Texaco Inc., 434 (1969)

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...