Capitan Drilling Co., Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1967

167 N.L.R.B. 144 (N.L.R.B. 1967)

144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Capitan Drilling Company, Inc. and Local 826, In-
ternational Union of Operating Engineers,
AFL-CIO. Case 16-CA-2927
August 18, 1967
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On June 26, 1967, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom 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 and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision, the exceptions, the brief, and the entire
record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Capitan Drilling Com-
pany, Inc., Odessa, Texas, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified.
Delete from paragraph 2(b) that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding
CHARLES W. SCHNEIDER , Trial Examiner : Upon peti-
tion for certification as collective-bargaining representa-
tive filed by Local 826 , International Union of Operating
Engineers , AFL-CIO, herein called the Union, the Re-
gional Director for Region 16 of the Board on July 21,
' Administrative or official notice is taken of the representation
proceeding, Case 16-RC-4334. See Sec. 9(d) of the National Labor Rela-
tions Act.
1966, approved stipulation for certification upon consent
election, executed by the Respondent and the Union on
my 19, 1966.
On August 16, 1966, an election by secret ballot was
conducted in the appropriate bargaining unit under the su-
pervision of said Regional Director, in which election the
Union received a majority of the valid ballots cast. On
August 19, 1966, the Respondent filed timely objections
to the election, based on alleged improper sealing of the
ballot boxes. On October 28, 1966, the Regional
Director, after investigation, issued a report on chal-
lenged ballots and objections to election. In this report
the Regional Director recommended that the challenges
to six ballots be sustained, and did not pass upon the two
remaining challenges, since they would not affect the
results of the election. The Regional Director also recom-
mended that the objections be overruled and that the
Union be certified as bargaining representative of the em-
ployees involved. Thereafter the Respondent filed with
the Board timely objections to the Regional Director's re-
port. On January 19, 1967, the Board issued its Decision
and Certification of Representatives in which it found
that the Employer's exceptions raised "no substantial or
material issues of fact or law which would warrant rever-
sal of the Regional Director's findings and recommenda-
tions." The Board further said that "In the absence of ex-
ceptions, we adopt, pro forma, the Regional Director's
recommendation that 6 of the 8 challenges be sustained."
Accordingly the Board adopted the Regional Director's
recommendations and certified the Union as the bargain-
ing representative under the Act.
The Complaint Case
On March 15, 1967, the Union filed th6 unfair labor
practice charge involved in the instant case, in which it al-
leged that commencing on or about February 7, 1967,
and thereafter, Respondent refused and continues to
refuse to bargain collectively with the Union.
On April 18, 1967, the Regional Director issued a
complaint and notice of hearing alleging that the Respond-
ent had committed unfair labor practices in violation of
Section 8(a)(1) and (5) of the Act by refusing to bargain
with the Union upon request. In due course the Respond-
ent filed its answer and its amended answer to the com-
plaint.
In its amended answer the Respondent admitted most
of the allegations of the complaint, denying only the ju-
risdictional allegations, the assertion that the Union
represents its employees, and the averment of unfair
labor practices. Respondent denied knowledge as to how
many votes were cast in the representation election or the
outcome of such election, on the ground that the ballot
boxes were not properly sealed. This was the basis for the
Respondent's objections to the election. Respondent also
stated this contention in the form of an affirmative
defense. '
On or about May 2, 1967, General Counsel filed a mo-
tion to strike portions of Respondent's answer to com-
plaint and motion for judgment on the pleadings, contend-
ing that the denials contained in the answer, in the light of
the prior litigation, are frivolous and should be considered
a sham pleading; further that all allegations of the com-
plaint should be deemed true and summary judgment is-
sued.
On May 8, 1967, 1 issued an order directing the parties
to show cause as to whether or not the General Counsel's
167 NLRB No. 18
CAPITAN DRILLING CO. 145
motions should be granted. On May 26, 1967, the
Respondent filed an answer to the show cause order,
which has been considered
Ruling on Motion forJudgment on the Pleadings
The Respondent contends that judgment should not be
entered against it on the pleadings for the reason that the
election was not properly conducted, that Respondent
has never been granted a hearing by the Board to present
its objections and cross-examine witnesses, and that it is
constitutionally entitled to such a hearing.
However, it is clear that the issues as to which the
Respondent urges a hearing have already been adju-
dicated in the prior representation case. As to such mat-
ters it is established Board policy, in the absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner in a complaint
case of issues which were or could have been raised in a
prior related representation proceeding.2 This policy is
applicable even though no formal hearing on objections
has been provided by the Board. Such a hearing is not a
matter of right unless substantial and material issues are
raised.3
The Trial Examiner has no authority to review the
Board's final disposition of the representation issues or to
question its conclusions made on the existing record. The
Respondent is free, in exceptions to this Decision, to
request the Board to reconsider its conclusions, and in the
event of an unfavorable final order by the Board may
request review in an appropriate court of appeals. At this
stage of the proceedings, however absent newly
discovered or previously unavailable evidence, the
Board's disposition of the representation matters is the
law of the case and binding on the Trial Examiner. No
such evidence is offered by the Respondent.
The refusal to bargain being conceded, there are no is-
sues litigable before a Trial Examiner, and therefore no
matter requiring hearing. Accordingly, the General Coun-
sel's motion for judgment on the pleadings is granted
However, the General Counsel's motion to strike vanous
paragraphs of the answer denying certain allegations of
the complaint is denied. Without pleaded denials the
Respondent would have no issue to contest before the
Board or the courts.
Upon the record I hereby make the following further
findings-
I. THE BUSINESS OF THE RESPONDENT
Respondent is a Texas corporation engaged in drilling
oil wells. During the 12-month period preceding July 19,
1966, it performed services valued in excess of $50,000
for customers outside the State of Texas, and during the
same period of time it purchased directly from sources
outside the State of Texas materials valued in excess of
$50,000 The Respondent is engaged in commerce within
the meaning of Section 2(6) of the Act '
II THE LABOR ORGANIZATION INVOLVED
The Union is now and has been at all times material
herein a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute a
unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of the Employer working out of the
Employer's Odessa, Texas, facility, including em-
ployees working on rigs in the following Texas Coun-
ties Andrews, Loving, Ector, Glasscock, Reeves,
Crane, Culberson, Winkler, Midland, Sterling, Ward,
Upton, Reagan, Irion, Tom Green, Pecos. Crockett,
Schleicher, and Sutton: and Roosevelt, Lea and
Eddy Counties in New Mexico, including truck
drivers, helpers and yardmen at Employer's Odessa,
Texas, yard, and excluding office clerical employees,
drillers, shop foremen, truck foremen, guards and su-
pervisors as defined in the Act
On August 16, 1966, a majority of Respondent's em-
ployees in the said unit selected the Union as their collec-
tive-bargaining representative in a secret-ballot election
conducted under the supervision of the Board.
On January 19, 1967, the Board, after consideration of
Respondent's objections to the above-described election,
certified the Union as the exclusive collective-bargaining
representative of the employees in the said unit.
At all times since August 16, 1966, the Union by virtue
of Section 9(a) of the Act, has been and is now the exclu-
sive representative of all employees in the appropriate
unit for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and other
terms and conditions of employment.
Commencing on or about February 17, 1967, and con-
tinuing to date the Union has requested and is requesting
Respondent to bargain collectively with the Union as the
exclusive collective-bargaining representative of Re-
spondent's employees in the appropriate unit
Commencing on or about February 27, 1967, and at all
times thereafter, Respondent refused and continues to
refuse to bargain collectively with the Union as such
representative.
By such action the 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 em-
2 Collins & Aikman Corporation, 160 NLRB 1750, E-Z Davies
Chevrolet, 161 N LRB 1380, Metropolitan Life Insurance Companv, 163
NLRB No 71, Macomb Pottery Company, 157 NLRB 1616, enfd 376
F 2d 450 (C A 7), Krieger-Ragsdale & Company, Inc, 159 N LRB 490,
enfd 379 F 2d 517 (C A 7) See Pittsburgh Plate Glass Company v
N L R B , 313 U S 146, 162, National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8 revised January I,
1965, Sec 102 67(f)
9 O K Van and Storage, Inc , 127 NLRB 1537, enfd 297 F 2d 74
(C A 5) And see Air Control Products of St Petersburg, Inc , 335 F 2d
245, 249 (C A 5) "If there is nothing to hear, then a hearing is a sense-
less and useless formality " See also Macomb Pottery Company, supra
Cf United Stites Rubber Company, 373 F 2d 602 (C A 5)
The above findings as to the Respondent 's business and involvement
in commerce are from the stipulation for certification upon consent elec-
tion The Respondent ' s answer to the complaint denies substantially
identical current allegations contained in the complaint Having stipulated
to jurisdiction in the representation case for the purpose of securing a con-
sent election under the supervision of the Board, the Respondent is now
estopped from denying it, in the absence of valid ground No reason is
stated for the present denial The issue is not pressed in the Respondent's
answer to the order to show cause, which indicates that the Respondent's
sole objection to the certification is that the election was not properly con-
ducted and it was granted no hearing
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in violation of Section 8(a)(I) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case I recommend that the
Board issue the following:
ORDER
A For the purpose of determing the duration of the
certification the initial year of certification shall be
deemed to begin on the date the Respondent commences
to bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit.
B. Capitan Drilling Company, Inc., Odessa, Texas, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Union of Operating Engineers, AFL-CIO, Local 826, as
the exclusive collective-bargaining representative of the
employees in the following appropriate bargaining unit.
All employees of the Employer working out of the
Employer's Odessa, Texas, facility, including em-
ployees working on rigs in the following Texas Coun-
ties: Andrews, Loving, Ector, Glasscock, Reeves,
Crane, Culberson, Winkler, Midland, Sterling, Ward,
Upton, Reagan, Irion, Tom Green, Pecos, Crockett,
Schleicher, and Sutton; and Roosevelt, Lea and
Eddy Counties in New Mexico, including truck
drivers, helpers and yardmen at Employer's Odessa,
Texas, yard, and excluding office clerical employees,
drillers, shop foremen, truck foremen, guards and su-
pervisors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees as an exclusive col-
lective-bargaining representative
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Upon request, bargain collectively with Interna-
tional Union of Operating Engineers, AFL-CIO, Local
826, 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 un-
derstanding reached
(b) Post at its Odessa, Texas, office, and at each of its
rigs in the described counties, 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,
shall be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by 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 the receipt of this Decision,
what steps have been taken to comply herewith.7
s The purpose of this provision is to ensure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
agent for the period provided by law See Mar-Jac Poultry Company,
Inc, 136 NLRB 785, Commerce Company d/bla Lamar Hotel, 140
NLRB 226, 229, enfd 328 F 2d 600 (C A 5), Burnett Construction
Company, 149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10)
H In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
' In the event that 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 the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer 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 em-
ployees that:
WE WILL NOT refuse to bargain collectively with
International Union of Operating Engineers,
AFL-CIO, Local No. 826, as the exclusive bargain-
ing representative of all the following employees:
All our employees working out of Odessa , Texas, in-
cluding employees working on rigs in the following
Texas Counties Andrews, Loving, Ector , Glass-
cock , Reeves, Crane , Culberson , Winkler, Midland,
Sterling, Ward , Upton , Reagan, Irion, Tom Green,
Pecos, Crockett , Schleicher , and Sutton; and
Roosevelt , Lea and Eddy Counties in New Mexico,
including truck drivers , helpers and yardmen at the
Odessa yard , and excluding office clerical em-
ployees , drillers, shop foremen , truck foremen,
guards and supervisors as defined in the Act.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of their rights under the Act.
WE WILL bargain collectively with the Union as
the exclusive representative of these employees and,
if an understanding is reached, we will sign a contract
with the Union.
CAPITAN DRILLING COM-
PANY, INC
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building, 819 Taylor Street, Fort Worth, Texas
76102, Telephone 334-2921.