees did go on strike He stated that- the Respondent "has every legal right to try and operate, and try and operate we will We always try to operate during a strike. We have more than a sufficient number of supervisors fully qualified, fully licensed to drive the two Martin as to how he implements the Work Policies It is clear, in any event, that some provisions in the Work Policies had not been implemented, and that, although employees were given a copy when hired, they were unaware of some of the provisions 'Martin testified that the Respondent has about 2W terminals of the same nature as Evansville TEXACO INC. 439 trucks that are attached to the Evansville. Indiana bulk station, and we believe that we can deliver to our customers." He then asked whether these employees thought, it it were assumed that the Respondent could not continue to operate during a strike . they would be "exerting sufficient power on Texaco to make it do something against its will." and stated that "in my own judgment I question seriously if we would even miss you " Martin stated further that it the Evansville employees were to talk to those at the Respondent ' s Lawrenceville. Illinois, refinery , and Mount Vernon, Indiana, pipeline terminal, they would find that those employees "think they have all kind of power. but really if they knew the full truth they have very very little power Texaco doesn't worry too much about Lawrenceville , certainly not about Mount Vernon .. " He continued that if any operation in the United States had sufficient power to put pressure on the Respondent , it would he the Port Arthur works, which is its largest refinery as well as the "manufacturing center for every drop of base oil stock for the making of lithe oils and greases that we have in the United States." Ile then pointed out that even at Port Arthur , when there was a 10-day strike in January , the plant was up to 80 percent production at the end of the 10 days as a result of the operations of supervisory personnel. According to Martin, he then started to sum up "the various reasons why we as a company were inclined to believe that they lost through belonging to a union . All we could point out were the things we thought they might lose . and I listed six or eight of them " He pointed out, through figures set forth on a blackboard , that if the Mount Vernon terminal had been unionized for 25 years and "pay so much dues how many thousands upon thousands of dollars that the boys at the Mount Vernon terminal have spent, " and nevertheless the Evansville employees have several benefits those at Mount Vernon do not, including the fact that those at Evansville "do not have the one-day waiting period to obtain A & S benefits, sick pay. they can get an excused absence with pay " Another item of loss Martin pointed out was "the fact that they lose their individual freedom which is related to this third party thing " Martin continued , "Another item , I say, 'Now, there's a possibility that some day you might have to go out on strike . no man should belong to the union unless he's willing to support his union and strike when they recommend that he strike , because otherwise if you're not willing to strike you give your union no power. So there's the chance of loss of wages from strike."' Martin described, as an example of losses unionization could cause , what occurred at the Redwood City, California, operation , which was organized by the Union. There, Martin stated , after months of bargaining and an II-day strike, "they ended up with their 4% increase which was granted nationwide to all employees on February Ist rather than January 151 , so they lost a month of their increase . So we ended up with a contract that didn't even have a meal allowance in it, and we have such meal allowance in every non-union installation in the country . and I think in practically every union installation "6 After pointing out that "Texaco is a big mammoth company and it can take care of itself," and that the "Teamsters is a large union organization and they can 'There are provisions in the Evansville Work Policies and Practices for meal allowance payments after empioyccS work certain amounts of overtime take care of themselves," Martin urged the employees to '. ote if an election were held, and concluded that the one thing he wanted to impress upon them was "when you go in there to vote you vote for what's in your own best selfish interest " 2 Martin's meeting with the employees on June 4 After Martin completed his speech. he dismissed the management representatives, explaining to the employees that this would "make it simpler for them to at least advise us of what was on their minds," and that ''these matters will have to come out whether you're union or not union." For the following hour or so the employees proceeded to raise a number of matters. as to some of which Martin said they were "emotionally upset," one employee charging that the Respondent had made a mockery of safety Some of the matters raised by the employees involved (1) reports they heard that Dimond was going to change work schedules without discussion with the men, which was contrary to the Work Policies and Practices, (2) rumors that Dimond was going to change other employment conditions, and would discharge "the whole hunch" if they did not conform; (3) disparaging remarks about the employees made by Dimond's predecessor, Agnew. (4) indications that the drivers and the warehouseman had to buy a new type of uniform and were forbidden to wear cowboy boots; (5) the Respondent's failure to pay certain repair bills, with the result that some local garages refused to work on the trucks, which caused embarrassment as well as inconvenience;' (6) the unsafe condition of some of the equipment, and (7) the question whether employees who performed overtime work were entitled to meal allowances, which they had not been receiving. Martin answered some of the questions but deferred answers to most of them pending investigation. 3. Martin's June 6 meeting Martin had the employees summoned to another meeting on June 6. He told them he would answer some of the questions raised at the previous meeting, but would like to have the supervisors present to explain certain matters With the employees' permission, he then invited the supervisory personnel to attend. In the course of this meeting, Martin or the supervisors answered many of the questions raised by the employees on June 4 " Among other things, they (I) explained that Dimond had no intention of changing work schedules without consulting the employees, who had misinterpreted questions that Dimond, appointed to his position only about a month earlier, had asked about the schedules; (2) asserted that no employee would be discharged except for good cause, (3) apologized for Agnew's disparaging remarks: (4) stated that the Respondent required certain types of uniforms for truckdrivers as it paid part of their cost, but not for the warehouseman who furnished his own attire, and that any type of hoots or shoes could be worn provided they presented no safety problem; (6) explained that failure to pay the bills had been due to an oversight, and that this would be remedied prornptl', (7) discussed in detail the complaints about the unsafe condition of some of the equipment, explained the delays in remedying these 'The drivers are authorized to have repairs made on their trucks 'Martin did not answer all the questions that were raised For example, with reference to a statement hs Martin that the Respondent was probably 440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD matters. and described the steps being taken to do so, and (8) promised that, based on Martin's review of the provisions in the Work Policies and Practices about meal allowances, they would be -paid as far back as the Respondent had records, and would thereafter be paid currently, and. Martin added, "this has nothing to do with unionism or non-unionism." Martin also commented that some of the matters disturbing the men were evidently due to a breakdown in communications, and promised that thereafter the line of communication would be kept open and the men would obtain answers in a reasonable time. He wrote out his name and New York address and gave it to the men so they could refer to him any matters not taken care of locally or by the division office in St Louis. The June 6 meeting lasted about an hour. Employees had been complaining about some of the above matters for years with no results, but action was taken at this time. For example, the overdue hills were paid with apologies for the delay, steps were taken to have unsafe equipment repaired or replaced, and reimbursement was made for the past due meal allowances covering a period of well over a -year, and it was arranged that they would thereafter be paid automatically' Subsequent to the meetings of June 4 and 6, the employees further discussed among themselves the matter of union representation. On June 25, 1968, they sent a letter of withdrawal to the Union signed by all seven employees involved, all of whom had signed union cards a month earlier 4. Findings and conclusions regarding Martin's conduct The complaint alleges that Martin, on June 4, threatened that the Respondent would close the Evansville facility it the employees supported the Union, and that they would lose existing benefits if the Union were successful, and, on and after June 4. offered benefits to, and adjusted the grievances of, its employees in order to affect their choice in an election and to induce them to abandon the Union Martin denied categorically that he made any threats. promised any benefits, or adjusted any grievances,10 and the Respondent contends in its brief that the speech was "obviously privileged within the meaning of Section 8(c) of the Act." It is evident that the speech was designed to impress upon the employees the futility and danger of union representation." Thus the speech, made by a company official, accompanied by other management representatives and local supervisors, pointed out that established company policies as to wage rates and fringe paying a higher rate of pay than any of its major competitors in Evansville, one employee, according to Martin, said he thought a particular competitor "was paving so-and-so ' Martin made a note of this, or tried to rind out if it were so , but in any event he testified that he made no reply to this on June 6 'One employee, Charles Blackburn , who has been a truckdriver for about 3 years, received $61 50 to cover unpaid meal allowances He testified that this was the first time he had been paid a meal allowance. and that the,, have since been paid currently "Procedures for handling "complaints or grievances" are set forth in the Work Policies and Practices At the hearing, counsel for the Respondent objected to the General Counsel referring in his questions to the matters raised by the employees as "grievances " or "complaints" on the ground that these were "legal terms," but asked his own witnesses whether any "grievances" were settled In any event , l find that the issues raised were grievances within the terms of the complaint See Timken Roller Bearing Companyv PvLRB . 161F2d949,955(CA 6) benefits would not be altered as a result of unionization, and that, rather than increasing employee benefits, experience at other company operations demonstrated how unionization could result in a loss of benefits it also stressed the idea that a union's power lay in striking, that the employees who were members would be obligated to go out if a strike were called with the resulting loss of wages, that it was feasible for supervisors to drive the two trucks at this facility, and that the facility constituted so insignificant a part in the Respondent's overall operations that, if a strike closed it down, it would not be missed. The speech further indicated that selection of a union would require the Respondent to deal only with a third party, which would mean the loss of employee individual freedom to talk with management, and would bring about poorer employer-employee relations. I find, on the basis of the foregoing and the entire record, that the speech, with its admitted emphasis on what employees "lost through belonging to a union," "`contained veiled threats' that the employees would suffer adverse economic consequences if they voted in favor of the Union"." painted a picture of the "economic loss inevitably resulting from the selection of the Union as their collective-bargaining representative",, 3 and clearly expressed the threats of poorer employer-employee relations and loss of the "substantial benefit" of being able to communicate personally with management if a union were to become the bargaining representative.14 I find that these were "threats of loss"" violative of Section 8(a)(1) of the Act. Furthermore. as described above, Martin not only initiated meetings at which he solicited the employees' complaints, but he also promised and took corrective action thereon, and gave the employees his name and New York address as assurance of future adjustments of grievances The Respondent contends that such actions as paying overdue bills and repairing or replacing unsafe equipment constituted only normal business operations, and that other changes, such as paying employees for past and current meal allowances, were merely to carry out the provisions of the Work Policies and Practices in effect at Evansville. Conditions were changed, however, that had prevailed for years, about which employees had complained for years, and were changed only after employee complaints were elicited by the Respondent at the same time it was urging employees to vote nonunion I find that the Respondent, by this conduct, made promises and grants of benefits, and solicited and adjusted grievances, at a time when this would have the natural tendency to interfere with the employees' organizational rights, in violation of Section 8(a)(1) of the Act." It is clear that the employees were convinced, by Martin's speech and by what transpired at the meetings on June 4 and 6, that a vote for union representation was not in their "own best selfish interest." Without waiting for an election, the employees sent a letter of withdrawal to the Union on June 25, 1968, signed by all the "See Hicks-Ponder Company, 174 NLRB No 12, Quaker Alloy Casting Company, 135 NLRB 805, 806 "N L R B v Gruber Mfg. Co . 382 F 2d 990 (C A 7) " Vinvlex Corporation , 160 NLRB 1883. enfd NLRB v Vinv/ex Corporation and Everwarm Corporation . 404 F 2d 1200 (C A 6) "Graber Manufacturing Company, 158 NLRB 244, 247, cold per curtain 382 F 2d 990 (C A 7) "NLRB v The Sinclair Co. 397 F 2d 157 (C A 1) "See American Technical Machinery Corporation , 173 NLRB No 210, Eagle-Picher industries , Inc, 17l NLRB No 44, NLRB v The Pembeck Oil Corporation . 404 F.2d 105 (C A. 2) TEXACO INC. 441 employees involved, all of whom had signed Union cards. 5 Dimond's Conduct The complaint alleges that Dimond (a) on or about June 14. 1968, interrogated employees concerning their own and other employees ' union membership , activities. and desires , and (b) on or about June 7 and 23, suggested to the employees withdraw al from the Union and aided such withdrawal a. Interrogation On the night of June 13-14, 1968, Dimond handed lialden Garrett a check for over $25 covering his past meal allowances, and iodc with Garrett on one of his runs. Although Garrett has been employed as a truckdrner for 3 years, this was the first time he had a supervisor ride with him. Garrett first testified that he did not recall whether Dimond asked him or he volunteered information about the Union. After his recollection was refreshed by reading the affidavit he had given a Board agent, however, he testified that Dimond asked him how he was going to vote, to which he replied he did not know; and that Dimond said he knew about the Union meeting planned for Sunday evening and asked whether Garrett was going to attend, to which he replied that since he had signed a card he thought he should go. Dimond testified that he initiated no conversation about the Union during the ride. but that Garrett volunteered the information that he was going to a meeting and that "if the plant became union that he would not work for us any longer.- I credit Garrett's testimony based on his refreshed recollection. which was presented in a manner I found more convincing than Dtmond's version Furthermore, while Garrett testified that he would vote against the Union even though he had signed a card, he gave no indication that he would quit his job if the Union were successful, and I find incredible Dimond's testimony that Garrett so stated I find, therefore, on the basis of all the relevant evidence, that the Respondent, by Dimond's interrogation of Garrett. violated Section 8(a)(I) of the Act." h. Alleged suggestion of and assistance in withdrawal from Union Dimond testified that lie was at Evansville on June 7; that employee Edminson, after commenting on how much he had enjoyed Martin's speech, told Dimond he did not believe a union was needed and he wished he knew how to get out of the Union, and asked if Dimond knew of a way he could withdraw, and that Dimond replied that he assumed Edminson could write a letter and withdraw as from any other organization but it was a decision Edminson had to make Edminson testified in this regard that he asked Dimond whether the men had to write individual letters or could write one letter, and Dimond replied that he thought it would be advisable to write one letter and have everyone sign it. Dimond also testified that at the close of the company picnic on June 25. 1968, Blackburn asked him how the "Clark Printing Company inc . 146 NLRB 121 1 find no support in the record , howesLr, for the allegations in the complaint that Dimond interrogated other employees, or that he interrogated employees concerning "other employees' Union membership, activities , and desires " men could get out of the Union without an election, and he again replied that he assumed they could write a letter and withdraw as they would from any organization, but he did not know, and it was a choice the employees had to make Blackburn testified that the men had discussed withdrawing from the Union and asked him at the picnic to talk to Dimond, that he asked Dimond for his views on writing a letter of withdrawal and whether it would speed matters up, and that Dimond said that he thought the letter might do the job and would speed matters up Blackburn prepared the letter of withdrawal dated June 25, 1968, which, after being signed by all seven employees. was sent to the Union No copy was sent to the Respondent. I Lind no violation of the Act in Dimond's replies to the inquiries of Edminson and Blackburn, the only role he played in connection with the withdrawal letter, and will therefore recommend dismissal of this allegation of the complaint B. The Alleged Refusal To Bargain 1. The appropriate unit Paul Smith is in direct charge of the Evansville operation He testified that he supervises six truckdrivers and a warehouseman; that there are two company trucks. one based at Evansville and the other at the location of a consignee in Owensboro , Kentucky , whom the Respondent pays for use of his premises to park a truck and store products because it is a terminal point, and that two of the truekdrivers work out of Owensboro and till the truck up there most of the time although they may also load at Mount Vernon, Indiana, where the Evansville truck loads Smith goes to Owensboro three or four times a month: the men based at Owensboro come to Evansville infrequently . They are, however, on the Evansville payroll, handle the same products, and have the same wage rates, fringe benefits, uniforms and supervision as the Evansville employees. The consignee at Owensboro , O'Flynn, who displays the Texaco trade mark and sells Texaco products , has seven or eight employees , three or lour of whom are truckdrivers 1 here are his employees , not employees of the Respondent Other consignees sometimes call orders in to Owensboro . The calls may be taken by one of the Respondent's drivers or by O'Flynn The petition filed by the Union on May 27, 1968, describes the unit bought as "All drivers and warehousemen at Owensboro, Ky and Evansville Indiana establishments" excluding "all others, all guards, professional employees, office clerical employees and all supervisors as defined in the Act." The Union's letter requesting recognition, also dated May 27 and sent on that date to Evansville , attention of Paul Smith . contained the same unit description. Smith forwarded the letter and a copy of the petition to the St. Louis office , where they were apparently received on May 31. No reply to the letter was sent to the Union. Morgan, supervisor of employee relations of the St. Louis division, forwarded the documents to the Respondent's legal department in New York." Morgan discussed the unit with Respondent ' s counsel Mitchell by telephone. Mitchell, apparently disturbed that the description of the "Martin had been advised by Morgan, before he came to Evansville to make his speet.h, about the filing of a petition by the Evansville employees, 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposed unit might be read as including employees of the consignee at Owensboro , advised Morgan that he had telephoned an attorney in the Board's regional office, that they had discussed the question of the locations to be covered by the unit, which would be straightened out, that they had also discussed entering into a consent-election agreement , and that Morgan would receive a document from the Board office which he should go ahead and sign. After Morgan received a stipulation for certification upon consent election from the Board office . someone in that office called and asked him to correct some mistakes on it. Morgan testified that he assumed that the corrections were in accord with Mitchell 's requests so he made them, signed the document, and returned it to the Board office. Mitchell later called Morgan and said Morgan had executed an incorrect document , but he would try to obtain the agreement of the Board office and the Union to change the unit description . On June 14. Mitchell sent the Board office the following telegram RE TEXACO INC (EVANSVILLE, INDIANA BULK STATION) AND TEAMSTERS LOCAL 215 --- NLRB CASE 25-RC-3801 CONFIRMING AGREEMENT OF PARTIES YESTERDAY - STIPULATION FOR CERTIFICATION UPON CONSENT ELECTION AGREEMENT AMENDED TO CHANGE UNIT DESCRIPTION fO PROVIDE "ALL TRUCK OPERATORS AND WAREHOUSEMEN OF THE EMPLOYER OPERATING OUT OF ITS EVANSVILLE. INDIANA BULK STATION BUT EXCLUDING ALL OFFICE CLERICAL EMPLOYES AND ALL PROFESSIONAL EMPLOYES, GUARDS AND SUPERVISORS AS DEFINED IN THE ACT." The unit description contained in the Stipulation is the same as that in the telegram, but it contains obvious additions and erasures , including erasure of "Owensboro. Kentucky operation." The Stipulation bears signatures and initials of Morgan, an attorney for the Union, and a Board agent. appended on various dates, and the signature of the Regional Director approving the agreement as of June 14, 1968." The complaint alleges the appropriate unit to be "All driver and warehousemen employees of Respondent operating out of and employed at its facility," and "facility " is identified in the complaint as the one at Evansville 1 he Respondent' s answer denies the appropriateness of the unit "as written" and "avers that the unit appropriate . . is that unit set forth in that certain Stipulation . approved by the Regional Director on .I une 14, 196t( As there is no reference to Owensboro in the unit Description in either the complaint or the Stipulation. the unit dispute appears to have become one of semantics. I find merit nevertheless in the Respondent ' s position All the parties agreed, after several discussions , to the unit described in the Stipulation , and no persuasive reason has been advanced why that description should be altered. Accordingly. I find the appropriate unit to be as follows All truck operators and warehousemen of the Respondent operating out of its Evansville , Indiana, Bulk Station , excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act but Martin had not at that time seen the petition and had not been told of the Union's letter "the Stipulation scheduled an elt,etion to be held on June 27 1968, "at employers Evansville, Indiana establishment" It Has not held because of the filing of the instant charges on June 17, 1968 2 The Union's majority The seven cards here involved are headed "Application for Membership and Authorization for Representation," and are all dated May 25, 1968. Halden Garrett testified that he signed a card at the request of employees Blackburn and Kirkpatrick; that he read the card before he signed it, and that, while he understood there would be an election and told the men who signed him up that he would vote against the Union, he was not advised that there would be an election but only that the card was an application for membership in the Union. Edminson testified that the employee who gave him a card said it was for union representation and did not mention an election, and that he. Edminson, read the card, signed it, and returned it to the employee. On May 25. employees Rayman, Happe, and Curtis Garrett20 came to Blackburn's home At their request he called employee Fitzpatrick, who joined them They read the card and discussed some of the provisions in the printed material, including one that stated that the signed has no right to withdraw "during the organizational efforts of the union." Blackburn testified that after one of the three employees soliciting signatures said that there was nothing binding in signing the card, that union representative Whobrey had said there would be an election, and that at that time the men could vote for or against a union, he and Kirkpatrick agreed to go along with the others and sign cards on the basis that they could later vote on the matter. Ragman, who has been employed by the Respondent for over 16 years, testified that he obtained a card from Whobrey at the Union hall: that he read it, signed it, and returned it to Whobrey, and that Whobrey mentioned that there would be an election but Rayman did not recall that he said the card was for the purpose of getting an election. Rayman identified the signatures of Happe and Curtis Garrett, whom he saw sign cards and give them to Whobrey, and of Kirkpatrick, whom he saw sign a card. I find no merit in the Respondent's contentions that the cards were invalid because they were signed only to obtain an election or because some of the cards were identified not by the signers but by a witness to their signing." Accordingly, I find that the Union represented the Respondent's employees in the appropriate unit on May 25, 1968. 1 find further that the Union's representative status was not dissipated as a result of the withdrawal letter of June 25. 1968, written after the Respondent engaged in the unlawful conduct found above.22 3. The alleged refusal to bargain As set forth above, the Union's letter requesting recognition and its petition filed on the same date, May 27, 1968, included in the description of the proposed unit employees at the Owensboro establishment. Martin had not been informed of this unit description when he came to Evansville on June 4. Respondent's labor counsel Mitchell and other management representatives who were advised of the unit description, however, were concerned that it might indicate inclusion of employees of its "Supervisor Paul Garrett and employees Halden Garrett and Curtis Garrett arc unrelated "Thrift Drug Company of Pennevdvania. 167 NLRB No 57, cnfd 404 1. 2d 1097 (C A 6), McEwen Manufacturing Company 172 NLRB No 99 "The Richman Brothers Company, 157 NLRB 1666, cnfd 387 F 2d 809 (C A 7) TEXACO INC. 443 Owensboro consignee. Mitchell promptly took steps to obtain a clarification of the unit description in this regard, and to indicate willingness to enter into a consent election agreement if the unit were clarified. After discussions of the matter via long-distance telephone, agreement was apparently reached, but, through a misunderstanding, a representative of the Respondent signed a stipulation which contained a unit description at variance with the one agreed upon. The difference as to the appropriate unit description was finally resolved about June 14 by agreement of all the parties, and the unit description set forth in the stipulation was revised accordingly The General Counsel contends that the original proposed unit was appropriate as the Respondent had employees working out of Owensboro; that it was evident that the Union's petition and letter had reference to employees of the Respondent only. and that the Respondent obviously knew which employees were being sought as they were the ones, including those working out of Owensboro, summoned to the June 4 and 6 meetings The Respondent, on the other hand. maintains that it has no Owensboro establishment, that it merely pays a consignees for the convenience of keeping a truck and certain products at his premises in Owensboro and having two of its drivers work out of that location, and that the references to an Owensboro establishment confused the unit issue as the consignee employs truckdrivers. displays the Texaco emblem, and sells Texaco products I find merit in the Respondent's position It is clear-and there is no contention to the contrary- that the Respondent had no legal obligation to bargain for a unit including the consignee's employees with its own employees It is equally clear that the Union had an obligation to define its proposed unit with reasonable clarity and precision,23 which I find it failed to do in this case. Moreover, the unit description in the complaint, although it omitted any reference to an Owensboro establishment, varied from the unit description in the Stipulation. The Respondent's good-faith doubt as to the proposed unit is demonstrated by the clforts made by Mitchell to have the unit redefined, 24 as well as by his willingness to enter into a consent election agreement when this was done The Union was aware of Mitchell's efforts to have the unit clarified, and apparently approved the stipulation setting forth the redefined unit, but made no request for recognition in such unit. In all the circumstances of this case. the unfair labor practices found above are not sufficient, in my opinion, to establish the Respondent's bad faith and vitiate the claim that its failure to recognize the Union was lawfully motivated " Accordingly, I lind that the General Counsel has failed to sustain his burden of establishing that the Respondent refused to bargain in violation of Section 8(a)(5) of the Act. I find further that the evidence does not establish the allegation of the complaint that the Respondent, at the June 4 and 6 meetings and on other dates, bargained "N L R B v Lou De Young's Market Basket, 406 F 2d 17 (C A 6), Jan I. 1969, Carlton Paper Corporation, 173 NLRB No. 26, Sportswear Industries, Inc. 147 NLRB 755, 760, The C L Bailey Grocery Co. 10(1 NLRB 576, 579 "Cf Ben son Wholesale Grocery Co. 164 NLRB No 75, in which the directly and individually with .its employees'! Although I have found the conduct in question violative of the Act in other respects. I find that it did not constitute bargaining in violation of the Act. IV. TILE EFI'ECT OF THE UNFAIR LABOR PRACTICES UPON COMMIFRCE The activities of the Respondent set forth in section III. above, occurring in connection with the operations of the Respondent described in section 1, 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 the free flow of commerce. v. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Upon the basis of the foregoing findings of fact and upon the record as a whole, I make the following CONCLUSIONS OF LAW I The Respondent. Texaco Inc. (Evansville, Indiana Bulk Station), is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Chauffeurs, Teamsters & Helpers Local Union 215, a/w International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening its employees with adverse economic consequences, poorer employer-employee relations, and loss of freedom to communicate directly with management, as inevitable results if they designated the above-named labor organization as their bargaining representative, by promising and granting benefits. and soliciting the presentation of grievances and adjusting such grievances, to discourage its employees' designation of a union representative; and by interrogating an employee about how he would vote in a Board-conducted election and about his intention of attending a scheduled union meeting, the Respondent has mterferred with, restrained. and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. (Recommended Order omitted from publication.] Board pointed out that if the employer was confused about the unit sought, "a simple inquiry on that point, which good faith would seem to require, would undoubtedly have clarified such confusion ' "See Hardv-Herpolsheimer Division of Allied Stores of Michigan, Inc , 173 NLRB No 165, Grafton Boat Co, Inc, 173 NLRB No 150, Carlton Paper Corporation , supra, Hammond & Irving, Incorporated , 154 NLRB 1071