Highland Drilling Co.

HIGHLAND DRILLING CO. 203 Highland Drilling Company and Local 826, Interna- tional Union of Operating Engineers , AFL-CIO. Case 16-CA-3220 June 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 6, 1968, Trial Examiner A. Norman Somers issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a memorandum in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed . The ruling are hereby affirmed. The Board has considered the Trial Examiner's Decision,' the exceptions and memorandum in sup- port thereof, and the entire record in this case, and hereby adopts the findings , conclusions, and recom- mendations of the Trial Examiner.2 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 orders that the Respondent, Highland Drilling Company, Odessa, Texas, its officers , agents, suc- cessors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THE REPRESENTATION PROCEEDING' a. The representation petition Upon petition filed by Local 826, International Union of Operating Engineers, AFL-CIO, herein called the Union, seeking to represent employees of Highland Drilling Company, Odessa, Texas, the Respondent herein , the Regional Director for Re- gion 16 of the Board, on or about June 14, 1967, is- sued a Decision and Direction of Election among employees of the Respondent in an appropriate unit described in the Decision and Direction of Elec- tion. On or about June 24, 1967, Respondent filed with the Board a Request for Review of the said Decision and Direction of Election , which request was denied by the Board on June 30, 1967. b. The election and the certification of representative Pursuant to the Decision and Direction of Elec- tion, an election was conducted on July 14, 1967, under the supervision and direction of the Regional Director, in which election the Union received a majority of the valid votes cast. On July 16, 1967, the Respondent filed timely objections to the con- duct of the election and the conduct affecting the results of the election. On or about October 19, 1967, the Regional Director issued a Supplemental Decision and Certification, in which he overruled all of Respondent's objections to the conduct of the election and the conduct affecting the results of the election and certified the Union as the exclusive bargaining representative of the said employees. On or about October 10, 1967, the Respondent filed with the Board in Washington, D.C., timely exceptions to the Regional Director's Supplemental Decision and Certification of Representative. On or about December 13, 1967, the Board overruled the said exceptions. ' In taking official notice of the record in the prior representation proceeding involving these parties , the Trial Examiner, at fn I of his Deci- sion, inadvertently miscited that proceeding as Case I6-RC-4415, rather than 16-RC-4387 = The Respondent, by its exceptions, contends that the Board 's certifica- tion was improper and that , therefore, its refusal to bargain with the Union is not violative of Section 8 (a)(5) of the Act We find no merit in this con- tention All of the issues raised by the Respondent in this proceeding have been previously considered by the Board in Case 16-RC-4387, and it is clear that the Respondent is seeking to relitigate matters which have been resolved by the Acting Regional Director's Supplemental Decision and Certification of Representative and were considered by the Board when it denied the Respondent 's request to review these findings . The Respondent does not allege that it has newly discovered evidence , or that it was prohibited from submitting to the Acting Regional Director and the Board all relevant evidence bearing on the issues at the time of the representation proceeding. In these circumstances, the Board will not reconsider in a Section 8 (a)(5) unfair labor practice proceeding matters which have been disposed of in a prior related representation proceeding Mountain States Telephone and Telegraph company, 136 NLRB 1612, Hondo Drilling Com- pany, 171 NLRB 1399. THE UNFAIR LABOR PRACTICE PROCEEDING a. The Union's charge, the General Counsel's complaint and the Respondent's answer On March 8, 1968, the Union filed an unfair labor practice charge alleging that the Respondent, in violation of Section 8(a)(1) and (5) of the Act, had refused to bargain with the Union since on or about February 15, 1968. I Official notice is taken of the record in the representation proceeding, Case I6-RC-4415 as the term "record" is defined in Section 102 68 and 102 69(f) of the Board Rules ( Rules and Regulations and Statements of Procedure , National Labor Relations Board , Series 8, as revised January I, 1965) 172 NLRB No. 36 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 12, 1968, the Regional Director issued a Complaint and Notice of Hearing. The complaint alleged that on or about January 17, 1968, and at all times thereafter, the Union requested the Respondent to meet and bargain, but that on or about February 15, 1968, and at all times thereafter Respondent refused to recognize and/or bargain with the Union. The complaint further alleged that on or about February 15, 1968, Respondent by letter refused and continues to refuse to bargain collectively with the Union as the exclusive collec- tive-bargaining representative of all the employees in the unit described in the Direction of Election and in the Certification of Representatives. Thereafter, the Respondent filed its answer dated March 22, 1968. In the answer, Respondent ad- mitted the jurisdictional allegations, Respondent's filing of objections to the conduct of the election, the Regional Director's Supplemental Decision and Certification overruling Respondent's objections and the certification of the Union as exclusive bar- gaining representative of the employees in the said bargaining unit, and the Board's order overruling Respondent's exceptions to the Regional Director's Supplemental Decision and Certification of Representatives. Respondent's answer denied the following allegations of the complaint: paragraph 8, to the effect that at the election held on July 14, 1967, a majority of the employees in the unit by a secret ballot designated the Union as their collec- tive-bargaining representative by a vote of 14 to 0 in favor of the Union (with 6 challenged ballots, which were not determinative in view of the 14 to 0 vote of the unchallenged ballots in favor of the Union); paragraph 12, to the effect that the Union since October 10, 1967, the date of the certifica- tion, by virtue of Section 9(a), of the Union, has been and is the exclusive collective-bargaining representative of the employees in said bargaining unit; and paragraphs 15, 16, and 17, to the effect that by its admitted refusal to bargain collectively with the Union on request, Respondent engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, af- fecting commerce within the meaning of Section 2(6) an(7) of the Act. b. The General Counsel's motions to strike portions of Respondent's answer and motion for judgment on the pleadings On April 3, 1967, counsel for the General Coun- sel filed a motion to strike portions of Respondent's answer to complaint and motion for summary judgment on the pleadings. The portions of the answer that the General Counsel moved to strike are: paragraph 8, which described the election and its results; paragraph 12, to the effect that the Union, by virtue of the election and the certifica- tion, has been the exclusive collective-bargaining representative of the employees in the unit; and paragraphs 15, 16, and 17, alleging the invalidity under the Act of the Respondent 's admitted refusal to bargain with the Union on request . The motion stated that Respondent 's denials of paragraphs 8 and 12 of the complaint are an attempt to relitigate issues raised and decided in the representation case and should be stricken as sham and frivolous and deemed admitted . The motion further stated that the denials of paragraphs 15, 16, and 17 concerning the invalidity of Respondent 's admitted refusal to bargain raise no issue calling for a hearing, and should be stricken and deemed admitted in view of the allegations in the complaint that are admitted by Respondent . Counsel for the General Counsel further moved that in the light of the portions of the answer that should be striken as raising no genuine issue, judgment should be entered on the pleadings and a decision rendered finding all viola- tions of theAct as alleged. Counsel for the General Counsel included in its motions an argument in support of counsel for the General Counsel 's motion to strike and for judgment on the pleadings . The brief of the General Counsel quotes the portions of the Board 's Rules and Regulations (supra, fn. I) and cites Board and court authority to the effect that questions which have been litigated and disposed of in a prior representation proceeding are not relitigable in an unfair labor practice case. c. The order to show cause and Respondent's failure to respond thereto though the time prescribed therefor has expired On April 15, 1968, the Trial Examiner issued an order to show cause to the General Counsel's mo- tions returnable April 29, 1968. It directed that Respondent show cause whether or not the General Counsel 's motions should be granted , and further recited that "if no response disclosing material un- resolved issues litigable before and requiring hear- ing by a Trial Examiner is filed by April 29, 1968, the motions to strike and for judgment on the pleadings be granted forthwith." The time prescribed for filing a return or response to the order to show cause has expired, and Respondent has not filed a return or response thereto or filed any application or request for ex- tension of time . Accordingly, the General Counsel's motion to strike portions of Respondent 's answer to complaint and motion for judgment on the pleadings is hereby granted , and the Trial Examiner hereby makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent is, and has been at all times material herein, a corporation duly organized under and ex- isting by virtue of the laws of the State of Texas, having an office and place of business in the city of Odessa, Texas, where it is, and has been at all times HIGHLAND material herein , engaged in the business of drilling oil wells. During the past year , Respondent, in the course and conduct of its business operations, purchased, transferred, and delivered to its Odessa, Texas, place of business goods and materials valued in ex- cess of $50,000, which goods and materials were transported to said place of business directly from the States of the United States other than the State of Texas and sold and shipped finished products, valued in excess of $50,000, to points outside of the State of Texas. Respondent is now , and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and 2(7) of the Act. H. 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 All employees of the Respondent engaged in oil well drilling at its Odessa, Texas, operation, exclud- ing office clerical employees, professional em- ployees, watchmen, drillers, tool pushers, and su- pervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. As detailed heretofore, the Union was certified on October 10,1967, as the exclusive collective- bargaining representative in the appropriate unit, and is now by virtue of Section 9(a) of the Act the exclusive representative of all employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employ- ment. Commencing on or about January 17, 1968, and at all times thereafter , the Union requested and continues to request Respondent to meet and bar- gain collectively with it as the representative of the employees in the appropriate unit. Commencing on or about February 15, 1968, and at all times thereafter to date , Respondent has refused to meet with the Union and to bargain with it as the collective-bargaining representative of the appropriate unit . By such action the Respondent has refused to bargain collectively in violation of Section 8(a)(5) of the Act, thereby interfering with, restraining, and coercing employees in viola- tion of Section 8(a)(1) of the Act. DRILLING CO. 205 The aforesaid unfair labor practices affect com- merce 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, the Trial Examiner hereby recommends that the Board issue the fol- lowing: ORDER A. For the purpose of determining the effective period of the certification , the initial year of certifi- cation 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.2 B. Highland Drilling Company , Odessa, Texas, 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 ap- propriate unit: All employees of the Respondent engaged in oil well drilling at its Odessa, Texas, operation, excluding office clerical employees , profes- sional employees , watchmen, drillers, tool pushers, and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent the employees in said ap- propriate unit as the exclusive collective -bargaining representative. 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, plant copies of the attached notice marked "Appendix."3 Copies of said notice , on forms provided by the Regional Director for Region 16, after being duly signed by Respondent 's authorized representative , shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding 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. ' The purpose of this provision is to ensure that the employees in the ap- propriate unit will be accorded the services of their selected bargaining agent for the period provided by law See Mar-Jac Poultry Co , Inc , 136 NLRB 785, Commerce Co dlbla Lamar Hotel , 140 NLRB 226, 229, enfd. 328 F .2d 600 (C.A. 5, 1964); Burnett Construction Co, 149 NLRB 1419 , 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). 3 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" DECISIONS OF NATIONAL LABOR RELATIONS BOARD 206 (c) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.4 4In 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 Respondent has taken to comply herewith " APPENDIX WE WILL NOT interfere with the efforts of said Union to negotiate for or represent the employees in the appropriate bargaining unit as exclusive collective- bargaining representa- tive. WE WILL bargain collectively with the Union as exclusive bargaining representative of the employees in the appropriate unit and if an un- derstanding is reached we will sign a contract with the Union. NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the Na- tional Labor Relations Act, as amended , we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Local 826, International Union of Operat- ing Engineers , AFL-CIO, as the exclusive col- lective-bargaining representative of all the fol- lowing employees: All employees of the Respondent en- gaged in oil well drilling at its Odessa, Texas, operation, excluding office clerical employees, professional employees, watchmen , drillers, tool pushers, and su- pervisors as defined in the Act. HIGHLAND DRILLING COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecu- tive 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, 8A24 Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 334-2934.