Oil Transport Co.

National Labor Relations Board - Board Decisions

Jun 2, 1970

182 N.L.R.B. 1016 (N.L.R.B. 1970)

1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oil Transport Company and Teamsters Local 47 and
Teamsters Local 577, affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America and Union of Transporation
Employees, Party to the Contract . Case 16-CA-3490
June 2, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On December 8, 1969, Trial Examiner Harry R. Hinkes
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
and the Party to the Contract filed exceptions to the
Trial 'Examiner's Decision and supporting briefs. The
General Counsel filed a brief in support of the Trial
Examiner's Decision.
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 made by the
Trial Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed.
The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions,, and
recommendations of the Trial Examiner, as modified
herein.
Although we are in sub§tarltial agreement with the
Trial Examiner's ultimate conclusions that the Respond-
ent's conduct was violative of Section 8(a)(1) and (2)
of the Act, we find it unnecessary to rely on the Trial
Examiner's alternative finding that "it would appear
. . . [that the Union of Transportation Employees repre-
sented] . . . only the free choice of 38 of the 80 employ-
ees and not a majority."'
Like the Trial Examiner, we conclude that even if
UTE had an uncoerced majority, the Respondent's con-
duct prior to and after granting recognition to UTE
constituted unlawful assistance in violation of Section
8(a)(2) and (1) of the Act.
' After finding that the Union's majority was reduced to 43 of 80
people in the unit, the Trial Examiner further concluded that as 5
employees signed UTE cards on November 6 and 7, 1968, they may
have been influenced by the comments of Day, Big Spring terminal
manager, on November 5 and the comments of Supervisor Rainer
to employees Terry and,Cheney at the Lubbock terminal on November
6 Such finding is largely speculative and not fully supported by the
record Three employees who signed cards for UTE at the Abilene
terminal on November 6 could not possibly have been influenced by
Rainer's conversation with Terry and Cheney which occurred late in
the afternoon of the 6th at the Lubbock terminal , approximately 165
miles from Abilene Moreover, Terry and Cheney testified they went
straight home after the conversation with Rainer and did not talk
to anyone about this on November 6
Respondent's conduct included: its creation of an
impression of surveillance of union activities; the threat
to go out of business or to refuse to negotiate if employ-
ees selected the Teamsters Union; and the promising
of benefits if employees selected UTE. Further, through
Supervisor Rainer, Respondent attempted to dissuade
employees Terry and Cheney, who were leaders in get-
ting employees to initially join the UTE, to adhere
to the UTE despite their expressed view that they now
preferred the Teamsters Union. Finally, after granting
recognition to UTE on November 7, Respondent request-
ed immediate negotiations and, executed a contract with
UTE on the evening of November 7.
For the reasons enumerated by the Trial Examiner
and discussed in part above, we conclude that Respond-
ent not only unlawfully attempted to influence its employ-
ees' choice of a bargaining representative but attempted
to coerce them into adhering to the UTE and discouraged
the selection of the Teamsters as their bargaining repre-
sentative. Such conduct constituted unlawful assistance
to the UTE and was violative of Section 8(a)(2) and
(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions Act, as amended, the National Labor Relations
Board hereby adopts as its Order the Recommended
Order of the Trial Examiner, and orders that the
Respondent, Oil Transport Company, Abilene, Texas,
its officers, agents, successors, and assigns , shall take
the action set forth in the Trial Exam iner"'"s Recofnmerid=
ed Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES, Trial Examiner: An original charge
and a first amended charge were filed on or about
December 27, 1968, and January 31, 1969, respectively,
by Teamsters Local 47 and Teamsters Local 577, affiliat-
ed with International Brotherhood of Teamsters, Chau-
ffeurs, Warehousemen and Helpers of America, herein-
after referred to as Teamsters. These charges were
served upon the Oil Transport Company, hereinafter
referred to as the employer or Respondent, on or about
December 28, 1968, and February 3, 1969, respectively.
They were also served upon the Union of Transportation
Employees, hereinafter called the UTE, on or about
December 31, 1968, and February 1, 1969, respectively.
Pursuant to such charges a complaint was issued on
April 22, 1969, alleging that the Respondent had inter-
fered with, restrained, and coerced its employees in
the exercise, of rights guaranteed in Section 7 of the
Act in violation of Section 8(a)(1) of the Act and had
rendered unlawful aid and support to the UTE in viola-
tion of Section 8(a)(2) of the Act. By answer duly
filed Respondent denied the commission of unfair labor
practices.
182 NLRB No. 148
OIL TRANSPORT COMPANY 1017
A hearing was held before me in Lubbock, Texas,
on June 5 and 6, 1969, at which all parties were represent-
ed and were afforded full opportunity to participate,
examine witnesses, and adduce relevant evidence. Dur-
ing said hearing, pursuant to timely notice, an amendment
to the complaint was allowed alleging an additional
instance of employer interference. At the conclusion
of said hearings counsel for the Respondent moved
for the admission of certain affidavits executed by
employees of Respondent but upon objection I ruled
such affidavits inadmissible in evidence unless the affiants
were made available for cross-examination by opposing
counsel. Counsel for the Respondent then moved for
a continuance of the hearing so that he could present
the affiants before me and make them available for
cross-examination. These affiants, it was alleged, would
testify that the Respondent did not interfere with their
rights under the Act, although other employees had
testified to the effect that the Respondent had interfered
with their rights. In a ruling dated September 24, 1969,
I denied Respondent's motion for a continuance, pointing
out that if the Company's representatives did influence,
coerce, or interfere with some employees' freedom in
signing with the UTE or any other union, such behavior
is a violation of Section 8(a)(1) of the Act whether
or not the Company committed no such interference
or coercion upon other employees. Briefs have been
filed by the General Counsel, the Respondent, and the
UTE and have been given careful consideration.
Upon the entire record in this proceeding I make
the following:
FINDINGS OF FACT
are now and have been at all tines material herein
labor organizations within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Sometime in early 1968, after an intensive organiza-
tional and election campaign lasting some 4 or 5 months,
the UTE was certified by the NLRB as the bargaining
agent for the employees of Brazos Transportation Com-
pany and Gypsum Transport Company, subsidiary corpo-
rations of the Respondent at the time. After several
months of negotiations contracts were entered into
between those corporations, and the UTE in October
1968. On or about September 1, 1968, UTE began an
organizational drive of the Respondent's employees who,
on or about November 7, 1968, numbered approximately
80 drivers and shop employees. A, few weeks after
the commencement of the UTE organizational's drive
the Teamsters began their organizational campaign
among the same employees of the Respondent.
B. The Schafer Incident
Employee Terry testified that sometime before Octo-
ber 26 Terminal Manager Schafer told him that he,
Schafer, knew the employees were having Teamsters'
meetings but he did not know where and when. Schafer
did not testify I credit Terry's testimony and find that
this remark by Schafer created the impression of surveil-
lance in violation of Section 8(a)(l) of,the Act.
1. JURISDICTION
Respondent is and has been at all times material
herein a corporation duly organized under the laws
of the State of Texas maintaining its principal office
in the city of Abilene, Texas. At all times material
herein Respondent has been continuously engaged as
an interstate common carrier in the transporting by
truck of petroleum products and chemical derivatives
between the State of Texas and other States, maintaining
terminals in the cities of Abilene, Lubbock, Wichita
Falls, Amarillo, Big Spring, and Goldsmith, Texas. Dur-
ing the past 12 months, which period is representative
of all times material herein, Respondent in the course
and conduct of its interstate trucking operations derived
gross revenue in excess of $50,000 for transporting
products and materials from the State of Texas to States
of the United States other than the State. of Texas.
The complaint alleges and I find that the espondent
is and has been at all times material herein an employer
engaged in commerce within the meaning ' of Section
2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits
and I find that the Teamsters as well as the UTE
C. The Lipham Incident
Employee Lipham testified that on or about November
3, 1968, UTE held an employee meeting for the Big
Spring terminal employees. Lipham did not attend that
meeting. About 2 days later Howard Day, the Big Spring
terminal manager , asked Lipham why he had not attend-
ed the meeting. Lipham replied that he did not want
to jeopardize his Job by coming out for or against
the UTE. Day then told Lipham that he had spoken
to Mr. McClure, Respondent's president, who had told
Day that it was a "wise" idea for Lipham to join
the UTE. Day did not explain how he knew that Lipham
had not attended the UTE meeting. Some 10 days later,
on or about the 15th of November, Lipham signed
a UTE authorization card. Day did not testify.
I credit Lipham's testimony and find that Day's inter-
rogation of Lipham concerning his failure to attend
the UTE meeting created the impression that Lipham's
union activities were under surveillance, an interference
with the rights of Lipham in violation of Section 8(a)(1)
of the Act. I further find that his advice that Lipham
join the UTE constituted unlawful support and assistance
to the UTE in violation of Section 8(a)(2) of the Act.
His observation that Lipham' s joining the UTE would
be a "wise" idea constituted more than a mere statement
of an employer's preference for one union over another.
' 1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It contained no ex0lanation or reasons for the Employer's
preference but instead left Lipham to ponder the harm
that might visit him if he lacked the "wisdom" to
join UTE Moreover , it was contemporaneous , approxi-
mately with other 8(a)(2) conduct by the Respondent
assisting the UTE, as will be noted below
D Rainer's Conversation with Terry and Cheney
Employees Terry and Cheney testified about a conver
sation they had with Lubbock Terminal Supervisor Rain-
er According to them this conversation took place on
November 4 Rainer, however, testified that the conver-
sation took place on November 6 and supported his
testimony with documentary evidence indicating his pres-
ence, as well as Terry's and Cheney' s presence, in
Lubbock on that day Other documentary evidence indi-
cated that both Terry and Cheney were absent from
that Lubbock terminal on November 4 at the time of
the conversation I credit the testimony of Rainer con-
cerning the date of this conversation
It appears that around the midafternoon of that day
Rainer asked Terry and Cheney to go out for coffee
They did, and in the conversation that ensued, according
to Terry and Cheney, Rainer asked them which union
they preferred Both of them said that they preferred
the Teamsters To this Rainer replied that he'd rather
see them go with UTE According to Terry, Rainer
added that the Company could not live with the Team-
sters and spoke about men getting beat up and shootings
that would come with the Teamsters Terry further
testified that Rainer also said that the Company would
have to sell out if the Teamsters came in Terry added
that Rainer asked "would they be interested in going
in the UTE," if the Company would fix their equipment
Cheney's testimony was quite similar According to
him Rainer asked them why they did not "get the
boys to go UTE instead of the Teamsters " Cheney
also testified that Rainer spoke of the Teamsters violence
and said that the Teamsters would demand so much
wages that the Company would not be able to pay
and would have to sell out Cheney also testified that
Rainer said the Company would only "make out like
they were trying" to negotiate with the Teamsters and
that way could postpone agreement indefinitely without
ever signing a contract During this conversation Rainer
was also told by these employees that not only had
Terry and Cheney signed Teamsters' cards but other
employees had also, to which Rainer replied that he
and other Company officials would go to other terminals
to speak to the employees about joining UTE
Terry and Cheney repeated their conversation with
Rainer to other employees, both at Lubbock and other
terminals, both before and after November 7 when
the Respondent recognized UTE and signed an agree-
ment with it
Rainer admitted asking Terry and Cheney how they
felt about the unions and also asking them if they
had signed authorization cards He further admitted
being told that they had signed both for the UTE and
Teamsters He testified that he asked Terry and Cheney
why they needed a union to which they replied that
their equipment needed repair Rainer testified that he
promised it would be attended to He further testified
that the men complained about their treatment by Termi-
nal Manager Schafer Rainer denied however that they
spoke about bargaining with the Teamsters but admits
saying that the Company would prefer the UTE because
that was the union designated as the exclusive bargaining
representative for the employees in the Brazos and
Gypsum Companies According to Rainer he simply
told Terry and Cheney that if the Teamsters got a
contract that the Respondent could not live with, the
Company might sell out He further denied promising
to fix the equipment if the employees selected UTE
as well as saying that he was going to other terminals
with other management officials to talk about the Union
I find that Rainer did interrogate Terry and Cheney
about their union attitudes, asking them how they felt
about the Union, if they had signed cards, and why
they changed their minds from the UTE to the Teamsters,
all of which has been admitted by Rainer in his testimony
In addition I credit the testimony of Terry to the effect
that Rainer offered to get their equipment fixed if they
would consider the UTE, and threatened the Company
would sell out if the Teamsters came in as well as
the testimony of both Terry and Cheney that Rainer
spoke of Teamsters' violence should it be selected by
the employees as their bargaining representative More-
over, I credit the testimony of Cheney to the effect
that Rainer threatened that the Company would never
reach agreement or bargain with the Teamsters but
would only appear to I conclude that this behavior
violated Section 8(a)(l) and assisted UTE in violation
of Section 8(a)(2) of the Act The Company's refusal
to bargain with the Teamsters, the shutdown of the
Company's operations if the Teamsters should come
in, and the promise to fix the equipment if the employees
would be interested in UTE are much more than mere
statements of employer preference Indeed, they consti-
tuted imminent threat of great harm to the employees
to be inflicted by the Respondent should they not prefer
UTE
E The Recognition of UTE
Respondent's President McClure testified that there
had been organizing efforts by the Teamsters and other
unions for the past 25 years and admitted that he had
heard rumors that the Teamsters were signing up employ-
ees before November 7 Similarly, Rainer in his testimo-
ny admitted hearing rumors in October that the Team-
sters were campaigning among the Respondent's employ-
ees
On November 6, Mr Diggs, a representative of UTE,
called President McClure, claiming to represent a majori-
ty of the Respondent's employees An appointment for
a meeting was made for the following day
On November 7, Diggs visited McClure and exhibited
some 50 signed authorization cards purporting to repre-
sent a clear majority of the 80 employees in the unit
McClure obtained a list of the employees and, after
OIL TRANSPORT COMPANY 1 1019
checking the cards against the list, discarded those not
then working for the Respondent He concluded that
UTE had cards from 49 of the 80 employees McClure
then asked Diggs to start negotiations for a contract
and, by evening of that same day, reached and signed
an agreement with Diggs covering the terms and condi-
tions of employment for the employees in the unit
for the next 3 years
Among the 49 cards presented by Diggs as constituting
a majority of the Respondent's employees were the
cards of employees White, Boling , Terry, Cheney, Jones,
and Webb, all of whom had also signed Teamster authori-
zation cards prior to November 7 Also among these
49 cards were the cards of employees Bollinger and
Wilson whose cards bear the date November 7 In
addition, the cards of employees Crumpton, Jim McEI-
reath, and Steffy bear the date of November 6
F Contentions and Conclusions
In essence, counsel for the Respondent contends that
the government has even failed to prove that
the Company had any significant knowledge of
Teamster activity on or prior to November 7
There simply was no meaningful Teamster support
among the UTE employees on November 7 There
was therefore no question concerning representation
on that date On November 7 the UTE clearly
represented an uncoerced majority of the Oil Trans
port Company employees in question
He points to the fact that of the 49 cards constituting
the majority on which Respondent's recognition of the
UTE was based, only 6 cards were from employees
who had also signed Teamster cards prior to November
7 and that, therefore, allegedly, there were still remaining
43 UTE cards which would constitute a majority of
the 80 employees in the unit
Counsel for the UTE adds that if a majority status
is demonstrated at the time of request for recognition
the Company is obligated to bargain, citing N L R B
v Gissel Packing Co , 395 U S 575
Counsel for the General Counsel, on the other hand,
contends that there was a real dispute as to representation
when the Respondent recognized and contracted with
UTE He argues that the Respondent knew of such
dual membership among its employees and could have
had no reasonable basis for believing that the proffered
authorization cards reflected the free and untrammelled
choice of its employees in view of its unlawful conduct
in support of the UTE He also urges that the haste
with which the Respondent extended recognition and
consummated the agreement should also be considered
The appropriate rule of law, cited with approval by
counsel for the Respondent, has been stated in N L R B
v Air Master Corp , 339 F 2d 553 (C A 3)
for an employer to recognize a union that
enjoys only minority support is an unfair labor
practice under the explicit holding of the Supreme
Court in International Ladies' Garment Workers
case To recognize on of two competing unions
while the employees' choice between them is
demonstrably in doubt in an unfair labor practice
under what the courts have accepted as a normal
and proper application of the Midwest Piping doc-
trine and in principle the same result follows
when majority support for the recognized union
exist, but has been achieved by coercion or some
other unfair labor practice and where a clear
majority of employees without subjection to coer-
cion or other unlawful influence have made manifest
their desire to be represented by a particular union
there is no factual basis for a contention that the
employer's action thereafter in recognizing the
Union or contracting with it is an interference
with their freedom of choice
To begin with, it appears necessary to deduct the
six UTE authorization cards which were signed by
employees who had also signed authorization cards for
the Teamsters Trial Examiner's Decision in J W Mor
tell Company, 168 NLRB 435, citing Bendix-Westing-
house Automotive Air Brake Company, 161 NLRB 789,
and others There still remains a question as to whether
the 43 authorization cards thus remaining constituted
such a clear majority for the UTE as to warrant the
Employer's recognition I note that among the 43 consti
tuting the alleged majority on November 7, two employ-
ees, Bollinger and Wilson, had signed their UTE authori-
zation cards on November 7 and three other employees
had signed UTE authorization cards on November 6
This becomes important in view of the Respondent's
lpehavior on November 5 and 6 which may have been
communicated to other employees in addition to Terry
and Cheney and have possibly influenced their choice
of the UTE
Thus I note that on November 5 Lipham was told
by Respondent's supervisor that tt would be a "wise"
idea for him to join UTE and was asked why he had
not attended the UTE meeting Respondent had no
reason to believe that the supervisor's attitudes as con-
veyed to Lipham were not relayed, in turn , to other
employees sometime between November 5 and Novem-
ber 7 Similarly when Rainer told Terry and Cheney
to join UTE instead of the Teamsters, promised to
fix their equipment if they would consider the UTE,
counseled them abort the violence that the choice of
the Teamsters would bring, notified them that the Compa-
ny would sell out if Teamsters came in, and said the
Company would not negotiate with the Teamsters, the
Respondent could have expected these sentiments of
Rainer would be relayed to other employees Indeed,
both Terry and Cheney testified that they did convey
Rainer's remarks to other employees Of course, Rainer's
conversation took place in the late afternoon of Novem-
ber 6 UTE card signers prior to that time could not
have been influenced by his conversation with Terry
and Cheney even had they heard about it But five
employees among the 43 who signed UTE cards did
so on November 6 and November 7 and Respondent
had no reason be believe that they had not heard of
Rainer's conversation with Terry and Cheney If so,
it would appear that the 43 cards presented by UTE
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Respondent on -November, 7 did not represent
the free and untrammelied. right of choice between rival
unions by majority of the 80 employees, but only the
free choice of 38 of the 80 employees and not a majority.
It is not important that the Teamsters had not filed
a petition for an election prior to November 7. Iowa
Beef Packers, Inc., 144 NLRB 615; Sunbeam Corpora-
tion, 99 NLRB 546, 552. The filing of a petition merely
formalizes the employer's notice of a rival union situa-
tion. Here there is no question that at least two of
the chief officials of the Respondent were well aware
of the rival campaigns going on for UTE and Teamsters
when it recognized and contracted with UTE. In this
connection it is significant to note that the only verifica-
tion of the, 49 union authorization cards tendered by
UTE on November 7 was attempted by President
McClure himself, who testified that he could recognize
most of the signatures of his employees. On cross-
examination, however, it appeared that he was able
to verify the signatures of perhaps 75 to 90 percent
of his employees. UTE Representative Diggs made no
representation to McClure of having seen the employees
sign the cards. Nevertheless, in spite of this rather
tenuous verification, McClure negotiated a contract with
UTE within hours after seeing the tendered authorization
cards. The decision of the Board in Sunbeam Corpora-
tion, supra is pertinent:
Summarizing the facts; we have an employer fully
aware that the IAM, the IUE, and the IBEW are
competing to organize its production and mainte-
nance employees. It had decided as a matter of
policy to make a contract with only one union
which can show, a majority on the basis of cards.
Having received a claim, of representation from
the IAM the employer assumes the initiative in
seeking immediate negotiations the following work-
ing day. Without stopping to verify the IAM's
claim of majority, the employer rushes into a memo
agreement with it at the first meeting. . . The
employer's extraordinary haste in consumating an
agreement with the IAM after a bare claim of
majority and the contrasting treatment accorded
the IBEW when it made a claim of representation
and to the IUE when it sought first an audience
and then proposed a resolution of the questions
of representations by secret ballot demonstrates
that the employer fully intended to bestow, this
prestige and advantage on the IAM to the disadvan-
tage of its rivals.
Assuming, arguendo, that the UTE had 43 valid
authorization cards, a majority of the 80 employees
in the unit, it does not necessarily establish Respondent's
right to contract with it. A numerical majority status
is irrelevant when a real question concerning representa-
tion exists. Sunbeam Corporation, supra; Swift & Com-
pany, 128 NLRB 732; Novak Logging Company, 119
,,NLRB 1573, fn. '6. Here the question of representation
was, quite real; Rainer was told by Terry and Cheney
tit not only they, but other employees as well, preferred
the Teamsters over the UTE and had switched from
the UTE to Teamsters. Schafer told Terry that he knew
that the employees were having Teamster meetings.
Respondent's reliance on signed UTE cards was not
warranted. It has been recognized that authorization
cards are a notoriously unreliable method of determining
majority status of a union as a basis for entering into
a contract where competing unions are soliciting cards.
The Board has stated Midwest Piping and Supply Co.,
Inc., 63 NLRB 1060, 1070:
. . . membership cards obtained during the heat
of rival organizing campaigns . . . do not necessari-
ly reflect the ultimate choice of a bargaining repre-
sentative indeed, the extent of dual membership
among the employees during periods of intense
organizing activity is an important unknown factor
affecting a determination of majority status, which
can best be resolved by a secret ballot among
the employees.
Whether or not Respondent favored and assisted the
UTE, it was on notice on November 7 when it recognized
and contracted with the UTE that a significant number
of the 49 card signers had switched from the UTE
to Teamsters giving rise to a real question of representa-
tion.
Counsel for the Respondent cites several cases in
support of his position. Thus, he cites the decision
of the Court of Appeals for the Sixth Circuit in American
Bread Co. v. N.L.R.B., 411 F.2d 147, and the decision
of the Court of Appeals for the Third Circuit in N.L.R.B.
v. Air Master Corp., 339 F.2d 553, where the courts
found no real question of representation existed when
the employer recognized one of two rival unions, revers-
ing the Board's decision to the contrary. I am, of course,
bound by the decisions of the Board. However, even
if I were not so bound, I find neither court decision
precludes a finding here that the Respondent violated
Section 8(a)(2) of the Act by recognizing the UTE.
I note, for example, that in American Bread the court
found that the majority of the employees signed up
with one of the rival unions, not because of the efforts
of the employer,' but because of the efforts of that
union. Moreover, the court found that the company
agreed to have a neutral third person check the card
signatures against those on payroll receipts, and the
contract was executed between the union and the compa-
ny more than 30 days after the union's claim of majority.
Here, however, there is reason to believe that the majori-
ty signing up for UTE, if indeed' it was a majority,
may well have been affected by the statements and
warnings of Supervisors Day and, Rainer; there was
no cross-check of the card signatures and no neutral
third person was called in to verify the claimed majority;
and the decision to recognize and the contract itself
was negotiated but a few hours after the claimed majority
was made known to the employer. Similarly, when the
court found in the Air Master case that there was
no real question of representation presented, it also
took note of the fact that "where a clear majority
of the employees, without subjection to coercion or
other unlawful influence, have made manifest their desire
to be represented by a particular union there is no
factual basis for a contention that the employer's action
OIL TRANSPORT COMPANY 1021
thereafter in recognizing the union or contracting with
it is an interference with their freedom of choice
[Emphasis supplied ]
The test has been stated by the Board and by the
courts In Iowa Beef Packers , Inc v N L R B , 331
F 2d 176 (C A 8), the court expressed the test as
follows
At a time when the rival organizations [are]
still in a formative state , with opinion still divided
and no definite decision reached as to which organi-
zation should be chosen , the employees [are]
sensitive to weight thrown by their employer in
favor of one organization as against another, even
though the suggestion of preference be subtle or
slight
It is beyond dispute that an employer is not to
meddle in labor union affairs, that when faced
with rival representation claims he is required to
maintain a strictly neutral position [Emphasis sup-
plied ]
See also Sunbeam Corporation, supra
I cannot find that the Respondent maintained such
a "strictly neutral " position with respect to the cam-
paigns of the Teamsters and the UTE when Rainer
spoke to Terry and Cheney I further find that the
Respondent compounded this partiality when it hastily
recognized and contracted with UTE on the basis of
unverified UTE authorization cards despite its knowledge
of the rival campaigns being waged by the two unions
and the membership attracted to the Teamsters by a
number of the employees
Counsel for the UTE also cites a number of decisions
in support of his position Thus, he cites the decision
of the Court of Appeals for the Seventh Circuit in
Cleaver-Brooks Manufacturing Corp v N L R B, 264
F 2d 637, reversing the Board decision at 120 NLRB
1135 Here , too, of course , I am bound by the decision
of the Board It should be pointed out, however, that
the court, finding no real question of representation,
noted that the union had obtained the signatures from
35 of the 47 employees in the unit , a much more convinc-
ing showing of majority than is present here The UTE
counsel also cites Retail Clerks Local 770 v N L R B ,
370 F 2d 205 (CA 9), affirming the Board's order at
156 NLRB 105 In that case the employer ' s recognition
of one of two unions was appropriate inasmuch as
the rival union had no authorization cards from any
of the employees and never professed that it had Here,
of course , the Respondent knew that the Teamsters
had authorization cards from some of the employees
who were strongly anti-UTE and pro-Teamsters He
also cites N L R B v Gissel Packing Co , 395 U S
575, arguing that " If majority status is demonstrated
at the time of request for recognition the Company
is obligated to bargain " The decision of the court
in Cleaver Brooks, supra , is to the same effect I do
not so read the Gissel Packing case Indeed , to quote
the Supreme Court
an employer can insist that a union go to
an election regardless of his subjective motivation
so long as he is not guilty of misconduct , he need
give no affirmative reasons for rejecting a recogni-
tion request and he can demand an election with
a simple "no comment " to the union [395 U S
579]
As we have pointed out, however , an employer
is not obligated to accept a card check as proof
of majority status, and he is not required to justify
his insistence on an election by making his own
investigation of employee sentiment and showing
affirmative reasons for doubting the majority status
[395 U S 583] [Emphasis supplied ]
The Board and the Court both recognize that secret
elections are generally the most satisfactory-indeed
the preferred-method of ascertaining whether a union
has majority support, but both permit reliance on authori-
zation cards A distinction , however , is properly drawn
between a reliance on authorization cards where only
one union is involved and a rejection of authorization
cards where there are rival unions
The Board ' s reliance on membership cards in
the single union situation is not inconsistent with
its rejection in the rival union context because
of the difference in factual settings and Board alter-
natives in the two situations Typically, the tension
of a rival union campaign far exceeds that of a
single union's drive for support , and the competition
forces each union to organize as quickly as possible
The single union campaign is usually more leisurely,
consequently employee free choice is subject to
less pressure and is more likely to be reflected
in the membership cards Furthermore, since the
8(a)(5) action almost always reaches the Board after
employer unfair labor practices have at least tempo-
rarily and possibly permanently , destroyed the
union ' s majority support , a Board election may
be an entirely unacceptable method of ascertaining
the employees' real preference Therefore , to pre-
vent the employer from completely frustrating
employee free choice , the Board must rely on some
evidence to indicate the union's majority support
at the time of its demand, for this determination
is prerequisite to the 8(a)(5) question whether the
employer ' s refusal was motivated by a good faith
doubt as to the union ' s representative status In
this dilemma, the Board must depend on the mem-
bership cards to demonstrate that the union actually
represented a majority of employees at the time
it demanded recognition In the rival union situation,
since the Board 's election machinery remains the
most reliable verification of employee preference,
and the pressure on employees is more intense,
dependence on membership cards is unnecessary
and unwise I1 University ol, Pennsylvania Law
Review, 930, 947 [Emphasis supplied ]
CONCLUS16NS QF LAW
1 Supervisor Day's interrogation of employee Lip-
ham concerning his absence from a UTE meeting and
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terminal Manager Schafer's statement to employee
Terry that he knew the employees were having Team-
sters' meetings but did not know where or when created
the impression of surveillance, an interference with their
union on concerted activities in violation of Section
8(a)(1) of the Act.
2. Terminal, Supervisor Rainer's .conversation with
employees terry and Cheney in4hich he said the Com-
pany would have to sell out if the Teamsters came
in, asked them if they would consider going with the
UTE if the Company fixed their equipment, and threat-
ened that the Company would not negotiate with the
Teamsters, interfered with the rights of the employees
to engage in concerted activities and to select a represent-
ative of their own choice in violation of Section 8(a)(1)
of the Act. In addition, it constituted unlawful assistance
to the UTE by his disparate attitudes, in violation of
Section 8(a)(2) of the Act:
3. Respondent's recognition of and .contract with the
UTE when a real question concerning representation
existed was an unfair labor practice within the meaning
of Section 8(a)(2) and (1) of the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I shall recommend that
it cease and desist therefrom and take certain affirmative
action I find necessary to effectuate the policies of
the Act.
I shall recommend that Respondent cease and desist
from its unfair labor practices, that it withhold recogni-
tion from the UTE unless and until that Union shall
have been certified by the Board as the representative
of its employees, and that it post appropriate notices,
such being the limits of the remedy proposed by counsel
for the General Counsel.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law, I recommend that the Respondent,
Oil Transport Company, its officers, agents, successors,
and assigns shall:
1. Cease and desist from:
(a) Creating the impression of surveillance of its
employees' union or concerted activities.
(b) Unlawfully threatening to go out of business if
the employees select a particular union.
(c) Threatening to refuse to negotiate with a union
selected by the employees.
(d) Promising benefits if the employees consider join-
ing a labor organization of its choice.
(e) Recognizing UTE as the representative of any
of its employees for the purpose of dealing with the
Respondent concerning wages, rates of pay, hours of
employment, or other conditions of employment unless
and until such labor organization shall have been certified
by the Board as the exclusive representative of its
employees in the appropriate bargaining unit.
(f) Giving effect to the collective -bargaining agreement
executed with the UTE on November 7, 1968, or to
any extension , renewal, or modification thereof , provided
however , that nothing herein shall require the Respond-
ent to vary or abandon any wage , hour , seniority or
other substantive feature of its relationship with its
employees which Respondent has established in the
performance of such agreement.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their right to self-organization, to form, join or assist
the Union or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, or to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection or to refrain from such activity.
2. Take the following affirmative action necessary
to effectuate the policies of the Act;
(a) Withdraw and withhold all recognition from the
UTE as the representative of any of its employees,
unless and until such labor organization shall have been
certified as such representative.
(b) Post at its terminals in Abilene, Lubbock, Wichita
Falls, Amarillo, Big Springs , and Goldsmith, Texas,
copies of the attached notice marked "Appendix"' Cop-
ies of said notice, on forms provided by the Regional
Director for Region 16, after being duly signed by an
authorized representative of the Respondent, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter
in conspicuous places, including all places where notices
to 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.
(c) Notify said Regional Director, in writing, within
20 days of receipt of this Recommended Order what
steps Respondent has taken to comply herewith.'
' 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, 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 "
Y In the event that this Recommended Order be adopted by the
Board, this provision shall be modified to read "Notify the Regional
Director for Region 16, in writing , within 10 days from the date of
this Order, what steps Respondent has taken to comply herewith "
OIL TRANSPORT COMPANY 1023
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT create the impression that we
are surveilling [sic] the union or other concerted
activities of our employees
WE WILL NOT unlawfully threaten to go out
of business if our employees select the Teamsters
Union or any other labor organization
WE WILL NOT threaten to avoid negotiating or
contracting with the Teamsters Union or any other
labor organization selected by our employees
WE WILL NOT promise benefits to our employees
if they should consider joining a labor organization
of our choice
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exercise
of your right to self-organization, to form, join,
or assist Teamsters Local 47 and Teamsters Local
577, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization, to
bargain collectively through representatives of your
own choosing or to engage in other concerted activi
ties for the purpose of collective bargaining or
other mutual aid or protection or to refrain from
such activity
WE WILL hereby withdraw recognition from the
Union of Transportation Employees and will no
longer give effect to any contract with the organiza-
tion affecting your employment
Dated By
OIL TRANSPORT
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's
Office, 8A24 Federal Office Building , 819 Taylor Street
Fort Worth, Texas, Telephone 334-2921