Gary Drilling Co.

National Labor Relations Board - Board Decisions

Feb 7, 1974

208 N.L.R.B. 956 (N.L.R.B. 1974)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gary Drilling Co. and Union of Operating Engineers,
Local 12, International Union of Operating Engi-
neers, AFL-CIO, Petitioner. Case 31-RC-1917
February 7, 1974
SECOND SUPPLEMENTAL DECISION
AND CERTIFICATION OF
REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
Pursuant to a Board Supplemental Decision and
Order Directing Hearing' this case was duly heard
by Hearing Officer Jean A. Savage. Thereafter, on
October 19, 1973, she issued the Hearing Officer's
Report on Objections, the pertinent part attached
hereto, recommending that the Employer's referred
objections be overruled.
On October 26, the Employer filed timely excep-
tions to the Hearing Officer's Report on Objections
and supporting brief and on November 1 the
Petitioner filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists concern-
ing the representation of the employees of the
Employer within the meaning of Section 9(c)(1) and
Section 2(6) and (7) of the Act.
I Case 31-RC-1917, an unpublished decision issued July 3, 1973,
Member Penello dissenting.
2 In adopting the Hearing Officer 's recommendation that the Employees
objections be overruled, we note that the Employer does not except to her
conclusion that assuming that Ussery as union representative had stated to
employees that the IRS was "crooked ," this was unobjectionable conduct.
We shall therefore adopt this recommendation proforma
The Hearing Officer found that the employees could evaluate other
alleged objectionable statements by Ussery as campaigrrhetoric . We agree
with this holding . However, Member Fanning recognizes that misrepresen-
tations as to wage matters are not to be condoned and, indeed, might under
other circumstances be grounds to support objections to an election.
However , the record shows that Ussery's statement that he thought he could
get a 7-percent wage increase which would be in excess of the Pay Board's
5.5-percent ceiling did not constitute a clear misrepresentation , as such
increases were permissible, under the Pay Board guidelines , notwithstanding
that such increases constituted limited exceptions . Even assuming that
Ussery misrepresented that he could obtain IRS approval for wage increases
in excess of 5.5 percent and that the Employer was using the IRS as an
4. The parties stipulated and we find that the
following employees constitute a unit appropriate for
the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All employees of the Employer excluding profes-
sionals, office clericals, guards, watchmen and
supervisors as defined in the Act.
5. The Board has considered the Hearing Offi-
cer's report, the Employer's exceptions, the briefs,
and the entire record in this case, and hereby adopts
the findings
,
conclusions , and recommendations of
the Hearing Officer.2
Accordingly, as we have overruled the objections
and the tally of ballots shows that the Petitioner has
obtained a majority of the valid ballots cast, we shall
certify it as the collective-bargaining representative
of the employees in the appropriate unit.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
ballots has been cast for Union of Operating
Engineers, Local 12, International Union of Operat-
ing Engineers, AFL-CIO, and that, pursuant to
Section 9(a) of the National Labor Relations Act, as
amended, the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective
bargaining with respect. to rates of pay, wages, hours
of employment, or other conditions of employment.
CHAIRMAN MILLER, dissenting:
Union Representative Ussery, at two union meet-
ings, each attended by some 12 employees, at a time
when the. Employer had no reasonable opportunity
to reply, told the employees that he had ways of
obtaining wage increase approval from the IRS
which the Employer did not have, and that the
Union could obtain an immediate increase if the
employees voted for it. In making these statements,
Ussery asserted, without substantiation, that the
Employer did not have enough employees to place it
excuse for not granting wage increases because the Employer was not
subject to Phase 11 Wage controls , the record here shows that prior to the
union meetings certain employees had been told by the Employer that the
Employer's application to the IRS for wage increases in excess of 5.5
percent had been denied , and that said employees so informed those present
at the union meetings . In this context the employees would not be likely to
accord to Ussery's statements any particular weight, but, rather, would
regard them as only campaign puffery. Member Penello, on the other hand,
so finds because, as he indicated in Modine Manufacturing Company, 203
NLRB No. 77, he would no longer adhere to Hollywood Ceramics Company,
140 NLRB 221. Thus he would not find this type of misrepresentation
sufficient to warrant setting any election aside , and therefore would not
inquire into the accuracy of such alleged misstatements . However, in view
of the Hearing Officer's findings herein, this is not an appropriate case in
which to express his views in detail.
For the reasons separately stated herein , we thus conclude that the
Employers exceptions raise no material issues of fact or law that would
warrant reversing the findings and recommendations of the Hearing Officer.
208 NLRB No. 134
GARY DRILLING CO.
under Phase II wage controls, and also appears to
have inferred that, in any event, the Union could, by
dubious means, circumvent control regulations. He
then went -on to falsely accuse the Employer of
withholding wage increases by using IRS as an
excuse for not paying its employees more money.
In my view, Ussery's statements were a combina-
tion of false accusations and unsubstantiated, to put
it mildly, assurances of special treatment which could
prevail if the employees would vote for the Union.
Such deliberate last minute misrepresentations as to
the key issue of wages and wage controls are, in my
view, substantial and likely to have had serious
impact on the voters.3
Accordingly, I would set aside this election and
direct another which, hopefully, could take place in a
less fouled atmosphere.
3 See Radio Corporation of America (RCA Victor Division), 102 NLRB
124
APPENDIX
HEARING OFFICER'S REPORT ON
OBJECTIONS
Upon the entire record in the case and from her
observation of the witnesses, the Hearing Officer
makes the following:
FINDINGS OF FACT
The Employer alleges that false campaign state-
ments were made by the Petitioner at two meetings
the Petitioner held with employees. These meetings
were on Octobe- 6, 1972, one at 11:00 a.m. and the
other at 7:30 p.m., at the Petitioner's hall in
Bakersfield, California. Approximately 12 employees
were present at each meeting. John Ussery, business
representative for the Petitioner, was the only
Petitioner representative present. At the meetings,
Ussery and the employees discussed a wage increase
in an informal question and answer format.
Ussery testified he told the employees he thought
he could get them a 7-percent wage increase
notwithstanding the 5.5 ceiling under the Pay Board
guidelines. He asserts that he made this statement
because he was aware of exceptions in Pay Board
guidelines providing in some instances for increases
above 5.5 percent and because the Petitioner had
submitted contracts for several drilling companies in
the area in tandem and obtained permission from the
Pay Board for increases of 7.2 percent. Furthermore,
Ussery testified that, according to information from
2 Phase 11 was established under Executive Order 11627 issued October
15, 1971, and was in effect from November 13, 1971, to January 10, 1973.
3 37 F.R. 24960 (November 23, 1972) Phase lI Regulation , Regulation
201.10(a)
4 37 F.R. 24960 (November 23, 1972) Phase II Regulation , Regulation
957
the employees, he understood they were not receiving
wages comparable to those obtained in a company
the Petitioner had under contract, and were receiving
very little in fringe benefits. Ussery testified that he
was certain he told employees that Petitioner in its
demands would have to stay within Pay Board
guidelines. In this regard, employee Honeycutt, who
attended the evening meeting, testified that he
recalled Ussery admitting he would have to follow
the guidelines and that he would only be able to get
5.5 percent of an increase in wages and the
remainder would have to be in fringe benefits.
Pay Board guidelines for Phase 112 appear to
provide for wage increases above the general wage
and salary standard established at 5.5 percent in a
control year,3 and, with some exceptions, such
increases above the standard were not to exceed 7
percent.4 Increases above 5.5 percent appear to be
permitted in a number of exceptions .5
At the hearing, the Employer submitted a copy of a
letter, dated December 21, 1972, which was sent to
employees to advise them that a 5.5-percent wage
increase would go into effect on December 31, 1972,
in lieu of a request for a 6-percent wage increase
which had been denied by the Pay Board. In the
letter, the Employer noted that it had requested
permission to grant the 6-percent wage increase "to
gain parity with the industry pattern." While,
according to employees' testimony, someone said at
the meetings that the Pay Board had denied the
Employer permission to grant a 6-percent increase,
there is no evidence that Ussery knew of the reasons
for the denial. In view of this lack of knowledge of
the specific reasons for the denial, and since the
Petitioner had succeeded in getting raises above the
standard for other companies, plus the fact the
Employer was admittedly not at parity with the
industry, it was not unreasonable for Ussery to be of
the opinion, and so inform the employees, that he
could get a raise above standard. At any rate, it
seems apparent the employees could recognize
Ussery's statements as probable campaign puffing.
In these circumstances, it is concluded that it was not
a material misrepresentation for the Petitioner to
state that a 7-percent wage increase was possible
within the Pay Board guidelines.6
A statement allegedly made by Ussery was that the
Petitioner would not have to go through the IRS to
obtain permission for a wage increase because the
Employer did not have enough men working for it.
Employee Bryan testified that at the 11 o'clock
201 1 l(b)(2).
5 37 F R. 24960 (November 23, 1972) Phase 11 Regulation , Regulations
201.12 through 201.19 and 201.30
6 Moline Manufacturing Company, 203 NLRB No. 77; Hollywood
Ceramics Company, Inc, 140 NLRB 221
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting Ussery stated that the Petitioner would not
have. to go through the IRS and, when he asked why,
Ussery said the Petitioner had "ways of getting
around it." Bryan also recalled Ussery saying that
the Petitioner would not have to go through IRS
because the Employer did not "fall into the category
of enough employees." Employee Deitemeyer, who
attended the evening meeting, testified that Ussery
said he had some way of getting around the IRS.
Employee Honeycutt, who also attended the evening
meeting , said that there was discussion on this point,
and, although the employees told Ussery that they
thought. the total number of employees was such as
to require going through the IRS, Ussery said he
thought they were wrong. At the hearing, Employee
May estimated the Employer had between 100 and
150 employees on- the date of the meeting and
Employee Honeycutt estimated the number at
between 60 and 80. Ussery admitted that according
to an Excelsior list in his possession the Employer
had 57 employees in the bargaining -unit, so there
were probably more than 60 total employees.? The
record does not show the actual number of nonunit
as well as unit employees. Ussery testified only that
he could have stated at the meeting that a wage
increase would not have to go.through IRS if the
contractor agreed on a wage increase or if the
contractor had less than 60 employees. Ussery
testified at the hearing that he made this statement.
because the Petitioner and an employer had agreed
on a contract providing for increases above 7 percent
in a "catch-up deal" and had not submitted this
agreement to the Pay Board. Assuming, arguendo,
that Ussery did make the alleged statement regarding
bypassing the IRS, there is substantial evidence that
the possibility of not going through IRS was stated
by Ussery in terms of his estimate of the size of the
Employer's work force, an estimate disputed by a
number of the employees.
The Board has held that, in evaluating possible
misstatements of fact in election campaigns, it will
consider whether the speaker is one who could be
expected by employees to have an intimate knowl-
edge of the facts so that the. employees may be
expected to attach added significance to his asser-
tions 8 In this situation, it cannot be said that the
employees would expect Ussery to know the number
of employees employed 'by the Employer. In consid-
ering possible misrepresentations, the Board has also
noted that absolute precision of statement is not
T Pay Board rules under Phase 11 appear to provide an exemption for
firms with 60 or fewer employees . 37 F.R. 1237 (January 27, 1972), Phase 11
Regulation , Regulation 101.51.
8 The Jeffrey Manufacturing Company, Morristown Division, 180 NLRB
701, 702 ; Uniroyal Inc, 169 NLRB 918 ; Modine Manufacturing Company,
supra.
always obtainable in an election campaign nor is it
expected by employees.9 Finally, Ussery's statement
that a wage increase would not have to go through
IRS because the Petitioner had "ways of getting
around it" appears to be the type of "puffing"
statement. which the Board has said is easily
recognized by the employees to be dependent upon
contingencies beyon1 the Union's control and which
they are capable of evaluating.10 In these circum-
stances, I conclude that the alleged misrepresentation
is not a substantial misrepresentation of fact war-
ranting that, the election be set aside.
Other statements by Ussery concerned whether he
said the Employer was using the IRS as an excuse for
not granting a wage increase and building churches
with money which could be used for wages . Employ-
ees Bryan and May testified that Ussery stated that
the Employer was using the IRS as an excuse for not
giving a raise. These employees attended the meeting
at 11 o'clock. Employee Honeycutt, who attended
the 7:30 p.m. meeting recalled Ussery saying that
Green (president of the Employer) was using the IRS
as an excuse for not paying enough wages. Honey-
cutt also testified that Ussery said "Eddy Green was
stealing our wages and building churches." Employ-
ees May and Dietemeyer gave similar testimony. In
addition, Dietemeyer testified that Ussery stated that
Green was paying an attorney $200 a day to keep the
union out and the money was coming out of the
employees' wages . Ussery testified that he may have
said something to the effect that the Employer was
using the IRS as an excuse for not granting a wage
increase. With regard to his alleged remarks about
Green's use of money, Ussery testified, "I didn't
exactly say he stole it, but it was come out of these
fellows pockets and it should have been paid to them
according to our other contracts." Assuming, arguen-
do, that Ussery made the remarks alleged, I conclude
the remarks are normal campaign propaganda which
frequently includes exaggerations, inaccuracies, par-
tial truths, namecalling, and falsehoods. Such re-
marks, while not condoned by the Board, have been
held, absent evidence that they are substantially
misleading, to not warrant setting aside an election.' l
Ussery also allegedly said that the government is
composed of "crooked bastards" In this regard
employee May, who attended the morning meeting,
testified that during a discussion regarding whether
or not Ussery could obtain a wage increase for the
employees, he said to Ussery, " 'You mean you can
get us a raise because .. . .' How did I put it-In
B National Waterlift Company, a division of Pneumo Dynamics Corpora-
tion, 175 NLRB 849.
10 Owens-Corning Fiberglass Corporation , 179 NLRB 219, 220; Southern
Foods, Inc., 171 NLRB999.
" Tuttle & Kift, Inc., 117 NLRB 127.
GARY DRILLING CO. 959
other words, the Government is made up of `a bunch
of crooked bastards' and he shook his head, `Yes'."
Employee Bryan recalled in his testimony, "Eli
[May] asked-like he said, they were all a bunch of
crooked bastards, and he [Ussery] said ;thattwas right
and this point was brought up three times, as I recall,
and every time he {Ussery ] agreed that it was done in
a crooked manner." Ussery -denied making a state-
ment about the government being crooked and
testified that he did not recall May making the
statement above. He also testified, "... there was
three or four people asking me questions at one time
and I could have been answering one person and
another person took it that I was answering him, but
I do not recall making such a statement."
The testimony is clear that employee May rather
than Ussery made the derogatory remark. However,
the evidence is in conflict as to the manner in which
Ussery allegedly responded and as to how many
different instances a response by him was made.
Moreover, it appears possible that an apparent
response by Ussery was actually being made to a
different question or statement than that made by
May. Assuming, arguend(k that Ussery agreed with
an employee's remark about the government being
composed of "crooked bastards," it is to be noted
that the remark was not directed toward the
Employer. While remarks such as these about the
integrity of public officials are to be regretted, I
conclude the remarks constitute normal campaign
rhetoric which maybe safely left to the good sense of
the voters to evaluate and do not warrant setting
aside•the election.12
The, Employer asserts that the alleged misrepresen-
tations, considered together, show a pattern of false
statements by the Petitioner. In considering this
point it should be nosed that the meetings at which
the alleged misrepresentations occurred were not
formal ones at which the speaker presented his views
and arguments in an organized fashion, but rather
were informal sessions at which the employees spoke
and asked questions and the speaker replied. In these
circumstances it seems unreasonable to expect, and
the Board has stated it does not expect, absolute
precision of statement and complete honesty in
election campaigns.13 If each statement that was
alleged to be false was subjected to a precise,
technical analysis to ascertain absolute accuracy,
they might be found wanting. But this type of
analysis has been rejected by the Board in favor of a
commonsense evaluation of whether the statements
complained of are substantial misrepresentations.14
In all the circumstances of this case, and considering
all the alleged misrepresentations as a whole, it does
not appear that the alleged misrepresentations of fact
are of such a substantial nature as to warrant that the
election be set aside.15 Accordingly, it is recommend-
ed that the Employer's objections, in their entirety,
be overruled.
12 Comfort Slipper Corporation, 112 NLRB 183.
13 National Waterlift Company, a division of Pneumo Dynamics Corpora-
tion, supra
14 Modine Manufacturing Company, supra.
15 Hollywood Ceramics Company, Inc., supra