Leatherwood Drilling Co.

National Labor Relations Board - Board Decisions

Nov 10, 1969

179 N.L.R.B. 549 (N.L.R.B. 1969)

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