Pioneer Natural Gas Co.

National Labor Relations Board - Board Decisions

Jun 6, 1966

158 N.L.R.B. 1347 (N.L.R.B. 1966)

PIONEER NATURAL GAS COMPANY 1347
3. The strikers were economic strikers as of the date of the election conducted
on August 28, 1963 , in Cases Nos. 17-RD-235 and 17-RD-236, and hence not
eligible to vote in that election.
4. The aforesaid election was a valid election.
RECOMMENDED ORDER
I hereby recommend that the Respondent be ordered to take the action set
forth in the Recommended Order of my Decision of January 18, 1965.
Pioneer Natural Gas Company and International Union of Oper-
ating Engineers, Local No. 340, AFL-CIO. Case No. 16-CA-
2533. June 6, 1966
DECISION AND ORDER
On March 8, 1966, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled case, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices with-
in the meaning of the National Labor Relations Act, as* amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and u supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Na-
tional Labor Relations Board has delegated its powers in connection
with this case to a three-member panel [Chairman McCulloch and
Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner in-
cluding his granting of the General Counsel's motion for judgment
on the pleadings, and finds 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.
[The Board adopted the Trial Examiner's Recommended Order.]
In accepting the Regional Director 's determination that the requested employees of
the Employer 's Turkey Creek compressor and gasoline plant constitute "an" appropriate
unit in the circumstances of this case , we note the Employer 's meritorious claim that one
Warr, the superintendent and supervisor of all three of the Employer's compressor and
gasoline plants, and not-as found by the Regional Director--Callaway , the immediate
supervisor of the requested Turkey Creek employees , makes the hiring determinations de-
scribed in the Decision and Direction . However, this was only one of a number of factors,
of which no one is controlling , relied on by the Regional Director in granting Petitioner's
unit request . Giving due weight to Warr's hiring authority , we 'are, nonetheless , satisfied
that the record as a whole otherwise justifies the unit determination the Regional Director
made.
158 NLRB No. 127.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION ON • MOTION
FOR JUDGMENT ON THE PLEADINGS
Statement of the Case
Upon a charge filed November 29, 1965, by International Union of Operating-
Engineers, Local No. 340, AFL-CIO, herein called the Union, against Pioneer
Natural Gas Company, herein called the Respondent, the General Counsel of the
National Labor Relations Board, by the Regional Director for Region 16, issued,
a complaint dated December 22, 1965, alleging the Respondent's refusal to bar-
gain with the Union in violation of Section 8(a)(5) and (1) of the National,
Labor Relations Act, as amended. The complaint alleges that following a secret-
ballot election conducted by the Regional Director the Union was certified as the-
exclusive collective-bargaining representative of an appropriate unit of the Respond-
ent's employees, the Union's subsequent request to the Respondent for collective
bargaining on behalf of these employees, and the Respondent's consequent unlaw-
ful refusal. The Respondent's answer denies the allegation that the unit for which
the Union was the certified representative is appropriate for collective bargaining,
that the Union is or has been the representative of the employees in the alleged
appropriate unit, and that the Respondent has violated the Act by its refusal to,
bargain with the Union pursuant to its request. Thereupon the General Counsel
filed a motion to strike portions of the answer and for judgment on the pleadings
claiming that the Respondent's answer raised no triable issue requiring a hearing
for the taking of evidence and that the answer, in effect, constituted an admission
of the unfair labor practice allegations of the complaint. That motion was referred
to Trial Examiner Thomas N. Kessel for ruling.
On January 18, 1966, I issued an order directing the Respondent to show cause
why the General Counsel's motion should not be granted. The Respondent was.
specifically directed in said order to summarize the evidence, newly discovered or
not available during the representation proceeding in Case No. 16-RC-3918,
which the Respondent would proffer at a hearing to attack the validity of the
determinations in that proceeding, particularly the Regional Director's appropriate
unit determination and the certificate issued to the Union. The order further
advised the Respondent that its purpose was to enable me to determine whether
there exists in this case a triable issue of fact necessitating a hearing for the taking
of evidence.
Responding to the foregoing order to show cause, the Respondent filed a docu-
ment opposing the summary judgment procedure invoked by the General Counsel's
motion. The Board's unit determination in the representation case was attacked'
as erroneous and a statement was included of evidence which the Respondent
would make part of the record,' ostensibly to demonstrate that the Regional Direc-
tor's and the Board's unit determinations were erroneous. At the same time the
Respondent filed an amended answer to the complaint. In addition to the denials.
'The Respondent declared its intention to make a part of the record in the instant
proceeding the following:
1. A complete history of the collective bargaining relationship between Re-
spondent and the Petitioner (Union) in a unit similar in some respects to the
unit in question here. A part of this evidence concerns matters occurring since
the representation hearing in 16-RC-3918
2 The Petitioner's (Union's) past organizational efforts concerning the Re-
spondent's organization.
3. All Board proceedings, both published and unpublished, and including the
Regional Director's determinations concerning the unit question.
4 A description of the methods, procedures and actual processing in the
Regional Director's office and in the Washington Office in regard to the deter-
mination of this unit. Respondent will show how the extent of organization has.
been made controlling in this unit determination and how the Labor Board hes
abused it's discretion under Section 9(b). In this regard Respondent intends
to subpoena certain persons employed by the Labor Board who participated in.
making this decision as well as other decisions by these same persons in matters
concerning appropriate units at Respondent's company and will further show by-
their testimony the allegations in Respondent's answer are true Among other
items of proof, Respondent will show the procedures administratively followed ilk
the unit determinatiou were in violation of Section 9 of the Act
PIONEER NATURAL GAS COMPANY 1349
of complaint allegations in the original answer , as noted above , the Respondent
now denies the allegation that it maintains a "plant " at Fritch , Texas, commonly
called its Turkey Creek plant, and that this plant is the only facility involved in
the instant proceeding . The amended answer further denies that , as alleged, the
Regional Director had issued a Decision and Direction of Election on September 27,
1965, finding the unit described in the complaint appropriate for collective bar-
gaining, that the Respondent had sought Board review on or about October 14,
1965, of the said Decision and Direction of Election , and that the Board had
denied the Respondent's request for review on or about October 26, 1965. The
amended answer additionally differs with specific fact findings by the Board in the
representation proceeding and characterizes the Board 's unit finding as arbitrary
and unreasonable.
The General Counsel has filed another motion to strike as sham the aforede-
scribed denials of complaint allegations included in the amended answer. The
contention supporting this motion is that these denials are disproved by the Board's
official records in Case No. 16-RC-3918 which the General Counsel has requested
me to notice.
Rulings on the Motions
For the purpose of ruling on the General Counsel's motions and for all purposes
in the case , I have noticed the Board 's official records in Case No . 16-RC-3918.
The Respondent's procedural objection to the motions to strike the answer and
amended answer and for judgment on the pleadings is grounded upon the asser-
tion in the response to the order to show cause that neither the Board 's Rules and
Regulations nor the Federal Rules of Civil Procedures empowers a Trial Examiner
to strike an answer in whole or part "except for the narrow grounds that there
are not good grounds to support what is contained therein to the best of the sign-
ing attorney 's knowledge , information and belief that the answer is interposed for
delay." Continuing , the response maintains that the Respondent's attorney hav-
ing certified the answer to be "true to the best of his knowledge and belief and is
not interposed for delay" there exists no basis for striking the answer or granting
judgment on the pleadings . These arguments appear to misapprehend the nature
of the General Counsel 's motions and the criteria governing their grant or denial.
The motions simply contend that neither the answer nor the Respondent's response
to the order to show cause reveals the existence in the case of a triable issue of
fact necessitating a hearing for the taking of evidence and that the answer, not-
withstanding certain denials therein, admits the statutory violations pleaded in
the complaint . For these reasons the General Counsel has moved that judgment
on the pleadings be entered without holding a hearing. Where it is determinable
from the pleadings that no triable fact issue exists and the issues raised by com-
plaint and answer may be decided without a hearing the Board has approved
entry of judgments by Trial Examiners on the pleadings. See Orthronix, Inc.,
156 NLRB 3; Pepsi-Cola Bottlers of Miami, Inc., 153 NLRB 1342. Thus, the
question to be decided is whether a triable fact issue is present in the case and,
if not, whether the answer constitutes an admission of the statutory violation
pleaded in the complaint.
Although denied in the amended answer, the Board's official records show, and
I accordingly find this to be a fact, that on September 27, 1965, the Regional
Director issued a Decision and Direction of Election in Case No . 16-RC-3918 in
which he found appropriate for purposes of collective bargaining a unit consisting
of all production and maintenance employees of the Respondent's Turkey Creek
compressor and gasoline plant, Fritch, Texas, excluding office clerical employees,
professional employees , guards, and supervisors as defined in the Act. This is the
same unit as that described in the complaint for which the Union allegedly is the
certificated bargaining representative. The Board's official records show and I
accordingly find this also to be a fact , despite the amended answer 's denial, that
on October 13, 1965, the Respondent filed with the Board its request for review
of the Regional Director 's foregoing Decision and Direction of Election ( inadvert-
ently referred to by the Respondent in its request to the Board as the Regional
Director's Supplemental Decision and Order), and that on October 26, 1965, the
Board sent a telegraphic notice to the Respondent denying its request on the
ground it raised no substantial issue warranting review. The foregoing denials in
the Respondent's amended answer are patently sham and are hereby ordered
stricken.
The answer admits that the Regional Director conducted a secret-ballot election
on October 28, 1965, in which a majority of the employees in the aforedescribed
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit voted for representation by the Union by a , vote of 17 to 4; that
no objections were filed by the Respondent to the election ; and that on Novem-
ber 15, 1965 , the Regional Director issued a corrected certification to the Union
designating it the exclusive collective -bargaining representative of the employees
in the appropriate unit. The answer further admits the allegations that the Union
requested the Respondent to bargain collectively with it for the employees in the
appropriate unit. Finally, it admits that the Respondent had declared to its employ-
ees on November 12, 1965, it would refuse to bargain with the Union and that it
has ever since refused to bargain with it.
The only defense genuinely raised by the Respondent 's answer, as amended, to
the complaint and by its response to the Order to Show Cause is that the Regional
Director and the Board erred in finding that the Respondent 's employees at the
Turkey Creek facility are by themselves an appropriate collective -bargaining unit.
It is for this reason that the Respondent attacks the validity of the Union's certifi-
cation as representative of that unit and this is the real and only justification
asserted by it for its refusal to honor the Union's bargaining demands. The asser-
tions in the answer , as amended , that the Board by its denial of the request for
review of the Regional Director 's Decision and Direction of Election had acted
"arbitrarily and unreasonably ," that the unit findings by the Board in the repre-
sentation case were controlled by the extent to which the Union had organized
the Respondent 's employees , and that the factual bases for the unit findings were
contrary to the evidence in the record of the representation proceeding are sub-
stantially the contentions and arguments which were presented by the Respondent
to the Regional Director and which he had considered in his Decision and Direc-
tion of Election in making his unit finding . They are also the same contentions and
arguments presented by the Respondent to the Board in its request for review of
the Regional Director 's unit finding and which the Board had considered in its
denial of the request . These Board determinations may not be relitigated in the
instant case alleging the Respondent 's unlawful refusal to honor the certificate
issued by the Board to the Union, unless, as stated by the Supreme Court in Pitts-
burgh Plate Glass Company, 313 U.S. 146 , 161-162 and by the Board in Pepsi-
Cola Bottlers of Miami, Inc., supra , the Respondent relies upon newly discovered
or previously unavailable evidence to attack the validity of the certificate. None
of the evidence listed by the Respondent in its response to the order to show
cause which it declares it would make part of the record in this case qualifies as
newly discovered or previously unavailable evidence? The Respondent having
failed to show that it has any such evidence which it could offer in its defense at
a hearing in this case , I find on the facts delineated below that the statutory viola-
tion alleged in the complaint is established by the pleadings and that litigable
issue remains requiring a hearing for the purpose of taking evidence . The Gen-
eral Counsel 's motion for judgment on the pleadings is, therefore, granted.
Upon the basis of the record before me I make the following:
FINDINGS OF FACT
1. COMMERCE FACTS
The complaint alleges that the Respondent is a Texas corporation maintaining
its principal office and place of business at Amarillo, Texas, from where it oper-
ates its public utility business in various parts of Texas and Louisiana; that its
plant at Fritch, Texas, commonly called its Turkey Creek plant, is the only facil-
ity involved in this proceeding; that in the year preceding issuance of the com-
2 The assertion in the response to the order to show cause that the Respondent would
at a hearing include in the record the "complete history of the collective bargaining rela-
tionship between Respondent and the petitioner (Union) in a unit similar in some respects
to the unit in question here `and that' a part of this evidence concerns matters occurring
since the representation hearing in 16-RC-3918 " appears to relate to the evidence in-
troduced by the Respondent in the foregoing representation case pertaining to Case No.
16-RC-3834. That evidence, as shown in the Decision and Direction of Election at foot-
note 2, was considered by the Regional Director in deciding the unit question before him.
It was necessarily considered by the Board In Its denial of the Respondent 's request for
review of the Regional Director's decision. Apart from its patent lack of relevance and
its dubious significance, the evidence which the Respondent would now offer to attack the
unit finding may not here be relied upon for this purpose in view of its prior considera-
tion by both the Regional Director and the Board.
PIONEER NATURAL GAS COMPANY 1351.
plaint the Respondent performed services valued in excess of $500,000 of which
services valued in excess of $50,000 were performed for customers in States other
than Texas; that in the same period the Respondent purchased goods and materials
from suppliers outside of Texas valued in excess of $50,000. The amended answer
denies that the Respondent has a "plant" at Fritch, Texas, commonly called "its
Turkey Creek plant," and that this is the only facility involved in this proceeding.
The amended answer further avers that the Respondent's "facilities" at Fritch,.
Texas, serve several different operations of the Respondent.3 These denials and
averment are apparently not intended by the Respondent to place in issue the
business data pleaded in the complaint and the allegation that the Respondent is
engaged in interstate commerce within the meaning of the Act. The answer, as
amended, admits that the Respondent's operations meet the Board's standard for
the assertion of jurisdiction and I so find. I further find that the purposes of the
Act will be effectuated by the Board's assertion of jurisdiction in this case over
the Respondent's operation.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization' admitting to membership the Respondent's,
employees.
III. THE UNFAIR LABOR PRACTICES
In accordance with the Board's findings in Case No. 16-RC-3918, I find that
all production and maintenance employees of the Respondent's Turkey Creek
compressor and gasoline plant, Fritch, Texas, excluding office clerical employees,.
professional employees, guards, and 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 October 28, 1965, a majority of the employees in the foregoing
appropriate unit in a secret-ballot election conducted by the Regional Director for
Region 16, selected the Union as their collective-bargaining representative by a
vote of 17 to 4. No timely objections weie filed by the Respondent to conduct,
affecting the results of said election. On or about November 5, 1965, the
Regional Director inadvertently issued a certification of results of election of
October 28, 1965, in the unit hereinabove described. On November 15, 1965,
the Regional Director issued a corrected certification of representative in which
the Union was certified as the exclusive collective-bargaining representative of the
employees in the afore-described appropriate unit.
No reason has been asserted by the Respondent's answer, as amended, to deny
the validity of the foregoing certification and the Union's status as the exclusive
collective-bargaining Tepresentative of the unit employees except the reasons here-
inabove mentioned which have already been considered and disposed of by the
Regional Director and the ' Board . As these reasons do not constitute a litigable
issue in this proceeding, no issue remains to be litigated concerning the validity
of the Union's certificate. In accordance with the determinations of the Regional
Director and the Board, I find that on October 28, 1965, the Union was the
exclusive representative of the employees in the appropriate unit for purposes of
collective bargaining and since that date it has continued to maintain such status.
On November 17, 1965, and continuing to date, the Union has requested and
is requesting the Respondent to bargain collectively with it concerning rates of
pay, wages, hours of employment, and other terms and conditions of employ-
ment as the exclusive collective-bargaining representative of the employees in the
appropriate unit. From November 12, 1965, when the Respondent informed its
employees of its intention not to bargain with the Union, and at all times there-
after, the Respondent has refused and continues to refuse to bargain collectively
with the Union. By refusing to bargain collectively with the Union pursuant to
the foregoing request, the Respondent has violated Section 8(a)(5) and (1) of
the Act.
$ These denials and averment attempt to dispute the Board's findings , in Case No. 16-
RC-3918 concerning the nature of the Respondent 's operations at Fritch , Texas. The
Respondent's response to the order to show cause herein concedes that "there has been
no substantial change in the operation of Respondent 's business since the representation
hearing." Accordingly , it is clear that the Respondent is merely seeking to relitigate an
issue decided by the Board in the representation case without relying on newly discovered or
previously unavailable evidence. This the Respondent may not do in the instant proceeding.
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices viola-
tive 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 poli-
cies of the Act. It has been found that the Respondent has refused and still
refuses to bargain collectively with the Union as the exclusive representative of
the employees in the appropriate unit described herein. It will therefore be rec-
ommended that the Respondent bargain collectively upon request with the Union
as the exclusive representative of these employees and, if an understanding is
reached, embody such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Pioneer Natural Gas Company is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local No. 340, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees of the Respondent's Turkey
•Creek compressor and gasoline plant, Fritch, Texas, excluding office clerical
employees, professional employees, guards, and 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. On October 28, 1965, and at all times thereafter, the Union was and now
is the representative of a majority of the Respondent's employees in the appro-
priate unit described above for the purposes of collective bargaining within the
-meaning of Section 9(a) of the Act.
5. By refusing on and after November 12, 1965, to bargain collectively with
the Union as the exclusive representative of all its employees in the above-
described appropriate unit the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(S) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this proceeding I recommend that Pioneer Natural Gas
Company, Fritch, Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from refusing to bargain collectively with International
Union of Operating Engineers , Local No. 340, AFL-CIO, as the exclusive repre-
sentative of all its employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other terms and conditions of employment.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act.
(a) On request, bargain collectively with International Union of Operating
Engineers, Local No. 340, AFL-CIO, as the exclusive representative of the
employees in the appropriate unit and embody any understanding reached in a
signed contract.
(b) Post at its facility at Fritch, Texas, the attached notice marked "Appen-
•dix." 4 Copies of said notice to be furnished by the Regional Director for Region
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."
RALPH PRINTING & LITHOGRAPHING CO. 1353 ,
16, shall after being duly signed by an authorized representative of the Respond -
ent, be posted by it immediately upon receipt thereof, and maintained by it for
a period of 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 notice is 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 and Recommended Order , what steps it has taken
to comply herewith .5
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 receipt of this Order , what steps the Company 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 Rela -
tions Act, as amended , we hereby notify our employees that:
WE WILL bargain collectively upon request with International Union of
Operating Engineers , Local No. 340, AFL-CIO, as the exclusive bargaining:
representative of all our employees in the appropriate unit described below
with respect to rates of pay, wages, hours of employment , and other terms.
and conditions of employment and, if an agreement is reached , embody such.
understanding in a signed contract . The appropriate unit is:
All production and maintenance employees at our Turkey Creek com-
pressor and gasoline plant , Fritch, Texas , excluding office clerical employ-
ees, professional employees , guards and supervisors as defined in the Act..
PIONEER NATURAL GAS COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, 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, Sixth
Floor, Meacham Building , 110 West Fifth Street , Fort Worth, Texas, Telephone-
No. 335-4211, Extension 2145.
Ralph Printing & Lithographing Co. and Lithographers & Photo-
engravers International Union , AFL-CIO
Ralph Printing & Lithographing Co. and Local 38L, Lithogra--
pliers & Photoengravers International Union, AFL-CIO,' Peti-
tioner. Cases Nos.17-CA-2603 and 17-RC-46l5. June 6,1966
DECISION AND ORDER
On September 29, 1965, Trial Examiner Leo F. Lightner issued..
his Decision in the above-entitled proceeding, finding that the Re.-
spondent had engaged in and was engaging in certain unfair labor
practices sand recommending that it cease and desist therefrom and
'Prior to the hearing the name of the Union was changed to Local 203, Lithographers
and Photoengravers International Union , AFL-CIO.
158 NLRB No. 128.