Chaparral Drilling Co.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Joe Smith and Ray Boling d/b/a Chaparral Drilling Com- pany and Local 826, International Union of Operating Engineers , AFL-CIO. Case 16-CA-3766 April 29, 1970 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On December 31, 1969, Trial Examiner Harold X. Summers issued his Decision in the above-entitled pro- ceeding granting General Counsel's motion for summary judgment on the ground that there are no unresolved issues requiring an evidentiary hearing and 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. The Trial Examiner recommended that the Respondent cease and desist from such unfair labor practices and take certain affirmative action, as set forth in the attached Trial Examiner'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 National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in con- nection with this case to a three-member panel. We have carefully reviewed the Trial Examiner's Decision, the exceptions and brief and the entire record in this case and in the representation case. We find that the Board's voting eligibility rule set forth in Hondo Drilling' was properly applied in this case and that the disposition of the Respondent's other objections was correct and requires no hearing. We therefore adopt the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Joe Smith and Ray Boling d/b/a Chaparral Drilling Company, Midland, Texas, their agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. Hondo Drilling Co , 164 NLRB 416 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue The case arises on a motion of counsel for the General Counsel for judgment on the pleadings, urging that, despite denials contained in the answer, any issues sought to ^ be raised thereby have already been litigated in a prior related representation proceeding; that, therefore, there are no litigable issues herein; and that, on the pleadings viewed in the light of the disposition of the issues in the representation case, the violations alleged in the complaint herein should be found without a hear- ing. Since a disposition of the motion presents matters outside the pleadings, it should more properly be labeled a motion for summary judgment, and I shall so treat it.' The Representation Proceeding2 A petition seeking certification as bargaining agent for certain of the employees of Joe Smith and Ray Boling d/b/a Chaparral Drilling Company (herein referred to as Respondent) was filed under Section 9(c) of the Act by the Charging Party herein, Local 826, Internation- al Union of Operating Engineers, AFL-CIO (hereinafter called the Union). Pursuant to notice, a hearing thereon was held before a Hearing Officer of the National Labor Relations Board on May 13, 1969. At the hearing, Respondent raised an issue, inter alia, with respect to (1) the applicability, under the circumstances of the Hondo Drilling voting eligibility rule3 and (2) the validity of said rule. On May 14, 1969, the Regional Director issued a Decision and Direction of Election in which he discussed and rejected Respondent's contentions with respect to Hondo Drilling. On June 2, the Board denied Respond- ent's request for a review of the Decision and Direction, which request was grounded completely upon the Hondo Drilling issue. Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted on June 9, 1969, under the direction and supervision of the Regional Director to determine the question of represen- tation. Upon the conclusion of the balloting a tally of ballots was served to all parties which showed that of approximately 15 eligible voters, 10 cast ballots for the Union and 5 cast ballots against the Union. Three ballots were challenged. The challenged ballots were not sufficient in number to affect the results of the election. On June 16, 1969, the Employer filed timely objections to election, and conduct affecting the results of the election, alleging, in substance, the following: ' Rules of Civil Procedure for the United States District Courts, as amended to July 1, 1966, rule 12(c) S Administrative or official notice is taken of the record in the represen- tation proceeding, Case 16-RC-5178, as the term "record" is defined in Secs 102.68 and 102 69(f) of the Board's Rules (Rules and Regulations and Statements of Procedure, National Labor Relations Board, Series 8, as amended) See LTV Electrosystems, Inc , 166 NLRB 938, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB 151, enfd 415 F 2d 26 (C.A 5, July 7, 1969), Intertype Co v Penello, 269 F Supp 573 (D C Va , 1967), Intertype Co. v. N L R B , 401 F 2d 41 (C A 4, 1968), Follett Corp , 164 NLRB 378, enfd 397 F 2d 91 (C.A 7, 1968), Sec 9(d) of the National Labor Relations Act 3 So-called after the Board's decision in Hondo Drilling Co , 164 NLRB 416 182 NLRB No. 32 CHAPARRAL DRILLING CO. 1. That the voting place was closed before the time scheduled on the notice of election, and that for this reason it was impossible for voters who came to vote to enter the building and vote. 2. That eligible voters had been threatened with physical violence if such voters did not support the Union and cast "yes" votes in the election. 3. That the notice of election was not furnished to Respondent in sufficient time to furnish adequate notice to the employees of the pending election. 4. That the eligibility rule in the Hondo Drilling case was not applicable to the Employer and was therefore improperly applied. 5. That the Union failed and refused to cooperate to the fullest extent in the preparation and compila- tion of a list containing current addresses of all eligible voters, thereby' making it impossible for all voters to be notified. On August 12, 1969, the Regional Director issued a Supplemental Decision and Certification of Representa- tive, in which he discussed each of the above objections, along with the related evidence. Specifically (among other things), he concluded that, assuming a premature closing of access to the voting place, the voting results could not have been affected, he concluded that whatever was now being urged as to the Hondo Drilling rule had been fully considered at the original hearing, and he concluded that the Union had in fact accorded the cooperation in furnishing voters' addresses which was required; and he certified the Union as the exclusive representative of the employees in the appropriate unit. Once again , in the form of exceptions, Respondent requested a review of the Regional Director's action, making specific reference to the issues of a premature closing of the polling place, the Hondo Drilling rule, and the alleged failure of the Union to cooperate in furnishing voters' addresses; once again, the Board affirmed the Regional Director. The Instant Unfair Labor Practice Case On October 7, 1969, _the Union filed the unfair labor practice charge initiating this proceeding and, on October 20, 1969, filed the first amended charge, alleging that Respondent had refused and continued to refuse to bargain with the Union. On October 17, 1969, the Regional Director issued a complaint and notice of hearing alleging that the Respondent had committed unfair labor practices in violation of Sections 8(a) (1) and (5) and 2(6) and (7) of the Act, by refusing and continuing to refuse to bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the appropriate unit described hereinafter. ' On Noveitiber 25, 1969, the Respondent filed its answer to complaint and notice of hearing in which it admitted most of the material allegations of the com- plaint but denied the commission of unfair labor prac- tices. The answer admitted that since on or about Sep- tember 23, 1969, the Respondent has refused and contin- ues to refuse to meet and bargain collectively with 199 the Union, denying only that a majority of the employees in the appropriate bargaining unit selected the Union as their bargaining agent and that the Union has been or is their exclusive bargaining agent. On November 25, 1969, counsel for the General Coun- sel filed a motion for judgment on the pleadings on the ground that Respondent's answer raised no issue not already disposed of in the representation proceeding, but that, in fact, it admitted violations of Section 8(a)(1) and (5) of the Act. On November 26, 1969, I issued an order to show cause on General Counsel's motion for judgment on the pleadings returnable December 10, 1969. On December 10, 1969, the Respondent filed a response to the order; no responses have been received from the other parties. Ruling on Motion for Judgment on the Pleadings - The Respondent opposes the motion for judgment on the pleadings on three grounds: (1) the alleged prema- ture closing of the polling place, (2) the alleged failure of the Union to cooperate in furnishing addresses of eligible voters, and (3) the alleged inapplicability and the alleged invalidity of the Hondo Drilling rule. These are among the grounds raised and passed upon in the related representation proceeding. Thus, Respondent merely reinterates issues and argument previously con- sidered and decided by the Board. It is established Board policy, in absence of newly discovered or previously unavailable evidence, not to permit litigation before a Trial Examiner in an unfair labor practice case of issues which were or could have been litigated in a prior related representation proceed- ing.4 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.5 Respondent does not claim to present any newly discovered or previously unavailable evidence. Respondent does state that there are genuine substantial material fact issues which have never been litigated in an adversary proceeding before the Board, which contention I do not find to be sustained. There are thus no unresolved matters requiring an evidential hearing. The General Counsel's motion for judgment on the pleadings-treated herein as a motion for summary judgment-is consequently granted. On the basis of the record I make the following: Kneger-Ragsdale & Co , Inc , 159 NLRB 490, enfd 379 F.2d 517 (C.A 7, 1967), cert denied 389 U S 1041, NL R.B V Macomb Pottery Company, 376 F 2d 450 (C A 7, 1967), Howard Johnson Compa- ny, 164 NLRB 801, Metropolitan Life Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v N L.R B , 313 U.S 146, 162 (1941), NLRB Rules and Regulations , Secs 102 67(f) and 102.69(c) ' 0 K Van Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74 (C.A 5, 1961) See Air Control Products of St Petersburg, 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 " See also N L R.B v Bata Shoe Company, 377 F 2d 821, 826 (C A 4, 1967), cert denied 389 U S 917 "[t ]here is no requirement , constitutional or otherwise, that there be a hearing in the absence of substantial and material issues crucial to determination of whether NLRB election results are to be accepted for purposes of certification " 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS, I THE BUSINESS OF THE RESPONDENT The Respondent is a'partnership consisting of Joe Smith and Ray Boling doing business as Chaparral Drill- ing Company with their principal office and, place of business located in Midland; Texas, where it is, engaged in the contract drilling of oil and gas wells in the ^ State of Texas. During the past 12-month period, which period is representative of all times material herein, the Respond- ent, in the course and conduct of its business operations, performed services valued in excess of $50,000, of which services valued in excess of $50,000 were performed for McGrath & Smith, Incorporated; K. K. Amini; Thornton Petroleum, ' a division of Reading & Bates Drilling Company; King Resources Company, and have received revenues in excess of $45,000 for services performed for Getty Oil Company, all of which compa- nies are engaged in interstate commerce within the mean- ing of the Act. ' . i' , The Respondent is now, and has been at all' times material herein , an,employer engaged in commerce within the'meaning of Section 2(6) and (7) of the Act.1 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 of Respondent constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. All employees of the Employer at Midland, Tex- as, including derrickmen , motormen , and floormen, but excluding office clerical employees , guards, tool pushers, drillers and supervisors as defined in the Act. On or about August 12, 1969 , the Board certified the Union as the exclusive collective -bargaining repre- sentative of the employees in the above described unit with respect to rates of pay, wages, hours of employ- ment , and other terms and conditions of employment. Since on or about September 23, 1969 , and at all times thereafter, particularly on or about September 30, 1969 , the Respondent did refuse , and continues to refuse to bargain collectively with the Union as the collective-bargaining representative of the employees in the appropriate unit. By thus refusing to bargain collectively Respondent has engaged in unfair labor practices in violation of Section 8(a) (5) of the Act and has interfered with, restrained , and coerced its 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. tUpon the foregoing findings and conclusions , pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER Joe Smith and Ray Boling d/b/a Chaparral Drilling Company, its officers,' 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 collective-bargaining representative of the employees in the following appropriate bargaining unit: All employees of the Employer at Midland, Tex- as, including derrickmen, motormen, and floormen, but excluding office clerical employees, guards, tool pushers, drillers and supervisors as defined in the Act. ` (b) Interfering with the efforts of said Union to negoti- ate for or represent employees as such exclusive collective-bargaining representative 2. Take the following affirmative action which is nec- essary 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 all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached.' (b) Post at its place of business in Midland, Texas, copies of the notice attached marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 16, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by the Respondent for 60 " For the purpose 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 exclusive bargaining representative in the appropriate unit The purpose of this provision is to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co , 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd 328 F 2d 600 (C A 5, 1964), cert denied 379 U S 817, Burnett Construction Co , 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10, 1965) 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, recommendations , 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 In the event that the Board's 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " CHAPARRAL DRILLING CO consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees are custom- arily posted Reasonable steps shall be taken by the Respondent to insure 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 Recommended Order, what steps the Respondent has taken to comply herewith B 9 In the event these recommendations are adopted by the Board this provision shall be modified to read Notify the Regional Director for Region 16 in writing within 10 days from receipt of this Order what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Local 826, International Union of Operating Engi- neers, AFL-CIO, as the exclusive collective-bar- gaining representative of all the following employ- ees All our employees at Midland, Texas, including derrickmen, motormen, and floormen, but excluding office clerical employees, guards, 201 tool pushers , drillers and supervisors as defined in the Act WE WILL NOT interfere with the efforts of the Union to negotiate for or represent employees as exclusive collective -bargaining representative WE WILL bargain collectively with the Union as the exclusive collective -bargaining representative of the employees in the appropriate unit and, if an understanding is reached , we will sign a contract with the Union Dated By JOE SMITH AND RAY BOLING D/B/A CHAPARRAL DRILLING COMPANY (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone 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 Any questions concerning this notice or compliance with its provisions , may be directed to the Board's Office, 8A24 Federal Office Building , 819 Taylor Street, Forth Worth, Texas 76102, Telephone 817-334-2921