A. W. Thompson, Inc.

National Labor Relations Board - Board Decisions

Feb 25, 1975

216 N.L.R.B. 710 (N.L.R.B. 1975)

710 DECISIONS OF NATIONAL
A. W. Thompson, Inc. and Local 826, International
Union of Operating Engineers , AFL-CIO. Cases
16-CA-5406 and 16-CA-5537
February 25, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On November 7, 1974, Administrative Law Judge
Wellington A. Gillis issued the attached Decision in
this proceeding, as corrected by an erratum issued
December 9, 1974. Thereafter, the Respondent filed
exceptions , the General Counsel filed a brief in
support of the Administrative Law Judge's Decision
and an answering brief, and the Respondent filed a
brief in reply.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three -member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , A. W. Thompson,
Inc., Odessa and Midland, Texas, its officers , agents,
successors , and assigns , shall take the action set forth
in the said recommended Order, except that the
attached notice is substituted for the Administrative
Law Judge's notice.
1 The motions made by the General Counsel and the Respondent
respectively to strike portions of the Respondent 's exceptions and to strike
the General Counsel's answering brief and motion to strike are denied.
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
Engineers , AFL-CIO, as the exclusive collective-
bargaining representative of all our employees in
the following unit:
All the employees of the Respondent work-
216 NLRB No. 134
LABOR RELATIONS BOARD
ing out of the Respondent's Odessa, Texas,
facility, including employees working on rigs
in the following Counties: Yoakum, Terry,
Gaines, Dawson, Andrews, Loving, Winkler,
Ector, Midland, Glasscock, Reeves, Ward,
Crane, Upton, Reagan , Pecos, Crockett,
Terrell and Martin (all in Texas), and Lea
County, New Mexico, and including truck-
drivers and maintenance employees working
at the Respondent's Odessa, Texas, facility,
but excluding office clerical employees,
drillers, shop foremen, truck foremen,
guards , and supervisors as defined in the
Act, as amended.
WE WILL NOT withdraw recognition and refuse
to meet with the Union as the exclusive collective-
bargaining representative of our employees in
said unit.
WE WILL NOT refuse to furnish the Union with
the names and addresses of our employees.
WE WILL NOT grant wage increases to our
employees, or otherwise change their wages,
hours, or other terms and conditions of employ-
ment, without notifying and consulting with the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their rights guaranteed in Section 7 of
the Act.
WE WILL bargain collectively with the Union
upon request as the exclusive collective -bargain-
ing representative of employees in the appropriate
unit, and, if an understanding is reached, sign a
contract with the Union.
A. W. THOMPSON, INC.
DECISION
STATEMENT OF THE CASE
WELLINGTON A. GILLIS, Administrative Law Judge: This
case was initially tried before me on March 14, 1974, at
Odessa, Texas, and is based upon a charge and an
amended charge filed on January 4 and 9, 1974, respective-
ly, by Local 826, International Union of Operating
Engineers, AFL-CIO, hereinafter referred to as the Union,
upon a complaint issued on January 30, 1974, by the
General Counsel for the National Labor Relations Board,
hereinafter referred to as the Board, against A. W.
Thompson, Inc., hereinafter referred to as the Respondent
or the Company, alleging violations of Section 8(a)(1) and
(5) and Section 2(6) and (7) of the National Labor
Relations Act, as amended (61 Stat . 136), and upon an
answer timely filed by the Respondent denying the
commission of any unfair labor practices.
At the hearing all parties were represented by counsel,
and were afforded full opportunity to examine and cross-
A. W. THOMPSON, INC.
examine witnesses , to introduce evidence pertinent to the
issues, and to engage in oral argument . Subsequent to the
close of the hearing , on April 17, 1974, timely briefs were
submitted by counsel for the General Counsel and for the
Respondent.
Thereafter , prior to the rendering of a decision in the
matter, based upon separate charges filed on April 22 and
May 13, 1974, by the Union, the General Counsel, on May
13, 1974, issued a second complaint against the Respon-
dent in Case 16-CA-5537, alleging additional violations of
Section 8(a)(1) and (5) of the Act . Simultaneous with the
issuance of complaint, the General Counsel filed with the
Administrative Law Judge a motion to reopen the record
and motion to consolidate cases . After having thereafter
filed a timely motion in opposition to the General
Counsel 's motion and an amended answer, the Respondent
by telegram dated June 6, 1974, withdrew its opposition to
reopen and to consolidate, and agreed with counsel for the
General Counsel to submit Case 16-CA-5537 by stipula-
tion of the record in Case 16-CA-5406 and stipulation of
fact and exhibits in Case 16-CA-5537 to the Administra-
tive Law Judge to be considered together in lieu of a
hearing in Case 16-CA-5537.
By order dated June 10, 1974, the Administrative Law
Judge granted General Counsel 's motion to reopen the
record and consolidate cases . Thereafter, on June 21, 1974,
a written stipulation executed by all parties was submitted
to the Administrative Law Judge . By order dated July 1,
1974, the stipulation was approved and, pursuant to its
terms providing for the filing of limited briefs, the date for
filing of briefs was set for July 15 , 1974, pursuant to which
a supplemental brief was subsequently submitted by
counsel for the Respondent.
Upon the entire record in this consolidated proceeding,'
and from my observation of the witnesses , and their
demeanor on the witness stand , and upon substantial
reliable evidence "considered along with the consistency
and inherent probability of testimony" (Universal Camera
Corp. v. N.LR.B., 340 U.S. 474, 496 (1951), I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
A. W. Thompson, Inc., is a Texas corporation main-
taining its principal office and place of business in
Midland, Texas, and a yard office in Odessa, Texas. The
Respondent is engaged in the contract drilling business in
various counties in the State of Texas and Lea County,
New Mexico , known as the Permian Basin . During the 12-
month period immediately preceding the issuance of
complaint, the Respondent performed services valued in
excess of $50,000 for customers located outside the State of
Texas . The parties admit, and I find, that the Respondent
is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
I The General Counsel's motion to correct errors in the transcript, filed
after the close of the hearing with notice to all parties , is hereby granted and
II. THE LABOR ORGANIZATION INVOLVED
711
The parties admit , and I find, that Local 826, Interna-
tional Union of Operating Engineers , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background and issues
On August 2, 1966, pursuant to a Stipulation for
Certification Upon Consent Election, an election was held
among employees working out of the Respondent's Odessa
facility, including employees working on oil drilling rigs in
certain West Texas and New Mexico Counties. A majority
of the employees having voted for the Union, the Board on
August 10, 1966, certified the Union as the collective-
bargaining representative. Thereafter, on November 16,
1967, the Union and the Respondent entered into a
collective-bargaining agreement, technically referred to as
a Working Agreement, said contract terminating on or
about August 2, 1968.
Following intervening noncontractual years, the parties
on May 29, 1973, executed a Working Agreement covering
the same employees. By letter dated October 22, 1973,
pursuant to the terms of the contract, the Union advised
the Respondent of its desire to open said contract for
renegotiations. Subsequently, by letter dated December 3,
1973, Union Business Manager Kenneth Howell requested
of Brooks Harman, attorney for the Respondent, dates for
the commencement of negotiations to renew the contract,
and also requested an updated list of Respondent's
employees with addresses.
On December 20, 1973, Howell again wrote Harman,
requesting a contract negotiations meeting with the
Respondent at 10 a.m. on December 27 in the latter's
office, and also reiterating his earlier request for the
employee list. Again, by letter dated December 26, 1973,
Howell requested a date for contract negotiations, stressing
the fact that the current contract was about to terminate on
December 31, 1973. On December 28, 1973, Harman wrote
to Howell stating that he had been instructed by the
Respondent to inform the Union that the Company in
good faith doubted that the Union represented a majority
of the Respondent's employees in the bargaining unit, and
that the Company declined to negotiate a new or renewal
contract. The letter closed by suggesting that if the Union
really believed it represented a majority of the Company's
employees it should so demonstrate.
On January 1, 1974, by written notice, the Company
notified its employees that the union contract had expired,
that the Company had apprised the Union that it no longer
recognized it as the exclusive bargaining representative,
that it did not believe that the Union represented the
majority of the employees, and that, as this was the normal
time for consideration for wage increases, it was granting
specified hourly wage rate increases to the employees
effective with the pay period commencing January 6, 1974.
the transcript is corrected.
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
By notice , dated April 11, 1974, and posted at its 12 rigs,
the Respondent without notice to the Union notified its
employees of further wage rate increases , effective April
14, 1974 . The notice , in setting forth specified hourly rate
increases , stated that "It is our understanding that wages
paid by our primary competitors are due to be increased in
the very near future . Therefore , in order to retain our
competitive position in the industry , and to make every
reasonable effort we can to keep our qualified and trained
personnel and to reduce our turnover , we are increasing
wages effective the pay period beginning April 14,
1974,...."
Simultaneous with this action , the Respondent on April
14, 1974, again without notice to the Union , notified its
employees by the distribution of an insurance booklet that
their group insurance benefits were being upgraded,
increased , and extended , retroactively effective as of
February 1, 1974.
The above facts, alleged in the complaints as constituting
conduct violative of Section 8(a)(l) and (5) of the Act, are
uncontroverted . The Respondent , in effect admitting all
but the conclusionary "bad faith" allegations of both
complaints , raises as an affirmative defense a good-faith
doubt as to the Union's majority status based upon the
following assertions: (1) the Union at no time notified the
Company of the appointment of any rig stewards as
provided by the Working Agreement ; (2) no grievances
were ever processed by the Union under the contract's
grievance procedure ; (3) the bulletin boards at the rigs
were never used by the Union for any purposes during the
period of the contract, although so provided for by the
contract ; (4) no communication of any kind had been
received by the Company from the Union other than the
request of October 22, 1973, to renegotiate the contract; (5)
the Company , with rigs working over a very wide area of
West Texas and New Mexico , had experienced a rapid
turnover among its necessary crew complement ; (6) the
only comments received by the Company from unit
employees were unfavorable toward the Union ; (7) during
the earlier period in which the Union enjoyed a bargaining
representative status , it failed to fairly represent the unit
employees , thereby causing disaffection of the employees
toward the Union . The Respondent justifies its actions
concerning both pay raises and the increased insurance
benefits on the ground that , for reasons set forth in its
affirmative defenses , the Union was no longer the exclusive
bargaining representative of the employees , and thus,
having withdrawn its recognition of the Union, it had no
legal obligation to consult with the Union with respect to
such economic actions.
2. Affirmative defenses
a. Appointment of stewards
The Respondent, as a first affirmative defense , asserts
that "Article IV of the Working Agreement between
Respondent and Local 826 provided for rig stewards and
that the Union would notify the Company in writing upon
the appointment of any steward. The Company has never
been notified of the appointment of any steward and has
never heard of any steward being appointed or anyone
acting as steward on any rig. The Company operated 11 to
12 rigs during the period of the contract."
The General Counsel admits , and the evidence discloses,
that such was the case , that no union stewards were
appointed , and that the Company was never informed of
any appointments . As testified by Frank Thompson,
Respondent's president , the Union during contract negoti-
ations had insisted on having stewards represent the Union
on the rigs, giving rise to the subject contract provision,
and that, pursuant thereto , the Union was supposed to
inform the Company of the names of the stewards. This
was never done.
b. No grievances processed
As a second affirmative defense , the Respondent argues
that, notwithstanding that article III of the Working
Agreement provides for grievance procedure , no griev-
ances were ever processed with the Respondent by Local
826 or any representative of Local 826.
This fact, also, is unrefuted , the evidence reflecting that
during the contract period no grievances were filed and,
accordingly, none was processed . It also appears that
nothing of any moment occurred giving rise to the use of
the grievance machinery , for, as Thompson testified, he
could - recall nothing happening which would have caused
employees to be dissatisfied with their working conditions,
that nothing came to his attention concerning problems
with employees registering complaints.
c. Use of bulletin boards
As a third affirmative defense , the Respondent asserts
"The Working Agreement in Article V provided for the
Union's use of bulletin boards in the clothes changing
doghouses at each rig . The bulletin boards have never been
used by the Union for any purpose during the period of the
contract."
The Respondent's evidence in this regard is limited to
the testimony of Thompson and his administrative assist-
ant, Theodore Toft , to the effect that, during the contract
period, they never saw any union literature posted on the
rig bulletin boards, or never heard of any having been
posted. Neither, however, could testify that none was
posted, and Toft admitted that notices could have been
posted of which he had no knowledge . Thompson testified
that, during the contract period, he probably visited each
rig once , while Toft testified that he probably visited each
rig about three times . Union Business Representative
Kenneth Howell , on the other hand , testified that notices
of union meetings are mailed to employees and that, on
occasion, employees posted them on the doghouse bulletin
boards, and, on other occasions , employees came by the
Union's Odessa office to pick up copies of notices for
posting on the bulletin boards.
d. No union communication
The fourth affirmative defense relied upon by the
Respondent states "No communication of any kind has
been received by Respondent from the Union except the
request to re-negotiate the contract, which request was
dated October 22, 1973."
A. W. THOMPSON, INC.
in this regard it is unrefuted , and the evidence indicates,
that such was the case , that between the May 29, 1973,
execution of the Working Agreement the Union 's request
of October 22, 1973, to renegotiate that agreement, there
had been no communication by the Union with the
Company, and that the only communication thereafter
with Thompson , or the Respondent's attorney , were the
December follow-up negotiation demands and the request
for an updated employee list.
e. Employee turnover
As a fifth affirmative defense, the Respondent asserts
that it had experienced a rather rapid turnover among its
necessary crew complement and that Respondent's rigs
were working over a very wide area of West Texas and
New Mexico . The evidence reveals that during the period
between 1966 and the end of 1973, the Respondent's
operations had increased from approximately 105 jobs to
around 200 jobs. Thompson testified, without refutation,
that annually the rate of employee turnover is about 4 to 1,
that in calendar year 1973 the Respondent processed 817
W-2 forms, which means that , during the year, over 800
men were employed in the Respondent 's 200 jobs.
f. Unfavorable employee comments
The Respondent's sixth affirmative defense asserts that
the only comments from unit employees coming to
management were unfavorable toward theUnion . Evidence
in support of this assertion is confined to rather vague
testimony of Thompson and Toft . When initially asked for
the basis upon which he doubted the Union 's majority in
the fall of 1973 , Thompson, after alluding to employee
turnover , was asked if he had finished . His reply was, "Oh,
I might think of something else in a few minutes."
Whereupon, he testified that "several hands did come in
and ask how they could get loose from the Union."
Thompson admitted that they did not talk to him
personally and that he did not know who they are , but that
"I could probably get their names ." At another point,
when asked whether he ever attempted to find out whether
any of his employees wanted the Union , Thompson replied
that in casual conversations with his employees at different
times , "I got the idea that they didn't care about the
Union, or didn't know we had it." When later pressed as to
whether at any time prior to withdrawing recognition from
the Union on December 28, 1973, he had received a report
that any particular employee did not want the Union,
Thompson admitted that he had not. Thompson testified
that he took no measure to determine whether a majority
of his employees wanted the Union and did not know as a
fact whether such was the case . Toft's testimony was
equally vague, in that he testified that over a period of
time, he heard employees question, "When can we get rid
of the Union" or "I thought we were rid of the Union."
Toft testified that , in "casual conversations once in a
2 Celanese Corporation of America, 95 NLRB 664,671-672 (1951 ); Terrell
Machine Company, 173 NLRB 1480 (1969).
3 Leatherwood Drilling Company, 209 NLRB 618 (1974); Brahaney
Drilling Company, 209 NLRB 624 (1974); and Hondo Drilling Company,
N.S.L, 213 NLRB No. 32 ( 1974).
713
while," he advised Thompson of what he heard, but did
not recall giving Thompson any names of employees in
connection with such union sentiments.
B. Analysis and Conclusions
The General Counsel contends that the Respondent
violated Section 8(a)(1) and (5) of the Act by refusing,
since October 22, 1973, to meet and bargain with the
Union; by withdrawing recognition from the'Union on
December 28, 1973; by unilaterally granting employee
wage increases on January 6 and April 14, 1974; by
refusing to furnish the Union with data relating to names
and addresses of employees; and by unilaterally upgrad-
ing, increasing, and extending insurance benefits on April
14, 1974.
The Respondent, admitting the essential factual allega-
tions of both complaints, defends its action on the
assertion that for reasons advanced as affirmative defenses
the Union was either unwilling or unable to service its
employees, giving rise to its good-faith doubt as to the
Union's continuing majority status. As a result of its good-
faith doubt, argues the Respondent, it was entitled to
withdraw recognition and, once the contract terminated on
December 31, 1973, to grant the wage increases.
The principles governing an employer's continuing duty
to recognize and bargain with a previously certified union
are well established2 and have recently been applied by the
Board in a number of decisions, several of which involve
oil drilling employers in the Permian Basin.3 Thus, Board
precedent holds that a certified union, upon the expiration
of the year following its certification, enjoys a rebuttable
presumption that its status as majority representative
continues. An employer may lawfully refuse to bargain
with the union after the lapse of the certification year if it
affirmatively establishes (1) that at the time of the refusal
the union no longer commanded a majority, or (2) that the
refusal of the employer was predicated upon a reasonably
based doubt as to the continuing majority. To establish the
former, an employer must have affirmative proof that the
majority of employees in the certified unit no longer
desired the union to represent them. As to the latter, the
employer need establish only that it had a reasonable basis
for doubting the union's majority at the time of its refusal
to bargain.4 This, however, must be shown by objective
facts and not merely by an assertion thereof or proof of the
employer's subjective frame of mind .5
In applying the above principles to the case at hand, we
need address ourselves only to the second of the two
propositions, for there is no proof, nor does the Respon-
dent so assert, that the Union had in fact lost its majority
at any time. Accordingly, we must look to the objective
facts upon which the Respondent assertedly relied in
establishing a reasonable basis for doubting the Union's
majority. They are to be found, if in fact they qualify, in
the affirmative defenses set forth by the Respondent.
In appraising the affirmative defenses, one must keep in
4 Orion Corporation, 210 NLRB 633 (1974); Automated Business Systems,
205 NLRB 532 (1973); Celanese Corporation of America, supra
8 Montgomery Ward & Co., Incorporate,4 210 NLRB 717 (1974);
Laystrom Manufacturing Co., 151 NLRB 1482 (1965).
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mind that the current Working Agreement alluded to was
executed on May 29, 1973, that it expired on December 31,
1973, and thus, that the contract period involved was some
7 months in duration. Secondly, according to Thompson, a
good-faith doubt concerning the Union's majority arose
right after the May 29 execution of the contract.
With respect to the failure on the part of the Union to
appoint rigs stewards, and thus to notify the Respondent of
such appointments, on the one hand, or to process
employee grievances with the Respondent, on the other,
the Respondent was unable to show that the Union's
failure in any way reflected adversely upon its responsibili-
ties as bargaining representative. To the contrary, it
appears that, during the entire period, no grievances were
filed by employees, and that nothing occurred concerning
alleged contract violations or employee discontentment
with working conditions which would warrant the filing of
grievances. Such conditions obviate the necessity of
appointing rigs stewards, and thus the failure to notify the
Respondent "upon the appointment of any steward," or to
process grievances which were never filed, hardly consti-
tutes a reasonable basis for doubting the Union's majority.
Concerning the Respondent's assertion that the bulletin
boards at the rigs were not used by the Union during this
period, it appears, first, that the provision of the Working
Agreement alluded to by the Respondent in no way
requires the Union to use the bulletin boards, but merely
grants it the privilege of doing so, and, secondly, that, in
fact, the Union did, at least on occasion, post its meeting
notices on these boards. The fact that notices were often
torn down raises a question as to the value of the bulletin
boards as a means of communicating with employees. In
any event, I find this argument without merit.
The Respondent's fourth affirmative defense, its asser-
tion that no union communication of any kind, other than
the October 22 negotiation request, was received by the
Respondent, must fall on the admitted evidence herein. In
addition to the initial negotiation request of October 22,
the Union's letters of December 3 and 20, reiterating its
request for bargaining negotiations as well as for an
updated list of employees and addresses, went unanswered.
It was not until December 28, after one more union
communique had been received and 2 days before the
expiration of the Working Agreement, that the Respondent
replied, and then only to apprise the Union for the first
time that it doubted its majority status and was declining
to negotiate, in effect withdrawing recognition of the
Union. This defense must fall for obvious reasons.
Turning to the Respondent's fifth affirmative defense,
the unrefuted evidence supports the Respondent's asser-
tion that it had experienced a rapid turnover among its
employee complement. While the processing in excess of
800 W-2 forms in 1 year for a 200-job operation might well
create in one 's mind a question as to whether a union had
retained its majority, the Board has specifically ruled that
employee turnover alone is insufficient legal ground upon
which to base a good-faith doubt of union majority.6 The
fact that the Board within the past few months reiterated
6 Laystrom Manufacturing Co., supra
7 Terre!! Machine Company, supra; Montgomery Ward& Co, Incorporat-
ed supra
this holding, and did so in three decisions involving
operations in the Permian Basin identical to that of the
Respondent, renders the Respondent's argument in this
regard without merit.
As in the case of the foregoing defenses, I find that the
Respondent failed to carry its burden of proving its sixth
affirmative defense , that which asserts that the only
comments coming from unit employees were unfavorable
toward the Union. Apart from the fact that neither
Thompson nor Toft was convincing in testifying as to this
matter, neither was able to provide names or details
concerning alleged employee expressions of dissatisfaction
with the Union. The fact that "several" employees out of a
unit of up to 200 employees may have casually expressed at
one time or another dissatisfaction with, or indifference to,
the Union, does not constitute a reasonable basis upon
which to assert a good-faith doubt of majority. In this
regard, the Board has held that evidence of dissatisfaction
with the union, to be of any significance, must come from
the employees themselves, not from the employer on their
behalf.?
In finding, as I do, that the Respondent has failed in its
burden of proof as to its affirmative defenses, I further find
that the evidence does not support the Respondent's
assertion that the Union was either unwilling or unable to
service its employees and that such, independently,
supports an asserted good-faith doubt.
Apart from its failure to meet the requirements for
establishing a reasonable basis for a good-faith doubt of
the Union's continuing majority, the fact that the Respon-
dent, although asserting a good-faith doubt throughout the
entire fall of 1973, failed to apprise the Union of its
position in this regard until December 28, 1973, just 2 days
before the Working Agreement expired, coupled with its
earlier refusal to meet, to supply the Union with requested
employee data, or to in any way justify its having ignored
such requests, in itself casts a cloud on the sincerity with
which the Respondent advances its good-faith argument. I
find, in refusing since October 22, 1973, to meet and to
negotiate in good faith with the Union, and in withdrawing
recognition from the Union on December 28, 1973, the
Respondent unlawfully refused to bargain in violation of
Section 8(aX5) and (1) of the Act.
I further find, under the conditions prevailing in the
Permian Basin , including the employee turnover, the wide
area covered by the Respondent' s operations , and the
inadequacy of alternative means of communicating with
unit employees, the employee data requested of the
Respondent by the Union on December 3, 1973, was
relevant and necessary to the Union in order that it might
properly fulfill its functions as bargaining representative of
Respondent's employees . Accordingly, the Respondent's
refusal to furnish the Union with an updated list of the
names and addresses of its employees constitutes an
independent violation of Section 8(a)(5) of the Act.8
Having found that the Respondent unlawfully withdrew
recognition from the Union on December 28, 1973, it
follows, without the need for elaboration, that the
9 The fact that the Respondent subsequently complied with this request
pursuant to a subpena issued by the General Counsel of the Board in no
way alters this finding.
A. W. THOMPSON , INC. 715
Respondent 's unilateral employee wage increase of January
6, 1974, announced to its employees contemporaneously
with the announcement of its withdrawal of recognition,
and its follow-up unilateral employee wage increase of
April 14, 1974, constitute separate violations of Section
8(a)(5) and (1) of the Act.9
Remaining for resolution is the 8(a)(5) complaint
allegation that the Respondent , on or about April 14, 1974,
without prior notification to, or consultation with, the
Union, distributed to its employees a booklet notifying
them that their group insurance plan had been upgraded
and that their benefits thereunder had been increased and
extended effective February 1, 1974. The stipulated facts
relating to this issue reveal that the Respondent had a
group insurance plan in existence covering unit and
nonunit employees, and that the Working Agreement in
effect between May 29, 1973, and December 31, 1973,
contains the following relevant provisions:
10.1 The Company has a group insurance program for
employees of the company who qualify. The Company
presently pays all premiums on such insurance.
10.2 The program consists of $5,000, double-indemnity,
life insurance , hospitalization and medical major
insurance . The hospitalization and major medical
covers both the employee and dependents. All the
insurance is subject to the employee qualifying and
subject to the conditions set forth in the group policy.
10.3 The above-mentioned insurance is automatic to
those employees who have completed one (1) year's
continuous service as that term is defined under the
Article "Vacation and Holiday."
10.4 The Company agrees to continue the present
insurance program in effect at its present premium
costs but reserves the right to unilaterally determine if
it will increase its costs if the premiums increase.
10.5 Since the policy is one which covers employees
other than bargaining unit employees, as well as
bargaining unit employees, the Company shall have the
right to negotiate with the insurance company or a
different insurance company as to costs and benefits, as
well as for comparable or increased benefits ; and may
institute such new policy upon authorization of
participation of the necessary number of employees
required by the insurance company.
Pursuant to the provision of the Working Agreement, an
increase of group benefits was negotiated by the Respon-
dent with the Hartford Life and Accident Insurance
Company, said negotiations having commenced on Sep-
tember 7, 1973, and concluded on December 18, 1973,
prior to the expiration of the Working Agreement.
Thereafter, in March 1974, such increased and upgraded
benefits were published and printed in booklet form by the
Hartford Life and Accident Insurance Company, and
subsequently transmitted to the Respondent for distribu-
tion to its employees. The booklet noted that the upgraded
plan, with its increased and extended benefits, was
effective February 1, 1974. The Respondent, in turn, made
such distribution to its employees, unit and nonunit
employees alike, on April 14, 1974.
I find, as argued by the Respondent, that the provisions
of the Working Agreement clearly gave the Company the
unilateral authority to negotiate with the insurance
company or a different insurance company as to costs and
benefits, and that the Respondent was authorized to put
into effect such new policy upon authorization of partici-
pation of the necessary number of employees required by
the insurance company. The Working Agreement con-
tained no provision requiring union negotiation, consulta-
tion, or even notification, as a requisite to such action by
the Respondent. The Respondent's negotiation of in-
creased benefits with the Hartford Life and Accident
Insurance Company was carried on and concluded during
the life of the Working Agreement, was well within the
unilateral authority of the Respondent under the Working
Agreement to do so, and the fact that the booklet
containing the increased benefits was not published by the
insurance company and thus not distributed by the
Respondent until the following March and April does not
render the action unlawful. Accordingly, I find under these
circumstances that the Respondent's conduct in this regard
was not an unfair labor practice and that, in this particular,
Respondent did not violate Section 8(a)(5) of the Act.
Upon the basis of the above findings of fact, and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. A. W. Thompson, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 826, International Union of Operating Engi-
neers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The following constitutes a unit appropriate for
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All the employees of the Respondent working out of
the Respondent's Odessa, Texas, facility, including
employees working on rigs in the following Counties:
Yoakum, Terry, Gaines, Dawson, Andrews, Loving,
Winkler, Ector, Midland, Glasscock, Reeves, Ward,
Crane, Upton, Reagon, Pecos, Crockett, Terrell and
Martin (all in Texas) and Lea County, New Mexico,
and including truck drivers and maintenance employ-
ees working at the Respondent's Odessa, Texas, facility
but excluding office clerical employees, drillers, shop
foremen, truck foremen, guards and supervisors as
defined in the Act, as amended.
4. At all times since August 2, 1966, the Union has been
and is now the exclusive bargaining representative of the
employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By refusing since October 22, 1973, to meet with the
Union and to confer in good faith with respect to wages,
9 Brahaney Drilling Company, supra.
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours, and other terms and conditions of employment, and
thereafter, on December 28, 1973, withdrawing recognition
from the Union, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By refusing in December 1973, to furnish the Union
with data relating to the names and addresses of its
employees, and by unilaterally granting on January 6,
1974, and again on April 14, 1974, without notification to
or consultation with the Union, wage increases to its
employees , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
7. By the foregoing conduct, the Respondent has
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed by Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
9. Other than as above found, the Respondent has not
violated the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
THE REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain
affirmative action which is necessary to effectuate the
policies of the Act.
Although it has been found that the Respondent
unlawfully granted its employees wage increases on
January 6, 1974, and again April 14, 1974, it is not
recommended that the Respondent be ordered to rescind
its actions in this regard or to retract the wage increases.
Upon the foregoing findings of fact, conclusions of law,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 10
The Respondent, A. W. Thompson, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 826,
10 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 , 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.
International Union of Operating Engineers , AFL-CIO, as
the exclusive collective-bargaining representative of the
employees in the following appropriate unit:
All the employees of the Respondent working out of
the Respondent 's Odessa, Texas , facility , including
employees working on rigs in the following Counties:
Yoakum , Terry, Gaines , Dawson , Andrews , Loving,
Winkler, Ector, Midland , Glasscock , Reeves, Ward,
Crane , Upton, Reagan , Pecos , Corckett , Terrell and
Martin (all in Texas) and Lea County , New Mexico,
and including truck drivers and maintenance employ-
ees working at the Respondent's Odessa , Texas,
facility, but excluding office clerical employees , drillers,
shop foremen , truck foremen , guards and supervisors
as defined in the Act, as amended.
(b) Withdrawing recognition from and refusing to meet
with the Union as the exclusive bargaining representative
of employees in the appropriate unit.
(c) Refusing to furnish the Union data relating to the
names and addresses of its employees, unilaterally granting
wage increases to its employees or otherwise changing
wages , hours, or other terms and conditions of employ-
ment, without notification to, or consultation with, the
Union.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
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 in conspicuous places at its Odessa, Texas,
facility, and at all bulletin boards located at the "doghous-
es" at each rig operated by the Respondent in the
geographical area covered by the above appropriate unit,
copies of the attached notice marked "Appendix.""
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 it immediately upon receipt thereof, and
maintained by it for at least 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 the date of this Order, what
steps Respondent has taken to comply herewith.
'1 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "