Montex Drilling Co.

MONTEX DRILLING COMPANY APPENDIX A 139 Gentry Mellon Jesse Gilliland J. H. Wilson William Waites Grady Mitchell Sam Gooden Joseph Marler Edward Johnson Thornton Phillips John Watts J. L. Wilson Ollie Thornton Leroy Wright Phillip Jones Charles Woods James Keith Montex Drilling Company and International Union of Operating Engineers, Local No. 672, AFL-CIO. Cases Nos. 33-CA-4F39 and 33-CA-4440. November 19, 1958 DECISION AND ORDER On July 1, 1958, Trial Examiner Martin S. Bennett issued his Inter- mediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report together with a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and reconunenda- tions of the Trial Examiner. 1. We find, in agreement with the Trial Examiner, that the Re- spondent is engaged in commerce, and that it will effectuate the poli- cies of the Act to assert jurisdiction in this case. The Respondent, while not denying that it is presently engaged in commerce, contends, in effect, that the Board should not assert jurisdiction because the General Counsel failed to prove his allegation that Respondent was engaged in commerce during the 12-month period immediately pre- ceding the filing of the complaint. We find no merit in this conten- tion. The unfair labor practices involved herein occurred between October 10 and 27, 1957. As the record shows that during its fiscal year ending October 31, 1956, the fiscal period immediately proxi- 1 The Respondent also requested oral argument . This request is hereby denied as the record , including the exceptions and brief , adequately presents the issues and positions of the parties. 122 NLRB No. 20. 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mate to the occurrence of the unfair labor practices herein and the filing of the original charges, the Respondent's gross revenue from drilling services was in excess of $1,000,000, and that during this period it performed drilling services for Gulf Oil Corporation in the amount of $488,229, we find, contrary to the Respondent, that the record establishes a sufficient basis for asserting jurisdiction herein .2 Moreover, there is no contention in the present record that respond- ent's operations for the 1957 calendar year or its fiscal year ending October 31, 1957, were substantially different from the fiscal period used. 2. We find, like the Trial Examiner, that the Respondent early in October 1957, threatened and coerced its employees with reprisals for their union activities, thereby violating Section 8 (a) (1) of the Act. 3. We also find, in agreement with the Trial Examiner, but for some- what different reasons, that Respondent on October 27, 1957, dis- charged the four complainants (employed as "roughnecks") because of their union activities, in violation of Section 8(a) (3) and (1) of the Act. The Respondent, however, contends, in effect, that the men were not, in fact, discharged, but that when their driller was dis- charged,' their employment status automatically lapsed, and that it was incumbent upon them, under industry practice, to apply to the new driller for reemployment, which they failed to do. We find no merit in this contention. The record shows, as the Trial Examiner found, that on October 27,1957, Phillips, the Respondent's tool pusher, who has the authority to hire the driller, told the roughnecks, among other things, "I will personally see that you all never work for the Montex Drilling Company any more, and as of now you are fired, and you are not wanted out here any more, and you have no more busi- ness out here." The Trial Examiner found, and we agree, that this statement was prompted by the employees' enlisting the aid of the Union in seeking to clarify their employment status after the dis- charge of their driller. If we take this statement at its face value, and view it as effecting the discharge of the roughnecks from existing employment, it is clear that such discharge was discriminatory. Under this view, having discriminatorily discharged these employees, the Respondent was under an obligation to recall and reinstate them,4 and it was not incumbent upon them to seek out the new driller. Moreover, even if we assume that Phillips' statement did not con- stitute a discharge, nevertheless, as Phillips was in charge of the entire operation at the rig and had told the discriminatees that he would personally see that they would never work for Respondent again, we find that it would have been futile for them to have asked Phillips 2 Cf. Jos. afcSweeney & Sons, Inc., 119 NLRB 1399; F, M. Reeves and Sons, Inc., 112 NLRB 295, footnote 1. 3 As found by the Trial Examiner , such discharge was not discriminatory. 4E.g., Sifers Candy Company, 75 NLRB 296, 29'7, enfd. 171 F. 2d 63 (C.A. 10). MONTEX DRILLING COMPANY 141 for the name of the new driller or to apply to the latter for reemploy- ment. Under these circumstances, the discriminatees are entitled to reinstatement and to back pay for any loss of earnings resulting from Phillips' action. ORDER Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Montex Drilling Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in or activity in behalf of Interna- tional Union of Operating Engineers, Local No. 672, AFL-CIO, or any other labor organization of its employees, by discriminating against employees in any manner in regard to hire or tenure of em- ployment, except to the extent permitted under Section 8(a) (3) of the Act. (b) Threatening its employees with economic reprisals because they have engaged in union activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, except to the extent permitted under Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to J. F. Everett, Robert Pickard, Dan Lisenbee, and T. D. Scott immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner set forth in section V of the Intermediate Report entitled "The Remedy." (b) Preserve and make available to the Board or its agents upon request, for examination and copying, all payroll records, social- security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due and the rights of employment under the terms of this Order. (c) Post at its drilling rigs at Imperial, Texas, at its offices at Mid- land, Texas, and at each drilling site within the geographical juris- diction of Operating Engineers, Local No. 672, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof and maintained for sixty (60) consecutive days thereafter in conspicuous 6 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. (d) Notify the Regional Director for the Sixteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT discourage membership in, or activity in behalf of, International Union of Operating Engineers, Local No. 672, AFL-CIO, or any other labor organization of our employees, by discriminating in any manner in regard to hire or tenure of employment, except to the extent permitted under Section 8 (a) (3) of the Act. WE WILL offer the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of our discrimination against them. J. F. Everett Dan Lisenbee Robert Pickard T. D. Scott WE WILL NOT threaten our employees with economic reprisals for engaging in union activities. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaran- teed by Section 7 of the Act, except to the extent permitted under Section 8 (a) (3) of the Act. All our employees are free to become, remain, or refrain from be- coming or remaining members of any labor organization, except as above stated. MONTEx DRILLING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof,. and must not be altered, defaced, or covered by any other material.. MONTEX DRILLING COMPANY INTERMEDIATE REPORT AND RECOMMENDED ORDER 143 STATEMENT OF THE CASE The consolidated complaint alleges that Respondent engaged in conduct viola- tive of Section 8(a)(3) and (1) of the Act by (a) discharging five named employees, Felix Fontenot, J. F. Everett, Robert Pickard, Dan Lisenbee, and T. D. Scott, because of their union membership and activities, and (b) on or about October 10, 1957, threatening employees with economic reprisals because of their union activities. Respondent's answer denies the commission of any unfair labor practices. Pursuant to notice, a hearing was held before the duly designated Trial Examiner at Midland, Texas, on April 16 and 17, 1958. All parties were represented and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. During the hearing, Respondent's motion, unopposed by the General Counsel, to dismiss the case of Fontenot on the ground that he was a supervisor within the meaning of the Act was granted. At the close of the hearing, the parties were given an opportunity to argue orally and to submit briefs. Oral argument was waived. The time for filing briefs was thereafter variously extended to June 26, 1958, and briefs have been received from the General Counsel and Respondent. Ruling having been reserved on a motion by Respondent to dismiss the complaint for lack of proof of commerce as well as on the merits, it is hereby denied. At the hearing and in its brief, Respondent objected to participation in the hearing by the representative of the Charging Party, claiming that it is "prejudicial error to allow parties not a part of the complaint to partake and adduce evidence in the hearing." Initially, Section 102.8 of the Rules and Regulations of the Board, Series 6, as amended, specifically defines as a party "any person filing a charge . under the Act." And Section 102.38 thereof provides that any party shall have the right to appear at the hearing, examine witnesses, and introduce evidence. Finally, the Board has consistently approved precisely such participation as this. Accord- ingly, the objection was overruled. John L. Clemmey Company, Inc., 118 NLRB 599, 600, and International Brotherhood of Boilermakers, etc., Lodge No. 92 (Richfield Oil Corporation), 95 NLRB 1191. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Texas corporation with its principal office and place of business at Fort Worth and a branch office at Midland, Texas, from which it is engaged in the business of drilling wells in the State of Texas for other concerns seeking to locate petroleum and natural gas. Respondent's gross revenue for such services in its fiscal year ending October 31, 1956, was in excess of $1,000,000. During this period, it performed drilling services for Gulf Oil Corporation in the amount of $488,229. Drilling operations by Respondent for Gulf Oil Corporation continued as late as the summer of 1957. Respondent contends that there is no direct evidence that Gulf Oil Corporation is engaged in interstate commerce. The General Counsel cites the case of Choya Drilling Company, Inc., 33-RC-629, decided February 6, 1958 (unpublished), where the Board asserted jurisdiction over the operations of that Texas concern on the grounds that it sold oil in excess of $100,000 per annum to Gulf Oil Cor- poration and to Magnolia Petroleum Corporation, concerns which the Board had previously found to be directly engaged in commerce. Gulf Oil Corporation, 108 NLRB 162, and Magnolia Petroleum Company, 98 NLRB 1217. In addition, the Board has frequently found that Gulf Oil Corporation is engaged in commerce and several of those cases involve the Texas operations of that concern. 79 NLRB 1274, 92 NLRB 700, and 77 NLRB 308. In the last cited case, the Board pointed out that over 50 percent of the production of Gulf's Port Arthur Texas, refinery was shipped to points outside the State of Texas. Respondent has further contended that the figures relied upon herein by the General Counsel are not current and therefore will not support the finding sought by the General Counsel. The figures used reflect Respondent's income for its fiscal year ending October 31, 1956; the record does not disclose the figures for the sub- sequent fiscal year, Respondent proffers none, and no claim is made by Respondent 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they are substantially different. Plant City Welding and Tank Company, 118 NLRB 280. The Board pointed out in its Twenty-first Annual Report (1956) that it does not "decline jurisdiction merely because the employer does not expect recurrence of business which brought the concern within the standards." See Burton Beverage Company, 116 NLRB 634; Botany Mills, Inc., 115 NLRB 1497; Aroostook Federation of Farmers, 114 NLRB 538; Imperial Rice Mills, 110 NLRB 612; Bischof Die and Engraving, 114 NLRB 1346; Hygienic Sanitation Company, 118 NLRB 1030; Langlade Veneer Products Corporation, 118 NLRB 985; and Jos. McSweeney & Sons, Inc., 119 NLRB 1399. In view of the foregoing considerations , I find that the operations of the Respondent affect commerce. I further find that it will effectuate the purposes of the Act to assert jurisdiction herein. Whippany Motor Co., Inc., 115 NLRB 52. See also N.L.R.B. v. M. L. Townsend, 185 F. 2d 378 (C.A. 9), cert. denied 341 U.S. 909.1 H. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local No. 672, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction During the period material herein, Respondent was conducting oil drilling opera- tions in the vicinity of Imperial , Texas, some 55 miles from Midland . Pursuant to custom, these operations were conducted around the clock on a three-shift basis under the direction of Tool Pusher O. B. Phillips , a supervisor within the meaning of the Act and Respondent's chief representative on the scene . Each shift consisted of five people, four of them laborers or roughnecks, under the direction of a driller. The four complainants were on one of these three shifts under the direction of Driller Felix Fontenot, who it is conceded was a supervisor within the meaning of the Act. The employees of Respondent, at least in this area , have apparently never been organized by a labor organization An organizational campaign was undertaken by the Charging Party at an undisclosed date, apparently early in October of 1957, and a representation petition was filed on October 8 . It is against this background that the alleged unfair labor practices took place. B. The safety meeting It was the practice of Tool Pusher Phillips to hold biweekly meetings with each of the three crews on his rig and discuss safety conditions on the job . The particu- lar meeting considered herein took place between October 10 and 15. Phillips testi- fied that he held separate meetings with each of the three crews on the rig and spoke in substantially the same vein on each occasion . The four complainants were as- signed to the 4-to -midnight shift and three of them , Lisenbee , Everett, and Pickard, presented testimony together with Phillips as to what took place on this occasion. The fourth complainant on the crew , Scott, did not enter Respondent's employ until shortly after this meeting. Driller Fontenot, who did not testify herein, also was present. Phillips initially spoke to the men briefly about safety conditions . He then stated, according to Pickard , and I find, "Now about this union business . I have heard you all have joined the Union ." Phillips displayed a union card and asked if they had signed such cards ; the entire crew, including Fontenot, admitted having done so. Phillips then announced that Respondent would not have a labor organization at the rig, that Tex Moncrief (the principal owner of Respondent ) was angry over the entire matter, and that Moncrief had announced "They would shut the rigs down . and . would operate the rigs with nonunion help." Elsewhere Pickard testified that Phillips said Respondent would stack all the rigs but one and would attempt to operate that one with nonunion labor, and that if this proved unsuccessful , that rig would also be stacked or shut down. Phillips concluded by telling the men that his opinion of the Union was bad and "Looks like we were going to get into bad trouble about it and you all will be looking for a job." The testimony of Everett , although less detailed, supported that of Pickard as did the testimony of Lisenbee. 1 Respondent has cited Brown Marine Drilling Company, 117 NLRB 331. As is apparent there was no evidence of any indirect out-of-State shipments in that case. MONTEX DRILLING COMPANY 145 Phillips admitted questioning the men about the union cards and as to who had signed cards, and claimed that he wanted to discover what had taken place "behind my back." While he denied threatening to close down the rigs if the men voted in the Union, he further testified that he was asked by the men what Moncrief and Drilling Superintendent Chienowith thought about the Union. To this he admittedly replied, "I told them I hadn't talked to them. . . . I said that I imagined that if Mr. Moncrief was a mind to, he would be able to shut the rigs down rather than to go Union, that it might be it would come to a point where he did not want to work the Union men and wanted to work non-union men, and operate one rig, they might do that...... As is apparent, Phillips' testimony substantially supports that of the witnesses for the General Counsel. I have therefore credited the testimony of the witnesses for the General Counsel concerning this incident, particularly as reflected in the quoted testimony of Pickard. Accordingly, I find, substantially as alleged in the complaint, that on or about October 10, 1957, Phillips stated to the employees that Respondent would shut down the rigs if the men voted in a Union and that Respondent would shut down all the rigs but one before it would operate a unionized drilling operation.2 Thereafter, on October 17, the first unfair labor practice charge in this case was filed. C. Termination of the crew On Saturday evening, October 26, shortly before the end of the shift at midnight, Phillips appeared at the rig site and discharged Driller Fontenot, allegedly for unsatis- factory performance of his duties. As noted, the General Counsel has conceded that Fontenot was a supervisory employee. Fontenot promptly informed his four-man crew-Everett, Lisenbee, Pickard, and Scott-that he, Fontenot, had been discharged. They finished the shift and left at the customary quitting hour. This news left the men somewhat puzzled as to their precise status, as it is the general practice, although not universally followed, for drillers in this industry to hire the roughnecks or laborers who work for the rig operator. It is clear, however, and I find, that both the driller and the roughnecks became employees of the rig operator; the driller is not an independent contractor. The crew and the driller are paid by the employer's checks with the customary deductions made for income taxes and social-security withholdings. Indeed, Respondent does not contend that the driller, Fontenot, was other than an employee. Nor is any claim made that Fontenot specifically discharged the four complainants at Respondent's request or otherwise that Saturday evening. In fact, Respondent in its brief claims the contrary. It is to be noted that Scott testified that Fontenot did not say on this occasion that the crew was discharged but he, Scott, took it for granted that they were let out. Pickard, Everett, and Lisenbee, on the other hand, did not make such an assumption. But the fact is, however, that the four complainants, in view of the industry practice, became concerned whether or not they still had jobs.3 In addition to the foregoing, the men were advised on the following morning by their union representative, O. W. Clark, that they should promptly present themselves to Phillips and ascertain their precise status. As a result, the four men, accompanied by Clark, proceeded to Phillips' home on the morning of October 27. Everett was the initial spokesman for the group and when Phillips came to the door, Everett asked, as he testified, whether they had been discharged the previous evening in view of the fact that the driller, Fontenot, had been terminated. It is undisputed that Phillips replied that they had not been "fired" the previous evening. The men then asked if they could report for work that afternoon as scheduled. Phillips replied that they should not report to work because he had not hired another driller to replace Fontenot and had decided to work the morning crew and its driller a double shift that day. Pickard, Scott, and Lisenbee conceded that Phillips raised the issue of their being hired by the new driller. According to Pickard, Phillips stated, "I haven't hired another driller; I don't know if he will want to work you here or not," and elsewhere, "I haven't hired another driller yet, I don't know if you will work here or not; if you do, that will be up to him." According to Lisenbee, Phillips stated, "I just hire the drillers and . . . the drillers does the hiring of their men them- 9 This finding is limited to the very specific allegation of the complaint. See Herald Publishing Company of Bellflower, 114 NLRB 71, 85. 3 While the hiring of roughnecks by the driller is an industry practice, there is also evidence that the job pusher, who in turn hires the driller, has the authority to recom- mend hirings to the driller and on occasion does do so. 50,5395-.59-vol. 1.22-11 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selves. I have nothing to do with that at all." Lisenbee elsewhere testified that Phillips stated that the morning shift would double over that day and that the four men would "lose that day today." According to Scott, Phillips commented that he had not contacted the new driller "to see if we would work for him or not." At this point Clark intervened, introduced himself, and stated that if the men had not been fired, he, Clark, was advising them to report for work at their regular starting time. This angered Phillips, who announced that be was running his own rig and that no union man could tell him what to do. Phillips' testimony was in substantial accord with that of the men. He admitted that he told the men they were not fired and claimed that they were working for the driller. Of course, as will appear, this was simply not the fact. The men were employees of Respondent, not of the driller who had merely hired them to work for Respondent. The meeting ended and Phillips then placed a telephone call to his superior, Drilling Superintendent Chienowith. He informed Chienowith of the morning meeting and the two men agreed that a sheriff should be present at the drilling rig that afternoon. This crew customarily reported for work at 3:45 p.m. in order to allow time to change into working clothes before the start of the shift at 4 p.m. The four com- plainants drove to the job site that afternoon, October 27, and arrived at approxi- mately 3:40 p.m. They had their working clothes with them and were prepared to go to work. The testimony of all four is in substantial agreement as to what took place thereafter; it is partially corroborated by the testimony of Phillips. Soon after their arrival on the scene, Phillips and a deputy sheriff arrived as well. The sheriff asked what the difficulty was and the four men announced that they had reported for work, that they had their working clothes with them and were ready to go to work, and in the alternative they wanted to be paid their wages. Phillips then intervened and stated, as Lisenbee testified, "Yes, you are fired . . . I might have considered you fellows up until you messed with that damn Union man, but after you fooled with that damn Union man, you are definitely fired. I will personally see that you all never work for the Montex Drilling Company any more, and as of now you are fired, and you are not wanted out here any more, and you have no more business out here." The testimony of Pickard, Everett, and Scott is substantially to the same effect and discloses that Phillips expressed resentment over the presence of Clark that morning with the men. As Everett testified, Phillips stated, "if we hadn't brought the Union man up to his house, he would consider us [for work], but as it was, he could not. . . Phillips admitted that he told the men on this occasion, "... I considered you men this morning when you was at my house, I had nothing against you, but since you brought all this on as you have now, I wouldn't let one of you work for me at all." When asked to explain what he meant by the phrase "brought all this on" Phillips replied, "I meant by Mr. Clark at my house that morning . having him tell me what I could do and couldn't do, at my house. . . He admitted telling the four men, concededly competent employees, that he would not have them work for him again. While he claimed that he later changed his mind on using them in the future, he admitted that he had never so informed the men, or anyone else for that matter. Later that afternoon, Phillips promoted one Carl Casey, a roughneck on another shift at the rig, to the position of driller. He instructed Casey to "hire a good crew of men" the following day, giving him the day off for that purpose. According to Phillips, he made no mention to Casey of the four complainants. Casey knew Pickard's reputation as a competent hand, had previously worked with all four complainants, and had no objections to hiring them, as he testified. Nevertheless, consistent with custom, Casey proceeded on the following day to a cafe in Odessa, Texas, where oil field hands seeking employment hang out. He proceeded to hire four strangers who informed him that they had experience as roughnecks; Casey relied on their statements to this effect. Casey conceded, as did Phillips, that an oil rig can be a dangerous place to work and that it is customary to hire expe- rienced hands. According to Phillips, the work is hazardous, it is vital to have hands who know what is to be done, and "We try to hire experienced hands when we can" because an inexperienced hand can easily be injured. I find, in view of the foregoing, that Phillips told the four men on the afternoon of October 27 that he would have recommended them for employment to the new driller, but had refrained from doing so, as he conceded, because of their visit to MONTEX DRILLING COMPANY 147 his home with the union representative, and the latter's participation in the conver- sation ; he added that they would never work for Respondent again? I further find that Phillips discharged the four complainants from Respondent's employ on this occasion. Thereafter, he hired a new driller and directed him, consistent with general but not universal industry practice, to recruit a new crew. I further find, even on the assumption that the men lost their jobs on Saturday night when Fontenot was discharged, that Phillips thereafter refused to hire them because of their union activities. D. Conclusions 1. Interference, restraint, and coercion As previously found, between October 10 and 15, 1957, subsequent to the filing of the representation petition on October 8, Respondent informed its employees that it would shut down the drilling rigs if the men voted in a labor organization and that Respondent would shut down all the rigs but one ( and operate that one with non- union personnel ) rather than operate a unionized plant. These statements contain threats of economic reprisals for continuing to engage in union activities . It is clear, and I find, that by such statements Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) thereof . N.L.R.B. v. Armstrong Tire and Rubber Company, 228 F. 2d 159 (C.A. 5), and N.L.R.B. v. Dallas Concrete Co., 212 F. 2d 98 (C.A. 5). 2. The discharges Respondent has adduced evidence to the effect that it did not discharge the four complainants, stressing the industry practice of a driller selecting his own crew. I have heretofore found that the four complainants, as was the case with their superior, Driller Fontenot, were employees of Respondent. The driller was an employee, not an independent contractor, and was merely authorized to hire employees in behalf of his employer at which point they joined him on Respondent's payroll. Not only is there evidence that the practice of the driller hiring the employees was not universally followed, but even if it were, this would demonstrate only that there is a conflict between this practice and the rights under the Act of the complainants as employees of Respondent. Here, Phillips' own testimony discloses that the four complainants had not been discharged as of the time they visited him on the morning of October 27. It is clear that Phillips at that point had not excluded them from consideration for employment but merely indicated that a contact of the new driller was in order. Bearing in mind that: (1) Phillips had the authority to tell the new driller to retain these employees; (2) there is no evidence of any company policy forbidding such an instruction or even treating with the issue ; ( 3) the complainants were experi- enced and admittedly competent employees; (4) Respondent sought to avoid the in- troduction of inexperienced help to a dangerous operation as a drilling rig; and (5) the new driller, Casey, was familiar with the work of the complainants, Respondent's conduct later that day, October 27, takes on significance. Although the new driller had not yet been promoted from his position as rough- neck and accordingly the new roughnecks had not been hired, Phillips made it crys- tal clear to the four complainants that he would have recommended their retention to the new driller-obviously under the circumstances a recommendation which would have been followed since the driller was a newly promoted man-but for the association of the complainants with a union representative . The extent of Phil- lips' animosity is demonstrated by his statement that because of this association he, Phillips, would see to it that they would never be considered for any future employ- ment with Respondent at any location. I find, contrary to Respondent, that it discharged the complainants from its employ when they met at the rig on the afternoon of October 27. On this record the inference is inescapable that Respondent would have retained the complainants in its employ but for their union activities and associations . Even on the assump- tion that the four men lost their jobs contemporaneously with the driller on the previous day, through the operation of some vague theory of operation of law, & It can hardly be contended that a labor organization may not counsel its members in the exercise of their rights under the Act. N.L.R.B. v. Augusta Chemical Co., 187 F. 2d 63 (C.A. 5). 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nevertheless, Respondent is then in the position of refusing to employ the complain- ants on October 27 because of their union activities. This hardly places Respondent in a more advantageous position. Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177. Respondent contends that the four complainants engaged in unprotected activity by trespassing at the rig site on October 27, after having been told by Phillips earlier that day not to report for work that afternoon. It is claimed that Respondent was concerned over the previous visits to the rig site by strangers, presumably Clark and/or other union representatives. The simple answer to this is that the com- plainants were employees seeking to return to work on October 27, as I find, con- ducted themselves with decorum, and were therefore not in any way conducting themselves so as to imperil Respondent's operations. Moreover, Phillips' own language at the time he discharged them discloses that they were discharged not for the reason here assigned but rather for their union activities and associations. I find that Respondent discharged the four complainants on October 27, 1957, because of their union activities, thereby discriminating with respect to their hire and tenure of employment in order to discourage union membership, in violation of Section 8(a)(3) of the Act. I further find that by such conduct, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed under Section 7 of the Act, thereby violating Section 8(a) (1) thereof. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connec- tion with its operations, set forth in section I, above, have a close, intimate, and :substantial relation to trade, traffic, and commerce among the several States and tend -to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall rec- ommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent has discriminated with respect to the hire and tenure of employment of J. F. Everett, Robert Pickard, Dan Lisenbee, and T. D. Scott. I shall, therefore, recommend that Respondent offer to each immediate and full reinstatement to his former position without prejudice to seniority or other rights and privileges. See The Chase Na- tional Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. In the event that drilling operations are no longer being conducted in Imperial, Texas, it is recommended that they be offered employment on Respondent's other drilling operations which are closest to that general area. I shall further recommend that Respondent make them whole for any loss of pay suffered by reason of the discrimination against them. Said loss of pay, based upon earnings which each normally would have earned from the date of the discrimi- nation against them, October 27, 1957, to the date of the offer of reinstatement, less net earnings, shall be computed in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. See N.L.R.B. v. Seven-Up Bottling Co., 344 U.S. 344. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Montex Drilling Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By discharging J. F. Everett, Robert Pickard, Dan Lisenbee, and T. D. Scott, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8 (a) (3) of the Act. 3. By the foregoing and by threatening to shut down or reduce operations rather than operate a unionized plant, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]