Husky Oil NPR Operations

HUSKY OIL. NPR OPERATIONS Husky Oil NPR Operations, Inc. and International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local 959. Case 19 CA - 10790 September 25, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On July 20, 1979, Administrative Law Judge James T. Rasbury issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings.' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge and hereby or- ders that the Respondent, Husky Oil NPR Operations, Inc., Anchorage, Alaska, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The following obviously inadvertent errors in the Administrative Law Judge's Decision are noted: The record reveals that the Union was unsuc- cessful in its efforts to contact the employees at their homes, rather than, as indicated by the Administrative Law Judge. at the airport in Anchorage. Alaska. Likewise, the record reveals that Camp Lonely only receives the commercial radio station in Barrow, Alaska, intermittently. not that. as found by the Administrative Law Judge, the Barrow station only transmits on an intermittent basis. DECISION STATEMENT OF THE CASE JAMES T. RASBURY, Administrative Law Judge: This case was heard in Anchorage. Alaska, on March 27, 1979. The Complaint and notice of hearing was issued on November 7. 1978. based upon a charge filed on September 27, 1978.1 [ All dates hereinafter will refer to the year 1978 unless otherwise indi- cated. An amended charge was filed on March 13. 1979. and served on Respondent on or about the same date which did nothing more than show the correct name of Respondent and add the name and address of an Anchorage. Alaska. contact for the Respondent. The complaint alleges a violation of Section 8(a)( I ) of the National Labor Relations Act. as amended (herein Act) in that the Union sought and was denied permission bh Re- spondent to personally contact and communicate with Re- spondent's employees at an isolated work location at ('amp Lonely. Alaska. in connection with the Union's desire to represent said employees in a forthcoming NRB-con- ducted representational election. Respondent's answer was timely filed on November 14 and admits certain prerequi- site jurisdictional data. but denies the commission of ans unfair labor practices. Helpful briefs have been filed by the General Counsel and Respondent and have been carefully considered. Based upon the entire record. including my observation of the demeanor of the witnesses. I herebv make the fO)llow- ing: FINDIN(iS OF FACI I. JURISDIO(' ()N Respondent is a Delaware corporation with an office and place of business in Camp Lonely. Alaska. where it is en- gaged in the business of exploring the national petroleum reserves in the State of Alaska. During the past 12 months. which period is representative of all times material herein. Respondent in the course and conduct of its business opera- tions had gross sales of goods and services valued in excess of $500,000. During that same period of time. in the course and conduct of its business operations. Respondent pur- chased and caused to be transferred and delivered to its facilities within the State of Alaska goods and materials valued in excess of $50,000 directly from sources outside the State of Alaska. or from suppliers within said State which in turn obtained said goods and materials directly from sources outside the State of Alaska. Based upon these admitted facts. I herewith find Respondent to be. and at all times material herein to have been, an employer engaged in commerce within the meaning of Section 2(2). (6). and (7) of the Act. II. TE I.ABOR OR(;ANIZATION NVoIVElI) The International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. I.ocal 959 (herein Union) is, and at all times material herein has been. a labor organization within the meaning of Section 2(5) of the Act. III. TE A.t.EGED UNFAIR I.ABOR PRACTI(ES A. The Issue The issue involves an interpretation of' .L. R. B. v. Bah- cock & ;/ilcox Company, 351 U.S. 105 (1956). Are Respon- dent's employees located in a sufficiently remote and iso- lated area as to require Respondent to allos a nonemployee 245 NLRB No. 68 353 DECISIONS OF NAIONAL LABOR RELATIONS BOARD union representative reasonable access to said property and employees, or are there other available channels of commu- nication through which the Union might communicate with the employees? B. Background Pursuant to a petition filed on January 25 in a Stipulation for Certification Upon Consent Election approved by the Regional Director for Region 19 on February 15, an elec- tion by secret ballot was conducted on March 17 among Respondent's employees in the following appropriate bar- gaining unit: All heavy equipment operators, truck drivers, mechan- ics, electricians, warehousemen, laborers, oilers, main- tenance men, medics and airport coordinators em- ployed by the Employer at Husky Oil NPR Operations at Camp Lonely, Alaska; but excluding all office cleri- cal employees, professional employees, confidential employees, guards and supervisors as defined by the Act. On March 24 the Union filed timely objections to the elec- tion and on May 24 the Regional Director for Region 19 issued his report and recommendations on challenged bal- lots and objections in which he recommended that the March 17 election be set aside and a second election con- ducted (see G.C. Exh. 2). On August 8. the Board issued its decision and direction of a second election (see G.C. Exh. 4). On September 15 representatives of Respondent, the Union. and the Board met to discuss holding the second election as directed by the Board. At this meeting a Team- ster representative requested permission to land the Union's plane at the Camp Lonely airstrip and to go into Camp Lonely to talk to Respondent's employees. Respondent de- nied the Union's request. Respondent took the position that the Union had alternative means of communicating with the employees and offered to give the Union the home ad- dresses, telephone numbers, and R & R schedules of its employees in connection with the Excelsior list to be pro- vided for the second election.' The September 15 meeting was brought to an abrupt close with the Union's announce- ment that it was filing an unfair labor practice charge based upon the Company's refusal to grant it permission to con- tact the employees at Camp Lonely, a denial which would serve to block the election. C. The Evidence Most of the relevant facts are not in serious dispute and have been taken from the testimony of Craig Schulz, man- ager of employee relations for Husky Oil Company, and Paul Johnson, support services superintendent at Camp Lonely for Husky Oil NPR Operations. Camp Lonely is situated on the Arctic Ocean approxi- mately 660 air miles north of Anchorage, Alaska, and is 2 R & R refers to the rest and recreation schedule of the employees. The employees' schedules vaned. Some worked 2 weeks on and 2 weeks off, others worked 4 weeks and 2 weeks off, and a few employees worked 6 weeks and 2 weeks off. accessible only by air (see Resp. Exh. 3). The camp does not have a commercial airport, but there is an airstrip and an airport terminal, apparently under the control of the Re- spondent, and a hold harmless agreement must be signed with Respondent before private or chartered aircraft can he landed at the airstrip. Respondent is engaged in the exploration of the national petroleum reserve in the State of' Alaska pursuant to a con- tract with the United States D[epartment of the Interior. In this connection. Respondent maintains an oil drilling camp and supply center at Camp I.onely, Alaska, where it em- ploys approximately 45 employees in the ahove-described bargaining unit. Employees are housed and take their meals at the camp (see Resp. Exh. 2. 4. 5. and 6). Employees work 12-hour shifts either 7 a.m. to 7 p.m. or 7 p.m. to 7 a.m. - 7 days per week. Employees are housed two in a room. here are no tele- phones in the individual rooms. but there is one public tele- phone located in the dormitory area (see Resp. Exh. 2. the point marked with the letter "t." for the telephone's exact location). This telephone is not operated through the Em- ployer's switchboard, but in order to receive an incoming call someone would have to be waiting at the telephone. (While there was some testimony indicating that there is a central loudspeaker or internal communicating system. there was no testimony tending to indicate that this would be available to the rank-and-file employees or accessible in case of an incoming call at the public telephone booth.) The public telephone could only be utilized for outgoing tele- phone calls by the use of a credit card. Mail is addressed to the employees in care of Respondent at its Anchorage facilit. Respondent then places the mail in a mail sack and sends it aboard an aircraft to ('amp Lonely. The mail is separated and placed in open alphabeti- cal slots within an hour or an hour and a half of its arrival at the camp. Camp Lonely is capable of receiving the broadcast of two radio stations. One is an armed forces station which is not permitted to broadcast commercial messages and the other is a commercial station located in Barrow, Alaska, which only transmits on an intermittent basis. The camp does not receive direct commercial television broadcast. However, Respondent purchases videotapes of regular television pro- grams seen in Anchorage which are then telecast in and around Camp Lonely. There is one television set available in the recreational area for all employees, and a few em- ployees have their own televisions in their rooms. Respon- dent generally purchases sufficient tapes to provide ap- proximately 2-1/2 hours of television programming per day, per shift, or a total of 36 hours per week. As far as this record reveals, of the approximately 45 employees in the bargaining unit, 5 or 6 reside in one of the lower 48 States, 2 or 3 reside at locations in Alaska other than Anchorage and the remaining number reside in or around the Anchorage area. All transportation to and from Camp Lonely for Respon- dent's employees is arranged fo)r by the Company with Great Northern Airlines. which has terminal facilities at the Anchorage airport (see Resp. Exhs. 8 and 9). While the record reveals that because of' the generally crowded conditions and the limited facilities, and because 354 HUSKY OIL NPR OPERATIONS of the distraction to the work force, the Respondent main- tains a rather strict rule regarding casual visitors to Camp Lonely, nevertheless, it also reveals that there have been such outsiders as a man and wife photography team, corpo- rate management executives and their wives, two natives from Barrow, Alaska, on their snowmobile, and the An- chorage Desk and Derrick Club.' Respondent's Arguments Respondent contends that the Union might have reached the employees if it had made reasonable efforts to do so by utilizing other available channels of communication. They point out that it would be possible to buy commercial time on the television programs and thus their message might be seen by the employees at Camp Lonely. To accomplish this. however, would be more difficult than it might seem. The cassettes that are purchased contain an entire program as it was televised at the station in Anchorage. Most of these programs are national programs on which the cost of adver- tising is extremely expensive and could not be arranged for locally. Additionally. even if the Union sought to reach the employees through this method. it would have no assurance that the programs on which it elected to advertise or carry their message to the employees would be selected by the Company for transmission at Camp Lonely. It would be possible to reach the employees by mail and. even though Respondent might be fully aware of the fact that the em- ployees were receving union literature (because of the way in which the mail is made available to the employees), I do not regard this procedure as totally undesirable.' Respondent also contends that the airport terminal of the Great Northern Airlines is like a funnel through which all traffic between Anchorage. Alaska. and Camp Lonely,. Alaska. must pass and. thus, had the Union accepted its offer to provide the rest and recreational schedules of each of the employees, it would have been relatively easy to have a face-to-face contact and communication with all of the employees in the bargaining unit. However, the evidence reveals that the R & R schedules are frequently altered- either to accomodate the employee or because of the work- load and even when the R & R schedules remain intact. the plane schedules are not too dependable because of the severe weather. Moreover. the testimony reveals that such efforts as the Union has made to contact employees at the airport have been highly unsuccessful, because the employ- ees are primarily concerned with meeting and being with their families at this time. Respondent argues that the General Counsel must prove that the Union has availed itself of all other means of com- munications in order for the complaint to be sustained, cit- ing The Falk Corporation. 192 NLRB 716 (1971). Respon- dent then quotes a portion of the Falk decision wherein it is said: "General Counsel must establish that the Union is 3 The Desk and Derrick Club is compnsed of women working in the oil industry. The record does not reveal the number of members in the Desk and Dernck Club who made the visit to Camp Lonely or whether they stayed overnight. ' It must be noted, however, that Respondent was found to have unlaw- fully discharged Arnold J. Cramer because of his union activity In Hurskv Oil N.P.R Operations Inc.. 235 NLRB 418 (1978). which case is currentl on appeal by the Respondent to the 10th Circuit Court of Appeals. unable by reasonable efforts through other available chan- nels of communications to reach the employees with its message." There is a distinction, however, between Respon- dent's assertion, namely, that the Union must avail itself of other means of communication in order for the complaint to be sustained, and the quote from the Flk case which states that it must be shown that the Union is unable to reach the employees through other available channels of communication. It is possible for the Union to prove the latter without necessarily having made every conceivable effort to avail itself of the other means of communication. As the Board said in footnote 7 on page 707 of Monogran Alodes, Inc.. 192 NLRB 705 (1971):' [W]e do not believe that the critical issue in this case hinges on the question whether the Union did, in fact. make a "reasonable effort" to reach these employees, Whether or not such an effort was made, it is the op- portunity to make such an effort because of "the loca- tion of the plant and the living quarters of the emplo3- ees" which is determinative of the Union's right to approach the employer's employees on his propert). Babcock & Wilcox. 351 U.S. 105. 113. Analysis In an early case, Republic Aiaion Corporatiol v. N.I.R.B. 324 U.S. 793. 799 (1945), the court recognized that in a "mining or lumber camp where employees pass their rest as well as their worktime on the Employer's prem- ises ... union organization must proceed upon the employ- er's premises or be seriously handicapped." All of the legal reasoning necessary to reach a decision in this case was set out by the United States Supreme Court in the Babcock & Wilcox decision, supra at 111 113. in the following paragraphs: In these present cases the Board has set out the facts that support its conclusions as to the necessity for al- lowing nonemployee union organizers to distribute union literature on the company's property. In essence they are that nonemployee union representatives. if barred. would have to use personal contacts on streets or at home. telephones, letters or advertised meetings to get in touch with the employees. The force of this position in respect to employees isolated from normal contacts has been recognized by this Court and by others ... It is our judgment, however, that an employer may validly post his property against nonemployee distribu- tion of union literature if reasonable efforts by the union through other available channels of' communica- tion will enable it to reach the employees with its mes- sage and if the employer's notice or order does not discriminate against the union by allowing other distri- bution ... This is not a problem of always open or always closed doors for union organization on company prop- erty. Organization rights are granted to workers by the 'The Falk/ (orporation case and ,foniogram tModels. Inc. were both de- cided on Ihe same day 355 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same authority, the National Government, that pre- serves property rights. Accommodation between the two must be obtained with as little destruction of one as is consistent with the maintenance of the other. The employer may not affirmatively interfere with organi- zation; the union may not always insist that the em- ployer aid organization. But when the inaccessabilitv of employees makes ineffective the reasonable attempts by nonemployees to communicate with them through the usual channels, the right to exclude from property has been required to yield to the extent needed to permit com- munication of information on the right to organize. The determination of the proper adjustments rests with the Board.... The distinction is one of substance. No restriction may be placed on the employees' right to discuss self- organization among themselves, unless the employer can demonstrate that a restriction is necessary to main- tain production or discipline.... But no such obliga- tion is owed nonemployee organizers. Their access to company property is governed by a different consider- ation. The right of self-organization depends in some measure on the ability of employees to learn the ad- vantages of self-organization from others. Conse- quently, if the location of a plant and the living quar- ters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them, the employer must allow the union to approach his employees on his property. [Emphasis supplied.] Thus, in N.L.R.B. v. Lake Superior Lumber Corp.. 167 F.2d 147 (6th Cir. 1948), cited with approval in Babcock & Wilcox, the employer operated remote lumber camps sev- eral miles from the nearest settlement. Employees worked, ate, and slept within camp confines and seldom left the premises, even on Sundays. In deciding the case, the 6th Circuit had concluded that property rights must give way to access by union organizers "where the circumstances are such 'that union organization must proceed upon the Em- ployer's premises or be seriously handicapped.' " 167 F.2d at 151, quoting Republic Aviation Corp., 324 F.2d 793, 799). Thus, in S & H Grossinger's Inc., 156 NLRB 233, 247- 265 (1965), enfd. 372 F.2d 26, 29-30 (2d Cir. 1967), the Board and the court found that access was required in a case involving a resort hotel where some 60 percent of the Company's employees resided, leaving the premises only rarely and only for brief periods. The Court, in upholding the Board's conclusion, noted that "the majority of the em- ployees live on the Employer's premises. They cannot be reached by any other means practically available to union organizers." In Alaska Barite Company, 197 NLRB 1023, 1028 (1972), affd. 83 LRRM 2992, 71 LC 113.878 1973), cert. denied 414 U.S. 1025, the Board ordered access where employees worked at an ore processing plant on a remote island which was accessible only by air or sea. The employees lived on the island during the 5-day workweek but were free to go home for 3-night, 2-day weekends. The Board, consistent with the principal stated in Babcock & Wilcox, found, "the likelihood that with respect to any given date the . . . Union's representative would find a significant number of . . . workers accessible without personally visiting their [working place] merits characterization as minimal." In Sabine Towing and Transportation Co., 205 NLRB 423 (1973), the Company's boats operated in coastal and Carib- bean waters and put into various ports about eight times a month on irregular schedules. In findings the Employer's no-access rule unlawful, the Board stated (at 424): [T]he Union was relegated in large part to trying to collar employees on a catch-as-catch-can basis during their brief stays in port. The demonstrably available channels of communication simply did not satisfy the employees' right to be given the benefit of [the Union's] position on the issues raised by the election campaign especially in light of the hostility to [the Union] to which they were exposed aboard ship as manifested in the other unfair labor practices found herein .... It seems perfectly clear in the case at hand, and I here- with find, that it was impossible for the nonemployee union organizers to reach the employees by the usual means of communicating. and thus Respondent violated Section 8(a)(I) of the Act when it prohibited and denied Teamster Local 959 organizers access to Camp Lonely and the em- ployees located and working there. The Respondent's "No Visitation Rule" has not been rigidly enforced and thus Re- spondent has failed to prove that such a restriction is neces- sary to maintain plant discipline and production. CON(IUSIONS OF LAW 1. Husky Oil NPR Operations, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and in an industry affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent, by denying the Union nonemployee or- ganizers access to its employees at Camp Lonely, Alaska, has interfered with, restrained, and coerced its employees in the exercise of their rights as guaranteed in Section 7 of the Act and thus violated Section 8(a)(1) of the Act. THE REMIDY Having found that Respondent unlawfully denied the Teamsters Local 959 access to its employees at Camp Lonely, Alaska, I shall order that Respondent grant such access to the Teamster nonemployee union organizers, sub- ject to reasonable regulations. Upon the foregoing findings of fact, conclusions of law. and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER6 The Respondent, Husky Oil NPR Operations, Inc., its officers, agents, successors, and assigns, shall: b 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, 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, and all objections thereto shall be deemed waived for all purposes. 156 HUSKY OIL NPR OPERATIONS 1. Cease and desist from: (a) Continuing or giving affect to policies or company rules pursuant to which representatives of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local 959 have been denied access to employees at Camp Lonely, Alaska, for the pur- pose of soliciting their support during their free time, or for the purpose of consulting, advising, assisting, or otherwise communicating with them during their free time in regard to their rights to self-organization; provided, however, that nothing herein contained shall be construed to prohibit Re- spondent from making and enforcing reasonable regula- tions with respect to visits by such nonemployee union rep- resentatives. (b) In any similar manner interfering with, restraining, or coercing its employees in the exercise of the rights guar- anteed them under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Post at its place of operations at Camp Lonely, Alaska, on the company bulletin board, or such other places as the usual notices to employees are posted, copies of the attached notice marked "Appendix." 7 Copies of such notice on forms provided by the Regional Director for Re- gion 19, after being signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure 7 In the event that this 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19. in writ- ing, within 20 days from the date of this Order what steps Respondent has taken to compl herewith. APPENDIX NOTICWI To EMPI.OYEES POSIIDo BY ORDER OF IHF NATIONAL. LABOR RELATIONS BOARI) An Agency of the United States Government After a hearing at which parties had the opportunity to give evidence, it has been determined that we, Husky Oil NPR Operations, Inc.. have violated the National Labor Rela- tions Act, and we have been ordered to post this notice. WE WILL, subject to reasonable rules and regula- tions, allow nonemployee Teamsters Union Local 959 organizers to have access at Camp Lonely, Alaska. to our employees during their free time for the purpose of soliciting their support, or for consulting, advising, meeting, or assisting our employees in regard to their rights to self-organization. WE WILL NOT in any similar manner interfere with. restrain, or coerce employees in the exercise of' the rights guaranteed them in the National Labor Rela- tions Act. All of our employees are free to become, remain, or re- frain from becoming or remaining members of the above- named or any other labor organization. HUSKY OIL NPR OPERATIONS INC. 357