A. W. Thompson, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1970

184 N.L.R.B. 119 (N.L.R.B. 1970)

A. W. THOMPSON, INC.
A. W. Thompson , Inc. and Local 826, International
Union of Operating Engineers , AFL-CIO. Case
16-CA-3683
June 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING , BROWN , AND JENKINS
On March 18 , 1970, Trial Examiner Morton D.
Friedman issued his Decision in the above -entitled
proceeding , finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner 's Deci-
sion . Thereafter , Respondent filed timely excep-
tions, and a brief in support thereof , to the Trial
Examiner 's Decision . The General Counsel filed a
brief in support of the Trial Examiner 's Decision.
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 reviewed the rulings of the Trial
Examiner made at the hearing 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 the case , and hereby
adopts the findings, conclusions ,' and recommenda-
tions.
The Trial Examiner in his Decision expresses the following conclusion
on July 13 , without consultation with the Unions or a written contract
the Respondent put the 20 -cent across-the-board wage increase in effect "
(Emphasis Supplied ) The Respondent in its exceptions contends that this
conclusion of the Trial Examiner is erroneous We do not agree The
Respondent 's reliance upon the fact that on July 11, Howell in a letter to
Respondent stated the Union would not object " to your ( Thompson)
putting the increase into effect" is misplaced As Howell testified , after two
previous requests to include the increase in a written agreement he agreed
to the increase only after he was convinced that the Respondent had no in-
tention of entering into an agreement
The record discloses that the parties on June 20 , 1969, had come to full
agreement as to a 20-cent across-the-hoard increase , however, the Respon-
dent refused to incorporate such increase in a written agreement as
requested by the Union It is also clear , as found by the Trial Examiner, that
the Respondent had no intention of signing an agreement with the Union
Thompson , on or about July 13, came to Rig # 10 and told the employees
that he would like to give the employees a pay increase but the Union
wouldn 't let him without signing a contract and he didn ' t want to sign one
Further, he stated that he was going to go ahead and put a wage increase
into effect this date At the same time he mentioned to the rig crew that
petitions were being circulated for a union election ( decertification) and
offered his help He also reiterated that he was not going to sign a contract
with the Union Thus, in our opinion, the Respondent 's whole course of ac-
tion, as set forth by the Trial Examiner in his Decision , is indicative of the
fact that it intended to and did place this wage increase in effect upon its
own intitative
ORDER
119
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 Respondent , A. W. Thompson, Inc.,
Midland and Odessa , Texas, its officers , agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner 's Recommended
Order.'
' For the purposes of proper continuity the Trial Examiner's Recom-
mended Order is amended by transposing paragraphs ( c) and (d) and by
transposing the 3d and 4th paragraphs of the Appendix ( Notice to Em-
ployees)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Trial Examiner: Upon an
original charge and first and second amended
charges filed on August 1, 1969, August 8, 1969,
and September 8, 1969, respectively , by Local 826,
International Union of Operating Engineers,
AFL-CIO, herein called the Union , the Regional
Director for Region 16 of the National Labor Rela-
tions Board, herein called the Board , issued a com-
plaint on September 10, 1969 , on behalf of the
General Counsel of the Board against A. W.
Thompson , Inc., herein called the Respondent or
the Company , alleging violations of Section 8(a)(1)
and (5 ) of the National Labor Relations Act, as
amended (29 U.S.C. Sec . 151, et seq .), herein
called the Act . In its duly filed answer to the com-
plaint the Respondent , while admitting certain al-
legations of the complaint , denied the commission
of any unfair labor practices.
Pursuant to notice the hearing in this case was
held before me in Midland and Odessa , Texas, on
October 7, 8, 9, and 10, 1969 . All parties were
represented and were afforded full opportunity to
be heard ,' to introduce relevant evidence, to
present oral argument , and to file briefs . Oral argu-
ment was waived. Briefs were filed by counsel for
the General Counsel , the Respondent , and the In-
tervenors . Upon consideration of the entire record,
including the briefs of the parties, and upon my ob-
servation of each of the witnesses as they appeared
before me , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent , a Texas corporation , with its
principal office and place of business in the city of
' At the hearing a number of employees were allowed to intervene
through counsel on the basis of their interest in the outcome of this deci-
sion and upon their allegation that they no longer wanted the Union to
represent them Permission was granted for the intervention
184 NLRB No. 14
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midland, Texas, and a yard office in the city of
Odessa, Texas, is engaged in the contract drilling
business in various counties in the State of Texas
and Lea County in the State of New Mexico. Dur-
ing the year immediately preceding the issuance of
the complaint herein, a representative period, the
Respondent performed services valued in excess of
$50,000 for customers located outside the State of
Texas.
I find and conclude that the Respondent is an
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background and Issues
Pursuant to a stipulation for certification upon
consent election, an election was held on August 2,
1966, among the Respondent's employees who
were engaged at the Respondent 's oil drilling rigs in
west Texas and New Mexico and Respondent's em-
ployees engaged in its yard in Odessa, Texas, essen-
tially a production and maintenance unit. A majori-
ty of the employees voted for the Union and on Au-
gust 10, 1966, the Union was certified by the Board
as collective -bargaining representative of the
aforesaid employees.
Thereafter, following bargaining , the Respondent
and the Union entered into a bargaining agreement
dated November 16, 1967. By letter dated June 3,
1968, the Union notified the Respondent of its in-
tention to amend the agreement and asked for
available dates for negotiating. Ninety days after
this letter , in accordance with contract provisions
providing therefor , the bargaining agreement ter-
minated.
Thereafter, between July 24, 1968, and July 1,
1969, both dates inclusive , the parties met for
negotiating only about 10 times . Some of the
meetings were fruitful , some were not. At the last
meeting , held July 1, 1969, as hereinafter set forth
in greater detail , the parties were in agreement on
virtually all items but with some minor exceptions.
However , when the Respondent's representatives
refused to execute a new agreement then and there,
the Union 's chief negotiator , Business Representa-
tive Kenneth Howell walked out and 2 days later,
on July 3 , 1969, held a strike vote meeting among
Respondent 's employees . Thereafter, on various
dates in July , many of the employees signed peti-
tions declaring that they no longer desired to be
represented by the Union and, at about the same
time, Frank L. Thompson, the Respondent's pres-
ident, visited almost all of the rigs in the field and
the Odessa yard , informally talking to the men
about the affairs of the Respondent. After Union
Business Representative Howell tried to resume
negotiations , the Respondent instituted a wage in-
crease it had offered at the July 1 meeting and, by
letter dated July 25, 1969, informed the Union that
it no longer recognized the Union on the alleged
ground that it had evidence the Union no longer
represented Respondent's employees. Thereafter,
both the Respondent and some of the employees
filed petitions for decertification of the Union,
which petitions were dismissed upon the filing by
the Union of the charges upon which the complaint
herein is based.
The complaint alleges, in substance, and the
General Counsel contends, that in President
Thompson's July 1969 talks to the employees at the
rigs, Thompson urged the employees to sign the
petitions and that other supervisors of the Respon-
dent did likewise and that in his talks at some of the
rigs, Thompson also told the assembled employees
that Respondent was not going to sign a bargaining
agreement with the Union. The General Counsel al-
leges that this conduct was violative of Section
8(a)(1) of the Act.
Additionally, the complaint alleges that the
Respondent refused to bargain in good faith with
the Union in that it refused to meet at reasonable
times for the purpose of bargaining; that Respon-
dent insisted it needed more time to consider the
wage and bumping procedure provisions in the
Union's proposal when, in fact, it had no intention
of signing an agreement and was using the time to
attempt to dissipate the Union's majority and that
Respondent finally unlawfully refused to meet with
and continue recognizing the Union upon the pur-
ported evidence that the Union no longer
represented a majority of Respondent's employees
at the time and under the circumstances set forth.
The Respondent denied all of these allegations
and contentions maintaining that the Respondent
had a good-faith doubt as to the Union's majority
status . Additionally, as a separate and distinct affir-
mative defense the Respondent alleges that, in any
event , it was and is under no duty to bargain with
the Union because the Union does not, in fact,
represent a majority of the Respondent's em-
ployees.
B. The Facts
1. The negotiations and failure to meet with the
Union
Although at the hearing many items which were
discussed at the various bargaining sessions were
testified to, it would unduly lengthen this Decision
to set forth all of these matters herein. Accordingly,
the discussion is confined to those matters which
are in contention.
It should be noted , at the outset , that at all of the
bargaining meetings held between the parties, the
Respondent was represented by Frank L. Thomp-
A. W. THOMPSON , INC. 121
son, Respondent's president, and Risher M. Thorn-
ton, one of the members of the law firm represent-
ing the Respondent. Commencing with the first bar-
gaining session held on July 24, 1968, through the
bargaining session of October 4, 1968, the Union
was represented by Frank Parker, then business
manager of the Union. Parker was the predecessor-
negotiator to Kenneth Howell, the present business
agent of the Union. The Union was also
represented at the various bargaining sessions by
various employee-members.
There is little in the record to reveal what oc-
curred at those bargaining sessions held from July
24, 1968, to October 4, 1968. However there are
two items of significance which were brought out at
the hearing. First, Thornton testified that at the
September 10, 1968, meeting the Respondent vo-
iced its disapproval of the bumping procedures of
the expired contract and of the Union's proposal.
According to Thornton the bumping procedure was
not agreed on at that meeting and the matter was
not disposed of at that time Of equal significance is
a letter written August 20, 1968, by Frank Parker,
as business manager of the Union, to Risher M.
Thornton, as attorney for the Respondent, which
partially reads:
I take this method to advice [sic] you that in
the future I will expect to meet on a more
regular basis for these negotiations than we
have met in the past. I feel that one two hour
meeting in the past two months has not been in
the best interests of the people I represent.
Therefore, in the future I will request that we
meet in negotiations on a much more frequent
basis.
Thereafter, the parties met on September 10 and
16 and October 4, 1968. On December 10, 1968,
the first meeting took place at which Howell acted
as the chief spokesman for the Union. Also attend-
ing that December 10 session was a representative
of the Federal Mediation and Conciliation Service
who was called in because up to that point, at least,
nothing had been agreed upon between the
Respondent and the Union. At that session Thomp-
son, for the Respondent, announced that he had
given the drillers, who were supervisors on the
drilling rigs, a 12-cent-a-mile allowance for operat-
ing their cars to and from their homes to the rigs.
Howell immediately objected to this on the ground
that the same allowance should have been given to
the roughnecks (the term used to designate the
rank-and-file employees on the rigs). Howell also
complained that this allowance, since it affected the
roughnecks, should not have been given by the
Respondent without consultation with the Union.'
Among the items discussed at the December 10,
1968, meeting was the question of wages. At that
time, the Union was requesting a 40-cent-per-hour
wage rate increase, among other things. However,
the Respondent at the end of that meeting declined
to offer any wage increase whatsoever. Other mat-
ters were discussed but nothing was actually agreed
upon. At the end of the session the company
negotiators, Thornton and Thompson, agreed with
Howell to meet for another bargaining session on
January 8, 1969, in Thornton's office.'
However, on the day before the January 8
scheduled meeting, Thornton's secretary called
Howell and advised Howell that Thornton was not
available to meet with Howell and the others
because Thornton was in Alaska. The secretary and
Howell arranged a new meeting date for January
15, 1969. However, on January 14, Thornton's
secretary again called Howell and notified him that
Thornton was again unavailable to meet because he
was still in Alaska. Finally Howell and Thornton's
secretary agreed on a meeting date after Thornton
was to return from Alaska. This date was February
12 and that meeting was held.
Again the representative of the Federal Media-
tion Service was present. The meeting started with
Howell presenting Thornton, Thompson, and the
Mediation Representative a copy of a proposed
union contract. Among other things, this contract
called for a wage rate increase of 50 cents per hour
for the employees and it also contained the same
bumping and seniority clauses which had been part
of the previously expired bargaining agreement
between the parties. Thompson rejected the
Union's request for a 50-cent-per-hour wage in-
crease and gave as his reason therefor that he was
in line with what his competitors were paying. At
the end of the meeting, or sometime toward the end
of the meeting, Howell requested of Thompson that
the Respondent present a counterproposal to the
Union proposal at the next meeting.
Before the meeting ended, the parties agreed to
meet on March 5, 1969. However, the March 5
meeting was canceled by the Federal Mediation
Service due to the inability of their representative
to attend. The parties then firmly agreed to meet on
March 13, 1969. However, this meeting was also
canceled by the Respondent attorney's secretary
calling Howell and telling him that Thornton was
unavailable. It was stipulated at the hearing that
Thornton was in Dallas, Texas, on March 13. A
new date was set for March 18.
The March 18 meeting was held as scheduled. At
the meeting the Company presented the Union with
its counterproposal. The parties went through the
counterproposal item by item and checked the
items with the Union's proposal to see what the
Company wanted to change or would not agree to.
According to Howell, this was the first meeting he
attended at which the bumping procedures were
mentioned. In the Respondent's counterproposal
the only comments which were made with regard to
the bumping procedures, articles V. 1 and 2 of the
' This item is mentioned solely as background and no unfair labor prat- ' All of the bargaining sessions that Howell attended took place in
tice is based thereon Thornton 's office
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union 's proposal , were suggestions by the Respon-
dent to make some grammatical corrections. The
Union acceded to this request . According to
Howell, the Respondent 's representatives at that
meeting made no further reference to the bumping
procedures as set forth in the Union 's proposal. Ac-
cording to the testimony of both Thompson and
Thornton , however, the Respondent 's representa-
tives made it clear that the Respondent did not
want to go along with the bumping procedures and,
indeed , wanted to see this section of the contract
eliminated completely . However , with regard to
Respondent witnesses ' testimony as to this matter, I
find that Thompson was very vague as to dates and
that Thornton at first stated that Thompson was the
one who stated that he opposed the bumping
procedure and then changed his testimony to state
that perhaps it was Thornton , himself . Neither of
them appeared to be certain as to whether or not
the bumping procedure was discussed at that meet-
ing aside from their mere assertion that it was
discussed . From my observation of the witnesses,
the manner in which they testified , and the fact that
Howell appeared to have a clear recollection of
what occurred at the meetings , I credit the version
of Howell . Accordingly , I find and conclude that
the bumping procedure was not mentioned at the
March 18 meeting except for what was contained in
the Respondent 's counterproposal to make gram-
matical changes in the Union 's proposal . Nor do I
credit Thornton 's testimony to the effect that the
reason that a more definitive counterproposal on
the bumping procedure was not included was
because of Thornton 's inadvertent neglect to do so.
This counterproposal starts off with the paragraph
which reads "The following changes are proposed
in the contract submitted by Local 826 on February
12, 1969" and then lists the changes that it
proposes . I cannot conclude that an attorney of
Thornton 's apparent ability and experience would
have written into the counterproposal proposed
grammatical changes and inadvertently have
omitted the most important part that he contended
he wanted to include ; namely, that the Respondent
did not choose to have any bumping procedures in
the agreement at all.
At the March 18 meeting there was also a
detailed discussion concerning wages. Thompson
repeated that he was already equal to many of his
competitors and felt that his employees were being
paid close to what his competitors were paying. He
said also that the 12 cents per mile which he was
paying the drillers for transportation was costing
him a great deal already . It should be noted at this
point that the drillers were furnishing transporta-
tion for the other employees on the rigs . Thompson
did admit , however , in comparing what he was pay-
ing with some of his competitors , that perhaps he
was $150 a week cheaper per rig in total . Howell
then started to figure what the $150 a week would
amount to in hourly wages and the Union modified
its demands at that point . Howell told Thompson
that the latter could give 20 cents per hour across
the board and that would come to only $156 a
week per rig . Howell said that Thompson could
give this and would still be competitive . Thus, the
Union had come down 30 cents per hour in this
wage demand . Nevertheless , although Thompson
did not turn down the offer he said he would have
to go back to his people and figure out whether he
could give it. At the end of the meeting no specific
date was set for the next meeting but sometime be-
fore April 8 Howell called Thornton and asked for
a meeting date and Thornton gave him the date of
April 8.
The April 8 meeting did take place as scheduled.
The session began with Howell asking Thompson
what the latter had come up with on the Union's
demand for the 20 -cent-an-hour across-the-board
wage increase . Again, Thompson came up with
comparisons with what he paid and what his com-
petitors were paying . They talked at great length
about what the other contractors were paying and
how much Thompson was under the other contrac-
tors in his wages . Thompson said that the cost of
transportation was as much as $50 or $60 per day
per rig and that some of the companies for whom
he was drilling were reimbursing him for this but
some were not. Then Thompson stated that he had
less rigs running at that time than he had had since
1956. Howell admitted that he knew Thompson's
rigs were running at a minimum and that about half
of them were not running at all. Accordingly, be-
fore the meeting broke up, Thompson said that he
would not give any wage increase . Howell coun-
tered with the fact that he knew that many of
Thompson 's rigs were down and that this was not a
good time to be negotiating wages and that he un-
derstood Thompson 's business . Howell added that
he would contact Thompson again for further
negotiations when Thompson 's rigs were running
again . Thornton stated two or three times during
the course of the meeting that it looked as though
they were at an impasse . However , Howell told
Thornton that they had not reached an impasse and
they still had a lot to talk about. Thus, the April 8
meeting broke up without any date being set for the
next meeting . It should be noted that although
other matters were discussed in addition to wages,
nothing was mentioned about the bumping
procedures.
Sometime thereafter Howell called Thornton and
a meeting was arranged for June 4, 1969 . However,
the June 4 meeting was not held . On the day before
the meeting was scheduled, at approximately 5
p.m., Thornton 's secretary called Howell and ex-
plained that Thornton was not available to meet
and canceled the meeting . She explained that
Thornton was in Alaska. However , at the hearing it
was stipulated that Thornton was in San Francisco
on June 3 and 4 and he did not return until June 7.
According to Thornton, this was a necessary busi-
ness trip . At the time that Thornton 's secretary can-
celed the meeting scheduled for June 4, she stated
A. W. THOMPSON, INC.
that Thornton would be available on June 10 and
suggested that they meet on that date . Howell
agreed . However the meeting was not held on June
10. At about 9:30 of the morning of that day
Thornton 's secretary again called Howell and said
that Thornton was not available . It was stipulated
on the record that Thornton had to remain in San
Francisco until June 11. All the secretary told
Howell , however , was that Thornton was out of
town . During that phone conversation Thornton's
secretary suggested that they hold the meeting on
June 17 because Thornton would definitely be back
at that time.
The June 17 meeting was held as scheduled. At
the beginning of the meeting Thornton stated that
he had been in Alaska . Howell asked if Thornton
would be available and Howell complained about
the infrequencies of the meetings . Thornton said
that he had to be away and that he had hoped that
his business had been taken care of . Then Howell
asked the Respondent 's representatives if they were
ready to give the wage increase . Thompson began
talking once again about the average cost of trans-
portation for the rigs . With that Howell told
Thompson that he knew that the Respondent's rigs
were almost all running again and that was the
reason they were back there and that he had asked
for a negotiation date . Thompson admitted that
most of the rigs were running and that business had
picked up considerably since the last time they had
met. At this meeting Howell informed Thompson
that some of the other drilling contractors had
given their motor men and derrick men an adjust-
ment in wages and Howell asked Thompson if the
latter would give motor men and derrick men a 15-
cent adjustment in wages. This adjustment was to
come in the new contract . After all the arguments
were made pro and con with regard to the 15-cent
adjustment , Thompson said that he would take it
back and discuss it with his officers . However,
Thompson stated that he was not ready to discuss
the 20 -cent wage demand of the Union and he
asked that they meet the following week because he
thought that they would have an answer at that
time . With that Howell said that he thought
Thompson had delayed long enough and that he
thought the people were justified in their demand
and that he wanted an answer before the following
week . Howell asked if it would be possible for
Thompson to give him an answer by June 20
because he wanted to incorporate this wage in-
crease into the contract in addition to the adjust-
ments for the derrick men and the motor men.
However Thompson at the meeting did not offer
anything more than he was paying his employees at
that time. Thereupon Thornton agreed that Howell
should call Thornton on June 20 sometime during
the morning , and that he would have an answer for
Howell . The bargaining session ended shortly after
that . The entire session took only about 30 minutes
and no mention was made of the bumping
procedures.
123
On the morning of June 20 Howell called Thorn-
ton. He asked Thornton whether Thompson was
going to give the 20 -cent wage increase and after
some further conversation Thornton said they were
going to give the wage increase and also a few ad-
justments , that Thompson was looking at the ad-
justments and Thornton said the wage increase
would be a minimum of 20 cents . With that Howell
asked when they could get back together and
complete negotiations for a new working agreement
and incorporate the wages in it. Thornton answered
that they were willing to put the wages into effect at
that time . Howell replied that he did not want that,
that he wanted the earliest negotiation date because
he wanted to incorporate the wage increase in with
the working agreement inasmuch as the Union
wanted a complete working agreement . With that
Thornton answered that he was afraid that Howell
was going to say that . However , they agreed to a
meeting date which was to be July 1.
On July 1 a meeting was held as arranged. The
meeting began with the parties discussing the
proposal and counterproposal item by item. When
they came to the bumping procedure , Thornton
pointed out that the proposal contained a comma in
section V. 1. This comma had been put after the
word "rig" in the second sentence and at the end of
a sentence in V. 2 they had the word "employee"
which should have been plural, "employees ." In the
third sentence of V. 2 there should have been a
period after the words - 14 days ." Howell and the
Union agreed to these changes. Thus the changes
and the bumping procedures were completely
disposed of before wages were discussed . When the
discussion began with regard to wages Thompson
presented a list of proposed wages that he wanted
to put into effect for the various classifications of
the employees . During the discussion the Union
modified its position and asked that Thompson give
the motor men and derrick men each a 6-cent dif-
ferential over the other employees . This was a
reduction of considerable amount . Thompson did
not agree to it at that moment. Then Thompson of-
fered to grant the wage increases to the employees
but never offered to incorporate the increases in
the contract . Then the discussion went back to the
6-cent adjustment which the Union asked instead of
its 15-cent adjustment for the derrick men and
motor men. Thompson countered with "I'll tell you,
let's look at our bumping procedure , our article on
bumping procedure ." At that point nothing was
done about Thompson 's suggestion and the Union
agreed to drop a number of its other demands.
Thus, for example , the Union agreed to drop time
and a half after 8 hours in any 24-hour shift. The
Union also dropped its demand for a 2-week vaca-
tion after 1 year of service . It also dropped its de-
mand that the bargaining employees be paid 12
cents a mile to and from their homes to the rigs.
Thus, at about this point in the meeting the
parties were in agreement on virtually everything,
but Thompson had not yet agreed to incorporate
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the wage increases into the agreement and he went
back to the bumping procedure provisions. Thomp-
son said that he wanted to look at the bumping
procedures and the 14-day recall provisions of the
proposed contract. Howell then asked him what
they wanted to talk about that item for because
they had already agreed to it. Thompson answered
that they had not agreed on it. Then Howell re-
minded Thompson that the Respondent had made
no mention of it in its counterproposal and that
they had never discussed it before. Howell ex-
pressed his thought that they had agreement on it
and Thompson said that he wanted to look at it
again . Howell asked Thompson if he was having
any trouble with it and Thompson answered "No,
not that I know of, but I want to look at it." Then
Thompson also stated that article V. 5, a clause
which required the employer to furnish the list of
employees at the end of each two-week pay period,
was causing him trouble. Howell answered that he
thought that sending such a list every 6 months in-
stead of every 2 weeks would suffice. Thornton an-
swered for Thompson that he did not see that there
would be any trouble in this matter. Again Howell
stated that they were not apart on anything. Then
Thompson countered that he wanted to take the
bumping procedure and the seniority list
procedures back to his officers. Finally Howell said
"All right. Forget the 6 cent adjustment. Will you
sign the contract now?" Thompson answered "No,
I can't. I have to take it back to my people. We
have got to have more time to look at it." To which
Howell countered "Thompson, you've been looking
at that contract since June 4, 1968 and I think you
are just stalling for time. I don't think there's
anything [sic] that you will sign a contract."
Thompson answered that he needed more time
and that they should meet the next week. He men-
tioned the date of July 8. Howell said he wanted to
meet that afternoon and when that met with protest
Howell said that he would meet the next day.
Thompson said he couldn't do that and Howell
again asked that they meet the day after, July 4.
Thompson was adamant and said that he would
not meet with Howell until July 8. Howell told
Thompson that that was not going to be satisfacto-
ry, that Thompson had stalled and delayed the
matter long enough. Howell went on to say that as
long as he felt that there was any justification for
the matter he was going to do whatever he could to
force Thompson to sign a contract. The meeting
thereupon ended at about 12:30 p.m.4
It should be noted that Howell left the meeting
somewhat angered. His last remark to Thompson
was "Thompson, I won't call you. You will be
calling me." However, it should also be noted that
at the end of the July 1 meeting the bumping
4 All of the foregoing with regard to the bargaining sessions is taken from
the testimony of Howell which was not, for the most part, in disagreement
with the testimony of any of the Respondent 's witnesses However , as noted
above, where there was conflict in testimony as to what occurred at the
procedure was the only matter which held the
parties apart. This bumping procedure had not
been mentioned by the Respondent's representa-
tives at any time to Howell until the July 1 meeting
except insofar as the grammatical suggestions were
made in the Respondent's counterproposal sub-
mitted March 18.
It should be further noted, that at no time during
any of the bargaining sessions or any of the
telephone conversations between Howell and
Thornton's office or between Howell and Thornton
or Thompson was Howell ever told that it would be
agreeable to Thornton to have Brooks Harman,
Thornton's law partner, negotiate in Thornton's
place at any time if Thornton was not available.5
The July 1 bargaining session was the last meet-
ing held with regard to negotiating the contract
between the parties.
It is also of some significance that at no time
from December 11, 1968, to July 1, 1969, was any
meeting initiated at the request of any Respondent
representative.
2. The Postnegotiation Events
After Howell left the meeting on July 1, he in-
structed his Odessa business representative to make
contact with as many Thompson employees as
possible to call a strike-vote meeting. Such
meetings were held at Odessa and Monahans, Tex-
as, on July 3. Strike votes were taken at the
meetings and a majority of the employees present
voted to strike. However, because so few of the em-
ployees attended the meetings, Howell did not feel
that it was a representative vote. About 9 o'clock
that night, July 3, Howell called Thornton and told
the latter that a strike vote had been taken and the
majority of the employees present voted to strike
but that it was not a representative vote. Therefore,
Howell asked Thornton to tell Thompson that the
Union would take the July 8 meeting date. Thorn-
ton answered that Thompson was pretty angry and
was out of town for the weekend and Thornton
could not contact Thompson. He added that he did
not know whether Thompson would want to meet
July 8, that Thompson might have made other plans
and that Howell should call Thornton the following
Monday morning, July 7. On July 7, Howell called
Thornton and asked Thornton if the latter had
reached Thompson. Thornton stated that he had,
but that Thompson had already made plans and
would not be available to meet July 8. Upon receiv-
ing this information, Howell asked Thornton for the
earliest possible date when negotiations could be
continued. Thornton gave Howell the date of July
29. Howell was not satisfied and told Thornton that
he would like to get together earlier to put the
bargaining sessions 1 have credited Howell for the reasons stated
' Neither Thornton nor Thompson testified that such a suggestion was
made to Howell The question was asked Howell on cross-examination if
such a suggestion was ever made to him and Howell denied that it was
A W. THOMPSON , INC. 125
raises into effect. Thornton informed Howell that
the Respondent had mailed a letter to Howell
which stated that they desired to put the new raises
into effect on July 13. Howell answered "no, I will
not agree to that. I want to put the money in with
the whole contract and I think it should be done in
negotiations. "
Thereafter the Union did receive the letter of
which Thornton spoke stating that the Company
proposed to place into effect new pay scales ap-
proximating 20 cents per hour per man effective
the pay period commencing July 13. The letter
stated that if the Respondent did not hear from the
Union to the contrary they would assume that the
Union was agreeable to the raises. Howell did
answer giving his consent because he did not want
the men to lose the opportunity to receive the wage
rate increases. Thereafter, the Respondent posted
and announced the wage rate increases as stipu-
lated in the letter of July 7. After the conversation
with Thornton on July 7, Howell had no further
personal contact with any representative of the
Respondent, and for reasons hereinafter set forth
there were no further negotiations.6
In addition to the information which Thornton
received from Howell to the effect that a represen-
tative vote had not been taken at the strike
meetings, Theodore J. Toft, administrative assistant
to Thompson, testified, without contradiction, that
on July 5, employee Claude A. Johnson came to
Toft's office and described what took place at the
strike-vote meeting mentioning the number of peo-
ple who attended. Johnson told Toft that the vote
taken was 21 to 9 in favor of a strike, making a
total of 30 employees who attended. According to
Toft, at that time there were approximately 154
employees in the unit.
Toft also had a conversation on July 5 with em-
ployee Jerry Singleton, who told Toft, as did em-
ployee Johnson, that he did not believe the Union
had a majority. Singleton stated that not only he
but other men were highly interested and con-
cerned and they wanted to know what they could
do about getting rid of the Union. Toft told
Singleton that the initiative would have to be their
own, that they would have to do it for themselves.
Nevertheless, despite this admonition from Toft
to the effect that if the men wanted to get rid of the
Union they would have to do it on their own, and
despite Thompson's protestations that he would not
involve himself in any activity by the employees to
rid themselves of the Union as their bargaining
representative, events began to unfold shortly after
the July 3 strike vote which indicated the Respon-
dent did become involved in an attempt to get rid
of the Union.
There is no doubt, and all parties concede, that
between approximately July 7 and July 17, 1969,
petitions to the effect that the employees no longer
wished to be represented by the Union were posted
and signed at the various rigs and at the Respon-
dent's Odessa yard. These petitions were handed to
the Respondent's vice president, Shaffer, and were
sent , in turn , to the office of Brooks Harman,
Thornton's law partner. A study of these petitions
leads to the conclusion that Toft was correct in
stating that there were approximately 125 signa-
tures on the petitions . Since these petitions were in-
troduced into evidence by the General Counsel
who did not in any way attack their genuineness
from the point of view of the signatures thereon, it
can be concluded that as of that period in July
1969 following the strike vote, until the employees
filed a petition with the Board for decertification, a
vast majority of the employees of the Respondent
indicated that they did not desire to have the Union
represent them any longer. However, it is necessary
to examine the manner in which these signatures on
the various petitions were encouraged and solicited.
Thus, according to employee Kenneth O. Ham-
ric, relief driller on rig 10, on Tuesday, July 8,
1969, he had a conversation on the rig floor with
tool pusher Buck Kruse, an admitted supervisor.
Kruse handed Hamric a document which in the first
paragraph said in effect that the drillers had
received a 20-cent increase in wages because they
were not represented by the Union; that the Com-
pany would like to give the employees a raise but
the Union would not let this happen unless the
Company signed a contract. The statement went on
to say that the Respondent did not intend to sign a
contract. The document further suggested that it
looked as if the only way the employees would
receive the increase would be to get rid of the
Union. There followed instructions on how to get
rid of the Union directing the employees to draw up
a petition for a new union election; that the heading
of the petition should be "We, the undersigned, do
not want to be represented by the Union, Local
826."
The document was unheaded and unsigned and
was typewritten in a distinctive type of script which,
at the hearing herein, was compared with script
from a typewriter in the Respondent's office and
found to be similar. However, I cannot conclude
that the document shown to Hamric by Kruse was
written in the Respondent's office. This is so
because the paper shown by Kruse to Hamric was
not produced and there was no expert testimony to
connect the document with the typed sample in-
troduced at the hearing.
Suffice -it to say, however, as soon as Hamric had
finished reading the paper handed to him by Kruse,
driller Bob Melton, also an admitted supervisor,
handed a petition to Hamric which the latter
signed. Hamric then passed on the petition to other
members of the crew. After that, Kruse told Hamric
that someone had to take the petition to Vice Pre-
sident Paul Shaffer and asked Hamric if the latter
would do it. Hamric then posted the petition on the
6 From the uncontroverted testimony of Howell which I credit
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bulletin board for the other crews who worked on
different shifts. He posted it in accordance with in-
structions given him by Kruse. Hamric left the peti-
tion on the bulletin board of the rig for 2 or 3 days.
He took it down on approximately July 10, took it
home with him, and the next morning turned it in
to Vice President Shaffer. An examination of this
particular petition signed by the employees on rig
10 convinces me after comparison with a sample of
the known writing and printing of Supervisor-
Driller Melton, that this petition was composed and
printed by Melton.
When Hamric took the petition to Shaffer's of-
fice, the latter looked it over and stated that there
were not as many names as he had hoped for.
Shaffer added that he had a couple more petitions
that had already come in from other rigs . Shaffer
then stated that he needed about 85 or 86 names
before the Respondent could go ahead and file for
an election.
The following week Kruse brought the petition
back to Hamric and Hamric reposted it. This time a
single name was added to the petition. At the time
that Kruse gave the petition back to Hamric he
stated to Hamric that some of the men might want
to sign it who did not sign it at its earlier posting
and that Kruse wanted to give them another
chance. The petition was then taken down for a
second time but there was no showing in the record
as to who took the petition down. However, as
stated before, by the time it was taken down for the
second time another signature had been added.
The second posting of the petition followed a talk
to the employees that was given by Frank Thomp-
son at the top doghouse of rig 10 on July 13, a Sun-
day. Present were Thompson, Melton, Hamric, and
several others, six crew members altogether.
Thompson stated that he would like to have given
the men a pay increase of 20 cents an hour but the
Union would not let him do so unless he signed the
contract and he did not want to sign a contract. He
said that he was going to go ahead and put the wage
increase into effect that date, July 13, in any event.
Thompson then reminded the men that there was a
petition being circulated calling for a union election
and he said if enough people sign the petition he,
Thompson, would be glad to take it from there. He
added that some of the petitions had been turned in
and if anyone wanted them brought back he would
be glad to have them brought back so that persons
who missed the opportunity the first time around
would have a chance to sign up. Thompson further
stated that the Union had outlived its usefulness
and he was not going to sign a contract with the
Union He explained that when he had first signed a
' All of the foregoing from the credited, virtually uncontroverted
testimony of witnesses Hamric and W A Stevenson Neither Melton nor
Kruse testified Although Thompson, in his testimony, denied having made
any statements with regard to the petition or with regard to the Union at his
talks with the men at the rigs, I find and conclude that Hamnc's and
Stevenson's testimony is reliable Moreover, although Toft also stated that
he accompanied Thompson in the latter 's visit to the various rigs, and
contract with the Union the union representatives
had told him that they would not be back to bother
him until they had some of his competitors under
contract.'
In addition to the foregoing incident concerning
Hamric, driller Jerry Baskett, an admitted super-
visor, testified without contradiction that he posted
the petition which was signed by employees of rig 6
on July 6 and left it posted until July 10.
At another meeting held on July 8, 1969, at rig 2,
Thompson told the gathered employees about the
benefits the employees enjoyed such as group in-
surance , safety awards, driving pay, hospitalization,
and so forth, stating that he was proud of his opera-
tion and that he "didn't need any damn union out
there running his business." Thompson then men-
tioned that the only way the employees could get
rid of the Union would be for at least half of them
to sign a petition to that effect. He also informed
the employees that the reason they had not
received a pay raise, as had the drillers, was
because the Union would not accept his offer of 20
cents hourly. After Thompson's talk the meeting
was thrown open to discussion and employee Ver-
non L. Trease asked Thompson if the employees rid
themselves of the Union would they still have a
guaranteed salary. Thompson answered that he did
not intend to do away with any benefits just
because there was no union and he did not intend
to cut salaries.
Thereafter, on about July 10, a petition appeared
on the bulletin board of rig 2. Employee Trease at
that time had a conversation with his driller, James
Williams, an admitted supervisor, who told Trease
that he ought to "go in there and sign the petition."
Trease did not sign the petition nor was there any
showing in the record who posted the petition or
who took it down."
Another incident occurred which involved
Thompson and his talk with employees from rig 8,
and several other rigs, which was held at the Odessa
yard office on about July 15. Present were about 28
to 30 employees from the various rigs just men-
tioned. The employees were told to attend this
meeting by their various drillers. After Thompson
introduced himself to the men, he stated that the
Union was not helping the men or Thompson and
that the Union was not paying the men anything;
that the checks they received came from the
Respondent. Thompson further said that he had put
a petition up in the rigs for his employees to sign to
help them get the "Union out of the Company."
Additionally, Thompson stated that it was unfair to
him because he had to get at least 80 percent of his
employees to sign the petition to get the Union out
further testified that he did not hear Thompson make any such statements,
he admitted that at some of the rigs and at some of the other places where
Thompson gave talks to the men he, Toft , was otherwise busy and did not
hear the entire conversations between Thompson and the employees For
these reasons I credit the entire testimony of Hamric and Stevenson
"All of the foregoing from the credited testimony of employee Trease
Williams did not testify
A. W. THOMPSON, INC. 127
whereas the Union had to have only 20 percent to
get itself voted in. Thompson continued that he did
not like fence straddlers and wished the men would
go along with him, that if they could not see their
way clear to do so they could quit He added it did
not make any difference what organizations the em-
ployees belonged to but that he just wanted them to
help him get rid of the Union Then Thompson
went on to discuss how the Company was founded
by his father and gave additional history of the
Respondent He also told of all the benefits that the
employees were receiving. He stated that he was
going to try to continue the benefits and would try
to give more if it was at all possible.
About the same time that Thompson gave this
talk a petition was posted at the doghouse of rig 8.
Employee Hogan saw it around July 9 or 10. At
that time Hogan's driller, Eddy Fitzgerald, told
Hogan that the petition was up there and went on
to explain to Hogan that it would be a help to
Thompson to get the Union out of the Company
Hogan did not know who put the petition up or
who took it down.'
On July 8 or 9, employee Stevenson had a con-
versation with Bob Melton, the driller on rig 10.
This is the same rig on which employee Hamric
worked. Melton told Stevenson "Steve, you might
ought to sign that," referring to the petition.
Stevenson stated that he could not afford to sign
the petition and Melton said nothing further.
Another similar incident occurred between em-
ployee Gary E. Thompson at rig 2 and tool pusher
Cy White, an admitted supervisor. White told Gary
Thompson that they needed to get a petition up on
the bulletin board for any of those that wanted to
sign it.10
As noted above, the petitions were submitted to
Shaffer's office Aside from Hamric's testimony as
to what occurred when he took the petition to
Shaffer, the record is barren with regard to Shaf-
fer's own reaction to the petitions. Toft, as hereto-
fore noted, saw the petitions in Shaffer's office and
counted the signatures on the petitions which, as
heretofore noted, amounted to approximately 125.
Shaffer caused the petitions to be taken to Brooks
Harman's office.
Thereafter, a number of the employees from rig
6, together with some of the employees from the
Respondent's Odessa yard, went to Brooks Har-
man's office, asked Harman for the petitions, and
took the petitions to the office of their selected at-
torney who, later on, filed a petition with the Board
for decertification of the Union. The record does
not reveal how the employees knew the petitions
were in Brooks Harman's office.
As heretofore set forth, Union Business
Representative Howell had a conversation with
Respondent Counsel Risher Thornton on July 7 in
which the wage increase was discussed and a date
of July 29, 1969, was set for the next bargaining
session. Howell testified credibly and without con-
travention that this was the last discussion Howell
ever had with any of the representatives of the
Respondent. The reason for this is that the July 29
meeting never took place. On July 25, 1969,
Thompson addressed a letter to Howell which
stated as follows:
This company has been furnished evidence
which we believe definitely proves Local 826
does not represent a majority of our em-
ployees. Under these circumstances this com-
pany advises you it no longer recognizes Local
826 as bargaining agent for our employees.
Please be advised that the negotiating session
scheduled for Tuesday, July 29, 1969 is can-
celled.
Both Thompson and Toft testified as to the
reasons this letter was written. Although they each
denied that the petitions were the main reason for
the Respondent's professed belief that the Union no
longer represented a majority of the employees, in
point of time the refusal to meet and negotiate on
July 29 followed the filing of the petitions in Vice
President Shaffer's office and the admitted reading
of the petitions by Administrative Assistant Toft.
Accordingly, the Respondent cannot be found in-
nocent of knowledge of the fact of the petitions
Therefore, I find and conclude that although there
may have been some doubt in the minds of Thomp-
son and other company officials that the Union no
longer represented a majority of the Respondent's
employees, and this belief may have been
strengthened by the weak showing at the July 3
strike-vote meeting, it is nevertheless apparent that
the petitions were the basis for Respondent writing
the letter of July 25 notifying the Union that the
Respondent no longer recognized it as the bargain-
ing representative of the Respondent's employees.
C. Analysis and Concluding Findings
Overriding all of the subsidiary issues , the domi-
nant issue presented is whether the Respondent, in
its negotiations with the Union, performed the
obligation to bargain as prescribed by Section 8(d)
of the Act "to meet at reasonable times and confer
From the credited testimony of former employee Hogan 1 have taken
into consideration the fact that Hogan was discharged sometime before the
hearing herein and for that reason could have been biased However, from
my observation of Hogan and from the fact that his testimony confirms
testimony of other witnesses whom I have credited, l find and conclude that
Hogan 's testimony was credible In connection with the talks by Thompson
to the men at the various rigs I have taken into consideration the testimony
of Respondent 's witnesses Johnson , Singleton , Armstrong, Blakeley and
Green It is possible that at some of the rigs Thompson did not mention the
Union petition nor his desires to get rid of the Union However, on the basis
of all of the testimony that I have considered , I find and conclude that the
testimony of Hogan , and others who testified similarly to him, is the more
accurate version of what took place at the particular rigs I have also taken
into consideration the testimony of W A Black , a witness called by the
General Counsel , who testified to the same meeting as did Hogan His
testimony is very similar to that of Hogan and I therefore credit it How-
ever, Black testified he was not present during the entire meeting I find
that Black 's testimony was not as complete as was Hogan 's Therefore the
matters to which Hogan testified , while not completely substantiated by
Black, are accepted as the true version of what occurred
10 From the credited testimony of Gary Thompson White did not testify
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in good faith with respect to wages, hours, and Respondent did offer to meet on July 8. Neverthe-
other terms and conditions of employment...." To less, 2 days later when Howell called to say that he
resolve the question of whether this obligation was would accept the July 8 date, Thornton explained
met by the Respondent, it is necessary to analyze to Howell that Thompson, the Respondent's pre-
the pattern of Respondent's conduct to determine sident, was angry about what occurred at the July 1
whether the Respondent came to the bargaining meeting and Thornton could not promise when
table with the intention of arriving at an ultimate Thompson would be available. Finally on July 20 a
agreement with the Union or whether the Respon- meeting was arranged for July 29, but this meeting
dent's conduct negated such intention . was never held. The Respondent refused to enter
The first aspect of Respondent's conduct that into any further bargaining because it expressed, in
bears scrutiny is that involving the paucity of bar- a letter addressed to the Union, that it thought that
gaining meetings. Thus, over a period of approxi- the Union no longer represented a majority of the
mately 1 year there were only 10 such meetings, Respondent's employees.
none of them called at the initiative of the Respon- Section 8(d) imposes a mutual obligation on
dent's representatives. Indicating that the cause of negotiating parties "to meet at reasonable times."
the rarity of the meetings cannot be laid at the feet Moreover, Section 204 of the Labor Management
of the Union is, initially , the letter of August 20, Relations Act, in order "to prevent or minimize in-
1968, sent by Union Representative Parker to the terruptions in the free flow of commerce," calls on
Respondent in which Parker took the Respondent employees and unions alike to "arrange promptly"
to task for the fact that only a single meeting of 1 for conferences and to endeavor "expeditiously" to
hour's duration had taken place in the 2 previous bring about a resolution of disputes over contract
months. The record does not explain why only terms in which they may be engaged. The duty to
three meetings took place thereafter from August do so is part of the obligation to bargain."
20 to December 10, 1968, but the record is replete The record in the instant case, as just described,
with instances thereafter as to the reasons that ap- supports the conclusion that the Respondent failed
pointments for meetings were not kept by the to display the degree of dilligence that proper per-
Respondent and why postponement after postpone- formance of its bargaining obligations required.
ment occurred. Thus, the meeting set for January 8, This is so whether or not delays were inspired by a
1969, was postponed because of Attorney Thorn- deliberate scheme to engage in dilatory tactics.
ton's absence and a meeting was not held until Although the Respondent attorney's situation in
February 12, 1969, for the reason that Thornton having other business to take care of besides that of
was not available. Nor is there any evidence in the the Respondent may be sympathized with,
record that anyone else was appointed by the nevertheless, it was the duty of the Respondent to
Respondent to take Thornton's place in his see to it that if Thornton was not available a sub-
absence. stitute should be appointed so that the bargaining
Again, at the end of the February 12 meeting the meetings need not be postponed on so many occa-
parties set March 5 as the next meeting date. How- sions. Thus, the Board has held, referring to Section
ever, this meeting was canceled by the Federal 8(d) obligation:
Mediation Service due to the inability of their The manner of the performance of this obliga-
representative to attend. The parties then firmly tion by the negotiator is relevant in determin-
agreed on March 13, 1969. However, this meeting ing whether there has been a good-faith
was also canceled because the Respondent's attor- discharge of this positive legal duty imposed by
ney, Thornton, was again unavailable. Finally a statute. If a given negotiator becomes in-
meeting was held on March 18. disposed or is otherwise unable to discharge
After the March 18 meeting, a meeting was set this responsibility because of other commit-
for April 8 and this meeting was held. However, at ments, it is the duty of the party, involved to
the end of the April 8 meeting no date could be ar- designate a negotiator who can fully discharge
ranged and thereafter Howell, the union business this obligation. Passively waiting for the other
agent, called on Thornton and finally a meeting was party to make all requests for bargaining
arranged for June 4, 1969. However, the June 4 meetings, protracted delays in arranging for
meeting was not held because of Thornton's the meetings requested by the other party, and
absence from the city. The meeting was postponed failure to advise as promised when another
to June 10. However, in the morning of that day the meeting could be arranged, are variations of
meeting was again canceled because Thornton was negative conduct which has been held by the
again unavailable Finally, a meeting was held on Board and courts to impede the bargaining
June 17. process and otherwise frustrate negotiations so
Thereafter another meeting was held on July 1 as to evidence a lack of regard for this aspect
and at the end of this meeting no date was set of the bargaining obligation.12
because the Respondent would not agree to sign a Tested by the foregoing standards, it is apparent
contract. However, at the end of that meeting that the Respondent failed to meet its Section 8(d)
11 "M" System, Inc , 129 NLRB 527, 548 12 Exchange Parts Company, 139 NLRB 710, 714
A. W. THOMPSON, INC.
obligation to meet at reasonable times. Ac-
cordingly , I find that by reason thereof the Respon-
dent failed to bargain in good faith in violation of
Section 8 ( a)(5) and ( 1) of the Act That this viola=
tion of the Act had an effect on the employees and
their relation to the Union is discussed below.
The next aspect of Respondent 's conduct to be
considered is the Respondent 's attitude at the bar-
gaining table with regard to the wage and bumping
provisions of the Union 's proposal and the Respon-
dent 's counterproposal. Initially , the Respondent
refused , through President Thompson , to even con-
sider , because it was beyond Respondent 's means,
the 50 -cent-per-hour wage rate increase of the
Union 's original proposal . There was in this ob-
stinacy , standing alone , nothing unlawful or neces-
sarily indicating an intention not to arrive at an
agreement with the Union. At most it could be clas-
sified as hard bargaining since the Act does not im-
pose upon any party the obligation to concede but
only to " confer in good faith " with an open mind.
In addition to wages , there was the additional
item of the bumping procedure provisions of the
Union 's proposal . Attorney Thornton testified,
without contradiction , that either he or Thompson
had opposed the bumping procedures incorporated
in the expired bargaining agreement during the
meeting held with Union Business Representative
Parker at the September 10, 1968 , bargaining ses-
sion . Thereafter , the Union 's proposal in the form
of a complete agreement which contained the exact
bumping procedure provisions was submitted by
Business Agent Howell for the Union at the March
18, 1969 , bargaining meeting. This proposal also
contained the Union 's request for a 50 -cent overall
wage increase . At the next meeting , held March 18,
the Respondent submitted its written counter-
proposal which rejected in whole the wage increase
but accepted the bumping procedures in that it
contained only suggestions for some grammatical
changes in that portion of the Union 's proposal.
Thus, it is obvious, that any opposition which the
Respondent might have earlier shown to the bump-
ing procedures was withdrawn . I have heretofore
found that nothing further was said at the March 18
meeting regarding bumping
Neither was anything said about bumping at the
April 8 meeting which followed . However , at this
meeting the Union lowered its sights to a 20-cent
wage increase but again the Respondent pleaded in-
ability to pay because many of its rigs were down.
At the June 17 meeting , the parties were again
silent as to bumping and the 20 -cent increase was
discussed once more, this time Thompson stated he
would have to take it back to his officers . Then, on
June 20, by phone, Thornton informed Howell that
Respondent desired to put the 20-cent wage in-
crease into effect and Howell countered to the ef-
fect that he wanted an early negotiation date so
that the wage increase could be incorporated into a
new contract . To this Thornton replied that he was
afraid Howell was going to say that.
129
Finally at the July 1, 1969 , meeting which fol-
lowed the June 20 phone conversation , the parties
agreed on virtually every point in dispute including
wages, with the Union making most of the conces-
sions. But when Howell asked if the Respondent
would sign a contract then and there Thompson
countered with a proposal to put the wage increase
into effect without a signed agreement and added a
statement to the effect that he wanted to look over
the bumping procedures and had to take the bump-
ing procedures back to his people for discussion
Howell then became angry , refused Thompson's
request , and the meeting broke up with no agree-
ment and no contract.
Thereafter , on July 13 , without consultation with
the Union or a written contract the Respondent put
the 20 -cent across-the-board wage increase into ef-
fect
The General Counsel contends that the Respon-
dent 's proposal to put the wage increase into effect
when it would not, as yet, enter into a complete
written agreement , and Respondent's last moment
demand to reconsider the bumping procedures
were maneuvers to keep from signing an agreement
and an indication that Respondent never intended
to enter into a collective-bargaining agreement with
the Union . I agree.
When the Respondent submitted its counter-
proposal on March 18 no mention was made of any
doubts or disagreement with the bumping
procedures except for some suggested grammatical
changes. Certainly , this indicated agreement with
the bumping procedures proposal . Thus the
Thompson demand at the July 1 meeting to review
the bumping procedures after all other items had
been agreed upon , and after Respondent had earli-
er indicated its consent to the bumping procedures,
constituted a maneuver on the part of the Respon-
dent to avoid entering into an agreement with the
Union . This conclusion is strengthened by other
considerations.
First there is the request of Respondent to place
the wage rate increases into effect before a whole
agreement was reached and a contract signed. This
was followed by the unilateral effectuation of wage
increases on July 13 accompanied by speeches by
President Thompson to the effect that the Respon-
dent wanted to give the employees a wage raise but
the Union did not want this to be done without a
contract , and that Thompson did not intend to
enter into a contract with the Union.
The foregoing , I find , constitutes ample evidence
that Respondent did not ever intend to enter into
agreement with the Union and thereby the Respon-
dent failed to bargain in good faith in violation of
Section 8 ( a)(5) and (1) of the Act.
I come now to the talks given by Thompson in
the middle of July to the employees at the various
rigs and at Thompson 's Odessa yard . I have hereto-
fore found that at least at some of these speeches,
Thompson stated that he did not intend to enter
into an agreement with the Union It requires no
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
citations to substantiate a finding that these state-
ments by Thompson were violative of Section
8(a)(1) of the Act in that they discouraged the em-
ployees from supporting the Union and generally
discouraged the employees from engaging in con-
certed and union activity in violation of their Sec-
tion 7 rights.
Next to be considered is the question of the peti-
tions by the employees to the effect that they no
longer desired to be represented by the Union. As
set forth above, at at least two of the Respondent's
rigs, supervisors were directly responsible for the
posting of the petitions in the doghouses. That
these were not the isolated acts of over zealous su-
pervisors is demonstrated by the talks given by
Thompson to the men at the various rigs at approxi-
mately the same time. Thus, at rig 10, not only was
the petition urged and posted by the driller and tool
pusher on that rig, but in Thompson's talk to the
employees of that rig he stated, among other things,
that there was a petition being circulated calling for
a union election and said that if enough people
signed the petition he, Thompson, would be glad to
take it from there. Thompson added that some of
the petitions had been turned in and that if anyone
wanted them brought back he would be glad to
have them brought back so that the persons who
missed the opportunity to sign the first time around
would have a chance to sign up. He further stated
that the Union had outlived its usefulness and that
he was not going to sign a contract with the Union.
Again, at rig 2, on July 8, Thompson told the
gathered employees that he didn't need any "damn
Union out there running his business ." Thompson
then mentioned that the only way the employees
could get rid of the Union would be for at least half
the men to sign a petition to that effect. He also in-
formed the employees that the reason they had not
received a pay raise was because the Union would
not accept his offer of 20 cents per hour.
Thereafter, a petition did appear at rig 2.
Still another time at a meeting held on approxi-
mately July 15 in the offices of the Respondent
with employees present from various rigs, Thomp-
son said that he would put up a petition at the rigs
for his employees to sign to help them get the "Un-
ion out of the Company." It is unnecessary to
recite additional instances of similar speeches to
employees. It would be well to note, however, that
the petitions found their way to the Respondent
vice president's office and from there to Respon-
dent counsel 's office.
By reason of all of the foregoing I find and con-
clude that the Respondent through Thompson and
through its own supervisors solicited its employees
to sign petitions repudiating the Union. Such activi-
ty on the part of an employer has been held many
times by the Board to constitute violations of Sec-
tion 8(a)( I) of the Act. I so find in the instant
case.13
The final issue to be determined is whether the
Respondent violated its duty to bargain by refusing
to negotiate with the Union on and after July 25,
1969, on the ground it believed that the Union no
longer represented a majority of the Respondent's
employees. In contending that Respondent violated
its duty to bargain, the General Counsel asserts that
the Respondent's alleged belief was not grounded
on good faith and in any event, assuming that the
Union did in fact lose its majority status, the loss
was due to the Respondent's prior unfair labor
practices and, therefore, is no defense to the
Respondent's refusal to bargain
It is established that at the time of the expiration
of the old contract between the Respondent and
the Union the Union represented a majority of the
employees since Respondent conducted a poll and
the results showed a union majority. However, dur-
ing July 1969 the employees' petitions, to the effect
that they no longer desired the Union to represent
them, contained 125 signatures out of a possible
154. On the surface therefore, the Union had lost
its majority. But the cause of the loss of that majori-
ty must be examined.
I note first the protracted negotiations lasting
over a year during which only about 10 meetings
were held, due in great measure to the Respon-
dent's dilatory approach to the bargaining which I
have heretofore found to have violated the Respon-
dent's statutory obligation. I deduce from this that
this long period of bargaining, from which there
was little or no benefit which could inure to the em-
ployees, must have had a discouraging effect on the
employees and their relation to the Union. Finally,
after the July 1 meeting, the Respondent set out on
a course of conduct which, I find, was calculated to
discourage adherence to the union cause. As set
forth above, Thompson engaged in talks to the em-
ployees in which he placed the onus for their not
receiving wage increases on the Union; in which he
stated he would not sign a contract with the Union;
and in which he then attempted, and evidently suc-
ceeded in many cases, to persuade the employees
to sign the petitions expressing their desire to rid
themselves of the Union. In addition, certain super-
visors actually participated in posting the petitions
and in urging employees to sign.
While it is entirely possible that enough of the
employees might have withdrawn from the Union
voluntarily had the Respondent not engaged in un-
fair labor practices to have destroyed the Union
majority, the Respondent's conduct renders it im-
possible to determine how many employees would
have so withdrawn. It therefore must be concluded
that the defections of the Respondent's employees
from the Union were attributable, at least in large
" Winfield Mfg Co, Inc , 173 NLRB 733, sec III, B, William L Bonnell
Company, Inc, 170 NLRB No 14, sec 1, B, paragraphs ( c) and (d) and
sec 1, B , 2, Hurd Corporation , 143 NLRB 306, 318, and cases cited therein
A. W THOMPSON, INC 131
and undeterminable part , to the Respondent's un-
fair labor practices. Under these circumstances, the
union majority before the unfair labor practices will
be presumed to have continued as a matter of law.
Thus the loss of majority caused in whole or in part
by the Respondent's unfair labor practices does not
justify its refusal to bargain and, under the circum-
stances, the Respondent cannot be said to have en-
tertained a good-faith doubt as to the Union's
majority status .14 To hold otherwise would result in
permitting Respondent to profit from its own un-
lawful refusal to bargain.15
Therefore, by reason of all of the foregoing, I
find and conclude that since August 2, 1966, the
date of the Union's certification, and continuing to
all of the dates pertinent herein the Union has been
and is the bargaining representative for the pur-
poses of collective bargaining of all employees of
the Respondent in the unit described as follows:
All of the employees of the Respondent working
out of the Respondent's Odessa, Texas, facility, in-
cluding employees working on rigs in the following
counties: Yoakum, Terry, Gaines, Dawson, An-
drews, Loving, Winkler, Ector, Midland, Glasscock,
Reeves, Ward, Crane, Upton, Reagan, Pecos,
Crockett, Terrell, and Martin (all in Texas) and
Lea County, New Mexico, and including truck
drivers and maintenance employees working at the
Respondent's Odessa, Texas, facility, but excluding
office clerical employees, drillers, shop foremen,
truck foremen, guards and supervisors as defined in
the Act, as amended.
I further find and conclude that on the basis of
the record as a whole that in refusing to meet and
bargain after July 5, 1969, the Respondent has
refused to bargain in good faith with the Union as
the bargaining representative of its employees in
violation of Section 8(a)(5) of the Act as alleged in
the complaint herein.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III, above, occurring in connection with the
Respondent's operations described in section I,
above, have a close, intimate, and substantial rela-
tionship 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 certain unfair labor practices, it will be recom-
mended that it cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It having been found that the Respondent has in-
terfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of
the Act, it will therefore be recommended that the
Respondent cease and desist therefrom.
It has been found that Respondent has refused in
good faith to bargain collectively with the Union as
the exclusive representative of the employees in the
appropriate unit described herein. It will therefore
be recommended that the Respondent bargain col-
lectively, upon request, with the Union as the ex-
clusive representative of the employees in the ap-
propriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
Upon the basis of the above findings of fact, and
upon the entire record in the case, I make the fol-
lowing:
CONCLUSIONS OF LAW
1. A. W. Thompson, Inc., is an employer within
the meaning of Section 2(2) of the Act, and is en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 826, International Union of Operating
Engineers, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. By sponsoring and urging its employees to
sign petitions stating that its employees no longer
desire to be represented by the Union and by advis-
ing its employees that it was not going to sign a col-
lective-bargaining agreement with the Union,
Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act and in violation
of Section 8(a)(1) of the Act.
4. All employees of the Respondent working out
of the Respondent's Odessa, Texas, facility, includ-
ing employees working on rigs in the following
counties: Yoakum, Terry, Gaines, Dawson, An-
drews, Loving, Winkler, Ector, Midland, Glasscock,
Reeves, Ward, Crane, Upton, Reagan, Pecos,
Crockett, Terrell, and Martin (all in Texas) and
Lea County, New Mexico, and including truck
drivers and maintenance employees working at the
Respondent's Odessa, Texas, facility, but excluding
office clerical employees, drillers, shop foremen,
truck foremen, guards and supervisors as defined in
the Act, as amended, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
5. On August 16, 1966 , and at all times
thereafter, the Union was, and now is, the represen-
tative of a majority of the Respondent's employees
in the appropriate unit described above for the pur-
poses of collective bargaining within the meaning of
Section 9(a) of the Act.
" Movie Star , Inc , 145 NLRB 319, 340-341, affd in pertinent part 361
F2d346(CA 5)
" Franks Bros Company v NLRB , 321 U S 702
132 DECISIONS OF NATIONAL
6. By refusing, on February 1, 1969, and con-
tinuing to date, to bargain collectively with the
Union as the exclusive representative of all its em-
ployees 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)(5) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact, con-
clusions of law, and the entire record in the case,
and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, it is ordered that
the Respondent, A. W. Thompson, Inc., its part-
ners, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Urging and assisting employees to draft and
sign petitions to the effect that the employees no
longer desire to be represented by the Union.
(b) Advising employees that it will not sign a
collective-bargaining agreement with the Union.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of rights guaranteed them by Section 7 of the
Act.
(d) Refusing to bargain collectively with Local
826, International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of the
Respondent's employees in the unit described
below, concerning rates of pay, wages, hours of em-
ployment, and other conditions of employment:
All the employees of the Respondent working
out of the Respondent's Odessa, Texas, facility,
including employees working on rigs in the fol-
lowing counties: Yoakum, Terry, Gaines,
Dawson, Andrews, Loving, Winkler, Ector,
Midland, Glasscock, Reeves, Ward, Crane, Up-
ton, Reagan, Pecos, Crockett, Terrell, and
Martin (all in Texas) and Lea County, New
Mexico, and including truck drivers and main-
tenance employees working at the Respon-
dent's Odessa, Texas, facility, but excluding of-
fice clerical employees, drillers, shop foremen,
truck foremen, guards and supervisors as
defined in the Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union, as the exclusive representative
of its employees in the above-described unit, con-
cerning rates of pay, wages, hours of employment,
and other terms and conditions of employment and,
if an understanding is reached, embody such un-
derstanding in a signed agreement.
(b) Post at its Odessa, Texas, facility, and at all
the rigs operated by the Respondent, copies of the
attached notice marked "Appendix."ts Copies of
said notice, on forms provided by the Regional
LABOR RELATIONS BOARD
Director for Region 16, after being duly signed by
Respondent's authorized representative, shall be
posted by 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 Respon-
dent 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
Decision, what steps have been taken to comply
herewith. 17
16 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
" 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 EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT urge and assist employees to
draft or sign petitions to the effect that the em-
ployees no longer desire to be represented by
the Union.
WE WILL NOT tell our employees that we will
not sign a collective-bargaining agreement with
Local 826, International Union of Operating
Engineers, AFL-CIO.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of rights guaranteed
them by Section 7 of the Act.
WE WILL NOT refuse to recognize and bar-
gain collectively with Local 826, International
Union of Operating Engineers, AFL-CIO, as
the exclusive representative of our employees
in the unit described below, concerning rates
of pay, wages, hours of employment, and other
conditions of employment:
All employees working out of our Odessa,
Texas, facility, including employees work-
ing on rigs in the following counties:
Yoakum, Terry, Gaines, Dawson, An-
A. W. THOMPSON, INC.
drews, Loving, Winklcer, Ector, Midland,
Glasscock, Reeves, Ward, Crane, Upton,
Reagan , Pecos, Crockett, Terrell, and
Martin (all in Texas) and Lea County, Dated By
New Mexico, and including truck drivers
and maintenance employees working at
the Respondent's Odessa, Texas, facility,
but excluding office clerical employees,
drillers, shop foremen, truck foremen,
guards and supervisors as defined in the
Act.
WE WILL bargain collectively upon request
with the above-named Union, as the exclusive
representative of our employees in the above-
described unit concerning rates of pay, wages,
hours of employment, and all other conditions
of employment and, if an understanding is
reached, we will embody such understanding in
a signed agreement.
A. W. THOMPSON, INC.
(Employer)
(Representative ) (Title)
133
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 8A24 Federal Office Building, 819
Taylor Street, Fort Worth, Texas 76102, Telephone
817-334-2921.
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