Regardless of where the burden lay, however, we must examine the entire record and ascertain whether there was substantial evidence for the Board's finding that the Union represented a majority of the employees. National Can Corp. v. NLRB, 374 F.2d 796, 804 (7th Cir. 1967). In the past, the Board has been able to meet its burden of showing employee status in cases where the employee communicated some continuing interest in his job.
The fact that the parties failed to agree on the inclusion within the unit of two employees does not necessarily prove that the parties failed to agree substantially on the definition or scope of the unit. In National Can Corp. v. NLRB, 374 F.2d 796 (7th Cir. 1967), this court explained, "once having defined the unit it claims to represent and having made a bargaining demand on that basis, the Union has thereby established the frame of reference for measuring the validity of its demand." Id. at 801.
In this case, the crucial time for assessing the Company's knowledge is Monday, February 4, 1974, the date on which the Company was found to have unfairly rejected the Union's bargaining demand. The courts and the Board look to the time of the refusal to bargain in assessing the fairness of an employer's actions. See Colecraft Mfg. Co. v. NLRB, 385 F.2d 998, 1006-08 (2d Cir. 1967); National Can Corp. v. NLRB, 374 F.2d 796, 800-04 (7th Cir. 1967); Carlton Paper Corp., 173 NLRB 153, 155 n. 10 (1968); Sports wear Industries, Inc., 147 NLRB 758 (1964). The administrative law judge and the Board assumed that verification of the four cards demonstrated the Union's majority status.
See Utrad Corp. v. NLRB, 454 F.2d 520, 524-525 (7th Cir. 1972); NLRB v. Consol. Diesel Elec. Co., 469 F.2d 1016, 1020 n. 9 (4th Cir. 1972); Corriveau Rothier Cement Block, Inc. v. NLRB, 410 F.2d 347, 349 (1st Cir. 1969); NLRB v. Hotel Conquistador, 398 F.2d 430, 434 (9th Cir. 1969); Jervis Corp. v. NLRB, 387 F.2d 107, 111 n. 3 (6th Cir. 1967); NLRB v. Ritchie Mfg. Co., 354 F.2d 90, 99 (8th Cir. 1966); NLRB v. Camco, Inc., 340 F.2d 803, 804-805 (5th Cir.), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 339 (1965). See also the reasoning in National Can Corp. v. NLRB, 374 F.2d 796, 804-807 (7th Cir. 1967). There is nothing in Local 49, Operating Eng'rs v. NLRB, 122 U.S.App.D.C. 314, 353 F.2d 852, 856 (1965), on remand Struksnes Construction Co., 165 N.L.R.B. No. 102 (1967) approved NLRB v. Gissel Packing Co., 395 U.S. 575, 609, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), which is inconsistent with Bourne.
Tonkin Corp. of California v. NLRB, 392 F.2d 141, 145 (CA9 1968), cert. denied 393 U.S. 838, 89 S.Ct. 114, 21 L.Ed.2d 108 (1968). The authorities cited by respondent, such as NLRB v. Herman Wilson Lbr. Co., 355 F.2d 426 (CA8 1966); Colecraft Mfg. Co. v. NLRB, 385 F.2d 998 (CA2 1967); National Can Corp. v. NLRB, 374 F.2d 796 (CA7 1967); Texas Industries, Inc. v. NLRB, 336 F.2d 128 (CA5 1964), and Sax v. NLRB, 171 F.2d 769 (CA7 1948), predate Gissell and are not controlling. NLRB v. Automotive Controls Corp., 406 F.2d 221 (CA10 1969), although decided six months subsequent to Gissell makes no reference to the decision and is distinguishable on the facts. Likewise, our decision in Lake City Foundry Co. v. NLRB, 432 F.2d 1162 (CA7 1970), is grounded on a factual situation bearing little similarity to the one before us. There, the president of the company told an employee who commenced a solicitation of union membership that the company was opposed to an outside union and if there was to be a union, he preferred one by the employees.
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.
" See also this court's opinion in National Can Corp. v. National Labor Relations Board, 374 F.2d 796 (CA-7), where we again refused to enforce a Board's finding that the company violated Sec. 8(a)(1) of the Act. These and many other cases stand for the proposition that there is no sanction imposed upon the right of an employer to express his views on labor policies or problems, or to express his preference of one competing union over another, even to take sides provided he does not coerce, restrain or interfere with the selection of a bargaining representative.
We think there is substantial support in the record as a whole for concluding that the violation of Section 8(a)(1) occurred. This court's decision in National Can Corp. v. NLRB, 374 F.2d 796 (7th Cir. 1967), does not compel a different conclusion. There is more here than an exchange of views between a low-level supervisor and one employee, and there are no employer letters to, and conversations with, employees giving assurances of freedom in union activity — which the record there showed.
As petitioner argues, mere interrogation of employees without threat or intimidation concerning union membership is not per se a violation of the Act (absent anti-union background and not associated as part of a pattern of conduct hostile to unionism) and standing alone will not support a finding that § 8(a)(1) has been violated. National Can Corp. v. NLRB, 7 Cir., 1967, 374 F.2d 796, 806. However, the inquiries made by supervisory employees here were not standing alone but occurred in an atmosphere of restrained but clearly evident disapproval of a union.
An employer is under no duty to accede to an ambiguous request to bargain. National Can Corporation v. N.L.R.B., 374 F.2d 796 (7th Cir. 1967). The trial examiner stated during the hearing that "[t]he letter will have to speak for itself" and held in his decision, without discussion, that it "contain[ed] a plain request for recognition and collective bargaining".