Delta Drilling Co.

DELTA DRILLING COMPANY Delta Drilling Company and Local 826, Interna- tional Union of Operating Engineers, AFL-CIO. Case 16-CA-3040 February 2, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On November 15, 1967, Trial Examiner Charles W. Schneider issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner, with the following modifications. As noted by the Trial Examiner, the election which resulted in the certification of the Union was conducted pursuant to an Agreement for Consent Election. This Agreement provided, inter alia, that the Regional Director's rulings and determinations on all matters pertaining to the election, including the question whether a hearing shall be held with respect to objections and challenges, shall be final and binding. "Where a consent agreement contain- ing such a provision is entered into, the procedural and substantive determinations thereafter made by the Regional Director can be successfully chal- lenged only upon a showing that they are arbitrary or capricious or not in conformity with National Labor Relations Board policies or the provisions of the Act."' No such showing has been made in this case. Accordingly, the certification of the Union is valid and the Respondent's refusal to bargain vio- lates Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Delta Drilling Company, 617 Odessa, Texas, its, officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' N.L.R.B. V. Sumner Sand & Gravel Company, 293 F.2d 754 (C.A. 9); see also, e.g., N.L.R.B. v. Parkhurst Manufacturing Company, Inc., 317 F.2d 513 (C A. 8), and cases cited therein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING' CHARLES W. SCHNEIDER, Trial Examiner: On August 2, 3, and 4, 1966, an election was conducted among em- ployees of Delta Drilling Company, Odessa, Texas, herein called Respondent, pursuant to an Agreement for Consent Election signed by Respondent and Local 826, International Union of Operating Engineers, AFL-CIO, herein called the Union , and approved by the Regional Director for Region 16 on July 25, 1966. At that time, out of 40 votes cast, 20 were in favor of the Union, 15 were against the Union , and 5 were challenged. Pursuant to timely objections to conduct affecting the results of the election filed by Respondent on August 9, 1966, and a request for hearing thereon, an investigation was conducted in accordance with Section 102.69 of the Board's Rules and Regulations, Series 8, as amended. As a result of such investigation , a Report on Challenged Ballots and Objections was issued by the Regional Director on November 7, 1966, wherein he sustained challenges to four ballots, concluded that the objections did not raise substantial and material credibility issues warranting hearing, overruled the objections, and cer- tified the Union. On November 18, Respondent filed with the Board exceptions to the Regional Director's Re- port on Challenged Ballots and Objections which the Board, on December 7, 1966, refused to consider. Fol- lowing the filing by the Respondent on December 13 and 29, 1967, respectively, of a Motion for Reconsideration and an Argument in support thereof, the Regional Director conducted a further investigation of the Re- spondent's objections. Thereafter on April 14, 1967, the Regional Director issued a Supplemental Report on Ob- jections and Certificate of Representative in substance reaffirming his prior rulings. THE COMPLAINT CASE On July 3, 1967, the Union filed the unfair labor prac- tice charge involved in the instant case in which it alleged that since on or about May 8, 1967, the Respondent refused and continues to refuse to bargain with the Union. On August 18, 1967, the General Counsel, by the Re- gional Director of Region 16, issued a complaint alleging that commencing on or about June 28, 1967, Respondent had committed unfair labor practices in violation of Sec- tion 8(a)(1) and (5) and Section 2(6) and (7) of the Act by refusing to bargain with the Union upon request. In due course Respondent filed its answer to the complaint in ' Official notice is taken of the representation proceeding, Case 16-RC-4335. See Section 9(b) of the National Labor Relations Act, as amended. 169 NLRB No. 93 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which certain allegations of the complaint were admitted and others denied. In its answer Respondent , inter alia, admitted the fol- lowing allegations of the complaint : ( 1) the filing and ser- vice of the charge, (2) that Respondent is a corporation and an employer engaged in commerce within the mean- ing of Section 2(6) of the Act, (3) that the Union is a labor organization, (4) the appropriate unit, (5) the agreement for consent election , (6) the overruling of the Respond-. ent's objections to the election and the certification of the Union as bargaining representative, and (7) that Respondent did refuse and has continued to refuse since on or about June 28, 1967, to bargain with the Union. Respondent denied the following allegations of the com- plaint : ( 1) that Respondent is an employer engaged in commerce within the meaning of Section 2(7) of the Act, (2) that on or about August 2, 3, and 4, 1966, a majority of the employees in the above-mentioned unit designated and selected the Union as their collective-bargaining representative in a secret-ballot election, (3) that the Union is the exclusive bargaining agent of the employees in the above -mentioned unit, and. (4) that Respondent violated Section 8(a)(1) of the Act. The Respondent further contends that the election was invalid for reasons, stated in its objections , that the Union is not the repre- sentative of the employees , and that it was denied due process of law by the Regional Director who refused Respondent 's request for a hearing on the objections. Thereafter the General Counsel filed a Motion to Strike Portions of Respondent's Answer to Complaint and a Motion for Judgment on the Pleadings wherein he contends that Respondent 's answer fails to constitute a valid defense to the allegations of the complaint, and that the facts of official record with respect to Case 16-RC-4335 and the admissions contained in Respond- ent's answer establish the violations contained in the complaint as a matter of law, and that therefore no hear- ing is necessary. On September 13, 1967, I issued an Order to Show Cause on the Motion to Strike and for Judgment on the Pleadings in which the parties were directed to show cause on or before September 29, 1967, as to whether or not the motions should be granted. On September 26, 1967, Respondent filed a reply to the Order to Show Cause. No other responses have been received. RULING ON MOTION FOR JUDGMENT ON THE PLEADINGS The Respondent opposes the General Counsel's mo- tions. Respondent contends that the certification of the Union is invalid because Respondent was improperly deprived of a hearing on its objections to the August 213, and 4, 1967, election which raised substantial and materi- al issues of fact that cannot be resolved without a hearing. The questions as to the validity of the election, the merit of Respondent's objections with respect to it, and whether the Union should be certified, were raised by Respondent in its objections to conduct affecting the elec- tion, and in its exceptions to the Regional Director's Re- port on Challenged Ballots and Objections, and were de- cided by the Board in the representation proceeding. It is thus clear that Respondent seeks to relitigate these issues here. This the Respondent may not do before the Trial Examiner. It is established Board policy, in the absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in a complaint case of issues which were or could have been litigated in a prior related representation proceeding.2 This policy is applicable even though no formal hearing on objections has been provided by the Board. Such a hearing is not a matter of right unless substantial and material issues are raised;3 and that there are not such issues here has been effectively decided by the Board. The Trial Examiner has no authority to review the Board's final disposition of the representation issues or to question its conclusions based on the existing record. The Respondent is free, in exceptions to this Decision, to request the Board to reconsider the determinations in the representation case, and, in the event of an unfavorable final order by the Board, Respondent may request review of those determinations in an appropriate court of ap- peals. At this stage of the proceedings, however, absent newly discovered, or previously unavailable evidence, or special circumstances, the Board's disposition of the representation matters is the law of the case and is bind- ing on the Trial Examiner. J. H. Filbert, Inc., 165 NLRB 648. No newly discovered or previously unavailable evidence is offered by the Respondent, nor are special circumstances alleged. The refusal to bargain being conceded, there are no is- sues litigable before a Trial Examiner, and therefore no matter requiring hearing. Accordingly, the General Coun- sel's Motion for Judgment on the Pleadings is granted. The General Counsel's Motion to strike portions of the answer is denied. Since the Respondent's answer raises no litigable issues, the allegations of the complaint, in- sofar as consistent with the findings herein, are deemed admitted true and are so found. National Labor Relations Board Rules and Regulations , Series 8, as revised Janua- ry 1, 1965, Section 102.20. However, the averments of the answer may stand as pleadings which the Respondent may press before the Board, or, in the event of adverse decision there, before the court if it so chooses. I hereby make the following further: FINDINGS 1. THE BUSINESS OF THE RESPONDENT Respondent is a Texas corporation with its office and place of business at Odessa, Texas, where it is engaged in contract oil-well drilling. During the past 12 months, Respondent, in the course and conduct of its business operations, purchased and received materials and products valued in excess of $50,000 directly from points located outside the State of Texas, and during the same 2 Macomb Pottery Company v. N.L.R.B., 376 F.2d 450 (C.A. 7, 1967); Howard Johnson Company, 164 NLRB 801; Metropolitan Life In- surance Company, 163 NLRB 579. See Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 146, 162 (1941); Section 102.67(f), 102.69(c), of the National Labor Relations Board Rules and Regulations , Series 8, as amended. 7 N.L.R.B. v. O.K. Van Storage, Inc., 127 NLRB 1537, enfd. 297 F.2d 74 (C.A. 5, 1961). And see N.L.R.B. v. Air Control Products of St. Peter- sburg, Inc., 335 F.2d 245,249 (C.A. 5, 1964): " If there is nothing to hear, then a hearing is a senseless and useless formality." N.L.R.B. v. Bata Shoe Co., Inc., 377 F.2d 821 (C.A. 4, 1967); N.L.R.B. v. Lawrence Typo- graphical Union No. 570 (Kansas Color Press), 376 F.2d 643 (C.A. 10, 1967). DELTA DRILLING COMPANY period sold and shipped products valued in excess of $50,000 directly to points outside the State of Texas. II. THE LABOR ORGANIZATION INVOLVED The Union is now and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act:. III. THE UNFAIR LABOR PRACTICES The following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All drilling crew employees operating out of Respond- ent's Western District office in Odessa, Texas, including shop and yard employees and roughnecks, excluding all Respondent's operations in New Mexico and West Cen- tral Texas, and all office clerical employees, professional employees, drillers, guards, and supervisors as defined in the Act. On August 2, 3, and 4, 1966, a majority of Respond- ent's employees in the appropriate unit designated and selected the Union as their collective-bargaining representative in a secret-ballot election conducted under the supervision of the Regional Director for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment. Commencing on or about June 28, 1967, and at all times thereafter, Respondent refused and continues to refuse to bargain collectively with the Union as said col- lective-bargaining representative. By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act and has interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings and conclusions and the entire record in the case, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. For purposes of determining the duration of the certification, the initial year of certification shall be deemed to begin on the date the Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit.4 B. Delta Drilling Company, Odessa, Texas, its of- ficers, agents , successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 826, International Union of Operating Engineers , AFL-CIO, as the exclusive bargaining representative of the em- ployees in the following appropriate unit: All drilling crew employees operating out of Respond- ent's Western District office in Odessa, Texas, including shop and yard employees and roughnecks , excluding all Respondent's operations in New Mexico and West Cen- tral Texas, and all office clerical employees , professional employees , drillers, guards, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as exclusive bar- gaining representative. 619 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 826, International Union of Operating Engineers , AFL-CIO, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its Odessa, Texas, office, copies of the at- tached notice marked "Appendix."5 Copies 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 the Respondent 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 the Respondent to ensure that said notices are not altered , defaced , or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 20 days from receipt of this Recom- mended Order, what steps it has taken to comply herewith.6 4 The purpose of this provision is to ensure that the employees in the appropriate unit will be accorded the statutorily prescribed services of their selected bargaining agent for the period provided by law See Mar- Jac Poultry Company, Inc, 136 NLRB 785, Commerce Co. d/bla Lamar Hotel, 140 NLRB 226, 229, enfd 328 F.2d 600 (C A. 5, 1964), Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C A. 10,1965) 5 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 6 In the event that this Recommended Order is 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT refuse to bargain collectively with Local 826, International Union of Operating En- gineers, AFL-CIO, as the exclusive bargaining representative of all the following employees: All drilling crew employees operating out of Respondent's Western District office in Odessa, Texas, including shop and yard employees and roughnecks, excluding all Respondent's opera- tions in New Mexico and West Central Texas, and all office clerical employees, professional employees, and drillers, guards and supervisors as defined in the Act. 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner inter- Dated By fere with, restrain, or coerce employees in the exer- (Representative) cise of their rights under the Act. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the bargaining unit, and if an understanding is reached we will sign a contract with the Union. DELTA DRILLING COMPANY (Employer) (Title) 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2921.