Moran Oil Producing and Drilling Corp.

National Labor Relations Board - Board Decisions

Jan 17, 1969

174 N.L.R.B. 143 (N.L.R.B. 1969)

MORAN OIL PRODUCING & DRILLING CORP.
Moran Oil Producing and Drilling Corporation and
'Local 826, International Union of Operating
Engineers, AFL-CIO. Case 28-CA-1714
January 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On October 21, 1968, Trial Examiner Stanley
Gilbert 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 and 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 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.'
ORDER
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, and
hereby orders that the Respondent, Moran Oil
Producing and Drilling Corporation, Hobbs, New
Mexico, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial
Examiner's Recommended Order.
We note that Respondent excepted to the overruling of its objection to
the application of the Board's requirements for voter eligibility as set forth
in Hondo Drilling, N .S L , 164 NLRB 416, and Carl B . King Drilling Co ,
164 NLRB 422 These requirements were applied in the instant case
pursuant to the Regional Director ' s Decision and Direction of Election
issued after the subject of eligibility to vote had been litigated in a hearing
Respondent did not seek to have this determination reviewed by the Board
prior to the election although it could have done so , Sec. 102.67 of the
Board's Rules and Regulations , as amended
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Trial Examiner: Based upon a
charge filed June 7, 1968, by Local 826, International
143
Union of Operating Engineers, AFL-CIO, hereinafter
referred to as the Union, as amended June 13, 1968, the
complaint herein was issued June 21, 1968. The complaint
alleges that Moran Oil Producing and Drilling
Corporation, hereinafter referred to as Respondent or
Employer, is, and has been, engaged in unfair labor
practices affecting commerce within the meaning of
Sections 8(a)(5) and (1) and 2(6) and (7) of the National
Labor Relations Act. The aforesaid unfair labor practices
alleged in the complaint are, in substance, that the
Respondent refused and continues to refuse to bargain
with the Union as the bargaining representative, within
the meaning of Section 9(a) of the Act, of the employees
in the appropriate bargaining unit hereinafter described,
although the Union has been certified by the Board as
such exclusive representative after an election.
Respondent, in its answer, as amended, admits some of
the allegations of the complaint and denies others. The
answer admits the jurisdictional averments of the
complaint, the fact of the election, the appropriateness of
the bargaining unit, the certification of the Union, the fact
that the Union requested the Respondent to bargain and
the further fact that it refused to do so. Respondent,
however, denies the validity of the certification and
consequently denies having committed the unfair labor
practices alleged.
On August 14, counsel for the General Counsel filed
herein a motion for summary judgment on the ground
that the record in the related representation proceeding
and Respondent's answer, as amended, reveal that there
are no triable issues requiring a hearing in this proceeding.
I was duly designated as Trial examiner to rule upon said
motion.
Upon an order to show cause returnable September 16,
1968, issued by me directing the parties to show cause, if
any, as to whether or not the motion for summary
judgment should be granted, the Respondent filed its
response thereto within the time designated therefor
Counsel for the General Counsel requested and was
granted leave to file a counterstatement to said
Respondent's response to the order to show cause and said
counterstatement was filed within the time designated
therefor. No other response to the order to show cause
has been received.
Ruling on Motion for Summary Judgment
The record of the related representation proceeding'
discloses the following: A hearing was held on June 22,
1967, on the petition filed by the Union in Case
16-RC-4575 at Hobbs, New Mexico, to receive evidence
and argument on the issues raised by said petition. On
August 29, 1967, the Regional Director for Region 16
issued his Decision and Direction of Election among the
employees in the appropriate bargaining unit described
hereinbelow. In his said Decision and Direction of
Election, the Regional Director determined that the
eligibility formula to be used in the election would be that
announced by the Board in Hondo Drilling Company,
NSL, 164 NLRB 416, and Carl B. King Drilling Co., 164
NLRB 422.
'Moran Oil Producing & Drilling Corporation , 16-RC-4575 Official
notice is taken of the record in the representation proceeding as the term
"record" is defined in Secs. 102.68 and 10269(1) of the Board' s Rules
(Rules and Regulations and Statements of Procedure, National Labor
Relations Board, Series 8, as amended January 1, 1965)
174 NLRB No. 26
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant thereto an election by secret ballot was
conducted on September 28, 1967, among the employees
in said unit under the direction and supervision of said
Regional Director. The tally of ballots served upon all
parties at the conclusion of the counting of all ballots on
September 29, 1967, reflected that 21 votes had been cast
for the Union, 18 votes had been cast against the Union;
and 18 votes were challenged. On October 3, 1967,
Respondent filed timely objections to conduct of election
and motion to refuse certification with respect to the
aforesaid election. On December 11, 1967, the Regional
Director for Region 16 issued his Supplemental Decision
and Order, as corrected by an Errata issued December 21,
1967, in which he found Respondent's objections without
merit; denied Respondent's motion to refuse certification;
sustained the challenges to eight ballots based upon a
stipulation of the parties, and additionally sustained the
challenges to five ballots and overruled the challenges to
five ballots. On December 21, 1967, Respondent timely
filed with the Regional Director for Region 16 exceptions
to said Supplemental Decision and Order. Regarding the
challenged ballots Respondent excepted only to the
sustaining of the challenge to one ballot and the
overruling of the challenges to two ballots.
On January 12, 1968, the Acting Regional Director for
Region 16 issued a Second Supplemental Decision and
Order in which he considered said exceptions to
Respondent as a Motion to Reconsider and overruled the
motion, On January 22, 1968, Respondent timely filed
exceptions to said Second Supplemental Decision and
Order and Request for Review. By telegram on March 14,
1968, the Board, acting through its Deputy Executive
Secretary, denied Respondent's Request for Review
insofar as it related to the challenged ballots. Pursuant to
an agreement of the parties, those ballots to which the
challenges had been overruled were opened and counted
on March 22, 1968. The revised tally of two of the
challenged ballots counted had been cast for the Union
and three had been cast against the Union, resulting in a
final tally of 23 votes for the Union and 21 against the
Union. By telegram on April 22, 1968, the Board, acting
through its Deputy Executive Secretary, denied
Respondent's aforesaid request for review insofar as it
related to Respondent's objections to the election on the
ground that the objections raised no substantial issues
warranting review. On March 22, 1968, the Regional
Director for Region 16 issued his certification of
representative in which the Union was certified as the
collective-bargaining representative of the employees in
the appropriate unit described herembelow.
The denial by the Board of the request for review both
with respect to the challenges to the ballots and the
objections to the election constitutes an affirmance of the
action taken in Case 16-RC-4575 by the Regional
Director and Acting Regional Director and precludes
relitigation of the issues raised by said request for review
in any related unfair labor practice case.
In its response to the order to show cause, the
Respondent contends that the pleadings raised issues of
fact and that the Trial Examiner is without authority to
issue a decision without a hearing being held. The factual
issues raised by the pleadings are enumerated by the
Respondent and are issues which have been previously
considered and finally resolved by the Regional or Acting
Regional Director and by the Board in the related
representation proceeding
In the absence of newly discovered or previously
unavailable evidence or special circumstances (none of
which are here asserted by the Respondent), it is
established Board policy 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.2 This policy is applicable even
though no formal hearing on objections or challenges to
ballots has been provided by the Board. Such a hearing is
not a matter of right unless substantial or material issues
are raised.' That there are no such issues here has been
decided by the Regional or 'Acting Director and the
Board. The Board's denial of the request for review of the
Director's and Acting Director's decisions constitutes an
affirmance of their decisions. In these circumstances the
Board's ' and the Director's and Acting Director's
dispositions constitute the law of the case at this stage of
the proceedings.
The refusal to meet and bargain with the Union being
conceded, the refusal to bargain is established. There are
no issues litigable before a trial examiner, there is no
matter requiring hearing, and summary judgment is
therefore appropriate.
The General Counsel's Motion for Summary Judgment
is granted, and I hereby make the following further
FINDINGS AND CONCLUSIONS
L THE BUSINESS OF THE RESPONDENT
Respondent 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 New Mexico At all
times material herein Respondent has maintained an
office and place of business in Hobbs, New Mexico, and
Las been continuously engaged in the business of drilling
oil wells. During the 1 year period prior to the issuance of
the complaint herein, Respondent, in the course and
conduct of its business operations, sold and performed
services valued in excess of $500,000 of which services
valued in excess of $50,000 were performed outside the
State of New Mexico. In addition it has purchased goods
valued in excess of $50,000 directly from States other than
the State of New Mexico.
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.
III. THE UNFAIR LABOR PRACTICES
All dragmen, motormen, floorhands, and truckdrivers
of the Employer's drilling operations in the Permian
Basin , Hobbs, New Mexico, excluding office clerical
employees, professional employees, guards, tool pushers,
'Howard Johnson Company, 164 NLRB 801, Metropolitan Life
Insurance Company, 163 NLRB 579 See Pittsburgh Plate Glass Co v
N.L.R B , 313 U S. 146, 161-162 (1941), Rules and Regulations and
Statements of Procedure , National Labor Relations Board, Series 8, as
revised January 1, 1965, Secs.102 67(f) and 102.69(c).
'O.K Van & Storage, Inc., 127 NLRB 1537, 297 F 2d 74 (C.A 5,
1961). And see N.L R B v. Air Control Window Products , Inc, 335 F 2d
245, 249 (C A. 5, 1964) " If there is nothing to hear, then a hearing is a
senseless and useless formality " See also N L R B. v. Tennessee Packers,
Inc , 379 F 2d 172, 179 (C A 6, 1967)
MORAN OIL PRODUCING & DRILLING CORP.
drillers, and all other 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.
On or about September 28, 1967, a majority of the
employees of the Respondent in the unit described above,
by a secret ballot election conducted under the supervision
of the Regional Director for Region 16 of the Board,
designated and selected the Union as their representative
for the purposes of collective bargaining with Respondent,
and on or about April 22, 1968, the Board certified the
Union as the exclusive collective-bargaining representative
of the employees in said unit.
On or about April 30, 1968, and continuing to date, the
Union has requested, and is requesting, the Respondent to
bargain collectively with respect to rates of pay, wages,
hours of employment, working conditions, and other
terms and conditions of employment, with the Union as
the exclusive collective-bargaining representative of all the
employees in the unit described above.
Commencing on or about May 6, 1968, and at all times
thereafter, Respondent did refuse, and continues to refuse,
to bargain collectively with the Union as the exclusive
collective-bargaining representative of all the employees in
the unit described.
By the acts described above, Respondent did refuse to
bargain collectively, and is refusing to bargain collectively,
with the Union as the exclusive collective-bargaining
representative of its employees, and thereby did engage in,
and is engaging in, unfair labor practices affecting
commerce within the meaning of Sections 8(a)(5) and (1)
and 2(6) and (7) of the Act.
Upon the foregoing findings and conclusions and the
entire record in the case, it will be recommended that the
Board issue the following:
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
hereinbellow.'
B. Moran Oil Producing and Drilling Corporation, 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 unit:
All dragmen, motormen, floorhands, and truckdrivers
of the Employer's drilling operations in the Permian
Basin, Hobbs, New Mexico, excluding office clerical
employees, professional employees, guards, tool
pushers, drillers, and all other supervisors as defined in
the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent the employees in said
appropriate unit as their exclusive collective-bargaining
representative.
'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 Co, Inc., 136
NLRB 785, Commerce Co. d/b/a Lamar Hotel, 140 NLRB 226, 229,
enfd. 328 F 2d 600 (C.A 5, 1964); Burnett Construction Co., 149 NLRB
1419, 1421, enfd. 350 F.2d 57 (C A. 10, 1965)
145
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
aforesaid appropriate unit with respect to rates of pay,
wages, hours of work , and other terms and conditions of
employment , and embody in a signed agreement any
understanding reached.
(b) Post at its Hobbs, New Mexico , plant copies of the
attached notice marked "Appendix ."5 Copies of said
notice, on forms to be furnished by the Regional Director
for Region 28, 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 60 consecutive days thereafter, in
conspicuous places , including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered , defaced, or covered by any other material.
(c) Notify the Regional Director for Region 28, in
writing, within 20 days from receipt of this Recommended
Order, what steps it has taken to comply herewith 6
'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
Appeals 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 28, 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
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 the following employees:
All dragmen, motormen , floorhands , and truckdrivers
of our Company 's drilling operations in the Permian
Basin , Hobbs, New Mexico , excluding office clerical
employees , professional employees , guards, tool
pushers, drillers, and all other supervisors as defined
in the Act.
WE WILL NOT interfere with the efforts of said Union
to negotiate for or represent the employees in said
appropriate bargaining unit as exclusive
collective-bargaining representative.
WE WILL bargain collectively with the Union as
exclusive bargaining representative of the employees in
the appropriate unit and if an understanding is reached
we will sign a contract with the Union.
MORAN OIL PRODUCING
AND DRILLING
CORPORATION
(Employer)
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dated By If employees have any question concerning this notice
(Representative) (Title) or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Federal
This notice must remain posted for 60 consecutive days Building and U.S. Court House, 500 Gold Avenue, Room
from the date of posting and must not be altered, defaced, 7011, P.O. Box 2146, Albuquerque, New Mexico,
or covered by any other material. Telephone 247-0311, Ext. 2556.