Leatherwood Drilling Co.

LEATHERWOOD DRILLING COMPANY Leatherwood Drilling Company and International Union of Operating Engineers, Local 826, AFL-CIO. Case 16-CA-3621 November 10, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On July 29, 1969, Trial Examiner Charles W. Schneider issued his Decision in the above-entitled proceeding, granting General Counsel's Motion for Summary Judgment, on the ground that there are no unresolved issues requiring an evidential 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, together 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 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 Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 'We reject, as did the Trial Examiner, Respondent's two-fold contention that the voter-eligibility principles formulated by the Board in Hondo Drilling Company N S L , 164 NLRB No 67, were improperly applied to the Respondent's operations, and that, moreover, these principles constitute an unlawfully adopted rule which may not be applied herein We note particularly that the Hondo Drilling standards have been applied only if warranted by the facts of a given case See, e g , Hillin Drilling Company. 178 NLRB No 84, Carl B King Drilling Company, 164 NLRB No 68 We further note that here Respondent was granted a hearing prior to the election to permit it to litigate the propriety of the use of Hondo Drilling standards as applied to its business, and that the facts were fully contained in the record and considered by the Board in its ruling thereon The issue of the validity of the Hondo Drilling standards was made part of the record as one of Respondent's objections to the election and this contention, together with the reasoned decision by the Regional Director in overruling the objection, was considered by the Board in its ruling thereon Accordingly, we see no basis for concluding that the Board's rulings on these issues do not amount to findings made on the facts of record in an adjudicatory proceeding which was binding on the Respondent Cf N L R B v Wyman-Gordon Company. 394 U S 759 (1969) Under these circumstances, also, it is clear that all procedural safeguards on behalf of Respondent were preserved and were fully satisfied ORDER 549 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that the Respondent, Leatherwood Drilling Company, Kermit, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Add the following as the first indented paragraph of the Order: A. For the purpose of determining the effective period 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 described hereinbelow. 2. Letter the first paragraph of the Order "B." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The Issue CHARLES W. SCHNEIDER, Trial Examiner The case arises on a Motion for Judgment on the Pleadings by the General Counsel upon an admitted refusal by the Respondent to bargain on the ground that the Respondent ' s objections to the election had been improperly overruled and the Union invalidly certified. The Representation Proceeding' Upon petition filed under Section 9(c) of the National Labor Relations Act (29 USCA 159 (c)) by Local 826, International Union of Operating Engineers , AFL-CIO, herein called the Union, a hearing was held before a Hearing Officer of the National Labor Relations Board which resulted in the issuance on January 17, 1969, by the Regional Director for Region 16, of a Decision and Direction of Election in an appropriate bargaining unit, described hereinafter, of the employees of Leatherwood Drilling Company , herein called the Respondent On January 30 , 1969, Respondent filed with the Board in Washington , D.C , a Request for Review of the Regional Director's Decision and Direction of Election and on February 6, 1969, this Request was denied by the Board, as raising no substantial issues warranting review Pursuant to the Decision and Direction of Election, an election by secret ballot was conducted on February 11, 1969, at three locations (Kermit and Odessa, Texas, and Hobbs, New Mexico ) among the employees in the 'Administrative or official notice is taken of the record in the representation proceeding, Case 16-RC-5051 , as the term "record" is defined in Section 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 Elecirosysiems , Inc, 166 NLRB No 81, enfd 388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB No 24, enfd 415 F 2d 26 (C A 5, July 7 , 1969), Intertype Co v Penello, 269 F Supp 513 (D C Va 1967), Follett Corp , et al , 164 NLRB No 47, enfd 397 F 2d 91 (C A 7, 1968), Section 9(d) of the National Labor Relations Act 179 NLRB No. 91 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit to determine the question concerning representation. Upon conclusion of the balloting, the parties were furnished a tally of ballots which showed that of approximately 77 eligible voters, 21 cast valid votes for and 10 cast valid votes against the Union, and three cast challenged ballots The challenged ballots were insufficient in number to affect the results of the election On February 18, 1969, Respondent filed timely objections to conduct affecting the results of the election On March 18, 1969, the Regional Director issued a Supplemental Decision and Certification of Representative in which he stated that he had conducted an investigation of the six objections of Respondent pursuant to Section 102.69 of the Board's Rules and Regulations, and overruled them in their entirety Finding that the tally of ballots showed that a majority of the valid votes had been cast for the Union, the Regional Director certified it as the exclusive bargaining representative of the employees in the appropriate unit. On March 28, 1969, Respondent filed with the Board in Washington, D C Exceptions to the Regional Director's Supplemental Decision and Certification of Representative in which it requested that the Board review the Supplemental Decision and conduct a hearing on the Respondent's objections to the election or in the alternative, that the Board "refuse to certify" the Union as the bargaining agent. This request was denied by the Board on April 11, 1969, on the ground that it raised "no substantial issues warranting review." The Complaint Case On May 8, 1969, the Union filed the charge involved in the instant case, in which it alleged that on or about April 23, 1969, the Respondent refused to bargain with the Union. On May 29, 1969, the General Counsel by the Regional Director for Region 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 to bargain with the Union upon request. In due course, on June 9, 1969, the Respondent filed its answer to the complaint in which certain allegations of the complaint were admitted and others denied In its answer, the Respondent admits the following allegations of the complaint; (1) filing and service of the charge, (2) certain jurisdictional facts; (3) that the Union is a labor organization within the meaning of Section 2(5) of the Act; (4) that the unit is appropriate; (5) certain facts concerning the representation proceeding, (6) that the Union has requested the Respondent to bargain collectively, (7) that the Respondent has refused and continues to refuse to bargain, and (8) that Brooks L. Harman and Joseph Connally are agents of Respondent within the meaning of Section 2(13) of the Act. Respondent denies the validity of the election, that the Union is the lawful representative of the employees in the unit, and that the Respondent engaged in and is engaging in unfair labor practices Respondent further affirmatively asserts that the election was invalid because nonemployees were permitted to vote in the election. Under date of June 25, 1969, received June 27, 1969, counsel for General Counsel filed a Motion for Judgment on the Pleadings in which he contends that the pleadings, considered together with the official Board record in the underlying representation proceeding, raise no issues requiring a hearing; that Respondent's defense set forth in its answer raises no litigable question of fact, and that, as a matter of law, Respondent has no valid defense to the complaint. On June 30, 1969, I issued an Order, returnable July 16, 1969, directing the parties to show cause as to whether or not General Counsel's Motion should be granted On July 11, 1969, counsel for Respondent filed a Response to that Order. No other response has been received. Ruling on Motion for Judgment on the Pleadings Counsel for Respondent opposes the Motion for Judgment on the Pleadings and urges the following two reasons for its opposition. (1) certain fact issues have been created by Respondent's pleadings and its Objections to the Election which have never been litigated and which require a hearing as a matter of due process; and (2) by denying certain allegations of the complaint, Respondent has raised and created fact issues within the pleadings themselves. The fact issues which Respondent raises in its Response and upon which it seeks a hearing concern (1) the validity, in general, of the voter eligibility rule formulated by the Board in Hondo Drilling Company N S L , 164 NLRB No. 67, for oil well drilling employees like Respondent's, which rule was applied in the representation proceeding to Respondent, (2) the applicability of the rule in this particular case to the Respondent; (3) the failure of the Board's agents to allow certain challenges of voters by Respondent, (4) the allowing of voting by certain persons alleged by Respondent not to be employees, (5) the alleged designation of a "known official" of the Union as a Board observer of the election, (6) the alleged refusal by the Regional Director to allow the Respondent to contact nonemployees during the election campaign while allowing this privilege to the Union. These are the very issues which Respondent alleged in its objections to conduct affecting the results of the election which the Regional Director investigated before dismissing in his Supplemental Decision and Certification of Representative. These are also the same grounds urged in Respondent's Exceptions to the Regional Director's Supplemental Decision and Certification of Representative, which contentions the Board by order of April ll, 1969, dismissed as raising no substantial issues warranting review Respondent is thus attempting in this unfair labor practice proceeding to relit igate issues resolved in the prior related representdtion case. It is established Board policy, in the absence of newly discovered or previously unavailable evidence or special circumstances, 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 proceeding.' Such a hearing is not a matter of right unless substantial and material issues are raised by the pleadings and objections.' That there are no such issues here has been decided by the Board and the Respondent offers no new evidence or proof of special 'Howard Johnson Company. 164 NLRB No 121, Metropolitan Life Insurance, 163 NLRB No 71 See Pittsburgh Plate Glass Co v N L R B, 313 U S 146, 162 (1941), National Labor Relations Board Rules and Regulations, Section 102 67(f) and 102 69(c) 'O K Van and Storage Co. Inc. 127 NLRB 1537, 297 F 2d 74 (C A 5, 1961) See N L R B v Air Control Window Products, Inc. 355 F 2d 245, 249 (C A 5, 1964), " If there is nothing to hear, then a hearing is a senseless and useless formality " LEATHERWOOD DRILLING COMPANY circumstances. At this stage of the proceedings the Board's determination is therefore the law of the case and Respondent, contrary to its assertion is not as a matter of due process entitled to a hearing on its objections ° The cases cited by Respondents are not authority to the contrary Those cases hold that an evidentiary hearing is required where there are substantial and material issues They are not to be construed as requiring such a hearing where, as here, there are no such issues present Respondent's second contention is that by denying certain allegations of the complaint it has raised fact issues within the pleadings themselves This contention is without merit While it is correct that pursuant to Section 102 20 of the Board's Rules and Regulations, the allegations of a complaint are deemed admitted to be true unless they are specifically denied or knowledge of them specifically disaffirmed, it does not follow that the mere denial of certain allegations always raises litigable fact issues. Respondent here has denied the allegations of paragraphs 8, 9, 14, 17, 18, and 19 of the complaint However, it is clear from a study of the underlying representation proceeding that these denials do not in fact raise unresolved factual questions. Respondent's denials are therefore deemed to be without merit and insufficient to raise fact issues requiring a hearing There thus being no unresolved matters requiring an evidentiary hearing, the Motion of the General Counsel for Judgment on the Pleadings is granted, and I hereby make the following further Findings and Conclusions 1 THE BUSINESS OF THE RESPONDENT Leatherwood Drilling Company is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Texas, maintaining an office and place of business in Kermit, Texas, where it is engaged in contract oil well drilling Respondent, during the past 12 months, which period is representative of all times material herein, in the course and conduct of its business operations, purchased goods valued in excess of $50,000 directly from points outside the State of Texas, and performed services valued in excess of $50,000 outside 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 (7) of the Act. II. 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. 'See NLRB v Bata Shoe Co , 377 F 2d 821, 826 (C A 4, 1967) " there 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 purpose of certification " 'N L R B v Indiana & Michigan Electric Company , 318 U S 9 (1943), Home Town Foods , Inc d/b/a Foremost Dairies of the South v NLRB B. 379 F 2d 241 (C A 5 1967), NLRB v Dallas City Packing Co , 230 F 2d 708 (C A 5, 1956), N L R B v Lamar Electric Membership Corporation , 362 F 2d 507 (C A 5, 1966), N L R B v Joclin Manufacturing Company. 314 F 2d 627 (C A 2, 1963), United States Rubber Co v NLRB , 373 F 2d 602 (C A 5, 1967), N LRB v Lord Baltimore Press, Inc, 300 F.2d 671 (C A 4, 1962) Ill. THE UNFAIR LABOR PRACTICES 551 The following employees of the Respondent constitute a unit appropriate for the purposes of the collective bargaining within the meaning of Section 9 (b) of the Act All employees working out of the Kermit, Texas, yard, including roughnecks (derrickmen and floor hands), truckdrivers , welders , mechanics and helpers, but excluding office clerical employees , professional employees , guards , watchmen , drillers and supervisors as defined in the Act. On February 11, 1969, a majority of Respondent's employees in the said unit designated and selected the Union as their collective-bargaining representative in a secret ballot election conducted under the supervision of the Regional Director of Region 16 of the National Labor Relations Board On March 18, 1969, the Union was certified by the Regional Director as, and at all times since has been, the collective-bargaining representative of a majority of the employees in the said unit, and by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment , and other terms and conditions of employment On or about April 23, 1969, the Union requested the Respondent to meet with it for the purposes of collective bargaining with respect to the employees in the appropriate unit, and on April 29, 1969, the Respondent refused to do so 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. THE REMEDY Having found that the Respondent has refused to bargain collectively it will be recommended that the Respondent be ordered to cease and desist therefrom and take certain affirmative action deemed necessary to effectuate the policies of the Act The nature of employment with the Respondent, which impelled the Board to apply the Hondo rule to the election, makes special provision necessary for adequate publication of the provisions of the order Employment with the Respondent may be at locations anywhere in the Permian basin, an area approximately 150 miles radius from Odessa, Texas Some employees who were on the Respondent's payroll at the time of the refusal to bargain, but are not at the present time, may anticipate possible reemployment by the Respondent. Therefore, in addition to requiring the posting of copies of the order at the offices and yards of the Respondent at Kermit, Texas, it will be recommended that the order contain the following provisions. (1) that copies be posted at crew headquarters at drilling sites for 60 days or until the rig is stacked, whichever occurs first, (2) that copies be provided the Union for posting (the Union willing) at union halls or meeting places in the Permian basin In view of the fact that the election was held on February 11, 1969, special provision is also necessary concerning the duration of the certification, to the end that the employees will be accorded the services of their 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD selected bargaining agent for the period provided by law. See Mar-Jac Poultry Co., Inc, 136 NLRB 785; Commerce Co d/b/ a Lamar Hotel, 140 NLRB 226, 229, 328 F 2d 600 (C A 5), cert denied 379 U S 817 (1964), Burnett Construction Co , 149 NLRB 1419, 1421, 350 F 2d 57 (C A 10, 1965) Upon the foregoing findings and conclusions and the entire record in the case, I recommend that the Board issue the following ORDER Leatherwood 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 working out of the Kermit, Texas yard, including roughnecks (derrickmen and floor hands), truck drivers , welders, mechanics and helpers, but excluding office clerical employees , professional employees , guards, watchmen , drillers and supervisors as defined in the Act. (b) Interfering with the efforts of said Union to negotiate for or represent employees as 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 employment and other terms and conditions of employment and embody in a signed agreement any understanding reached (b) Post at its offices and yards in Kermit , Texas, copies of the notice attached hereto marked "Appendix."6 Copies of said notice, on forms to be furnished 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 it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted Similar copies shall be posted at the crew headquarters at drilling sites for 60 days or until the rig is stacked , whichever occurs first Copies shall also be provided the Union for posting (the Union willing) at union halls or meeting places in the Permian basin. 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 ' 'In the event this recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "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 Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'In the event 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 receipt of this Order, what steps the Respondent has taken to comply herewith " APPENDIX 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 National Labor Relations Act, as amended , we hereby notify our employees that- WE WILL NOT refuse to bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive collective-bargaining representative of all our following employees All employees working out of our Kermit, Texas yard, including roughnecks (derrickmen and floor hands), truckdrivers , welders, mechanics and helpers, but excluding office clerical employees , professional employees , guards, watchmen , 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 LEATHERWOOD DRILLING COMPANY (Employer) Dated By (Representative) (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. Any questions concerning this notice may be directed to the Board's Regional Office, 8A24 Federal Office Bldg , 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921