W. W. Holmes

In the Matter of W. W . HOLMES, LOTTIE APPLE HOLMES HALEY, W. F. SIEBOLD, E. I. NEWBLOCK, JOHN H. HILL, AND T. J. HALEY,' EM- PLOYER and LOCAL #351, INTERNATIONAL UNION OF OPERATING ENGINEERS, A. F. L., PETITIONER Case No. 16-RC-307.-Decided April 02,1949 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, a hearing in this case was held before James P. Wolf, a hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act the Board has delegated its powers in connection with this case to a three-member panel [Members Reynolds, Murdock, and Gray]. Upon the entire record in this case, the Board finds : 1. The individuals above named have been named jointly as the Employer in this proceeding. They have varying interests in five oil and gas leases in oil-producing property located in Carson and Hutchison Counties, Texas.2 The active management of the prop- erties is carried on by W. W. Holmes with the consent of the other owners. No written agreement, however, exists among the owners. W. W. Holmes has charge of the production, sale, and distribution of the oil from the various leases. He maintains the necessary books of account including a single pay-roll account from which all em- ployees are paid. The general expenses of operation are prorated, ' The names appear as amended at the hearing. 2 The leases are known as the Quinn, Moore, Siebold , Newblock, and Lyall leases. The first four leases are contiguous , comprise a total of 400 acres, and are located in Carson County, Texas. The fifth lease of 80 acres is located about 25,miles distant in Hutchison County, Texas. Ownership of the said leases is divided as follows : Quinn, Moore, and Lyall leases : W. W. Holmes and Lottie Apple Holmes Haley each own one-half interest; Siebold lease : W. W. Holmes, Lottie Apple Holmes Haley, John H . Hill, and W. F. Siebold own one-fourth interest; Newblock lease : W. W. Holmes and T. J. Haley each own one-fourth interest, and E I. Newblock owns the remaining one-half interest. 83 N. L. R. B., No. 6. 49 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and periodic assessments made among the owners. Furthermore, all employees work under common supervision, and some employees may, in the course of a month, work on all five leases. The individuals named as Employer contend that they should not collectively be deemed an employer within the meaning of Section 2 (2) of the Act. W. W. Holmes, appearing on their behalf, has con- ceded, however, that there has been no change in management or operations since our decision in an earlier proceeding involving the same parties.3 In that case, the Trial Examiner found, and the Board affirmed his finding, that the individuals in question were joint adventures and employers within the meaning of Section 2 (2) of the Act. There is nothing in the present record which alters our opinion in this respect. Accordingly, we find that W. W. Holmes, Lottie Apple Holmes Haley, W. F. Siebold, E. I. Newblock, John H. Hill, and T. J. Haley constitute an employer within the meaning of Section 2 (2) of the Act.4 Gross annual production of crude oil from the five leases amounts to approximately $280,000. The oil produced is first stored in tanks located on the respective leaseholds, at which pdint it is sold and delivered to the Phillips Petroleum Company. The crude oil is there- after transported by pipe line to the Phillips Petroleum Company refinery located near Borger, Texas. The oil, commingled with other crude oil, is refined into gasoline and other products of which 85 percent to 93 percent is shipped to points outside the State of Texas. We find, contrary to the contentions of the Employer, that they are engaged in commerce within the meaning of the National Labor Relations Act, and that to assert jurisdiction in this case will effectuate the policies of the Act.5 2. The labor organization involved claims to represent employees of the Employer. 3. A. question affecting commerce exists concerning the represen- tation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a unit of all production and maintenance employees, comprising the classifications of pumpers and roustabouts, including drillers and tool dressers, but excluding clerical and tech- nical employees and supervisors. The Employer contends that 8 See Matter of W. W. Holmes, Lottie Apple Holmes Haley, W. F. ,Slebold, E. I. New- block and J. H. Hill, 72 N. L. R. B. 39 . The parties are identical except for the addition of T. J. "Haley, who acquired his one-fourth interest in the Newblock lease by assignment from his wife, Lottie Apple Holmes Haley. See Matter of Edward Taubman, et al., 77 N. L. R. B. 846. See Matter of James C. Ellis, 72 N. L. R. B. 474. W. W. HOLMES 51 separate unit's coextensive with the operations on each lease are" ap- propriate because of the absence of any community of interest among the separate lease owners. The Employer contends in the alternative (1) that a unit restricted to all roustabouts is appropriate, or (2) that three separate units of pumpers and roustabouts, based on di- versity of ownership, are appropriate. The Employer further con-- tends that both drillers and tool dressers should be excluded from any unit found appropriate upon the ground that they are temporary employees,'and also that the only driller at present employed should be excluded because he is a supervisor within the meaning of the Act. The Employer employs four individuals classified as pumpers, whose principal -duties are to operate the pumping equipment, but who in addition make some repairs and adjustments. The pumpers are permanently assigned to specific leases, but individual pumpers have been known on occasion to transfer to another lease during a pumper's absence on vacation. All pumpers work under the imme- diate supervision of the general superintendent, or the assistant super- intendent in the former's absence. In addition to the pumpers there are three roustabouts who do general maintenance work on all five leases. The roustabouts work under the immediate supervision of the assistant superintendent, and have duties which often bring them into close contact with the pumpers. All employees are hourly rated and are paid from the same pay-roll account. In the earlier Holmes case,6 the Board determined under the facts and circumstances substantially similar to those set forth above that the pumpers and roustabouts constituted a single appropriate unit for the purposes of collective bargaining. The present record compels us to reach the same conclusion.' The Employer employs at present a driller and tool dresser for the specific task of cleaning the wells on the properties. The present driller and tool dresser have been employed since April 1948, however, the Employer anticipates that the work of these employees will shortly be completed. The particular operation on which they are now en- gaged is not performed at regular intervals but only at such time as the normal flow of oil from the wells has been unduly retarded .8 Although on prior occasions the Employer has sought to reemploy the same driller and tool dresser, the present employees are being em- ployed for the first time. It is customary for the driller, when hired, to bring with him a tool dresser. On the other hand, the record is 6 Matter of W W Holmes, et al, footnote 3. supra. ' See Matter of The Teajas Company, 67 N. L R B 452. 'The next most recent operation occurred about a year or a year and a half ago. 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amply clear that the driller does not have authority either to discharge or effectively to recommend any change in the status of such tool dresser. We find, therefore, that the driller is not a supervisor within the meaning of the Act.e However, in the absence of any showing that the driller and tool dresser have any reasonable expectation of permanent employment or that there is any degree of regularity in their employment, we believe that they should be excluded from the unit 10 We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All pumpers and roustabouts, employed by the Employer on the Quinn, Moore, Siebold, Newblock, and Lyall leases located in Carson and Hutchison Counties, Texas, excluding temporary employees 11 clerical and technical employees, and supervisors as defined in the Act. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with the Employer, an election by secret ballot shall be conducted as early as possible, but not later than 30 days from the date of this Direction, under the direction and super- vision of the Regional Director for the Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, as amended, among the employees in the unit found appropriate in paragraph numbered 4, above, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, but excluding those employees who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the election, and also ex- cluding employees on strike who are not entitled to reinstatement, to determine whether or not they desire to be represented, for pur- poses of collective bargaining, by Local #351, International Union of Operating Engineers, A. F. L. 9 See Matter of Duval Texas Sulphur Company, 53 N. L. R. B . 1387, 1391. 10 See Matter of Jefferson Chemical Company, 79 N. L. R, B. 584. 11 Excluded under this category are the drillers and tool dressers „ employed by the Employer.