Texaco, Inc. v. NLRB

• Decision Date: 18 February 1971
• Docket Number: No. 17993.,17993.
• Citation: 436 F.2d 520
• Parties: TEXACO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

436 F.2d 520 (1971)

TEXACO, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 17993.

United States Court of Appeals, Seventh Circuit.

January 4, 1971.

Rehearing Denied February 18, 1971.

Edwin J. Buckley, Chicago, Ill., J. M. Mitchell, New York City, Owen Fair-weather, R. Theodore Clark, Jr., Andrew M. Kramer, Chicago, Ill., for petitioner; Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel.

Marcel Mallet-Prevost, Asst. Gen. Counsel, Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Frank H. Itkin, Baruch A. Fellner, Attys., N. L. R. B., Washington, D. C., for respondent.

Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.

SWYGERT, Chief Judge.

Texaco asks us to vacate an order of the National Labor Relations Board issued against the company on September 17, 1969. The Board cross-petitions for its enforcement.¹ The Board found that Texaco violated section 8(a) (1) of the National Labor Relations Act by engaging in certain unfair labor practices and section 8(a) (5) of the Act by refusing to recognize and bargain with the union designated as a bargaining agent by the employees in an appropriate bargaining unit.² The order requires the company to cease and desist from engaging in the unfair labor practices and to bargain upon request by the union.

Texaco operates a bulk station at Evansville, Indiana where it employs a warehouseman and three truck drivers. J. H. O'Flynn, as consignee of Texaco, operates another bulk station at nearby Owensboro, Kentucky. O'Flynn employs three or four truck drivers and four warehousemen. Three additional truck drivers at Owensboro are in the employ of Texaco and are paid from and under the supervision of the Evansville station. (Hereinafter a reference to Evansville or Texaco employees shall include these three drivers).

On May 25, 1968 the six Texaco truck drivers signed application cards for membership in the union. One of the three Owensboro-based drivers (Garrett) signed his card at the request of another Texaco driver at Owensboro and testified that he did so only after stating that he did not wish to be represented by a union and would vote against it. The Evansville warehouseman also signed a card.

On May 27 the union by letter to Texaco requested recognition as a bargaining agent for: "All drivers and warehousemen at Owensboro, Kentucky and Evansville, Indiana establishments." It also filed a petition for an election with the Indianapolis NLRB Regional Office. Shortly thereafter counsel for Texaco telephoned the Regional Office and expressed the company's disapproval of a bargaining unit which commingled employees of Texaco with those of the Owensboro consignee. After discussion with the union, it was agreed to revise the unit description to read: "All Truck operators and warehousemen of the Employer operating out of its Evansville, Indiana Bulk Station." Texaco never responded to the union's prior request for recognition and it was not renewed.

On June 4 David Martin, Texaco's supervisor of employee relations for its sales division, made a speech to the seven employees of the Evansville station. In the speech Martin appraised Texaco's policies and benefits with respect to those of other companies. He stated that he was not promising benefits and that Texaco would deal in good faith with a union if the employees opted for one, but that he was asking them to vote nonunion in the event of an election. He emphasized that a union's primary source of power is its ability to strike and suggested that a strike by the seven employees at Evansville would exert very little pressure on Texaco. The Board found Martin's speech to be privileged under section 8(c) of the Act.

Following his speech Martin dismissed the other Texaco representatives who were present and solicited comments from the seven employees. One or more employees raised questions about a tractor-trailer which was in dangerous condition and had not been repaired, unpaid overtime meal allowances, unpaid repair bills at Evansville and Owensboro garages, reports of pending changes in employment conditions and various restrictions pertaining to work attire. Martin deferred most of these matters until a second meeting two days later. At the second meeting he stated that the tractor-trailer would be repaired, the meal allowances and repair bills would be paid, employees would be consulted prior to any change in employment conditions and that only truck drivers required uniforms, which Texaco helped pay for, and they could wear any footwear that did not have exposed nails. Martin left the employees his New York address so that they could contact him in the future. Subsequently the tractor-trailer was repaired and the promised payments were made.

On June 17 the union filed a charge of unfair labor practice. On June 25 all seven employees by letter advised the union that they no longer desired its representation.

A majority of the Board found that Martin's post-speech solicitation of grievances and his promises of rectification restrained or coerced the employees in violation of section 8(a) (1) of the Act. It also found that Texaco had refused to bargain in violation of section 8(a) (5) of the Act. The Board ordered Texaco to cease and desist from the unfair labor practices and (one member dissenting) ordered Texaco to bargain with the union.

The company contends that the union's request for recognition as a bargaining agent for the seven employees failed to define the bargaining unit sufficiently. It says that the words "All drivers and warehousemen at Owensboro, Kentucky and Evansville, Indiana establishments" are ambiguous since some of the employees at Owensboro are employed by consignee O'Flynn and not by Texaco. Consequently it is argued that there can be no section 8(a) (5) violation since it is not incumbent on an employer to resolve an ambiguity in a request to bargain, citing NLRB v. Jackson Press, 201 F.2d 541, 544 (7th Cir. 1953), and National Can Corp. v. NLRB, 374 F.2d 796, 800 (7th Cir. 1967).

Although we agree that Jackson Press and National Can are authority for the proposition that an ambiguous demand to bargain may be ignored by the employer, they do not, on their facts, support Texaco's contention. By contrast to Jackson Press, there is no doubt that the request here for recognition of "All drivers and warehousemen at Owensboro, Kentucky and Evansville, Indiana establishments" included at least all the Texaco employees. If there was any ambiguity, it concerns whether, in addition to the Texaco employees, O'Flynn's employees were included in the claim of representation. Nor is the request comparable to the situation in National Can where the unit description was so unclear that the author of the demand letter and the Board could not agree on it.

When the unit description, although unclear, leaves no doubt as to the claim of representation of a majority of the employees, the employer is not justified in refusing to bargain. "The proper course for the employer in those circumstances is to refuse to bargain with respect to those employees whose unit status is disputed, not to wholly refuse to bargain." NLRB v. Richman Brothers Co., 387 F.2d 809, 813 (7th Cir. 1966).

Even if there was a tenable basis for the company's failure to respond to the union's original request for recognition, it was eliminated once the unit description was revised. The clarified unit description in the request to bargain would be sufficient to support the finding of an 8(a) (5) violation. NLRB v. Waukesha Lime and Stone Co., 343 F.2d 504, 508 (7th Cir. 1965).

The company's next assertion is that the union lacked majority support. It challenges all the signature cards, except the one signed by the Evansville warehouseman, on the ground that the employees signed them solely for the purpose of obtaining an election and not in order to confer representative status on the union.

The test to be applied to determine the validity of authorization cards is the so-called Cumberland rule adopted by the Supreme Court in NLRB v. Gissel Packing Co., 395 U.S. 575, 606, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969). Under that rule employees are bound by the clear language of what they sign unless the solicitor of the cards causes them to sign by telling them that their so doing has another effect. The rule is to be applied flexibly in order to insure employee free choice. Id. at 606-608, 89 S.Ct. 1918.

With the exception of the card signed by employee Garrett, the record indicates that the cards are valid under the Gissel test. While there was some talk of...