Rod-Ric Corp.

National Labor Relations Board - Board Decisions

Jun 3, 1968

171 N.L.R.B. 922 (N.L.R.B. 1968)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rod-Ric Corporation and Local 826, International
Union of Operating Engineers , AFL-CIO. Case
16-CA-3166
June 3, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On March 7, 1968, Trial Examiner Charles W.
Schneider issued his Decision in the above-entitled
case , 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, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision . Thereafter, the Respondent filed excep-
tions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has considered the Trial Examiner's
Decision , the exceptions and brief, and the entire
record in this case , and hereby adopts the findings,
conclusions, and recommendations of the Trial Ex-
aminer.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that the Respondent, Rod-Ric Corporation,
Midland, Texas, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
' The Respondent 's principal contention is that it has been denied a hear-
ing on material questions of fact raised by its objections to the election. We
note , however, that the Respondent excepted to the Regional Director's
overruling of only two of its objections , those involving the Board 's applica-
tion of its requirement for voter eligibility set forth in Hondo Drilling Com-
pany, 164 NLRB 416, and Carl B King Drilling Co., 164 NLRB 419, and
the failure of the Board to require the Union to submit names and ad-
dresses of eligible voters in accordance with the Board's rule in Excelsior
Underwear Inc., 156 NLRB 1236. The Board's rule in Hondo was applied in
the instant case only after the subject of eligibility to vote had been litigated
prior to the Regional Director's issuance of his Decision and Direction of
Election in Case 16-RC-4398 on June 15 , 1967, and the Respondent took
no exception to the Regional Director 's Decision . And the application of
the Excelsior rule to unions does not raise a factual issue . We therefore find
the Respondent 's contention without merit
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Representation Proceeding'
CHARLES W. SCHNEIDER, Trial Examiner: Upon
petition filed under Section 9(c) of the National
Labor Relations Act, as amended, the Acting Re-
gional Director for Region 16 issued a Decision and
Direction of Election on June 15, 1967, directing
that an election by secret ballot be held among em-
ployees of Rod-Ric Corporation, the Respondent,
in an appropriate bargaining unit described
hereinafter.
The election was held on July 14, 1967. Of 25
valid votes cast, 14 were cast for the Union (Local
826, International Union of Operating Engineers,
AFL-CIO), 5 were cast against it , and 6 ballots
were challenged.
On July 20, 1967, the Respondent filed timely
objections to the conduct of the election and con-
duct affecting the results of the election. On
November 14, 1967, the Regional Director issued a
Supplemental Decision and Certification in which
he considered the Respondent's objections, over-
ruled them, and certified the Union as the bargain-
ing representative of the employees in the ap-
propriate unit.
On November 27, 1967, the Respondent filed
with the Board in Washington, D.C., exceptions to
the Regional Director's supplemental decision and
certification. On December 19, 1967, the Board de-
nied the Respondent's request for review on the
ground that it "raises no substantial issues warrant-
ing review."
The Unfair Labor Practice Case
On November 29, 1967, the Union filed a charge
of unfair labor practices alleging that the Respon-
dent had refused to meet and bargain with it. On
December 18, 1967, the Regional Director issued a
complaint on the unfair labor practice charge. The
complaint alleged that the Respondent had violated
Section 8(a)(1) and (5) of the Act by refusing the
Union's request to bargain.
On December 29, 1967, the Respondent filed an
answer to the complaint; on January 26, 1968, it
filed a first amended answer, and on January 31,
1968, a second amended answer. As amended the
answer admits some of the material allegations of
the complaint and denies others. Thus it admits the
' Administrative or official notice is taken of the record in the represen-
tation proceeding , Case 16-RC-4398, as the term "record" is defined in
Section 102.68 and 102.69( f) of the Board 's rules (National Labor Rela-
tions Board Rules and Regulations and Statements of Procedure, Series 8,
as amended , revised July 1, 1965) See LTV Electrosystems, Inc, 166
NLRB 938, Golden Age Beverage Co, 167 NLRB 151; Intertype Co v.
Penello, 64 LRRM 2590 (U S.D C., W.D. Va 1967), Follett Corporation, et
al, 164 NLRB 378, Section 9(d) of the National Labor Relations Act
171 NLRB No. 134
ROD-RIC CORPORATION 923
jurisdictional allegations and the fact of the election
and the certification. However, it denies the ap-
propriateness of the unit and denies that the Union
is the representative of the employees , that the
Union made a request to bargain , and that the
Respondent refused the request . Consequently the
answer denies the commission of unfair labor prac-
tices. The answer , as amended , also states certain
affirmative defenses , principally a restatement of
objections to the election, and further move that
the complaint be dismissed , that the election and
certification be set aside , and that a new election be
held.
On February 1, 1968, counsel for the General
Counsel filed a motion to strike portions of Respon-
dent 's answer , amended answer , and second
amended answer to complaint and motion for
judgment on the pleadings. Certain exhibits were
attached to the motion. The sum of the basis for the
motion to strike is that the Respondent 's answer, as
amended , seeks to relitigate issues decided in the
representation proceeding or to deny facts
established by documentary evidence attached to
the motion , that the Respondent 's answers are
therefore sham and frivolous , and that the allega-
tions of the complaint should therefore be deemed
admitted to be true.
On February 5, 1968, 1 issued an Order to Show
Cause returnable February 16, 1968, ordering the
parties to show cause, if any, as to whether or not
the General Counsel 's motion should be granted.
On February 19, 1968, in response to the order
to show cause the Respondent filed a reply to the
General Counsel's motion to strike and for summa-
ry judgment, moved to dismiss it, and prayed that
the matter be set down for hearing.
Ruling on Motion To Strike and for Judgment on
the Pleadings
The Respondent opposed the General Counsel's
motion to strike and for judgment on the pleadings.
In its answer , as amended , and in its reply to the
General Counsel's motion, the Respondent con-
tends that certain material issues in the representa-
tion proceeding were incorrectly decided without
hearing, or were not litigated. However, all issues
now raised in the answer and in the Respondent's
reply were litigated and decided by the Regional
Director, despite the Respondent's contrary con-
tention. That the Respondent may disagree with the
Regional Director's findings of fact or law, or con-
tend that they are contrary to the evidence, does
not make the issues any less litigable.
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?
This policy is applicable even though no formal
hearing on objections has been provided by the
Board. Such a hearing is not a matter of right unless
substantial and material issues are raised by the ob-
gctions 3 The authorities cited by the Respondent
o not refute this proposition. They merely hold
that where there are substantial and material issues
a hearing is required.
No adequate showing is made of the existence of
evidence newly discovered or previously unavail-
able or of special circumstances. In such a situation
the Board's disposition of the representation matter
is the law of the case at this stage of the proceed-
ing, and binding on the Trial Examiner.4
There remains only the question as to whether
the Union made a demand to bargain and whether
the Respondent refused the demand. Copies of cor-
respondence attached to the General Counsel's mo-
tion to strike and for judgment on the pleadings-
the authenticity of which is not disputed-disclose
that under date of November 17, 1967, the business
manager of the Union, preparatory to the prepara-
tion of a bargaining proposal, wrote the Respon-
dent requesting certain information as to the identi-
ty and classification of persons in the appropriate
unit and information as to conditions of employ-
ment within the unit. By letter dated November 22,
1967, counsel for the Respondent, on behalf of the
Respondent, declined to supply the information,
stating in part, as follows:
The company does not agree with the Re-
2 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 , 162, National Labor Relations Board Rules and Regulations, Se-
ries 8 , as amended, Sections 102 .67(f) and 102.69(c).
In the case of N.L R B. v Tennessee Packers, Inc., 379 F.2d 172, 179
(C.A 6), the court said*
... it is a well established principle of law that the Board is bound by
its own prior determinations in represention proceedings, and is not
required to grant a hearing on representational issues ancillary to an
unfair labor practice charge , unless the party requesting such a hearing
has some newly discovered evidence
See also Baumritter Corp., et al. v. N L.R.B., 386 F.2d 117 (C A 1)
' O.K. Van and Storage, Inc., 127 NLRB 1537, 297 F 2d 74 (C A 5).
And see N.L.R.B. v. Air Control Products, Inc., 335 F.2d 245, 249 (C.A.
5). "if there is nothing to hear , then a hearing is a senseless and useless for-
mality."
' Along with its reply to the General Counsel's motion to strike and for
judgment on the pleadings, the Respondent submitted several affidavits
One of these is by the Respondent 's secretary , Carole J. Rasco, in the na-
ture of evidence in support of the Respondent 's Objection 2C (to the effect
that the Board agents permitted persons not employees of the Respondent
to vote ), as to which objection the Regional Director reported in his sup-
plemental decision as follows:
Employer, although given ample opportunity to do so, presented no
evidence in support of these objections and, in fact, Employer 's Attor-
ney stated he had no such evidence.
Obviously this evidence cannot be newly discovered or previously
unavailable . No explanation is offered for not having submitted it previ-
ously . Its offer now is therefore untimely
The second of the affidavits , by counsel for the Respondent , controverts
findings in the Regional Director 's supplemental decision and certifica-
tion-principally as to whether there were preelection conferences
respecting voter eligibility, and whether challenges were permitted on the
ground that the voters had been terminated . Mrs. Rasco 's affidavit contains
similar assertions This is merely a reiteration of matter considered and de-
cided by the Regional Director.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gional Director 's Decision and plans to litigate
the matter further . Under these circumstances
the company declines to furnish bargaining in-
formation at this time.
In its reply to the General Counsel 's motion to
strike and for judgment on the pleadings the
Respondent contends that the Union 's letter does
not constitute a demand to bargain , since it was
only a request for information preliminary to bar-
gaining , and the Respondent 's reply is not a refusal,
since it was only a declination to furnish bargaining
information at this time. However, the Respondent
candidly concedes that it "would have refused to
bargain if requested because the election was in-
valid ." The Respondent 's contentions are found not
sustained.
As the bargaining representative the Union was
entitled to the information it requested in order to
effectively discharge its duties as such representa-
tive . The Respondent 's refusal to furnish the infor-
mation is consequently a refusal to bargain.
N.L.R.B. v. Heckman Furniture Co., 207 F.2d 561
( C.A. 6), and cases there cited.
There thus being no issues litigable before a Trial
Examiner or requiring hearing, judgment on the
pleadings is appropriate an is granted. The
Respondent 's motions to dismiss or to hold a hear-
ing are consequently denied.
The General Counsel 's motion to strike portions
of the Respondent 's answer is also denied . Though
the answer , as amended , does not state defenses
adequate before the Trial Examiner , it raises issues
essential to consideration of the Respondent 's posi-
tion by the Board or a court of appeals . Section
10(e) of the Act prohibits consideration by the
court , except in extraordinary circumstances, of ob-
jections not urged before the Board . Section 10(f)
of the Act permits only "aggrieved " persons to ob-
tain review of a final order of the Board . Absent a
pleaded traverse of the validity of the certification
the Respondent would be without an issue to press
either before the Board or a court , and con-
sequently not an aggrieved person . See N. L.R.B. v.
International Union of Operating Engineers, Local
66 [West Penn Power Co.], 357 F.2d 841 (C.A. 3);
N.L.R.B. v. Rexall Chemical Co., 370 F.2d 363
(C.A. 1).
I hereby make the following further:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
At all times material herein , Rod-Ric Corpora-
tion has been and is now a corporation duly or-
ganized under the laws of the State of Texas and
has been continuously engaged in the drilling of oil
wells for oil producing companies with its office
and principal place of business located in the
Midland National Bank Building , Midland , Texas.
During the past 12-month period , which period is
representative of all times material herein , Rod-Ric
Corporation performed services of a value in excess
of $50,000 for customers outside the State of Tex-
as, and during the same period of time it purchased
materials valued in excess of $50,000 directly from
sources 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
Local 826, International Union of Operating En-
gineers, AFL-CIO, 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 employees of the Employer engaged in oil
well drilling, Midland and Odessa, Texas , including
truckdrivers , but excluding all office clerical em-
ployees , professional employees , watchmen, dril-
lers, tool pushers , and supervisors as defined in the
Act, constitute a unit appropriate for the purpose
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
On July 14, 1967, a majority of the employees of
Respondent in the appropriate unit by secret ballot
election , conducted under the supervision of the
Regional Director for Region 16, designated and
selected the Union as their representative for the
purpose of collective bargaining with the Respon-
dent , and on or about November 14, 1967, saidpRe-
gional Director certified the Union as the exclusive
bargaining representative of the employees in said
unit.
At all times since July 14, 1967, and continuing
to date, the Union has been , and is now, by virtue
of Section 9(a) of the Act, the exclusive bargaining
representative of all employees in said unit for the
purpose of collective bargaining with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment.
Commencing on or about November 17, 1967,
and continuing to date, the Union has requested,
and is requesting , the Respondent to bargain collec-
tively with respect to rates of pay , wages , hours of
employment , and other terms and conditions of em-
ployment as the exclusive collective -bargaining
representative of all of the employees of Respon-
dent in the appropriate unit.
Commencing on or about November 22, 1967,
and at all times thereafter the Respondent did
refuse and continues to refuse to bargain collective-
ly with the Union as the exclusive bargaining
representative of all the employees in the ap-
propriate unit with respect to rates of pay, wages,
hours of employment , and other terms and condi-
tions of employment.
By refusing to bargain collectively with the Union
ROD-RIC CORPORATION
the Respondent interfered with, restrained, and
coerced employees in the exercise of rights guaran-
teed in Section 7 of the Act, and engaged 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, I recommend that the
Board issue the following:
RECOMMENDED ORDER
A. For the purpose of determining the duration
of the certification the initial year of certification
shall be deemed to begin on the date the Respon-
dent commences to bargain in good faith with the
Union as the recognized collective-bargaining
representative of the employees in the appropriate
unit.5
B. Rod-Ric Corporation, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with
Local 826, International Union of Operating En-
gineers, AFL-CIO, as the exclusive collective-bar-
gaining representative of the employees in the fol-
lowing appropriate unit:
All employees of the Employer engaged in oil
well drilling , Midland and Odessa, Texas, in-
cluding truckdrivers, but excluding all office
clerical employees , professional employees,
watchmen , drillers, tool pushers, and super-
visors as defined in the Act.
(b) Interfering with the efforts of said Union to
negotiate for or represent employees in the ap-
propriate unit as the 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 En-
gineers, AFL-CIO, as the exclusive representative
of the employees in the appropriate unit, with
respect to rates of pay, wages , hours of work, and
other terms and conditions of employment , and em-
body in a signed agreement any understanding
reached.
(b) Post at its Midland office, Odessa yard, and
places of operation copies of the attached notice
marked "Appendix."6 Copies of said notice, on
forms provided by the Regional Director for Region
16, after being duly signed by Respondent's
representative , shall be posted by the Respondent
immediately upon receipt thereof, and be main-
tained 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 16,
in writing , within 20 days from the receipt of this
925
Decision, what steps have been taken to comply
herewith.'
s The purpose of this provision is to ensure that the employees in the ap-
propriate unit will be accorded the statutorily prescribed services of their
selected bargaining agent for the period provided by law See Mar-Jac
Poultry Co , Inc, 136 NLRB 785, Commerce Co d/bla Lamar Hotel, 140
NLRB 226, 229, enfd 328 F 2d 600 ( C A 5), Burnett Construction Co ,
149 NLRB 1419, 1421, enfd 350 F 2d 57 (C A 10)
" In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 16, in writing, within 10 days from the date of this Order , what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT refuse to bargain collectively
with Local 826, International Union of Operat-
ing Engineers , AFL-CIO, as the exclusive bar-
gaining representative of all the following em-
ployees:
All employees of the Employer engaged in
oil well drilling, Midland and Odessa, Tex-
as, including truckdrivers, but excluding
all office clerical employees, professional
employees, watchmen, drillers, tool
pushers, and supervisors as defined in the
Act.
WE WILL NOT interfere with the efforts of
said Union to negotiate for or represent the
employees in the appropriate unit as the exclu-
sive collective-bargaining representative.
WE WILL bargain collectively with the Union
as the exclusive representative of the em-
ployees, and if an understanding is reached we
will sign a contract with the Union
ROD-RIC CORPORATION
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Room 8A24, Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
334-2921.