Cactus Drilling Corp.

344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Cactus Drilling Corporation and Local 826 International Union of Operating Engineers, AFL-CIO Case 16-CA-3755 TRIAL EXAMINERS DECISION STATEMENT OF THE CASE May 7, 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 Judg- ment on the Pleadings, treated therein as a Motion for Summary Judgment The Trial Examiner also denied various motions filed by the Respondent, finding no merit in the contentions made by the Respondent in its opposition to motion for judgment on the pleadings, and in its Response to the Trial Examiner's order to show cause The Trial Examiner found on the pleadings 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, with 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 The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial error was committed The rulings are hereby affirmed The Board has consid ered the Trial Examiner's Decision, the exceptions and supporting brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner i ORDER Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Cactus Drilling Corpora- tion, Midland, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order i Sec 102 67(f) of the Board s Rules and Regulations Series 8 as amended referred to in fn 5 of the Trial Examiner s Decision is not applicable where as here the Board overruled the objections to the election in the related representation case after reviewing the transcript of the hearing on objections HAROLD X SUMMERS, Trial Examiner This case arises on General Counsel's motion for judgment on the Pleadings Pursuant to my order to show cause on General Counsel's motion for judgment on the plead- ings dated November 26, 1969, the Respondent filed its opposition to the General Counsel's motion, its cross- motion for summary judgment on the pleadings, its motion for oral argument on all motions filed, and other motions relating to evidence I The Representation Proceeding2 Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on July 14, 1967 3 The Union involved was, and is, Local 826 International Union of Operating Engineers AFL-CIO Certain ballots were subsequently challenged and opened, and the Regional Director issued his Report on Challenged Ballots to which the Respondent filed timely exceptions On September 20, 1968, the Board remanded the proceeding to the Regional Director for investigation of the Employer's (Respondent's) Objec- tions to Election (filed July 19, 1967) for the issuance of a report thereon Such report was issued on November 20, 1968, in which the Regional Director for Region 10 recommended that a hearing be conducted to gather record evidence on Respondent's Objections VII, IX, and XI and that the remainder thereof be overruled On November 26, 1968 the Respondent filed its timely Exceptions to Regional Director's Report on Objections The Board on December 23, 1968, ordered a hearing on Respondent's Objections III, VII, IX, and XI, but reserved judgment on Respondent's Objections I, IV, V, and VI pending receipt of the Hearing Officer's Report A hearing, before a Hearing Officer, was held on January 28 and 29, 1968, at Odessa, Texas On March 5, 1969, the Hearing Officer issued his Report on Objec- tions wherein he recommended that Objections III, VII, ' Since disposition of the motions presents matters outside its pleadings those motions labeled Judgment on the Pleadings and Summary Judgment on the Pleadings by the parties will be treated as Motions for Summary Judgment (Federal Rules of Civil Procedure as amended July 1 1966 12(c) R Administrative or official notice is taken of the record in the represen tation proceeding Case 16-RC-4592 as the term record is defined in Section 102 68 and 102 69(f) of the Board s Rules (Rules and Regula Lions 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 71 LRRM 2924 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 4 196) Follett Corp et al 164 NLRB 378 enfd 397 F 2d 91 (C A 7 1968) Section 9(d) of the National Labor Relations Act 9 The Standard Stipulation for Certification Upon Consent Election was amended by permission of the Board to reflect the eligibility role set forth in Carl B King Drilling Co 164 NLRB 419 and Hondo Drilling Company N S L 164 NLRB 416 182 NLRB No 49 CACTUS DRILLING CORP. IX, and XI be overruled , and requested that the Board rule on Objections I, IV, V, ' and'VI. The Respondent filed timely Exceptions to the Hearing Officer 's Report on Objections. On June 26 , 1969, the Board issued its Decision and Certification of'Representative , certifying Local 826 International Union of Operating Engineers , AFL-CIO, as the exclusive bargaining representative of Respond- ent's employees in the following appropriate unit: _ All derrickmen , motormen and floor hands ,, other- wise referred to as roughnecks and truckdrivers, equipment men and, mechanics employed by the Employer and working out of the Employer's Mid- land, Texas , office. But excluding : All tool pushers , drillers, office employees , guards, professional employees and all supervisors as defined in the Act. , Respondent 's subsequent Motion to Reconsider was summarily diposed of by the Board and rendered nugato- ry" on September 24, 1969. 1 The Instant Unfair Labor Practice Case On September 26, 1969, the Union filed the unfair labor practice charge initiating this proceeding, alleging that Respondent has, refused and continued to refuse to bargain with the Union. On October 24, 1969, the Regional i Director : for Regions 16 issued a Complaint- and Notice of Hearing alleging that the Respondent had committed unfair labor practices in violation of Section 8(a)(1) and (5) and Section 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 above. On November 17, 1969, the Respondent, filed its Answer to-Complaint in which it admitted, certain juris- dictional allegations of the Complaint and denied others; in effect, it denied the commission of any unfair labor practices. Among other things, Respondent did admit that it has been, and is, refusing to bargain collectively with the Union, but it specifically denied.that a majority of the employees in the appropriate unit selected the Union as their bargaining agent, and that the Union has been, or is, their exclusive bargaining agent. On November 21, 1969, counsel for the General Coun- sel filed a Motion for Judgment on the Pleadings on the ground that Respondent's answer raised no issues 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 It is unnecessary to detail Respondent's objections relating to eligibili- ty and laboratory conditions, albeit these form the substance of the motions considered in the instant unfair labor practice case For reasons to follow, infra, reurging these objections, subsequent to Board disposi- tion thereon in the Representation proceeding , is of no aid to Respondent here Consequently, no purpose can be served by enlarging on the objections or instant motions Except as otherwise stated infra, Respond- ent's motions seek to reargue issues already litigated 345 10, 1969. On December 10, 1969, the Respondent filed the, following motions and response: i (1) Respondent's Opposition to Motion for Judg- ment on the Pleadings, and in Response to Order to Show Cause (with supporting brief.) (2) Respondent's Motion to Strike From the Record in the "R" case Certain Testimony. Or, in the Alternative to Allow Respondent,to Present Testi- mony From the Contractors named by Mr. Parker as Newly Discovered Testimony. (3) Respondent's Motion to Incorporate the Record Made in Case 16-RC-4592 Into Case 16-CA-3755 and to Place Same Before the Trial Examiner to Review the Correctness of the Regional Director and,His Hearing Officer's Report r (4) Motion of Respondent for Oral Argument Upon all Motions Filed Both by Counsel for General Counsel and Respondent (5) Respondent's Motion for Summary Judgment on the Pleadings and Evidence in the Record Before the Trial Examiner! Ori December 11, 1969, counsel for the General Coun- sel filed his opposition on motion for oral argument. Nio other responses or motions have been received. Ruling on the Motions All the arguments bear upon a `single determination: whether Respondent' is entitled to have' a hearing on the issues raised in the Complaint and Notice of Hearing and Answer thereto, and the subsequent motions and briefs. It is established Board policy in the absence of newly discovered evidence 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 pr6ceeding.5 i Respondent claims, however, to be presenting newly discovered or previously unavailable evidence. The nature of the alleged newly discovered evidence bears on 'what Respondent describes as the "poisonous" atmosphere in which the election took place. The allega- tion of a lack of laboratory conditions at election time was substantially considered in the prior representation proceeding; the question now is whether Respondent has produced newly discovered evidence warranting a reopening of that issue and a hearing hereon. Nowhere in its Motions, does Respondent reach the substance of this "newly discovered" testimony or sug- gest why it was "previously. unavailable," and when the information came into its hands. It is clear that the' burden of proof is on the Respondent to show that the evidence to be introduced was not available ' Krieger-Ragsdale & Co , Inc , 159 NLRB 490, enfd . 579 F 2d 517 (C A 7, 1967), cert denied 389 U S 1041, N L R B. v Macomb Pottery, 376 F 2d 450 (C A 7, 1%7), Howard Johnson Company, 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 , Sec 102 67(f) and 102 69(c) 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the representation proceeding." It is equally clear that the Respondent has failed to meet this burden. 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; the Respondent's Motion for Summary Judgment on the Pleadings, although granted in that it alleges that there are no triable issues herein, is denied in that it seeks judgment for Respondent. It follows that Respondent's other motions herein should be, and they hereby are, denied. I shall not strike any testimony from the representation case record; it is not for me to make changes therein. I shall not incorporate that record into the instant one, since it is not for me to relitigate that case. I shall not order oral argument herein, since the pleadings adequately treat with all issues before me. On the basis of the record, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Texas corporation with its princi- pal place of business at San Angelo, Texas, where it is engaged in the drilling of oil and gas wells by contract in the State of Texas and in States of the United States outside the State of Texas. During the past 12-month period, which period is representative of all times material herein, Respondent, in the course and conduct of its business operations, performed drilling services valued in excess of $50,000 for customers outside the State of Texas. It is admitted, and it is hereby found, that Respondent is, 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. 11. THE LABOR ORGANIZATION INVOLVED The Union is, 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 derrickmen, motormen, and floorhands, other- wise referred to as roughnecks, and all truckdrivers, equipment men and mechanics employed by the Respondent and working out of the Respondent's Midland, Texas, office, but excluding all tool push- ers, drillers, office clerical employees, technical employees, guards, professional employees and all supervisors as defined in the Act. " Pittsburgh Plate Glass Co v N L R B , 313 U S 146; N.L.R B v. Parkhurst Manufacturing Company, 317 F 2d 513 (C A 8, 1963) On or about June 26, 1969, the Board certified the Union as the exclusive collective-bargaining representa- tive of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. Since on or about June 30, 1969, and at times there- after, particularly July 10, 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 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, pursuant to Section 10(c) of the Act, I recommend that the Board issue the following: ORDER A. Cactus Drilling Corporation, 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 derrickmen , motormen , and floorhands , other- wise referred to as roughnecks , and all truckdrivers, equipment men and mechanics employed by the Respondent and working out of the Respondent's Midland , Texas, office , but excluding all tool push- ers, drillers, office clerical employees , technical employees , guards, professional employees and all supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negoti- ate for or represent employees as such exclusive collec- tive-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.' 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 Co d/b/a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5, 1964), cert denied 379 U S. 817, Burnett Construction Co , 149 NLRB 1419, 1421, 350 F 2d 57 (C.A. 10, 1965). . CACTUS DRILLING CORP (b) Post at its place of business in San Angelo, Texas, copies of the notice attached hereto marked "Appen- dix "" 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 Respond- ent for a period of 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 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 H " In the event no exceptions are filed as provided by Section 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 Section 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 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 " In the event that this recommended Order is adopted by the Board this provision shall be modified to read Notify said Regional Director in writing within 10 days from the date 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 347 local 826 International Union 4if Operating Engi neers, AFL-CIO, as the exclusive collective-bar gaining representative of all the following employ ees All derrickmen, motormen, and floorhands, otherwise referred to as roughnecks and all truckdrivers, equipment men and mechanics employed by the Respondent and working out of the Respondent's Midland, Texas, office, but excluding all tool pushers, drillers, office clerical employees, technical employees, guards, professional employees and all supervi- sors as defined in the Act WE WILL NOT interfere with the efforts of the Union to negotiate for qr represent employees as exclusivecollective-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 CACTUS DRILLING CORPORATION (Employer) Dated By (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, Room 8A24 Federal Office Building, 819 Taylor Street, Forth Worth, Texas 76102, Telephone 817-334-2921