Brahaney Drilling Co.

National Labor Relations Board - Board Decisions

Mar 13, 1974

209 N.L.R.B. 624 (N.L.R.B. 1974)

624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brahaney Drilling Company and Local 826, Interna-
tional Union of Operating Engineers, AFL-CIO.
Case 16-CA-5188
March 13, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On November 14, 1973, Administrative Law Judge
Joel A. Harmatz issued the attached Decision in this
proceeding . Thereafter , Respondent filed exceptions
and a supporting brief , and the General Counsel filed
a brief in support of the Administrative Law Judge's
Decision.
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, Brahaney Drilling
Company , Odessa , Texas , its officers, agents , succes-
sors , and assigns , shall take the action set forth in the
said recommended Order.
I Although not affecting the ultimate conclusions of the Administrative
Law Judge , we find merit in Respondent 's claim that in his Decision he
incorrectly referred to Allstate Construction , Inc, as a drilling contractor.
The record supports the Respondent 's contention that Allstate is a dirt
contractor Likewise , we agree with Respondent that four of the negotiating
sessions which Harman held with the Union on behalf of other contractors
during the hiatus period here in question were held with Howell, the
Union's business manager, rather than with Fortenberry , as found. These
apparently inadvertent errors, however , do not affect any material findings
of the Administrative Law Judge.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge: This case
was heard in Odessa , Texas, on September 27, 1973, upon a
charge filed on June 11 , 1973, an amended charge filed on
June 25 , 1973, a complaint issued on July 24 , 1973, and an
I Pursuant to motion to correct transcript filed by the General Counsel,
and consistent with my recollection , and the sense of the matters set forth in
the transcript , I hereby grant said motion , and the transcript is hereby
amended
2 Siemons Mailing Service, 122 NLRB 81 ; Brahaney Drilling Company,
176 NLRB 289
amendment thereto filed on September 12, 1973, alleging
that Respondent , Brahaney Drilling Company, violated
Section 8(a)(5) and (1) of the Act, by, on June 4, 1973,
withdrawing recognition from and thereafter refusing to
meet with the Union, the certified collective -bargaining
representative of unit employees, and, by, on June 4, 1973,
without prior consultation or negotiation with said Union,
unilaterally granting wage increases to said employees.
Thereafter briefs were filed by the Respondent and the
General Counsel.
Upon the entire record,' including my observation of the
witnesses while testifying, and careful consideration of the
posthearing briefs , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , a Texas corporation with its principal office
and place of business in Midland , Texas, is engaged in the
business of drilling oil and gas wells in the Permian Basin
area in Texas and New Mexico . During the calendar year
preceding the issuance of this complaint , a representative
period, Respondent performed services valued in excess of
$50,000, of which amount services valued in excess of
$50,000 were performed in States other than the State of
Texas.
I find that Respondent , at all times material , is and has
been an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.2
iI. THE LABOR ORGANIZATION INVOLVED
The complaint alleges , the answer admits , and I find that
Local 826, International Union of Operating Engineers,
AFL-CIO, is and has been, at all times material , a labor
organization within the meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This is a companion case to Leatherwood Drilling
Company, Case 16-CA-5189 (209 NLRB No. 92), issued
simultaneously herewith. The issues presented here are
substantially identical to those in Leatherwood and anse
from a similar fact pattern. Thus, it is undisputed that
Brahaney , on June 4, 1973, withdrew recognition and
refused to bargain further with the Union as certified
bargaining representative of its employees . The General
Counsel contends that by said action, and through a
contemporaneous unilateral wage increase ,3 Respondent
violated Section 8(a)(5). The Respondent claims that these
actions were legitimate since supported by a good-faith
doubt that the Union represented a majority . In response
to the Respondent's affirmative defense , the General
Counsel argues that the facts relied on by Respondent fail
3 Respondent admits the allegations relative to the unilateral wage
increase. Therefore whether or not such action was violative of Sec 8(a)(5)
and (I) turns in its entirety upon the validity or invalidity of the withdrawal
of recognition Accordingly , since the unilateral action presents a purely
derivative issue , the basis for my ultimate conclusion regarding it will entail
no further discussion
209 NLRB No. 93
BRAHANEY DRILLING CO.
to substantiate a reasonably based doubt of majority, and,
in any event, that Respondent's entire course of conduct
reveals that the doubt of majority was not asserted in good
faith.
B. Concluding Findings
1. Background
It is conceded that on September 11, 1968, the Union
was certified as exclusive bargaining representative of all
derrickmen, motormen and floorhands, otherwise referred
to as roughnecks, employed by Respondent in the drilling
operations in the area known as the Permian Basin, but
excluding all tool pushers, drillers, office employees,
technical employees, professional employees, guards, and
all supervisors as defined in the Act.
That certification resulted from an election conducted in
accordance with the eligibility formula first announced in
Hondo Drilling Company, 164 NLRB 416. That formula
evolved as a result of the high degree of turnover
characteristic of the unique pattern of employment among
the 50-60 oil well drilling concerns operating in the
Permian Basin of Texas and New Mexico. Various
contractors situated similarly to Respondent questioned
the validity of the so-called Hondo rule and many
contested certifications based thereon to the Board and
then the courts.
Respondent, following the certification and union
requests for bargaining, elected also to challenge the
certification on this basis, and therefore refused to bargain.
On June 2, 1969, the Board issued its Decision and Order,4
upholding the validity of the certification, rejecting
Respondent's contentions relative to the Hondo formula,
and directing Respondent to bargain with the Union.
Respondent refused to comply with this order, electing
instead to contest the validity of the certification in the
Fifth Circuit Court of Appeals. On October 6, 1970, that
court enforced the Board's order.5
By letter dated March 30, 1971, the Union requested a
meeting for purposes of collective bargaining. On May 11,
1971, the Union again wrote Respondent, enclosing a copy
of the Union's proposed contract. Pursuant to agreement
of the parties, the first negotiating session was held on June
22, 1971. Further bargaining sessions were held on January
20, March 14, April 14, July 21, and October 13, 1972.
However, no final agreement was reached. Following the
meeting in October 1972, the Union, by letter dated April
19, 1973, requested a resumption of negotiations. On June
4, 1973, Respondent, through Brooks Harman, its attorney,
answered indicating that Respondent "declines to negoti-
ate further for the reason it has a good faith doubt Local
826 represents a majority of the employees in the
bargaining unit." At that time, Respondent, without
notifying or consulting with the Union, announced a
general wage increase to be accorded unit employees.
4 Brahaney Drilling Co. 176 NLRB 289
5 N L R B. v Brahaney Drilling Company, 432 F 2d 1271 (1970).
6 Laystrom Manufacturing Co, 151 NLRB 1482, Frito-Lay. Inc., 151
625
C. Analysis
1. The asserted good-faith doubt
Under well-established principles, Respondent's with-
drawal of recognition and contemporaneous unilateral
action were violations of Section 8(a)(5) and (1) of the Act,
unless the evidence adduced by Respondent establishes
that said action was predicated upon objective considera-
tions furnishing a reasonably based belief that the Union
no longer represented a majority.6 Testimony establishes
that the grounds for the doubt of majority were devised by
Brooks Harman, Respondent's attorney, and Phil Graves,
Respondent's safety engineer and its labor relations
representative . Graves testified that he questioned the
Union's majority status because of (1) the high turnover
rate experienced by the Company at various intervals since
the election in 1968 , (2) the fact that on visits to drill sites
in recent months he did not hear much discussion of the
Union among the employees, and (3) the fact that the
Union did not communicate with the Company between
the last bargaining session on October 12, 1972, and April
19, 1973, a period of 6 months.
a. The Union's delay in requesting a resumption of
negotiations
It is my opinion, that the Union's failure, following the
October 1972 meeting , to request a resumption of negotia-
tions until some 6 months thereafter , failed to constitute
acceptable evidence of a loss of majority. The testimony of
Graves makes it clear that the Union's inaction during this
period was adopted as a basis for withdrawing recognition
on suggestion of Harman. As in the Leatherwood case, I am
satisfied that Harman, could not reasonably have held the
view that the mere lack of communication from the Union
suggested an intent on its part to abandon the Respon-
dent 's employees.
Subject to variations as to dates, personalities , and other
facts, my findings and reasoning in this regard are identical
to my treatment of the same issue in the Leatherwood case.
The following is taken from my decision in Leatherwood
and with indicated deletions and appropriate additions
appeanng in brackets constitute my findings and conclu-
sions on the record in the instant case as to the Union's
delay:
It is a well-known fact that the effort to organize the
employees among the various drilling contractors in the
Permian Basin involved a long drawn out, time-
consuming effort , involving extensive litigation . Organ-
ization , where successful , was attained on a single-
employer basis. Upon acceptance as the majority
representative , the Union , following unsuccessful at-
tempts to establish a multiemployer unit , has sought to
negotiate contracts on a single-employer basis . Brooks
Harman who impressed me as a man highly familiar
with the history of organization by this Union in the
Permian Basin, and the difficulties faced by the Union
NLRB 28; cf Celanese Corporation of America, 95 NLRB 664, United
Electric Company, 199 NLRB 603.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in that connection, represented several contractors
during such negotiations, in addition to [Brahaney]. In
his brief to me, he concedes knowledge of the
difficulties encountered by the Union in their efforts to
organize employees, and to secure and administer
contracts covering employees in this area. The Union
simply had too little manpower to deal immediately
with complexities presented by the diverse policies and
attitudes of the companies with whom bargaining
would take place, operational variations among these
companies, and geographical dispersal of the various
employers.
From the foregoing, and other facts, I find that
Harman, and [Graves], as well, had direct knowledge
as to the unlikelihood that the Union would schedule
negotiating sessions, without hiatus, until final agree-
ment had been reached. [Harman and Graves attended
all bargaining sessions involving Respondent and its
spokesmen.] That such delays were known [by them] to
be inevitable is evident from Respondent's bargaining
history. For, while the . . . [Court's decree confirming
the Board's bargaining order issued on October 6, 1970,
the Union made no request to bargain pursuant thereto
until March 26, 1971. Furthermore, after the first
bargaining session on June 22, 1971, the Union did not
request a further meeting until December 7, 1971, a
time lag which not only approximated the period of
union inaction under consideration here, but which
involved a wasting of the Union's protection from the
certification.] This delay was with assent of the Union,
and placed Harman and [Graves] on notice that from
the Union's point of view, delays would be a part of the
negotiation process.
It also appears that Harman had a basis for suspecting in
the period October 1972 through April 1973 based on his
past experience with the Leatherwood negotiations, that
the lack of communication from the Union during that
period was consistent with the Union's previously mani-
fested disinterest in negotiating while an employer's rigs
were down. It will be recalled from the Leatherwood case,
that the Union agreed to defer negotiations therein in
January 1971 for a considerable period of time because
Leatherwood's rigs were down. This fact is significant
because in the instant negotiations Graves, in Harman's
presence, at the meeting of October 13, 1972, told
Fortenberry that, with the exception of one rig all the
Company's rigs were down, and that when that rig stopped
operating, the Company had no further contracts.? It is
undisputed on this record that thereafter neither Graves
nor Harman informed Fortenberry, when its rigs reverted
to normal operating levels. Considering Harman's under-
standing of the Union's position with respect to downed
rigs as was evident to him from the Leatherwood
negotiations , I cannot find that the representations as to
Brahaney's operating condition as of October 13, 1972,
r Based upon the credited uncontradicted testimony of Fortenberry. It is
noted that G.C. Exhs. 6 and 7(a) show that on October 13, 1972, five of the
Company's six rigs were not in operation
8 In addition to his attending meetings conducted with Fortenberry as to
would have been overlooked by Harman in his assessment
of the reasons for the Union's subsequent inaction.
[There are additional factors that persuade me that]
... Respondent could [not] reasonably believe that
subsequent delays reflected an intention on the part of
the Union to abandon the Respondent's employees.
This is particularly so, when one considers the fact that
in the period [October 1972] through April 1973,
Harman was actively engaged in negotiations with the
Union on behalf of other drilling contractors, including
Allstate Construction, Inc., Chaparral Drilling Co.,
Hondo Drilling Co., McVay Drilling Co., [and] A. W.
Thompson, Inc.... On some [18] occasions between
[October 19721 and April 1973, Harman and Forten-
berry, in addition to their other responsibilities, met in
connection with these negotiations.8 From the evidence
relative to these negotiations it is apparent that, as to
most of the contractors, there were significant time
gaps between bargaining sessions . There is no sugges-
tion that in Fortenberry's communications with Har-
man during this period, he in any sense created the
impression that the Union lacked an interest in
attaining a contract with Respondent. On the other
hand, Harman knew that Fortenberry was responsible
for representation of the Union in further dealings with
Respondent, and that during this period, Fortenberry
was burdened by other matters.
Aside from Respondent's knowledge that delays
would be a characteristic of the negotiations, the
unreasonableness of its interpretation of the Union's
inaction is enforced by the absence of any sensible
explanation as to why Respondent would assume that
the Union would single out [Brahaney] for abandon-
ment, contemporaneous with its efforts to secure
bargaining agreements with [Brahaney's] competitors.
The Union had long been involved in organization
among the crews in the Pernuan Basin . Securing
contracts with all contractors in the Basin was
obviously its ultimate objective. It defies commonsense
to assume that this was not understood by Respondent.
Furthermore, Respondent cites no facts, apart from the
delay in securing negotiations, which would suggest
that the Union's attitude towards it would differ from
that of the other organized contractors. Respondent
knew, or should have known, that the Union's interest
in obtaining agreements covering Respondent's opera-
tions was no less than its objectives with 'respect to
Respondent's organized competitors. In this regard, it
should be noted that the turnover facts asserted by
Respondent as evidencing a doubt of majority are in
all material respects representative of the experience of
all drill companies in this area. They would not so
drastically differ with the experience of contractors
with whom the Union was actively negotiating during
1972 through 1973, as to warrant a belief by Respon-
dent that the Union, being impressed by the turnover
these contractors, Harman represented other contractors, as to whom
negotiations during that period remained in an open state . These included
Rod Ric Corporation and Tn-Service Dulling Co
BRAHANEY DRILLING CO.
history among Respondent's employees, elected to go
away. For the above reasons, I find that Respondent
did not, and could not, have held a reasonable belief
that the absence of communication from the Union
between [October] 1972 and April 1973, either indicat-
ed an intention on the part of the Union to abandon
the unit, or to otherwise contributed to any belief that
the Union had lost its majority. [Footnotes omitted.]
b. Employee lack of interest
As a factor supporting his doubt of majority, Graves
testified that, in his visits to drill sites, he heard no
discussions among the crew hands concerning the Union.
Graves also testified that he had no knowledge that any
employee at any time expressed dissatisfaction with the
Union. Therefore it is the sense of Graves' testimony that,
as a management representative, his failure to hear
employees avowing their union allegiance suggested to him
that the employees did not support the Union. Such
reasoning is hardly persuasive. It fails to substantiate a
reasonably based doubt of majority. In these circum-
stances, Respondent's arguments in this regard are rejected
as neither constituting nor contributing to a reasonably
based doubt of majority.
c. Turnover
Remaining for consideration are the Respondent's
contentions based upon turnover. Summarized the facts
offered in support of this claim show: (1) of the 23 names
on the 1968 election eligibility list, only 1 individual
remains on Respondent's payroll and he occupies a
nonunit position; (2) in the 5 years that have passed since
the election, the Company employed a total of 1,591
roughnecks, only 30 to 40 of whom left and then returned
to the Company's employ, and (3) in the first 5 months of
1973, the Company had employed 160 roughnecks to fill 24
to 36 jobs.
Respondent's contentions in this regard are identical to
those postulated in the companion Leatherwood Drilling
case. The numerical and statistical data on which it relies,
though involving varient figures, is not so dramatically
different from those presented in Leatherwood as to
warrant different conclusions as to their legal significance.
Therefore, in rejecting the turnover facts as a justification
for the withdrawal of recognition herein, I do so for the
reasons, equally applicable here, heretofore expressed in
the Leatherwood case, and set forth as follows:
... Respondent, in his brief, concedes that Board
precedent does not accept turnover alone as the type of
objective consideration that would legitimately support
a withdrawal of recognition. Under existing Board
authority, in turnover situations, "new employees will
be presumed to support a union in the same ratio as
those whom they have replaced." 17 Nonetheless,
Respondent argues that the turnover situation in the
Permian Basin is unique and principles followed in
other industnes should not be applied to the drilling
contractors involved there. A variety of arguments are
advanced to support the view that turnover should be
627
honored in this industry as a good-faith defense. Most,
however, relate to the high velocity of turnover. In my
opinion this fails to persuade that the presumption that
replacements will support a union to the same extent as
their predecessors is a fallacy in this industry. If it is
fair to assume that replacements will support a union
where the level of turnover is 50 percent, this
assumption is no less valid where the turnover amounts
to 900 percent. The fact that nine employees might in a
given time period fill a single job previously held by a
union supporter, does not warrant an assumption that
the ninth replacement will support the union to any
lesser degree than the first.18
But, in any event, to recognize an exception, based on
turnover, to the good-faith doubt rule would depart
materially from the policy considerations underlying the
Hondo formula. It should be apparent to any reader of
Hondo and other cases involving the drilling contractors
in the Permian Basin, that the Board, appreciating the
turnover conditions, that existed there, committed itself
to the desirability of fashioning means to assure that,
employees of various contractors operating in this two-
state area, despite the transient nature of their employ-
ment, could assert their Section 7 statutory rights "to
self-organization, to form, join or assist labor organiza-
tions, [and] to bargain collectively through representa-
tives of their own choosing...." I have heretofore
stated that it is fair to assume that the turnover experi-
enced by Respondent is generally representative of that
experienced by its competitors in the Permian Basin.
Hence, to accept the turnover facts adduced here as
substantiating a good-faith doubt of majority would
provide all contractors in the Basin a like defense. Stable
collective bargaining could hardly proceed to a mean-
ingful state under such conditions, for, the drill contrac-
tors, on expiration of each collective-bargaining agree-
ment could thereby require the Union to reestablish its
majority as a precondition for negotiation of a successor
agreement. See, e.g., Emerson Manufacturing Company,
Inc., 200 NLRB No. 33, JD.
Although ultimately the Board might sustain Re-
spondent's contention, or even repudiate Hondo, as
matters now stand, it is my opinion that to regard
turnover as a justification for the refusal to bargain,
would reduce the elections conducted by the Board in
the Permian Basin to a futile exercise and render the
status of certification of representatives resulting
therefrom to little more than a focal point for game
17 Laystrom Manufacturing Co., supra, 1484 and cases cited at fn.
7: Printers Service, Inc, 175 NLRB 809, 812:
18 In addition to the degree of turnover , I am not persuaded by
Respondent's arguments based on observations that many of its
crewmembers must have been employed by nonunion contractors, and
that union representatives would have difficulty in maintaining regular
contacts with employees. These factors are simply too remote to throw
any light on the organizational preferences of crewmembers hired from
time to time by Respondent. These arguments were not asserted as the
basis of Respondent 's doubt when recognition was withdrawn, and
hence, though arguably relevant to the question of whether the Board
should alter its view with respect to turnover in this industry, they are
otherwise in the nature of afterthought and hence cannot be considered
as the basis for Respondent's doubt of majority. See N.LR B v.
Gulfmont Hotel Co., 362 F.2D 588, 592.
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
playing. In sum, I envision the exception to Board
policy sought by Respondent, as, in practical conse-
quence, eventually undermining both the policy consid-
erations which resulted in the Hondo formula and the
exercise of self-organizational rights by employees
engaged in the drilling industry in the Permian Basin.
Accordingly, I find, pursuant to established Board
principle,19 that turnover did not furnish a good-faith
doubt that the Union continued to represent a majority
of Respondent's employees, and I find that Respon-
dent, by withdrawing recognition from the Union on
[June 4, 1973], violated Section 8(a)(5) and (1) of the
Act.
19' it is true that in Southern Wipers, Inc., 192 NLRB 816, the
Board accepted "heavy turnover" as one of several factors supporting
a good -faith doubt of majority. That case does not reverse prior
precedent to the effect that turnover alone will not justify a
withdrawal of recognition , and, though not cited by Respondent, I
note my view that said decision is inapposite See also Viking
Lithographers, Inc, 184 NLRB 139.
It follows therefore, and I further find, that the unilateral
wage increase announced contemporaneous with the with-
drawal of recognition also violated Section 8(a)(5) and (1) of
the Act .9
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Brahaney Drilling Company is an employer 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. All derrickmen , motormen and floorhands , other-
wise referred to as roughnecks , employed by Respondent
in the drilling of oil wells in the area known as the Permian
Basin , but excluding all tool pushers, drillers , office
employees , technical employees, professional employees,
guards and all supervisors as defined in the Act , constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
4. At all times since September 11, 1968, the Union has
been and is now the exclusive bargaining representative of
9 The Respondent's failure to substantiate its affirmative defense makes
it unnecessary to consider the General Counsel 's alternative theory to the
effect that Respondent 's entire course of conduct, since the 1968 election,
established that the doubt of majority was not asserted by Respondent in
good faith The curiosity I expressed in fn 8 of the Leatherwood case as to
the propriety of a procedural system which allows the General Counsel,
without prior notice , to litigate , under the endless umbrella of "back-
ground," matters dating back some 5 years also applies here In any event,
were I to reach the merits I would reject the General Counsel' s position as
not substantiated by the record I would find lacking in merit each of the
contentions made by the General Counsel in his brief as to this issue Thus,
Respondent 's refusal to recognize and provide the Union with requested
information , prior to the Fifth Circuit's action on October 6, 1970, cannot
fairly be regarded as bearing adversely upon Respondent's state of mind,
since all actions in advance of that date were consistent with its not
unreasonably maintained legal position Similarly, I see nothing untoward
in the fact that Respondent did not submit until May 26, 1971, information
requested by the Union on March 26, 1971 This delay was credibly
explained as resulting from a breakdown in communication following a
change in the identity of Respondent's counsel, the information was
provided well in advance of the first bargaining session , and the delay was
not shown to have in any way prejudiced the progress of negotiations.
the employees in the aforesaid appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(a) of the Act.
5. By withdrawing recognition on June 4, 1973,
thereafter refusing to meet with the Union, and unilaterally
granting a wage increase , Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) aid (1) of the Act.
6. By the foregoing conduct, Respondent has interfered
with, restrained, and coerced 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(axl) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Considering the pattern of employment experienced by
Respondent in the conduct of its operations, special
provision is necessary to assure adequate publication of the
provisions of the Order herein. Therefore, as in Leather-
wood Drilling Company, 16-CA-5189 [209 NLRB No. 92],
I shall recommend that in addition to requiring that copies
of the notice be posted at the offices and yards of the
Respondent in Midland, Texas, it will be further provided
that copies be posted at crew headquarters on site at all rig
operations, and that copies be provided the Union for
posting, if the Union is willing , at meeting places in the
Permian Basin.
Upon the foregoing findings of fact , conclusions of law,
and the entire record in this case, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 10
Brahaney Drilling Company, its officers, agents, succes-
sors, and assigns, shall:
Additionally, it is my opinion that Respondent was not under a duty to
initiate bargaining requests during periods when the Union was silent, and
hence its failure to do so was not indicative of bad faith . See NLR.B v.
Columbian Enameling & Stamping Co., Inc, 306 U.S. 292. Finally, I disagree
with the General Counsel that dilatory behavior can be attributed to
Respondent on the basis of the latter's failure to provide a counterproposal,
in contract form, until the second negotiating session . In sum, as far as I can
discern from the record , Respondent's conduct, at and away from the
bargaining table , prior to June 4, 1973, was perfectly consistent with the 8(d)
obligation to bargain in good faith Accordingly, were it necessary to reach
this issue , I would find that the background evidence bearing on
Respondent 's state of mind did not preclude assertion of a doubt of
majority Cf. Coca Cola Bottling Works, Inc, 186 NLRB 1050,1053; United
Electric Company, 199 NLRB 603; Printers Service, Inc., 175 NLRB 809,
811
io 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.
BRAHANEY DRILLING CO.
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 Lie following appropriate bargaining unit:
All derrickmen, motormen and floorhands , otherwise
referred to as roughnecks , employed by Respondent in
the drilling operations in the area known as the
Permian Basin , but excluding all tool pushers , drillers,
office employees, technical employees , professional
employees , guards and all supervisors as defined in the
Act.
(b) Withdrawing recognition from and refusing to meet
with the Union as exclusive collective-bargaining repre-
sentative of employees in the appropriate unit.
(c) Granting wage increases or otherwise changing
wages , hours, or other terms and conditions of employ-
ment , without first notifying and bargaining with the
Union.
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 Midland, Texas, copies
of the attached notice marked "Appendix."ii Copies of
said notice, on forms to be furnished by the Regional
Director for Region 16, after being duly signed by an
authorized representative of the Respondent, shall 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, includ-
ing all places where notices to employees are customarily
posted. Similar copies shall be posted at the crew
headquarters at all operating drilling sites. 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.
ii In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the Naticnal 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."
629
(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.
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 following employees:
All derrickmen, motormen and floorhands , other-
wise referred to as roughnecks , excluding tool
pushers, drillers , office employees , technical
employees , professional employees , guards and
supervisors as defined in the Act.
WE WILL NOT withdraw recognition and refuse to .
meet with the Union as exclusive collective -bargaining
representative of employees in said unit.
WE WILL NOT change wages, hours , or other terms
and conditions of employment without first notifying
and bargaining with the Union.
WE WILL bargain collectively with the Union upon
request as the exclusive collective-bargaining represent-
ative of the employees in the appropriate unit and if an
understanding is reached we will sign a contract with
the Union.
BRAHANEY DRILLING
COMPANY
(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,
Federal Office Building, Room 8-A-24, 819 Taylor Street,
Fort Worth, Texas 76102, Telephone 817-334-2921.