Brahaney Drilling Co.

National Labor Relations Board - Board Decisions

Jun 2, 1969

176 N.L.R.B. 289 (N.L.R.B. 1969)

BRAHANEY DRILLING COMPANY
Brahaney Drilling Company and Local 826,
International Union of Operating Engineers,
AFL-CIO. Case 16-CA-3443
June 2, 1969
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS, AND ZAGORIA
On March 6, 1969, Trial Examiner Fannie M.
Boyls issued her Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices 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 exceptions to the
Trial Examiner' s Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has 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
exceptions, the brief, and the entire record in this
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Brahaney
Drilling Company, Midland, Texas, its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FANNIE M. BoYLs , Trial Examiner: This case was
heard before me in Odessa, Texas, on January 21, 1969.
The complaint was issued on October 15, 1968, based
upon a charge filed on October 7 , 1968. It alleges that
Respondent , Brahaney Drilling Company, Inc., violated
Section 8 (a)(5) and (1) of the Act by unlawfully refusing
to bargain with Local 826 , International Union of
Operating Engineers , AFL-CIO, herein called the Union.
Respondent filed an answer , admitting that it had refused
to bargain with the Union but denying , for reasons
hereinafter set forth , that its refusal to bargain was
unlawful . After the conclusion of the hearing , the General
Counsel and Respondent filed briefs , which have been
carefully considered.
289
Upon a consideration of the briefs of the parties and
the entire record in this case, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation having its principal
office and place of business in Midland, Texas, from
which headquarters it is engaged in the business of drilling
oil and gas wells in the Permian Basin area in Texas and
New Mexico. During the 12-month period preceding the
issuance of the complaint, Respondent, in the course and
conduct of its business operations, performed services
valued in excess of $50,000, of which amount services
valued in excess of $50,000 were performed in states other
than the State of Texas. Respondent concedes and I find
that it is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. I further find that it will
effectuate the policies of the Act to assert jurisdiction
herein.
11. THE LABOR ORGANIZATION INVOLVED
Local 826, International Union of Operating Engineers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. POSTURE OF THIS CASE AND ISSUES PRESENTED
This case comes to me in an unusual posture . Normally
issues which were or could have been litigated in a
representation proceeding may not be litigated or
relitigated in a refusal-to-bargain unfair labor practice
case based upon the underlying representation proceeding.
The Trial Examiner would be bound by the Board's
decision in the representation case and would be in no
position to overrule the Board , regardless of whether he
agreed or disagreed with the Board.' Both Respondent and
the General Counsel in this case , however , assert that
because of a special reservation in the Stipulation for
Certification Upon Consent Election in the representation
case , Respondent is entitled in this unfair labor practice
case to present evidence in support of its contention that
the Board's requirements for voter eligibility as set forth
in Hondo Drilling Company, N.S.L., 164 NLRB No. 67
and Carl B. King Drilling Co., 164 NLRB No. 68, are not
applicable to Respondent.'
The special reservation in the Stipulation for
Certification Upon Consent Election to which the parties
refer , consists of the following provision:
Hearing and notice thereof , Direction of Election, and
the making of Findings of Fact and Conclusions of Law
by the Board prior to the election are hereby expressly
waived ; provided, however , that this Stipulation for
Consent is without waiver of or prejudice to the
Employer 's right to contest and litigate through
'Pittsburg Plate Glass Co. v. N L R. B., 313 U.S. 146, 162; Rules and
Regulations , National Labor Relations Board, Series 8, as amended July
8, Sections 102.67 (f) and 102.69 (c).
'In those companion cases involving employment patterns of employees
of oil well drilling companies in the Permian Basin area (in which
Respondent is also located ), the Board fashioned a formula, described
infra, for compiling voter eligibility lists which it believed would fairly and
realistically resolve the question of voter eligibility in representation
elections for employees similarly situated. See also Moran Oil Producing
and Drilling Corporation, 174 NLRB No. 26, Wek Drilling Co. Inc., 174
NLRB No. 92; and 32nd Annual Report of NLRB, p. 66-67.
176 NLRB No. 34
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
objections to the election , Section 8 ( a)(5) procedures or
otherwise the validity of or applicability of the
particular voter eligibility rule followed by the Regional
Director for the employees of this Employer in this
election, pursuant to direction of the National Labor
Relations Board in Hondo Drilling Company , N.S.L.,
164 NLRB No. 67 and Carl B. King Drilling Co., 164
NLRB No. 68.
Although I have some misgivings as to whether the
General Counsel and Respondent have properly
interpreted this provision to permit Respondent to adduce
in this complaint case evidence which it was afforded an
opportunity to adduce but failed to adduce in the
underlying representation case , I have accepted that
interpretation for the purpose of this case and have
received all evidence proffered on the issue as to the
propriety of applying to Respondent the voting eligibility
rule applied by the Board in the Hondo and King cases
cited above . This rule or formula , sometimes referred to
as the Hondo rule , provides that the unit employees
eligible to vote should include not only those appearing on
the employer 's payroll immediately preceding the issuance
of the Regional Director ' s Notice of Election (subject to
the normal qualifications pertaining to eligibility ), but also
those employed by the employer for a minimum of 10
working days during the 90-calendar day period preceding
the issuance of the Direction of Election , who have not
been terminated for cause or quit voluntarily prior to the
completion of the last job on which they were employed.
IV. THE REPRESENTATION PROCEEDING
Pursuant to the Stipulation for Consent signed by
Respondent and the Union on March 21, 1968, an
election was conducted on April 11. The Tally of Ballots
showed that out of 23 eligible voters , 18 (including one
challenged voter) cast ballots - 11 of them for and 6
against the Union. Respondent thereafter filed timely
Objections to the Election, contending that the Hondo
rule for determining eligibility of employees to vote was
inapplicable to Respondent ' s operations.
The Regional Director on July 2, 1968, issued his
Report on Objections , reciting , inter alia, that although
Respondent had been requested to supply evidence in
support of its objections, Respondent had failed to do so
and, instead, had merely furnished the names of eight
persons on the eligibility list whom it claimed were not
employees of Respondent and had insisted on a hearing on
its objections . He concluded that since all eight of the
persons whose right to vote Respondent was then
challenging were on the eligibility list furnished by
Respondent pursuant to the Hondo formula and no
evidence had been furnished to show the inapplicability of
that formula to Respondent's operations, the objections
should be overruled.
Respondent on or about July 10, 1968 filed Exceptions
to the Report on Objections , reiterating its contention that
it had a right , pursuant to the reservation in the
Stipulation for Consent hereinbefore quoted , to a hearing
on the applicability of the Hondo formula to its
operations.
The Board , on September 11, 1968, issued its Decision
and Certification of Representatives, overruling
Respondent 's exceptions , adopting the Regional Director's
findings , conclusions and recommendations and certifying
the Union as the representative of Respondent's
employees in the agreed upon appropriate bargaining unit.
V. THE EVIDENCE ADDUCED IN THIS UNFAIR LABOR
PRACTICE PROCEEDING
The evidence adduced in this case bearing upon the
applicability to Respondent of the voter eligibility formula
applied by the Board in the companion Hondo and King
cases , and comparable data shown in the latter cases, are
set forth below.
From its base or principal place of business in Midland,
Texas, Respondent drills wells in the Permian Basin
located in the western part of Texas and the eastern part
of New Mexico, pursuant to contracts with various oil
companies.' Respondent owns five rigs but all of them are
rarely in operation at any one time. During the period
between January 1966 and February 1968, which
Respondent contends is a representative period, it
operated an average of only 2.08 rigs at one time. This
compares with an average of 2 or 3 operated by Hondo
and 1.81 operated by King.
Because of the size of Respondent 's rigs , Respondent
contracts to drill wells between 9,000 and a maximum of
13,500 feet deep. A deep well would normally take longer
to drill than a shallow well and employees remaining for
the entire drilling period would accordingly be employed
for a longer period of time on a deep than on a shallow
well. During the period between January 1966 and
February 1968, it took Respondent an average of 56 days
to drill a well.' Hondo, which drills wells to a maximum
depth of 11,000 feet, took an average of only 18 days to
drill a well . King , on the other hand, which drills to a
maximum of 20,000 feet, took an average of between 60
and 70 days to drill a well.
Each of Respondent's rigs, when in use , operates on a
24-hour basis. This means that three crews of men, each
normally working 8 hours a day, 7 days a week, are
needed to drill a well. Each crew at Respondent's wells
consist of five men , a driller , who is a supervisor, and four
employees called roughnecks.' Accordingly, for each 24
hour-day, the drilling of a well requires 3 drillers and 12
roughnecks . Occasionally , when a driller is temporarily
shorthanded, a roughneck may double and work two
"tours" or shifts. The driller normally hires his own men
and may also fire them. When hired by Respondent, the
driller is expected to furnish his own crew of roughnecks.
This is the general practice in the oil well drilling business,
at least in the Permian Basin area.
Drillers in the Permian Basin area have difficulty in
recruiting and keeping roughnecks who are readily
available for all drilling jobs . There are a number of
reasons for this situation . Among them are the great
distances which the men have to travel to and from their
homes and the situs of the wells , and their working
conditions. As one driller, Warren, testified, sometimes
they have to travel about 100 miles each way for 8 hours
'The Board found in the Hondo case that the Permian Basin
encompasses some 95,000 square miles
This average has been figured from the data embodied in Resp . Exh. 2,
the schedule of operating days for Respondent 's five rigs during the period
from January 1966 thru February 1968. This schedule shows that the
average drilling time per well for Rig No . I was 55 . 5 days; for Rig No. 2,
47.2 days (excluding the first 9 days listed on the schedule because that
well had been commenced in 1965 ); for Rig No. 3, 55 .4 days ; for Rig No.
4, 73.4 days (excluding the first 43 days entry because that well had been
commenced in 1965 ); and for Rig No . 6, 47.71 days (excluding the first
entry of 37 days and the last entry of 4 days because the first entry
represents a well commenced in 1965 and the last entry represents a well
completed subsequent on February 1968).
'The roughnecks consist of a motorman , derrickman , and two floormen.
BRAHANEY DRILLING COMPANY
of work. The wells are seldom near highways and are
often not easily accessible. The 7-day weeks the men are
required to work, with no holiday except at Christmas and
even then only if the well can safely be shut down, make
prolonged periods of work unpleasant, if not unbearable.
Moreover, even if a roughneck desired to continue work,
without a break, upon completing one well, there is no
assurance that work with Respondent on another well will
be immediately available or that its situs will be within a
commutable distance. The roughneck, if he does not wish
to stop and rest between drilling jobs, may find more
readily available work, or work closer to his home, with
some other drilling company and not be available for
work on the next well Respondent may be preparing to
drill.
Respondent's records show that during the year 1967,
which it represents to be typical, the roughnecks on its
payroll worked an average of only 32 days each.6 This
compares with an average of 34 days per year for each
roughneck working for Hondo and an average of 44 days
per year for each roughneck working for King.
Of the 228 roughnecks who worked for Respondent
during 1967, 51 of them worked on two or more rigs and
they averaged 100 days of work. At Hondo, out of 224
roughnecks working in 1 year, 53 worked on two or more
rigs and averaged 88 days of work. No corresponding
figures appear in the King case . It does appear in that
case, however, that out of 174 roughnecks employed in 1
year, 21 were regularly available for work with King and
averaged 201 days per year and that of the remaining 153
roughnecks, 89 percent had no prior employment history
with King; 48 of the total number worked 44 days or
more.' The 21 longest employed by Respondent averaged
159 days.
A comparison of Respondent's operations and its
pattern of employment with those set forth by the Board
in the Hondo and King cases shows much similarity and
no significant differences with respect to the pertinent
facts. It is accordingly found that the formula for voting
eligibility established by the Board in the Hondo and King
cases was properly applied in this case and that the Union
was validly certified on September 11, 1968 as the
representative of Respondent's employees in the
appropriate bargaining unit. Respondent concedes that on
or about September 12, 1968 and thereafter the Union
requested it to bargain collectively and that Respondent
has continuously refused this request.
CONCLUSIONS OF LAW
1. All derrickmen, motormen and floorhands, otherwise
referred to as roughnecks, employed by Respondent in the
drilling of oil wells in the area known as the Permian
Basin , but excluding all tool pushers, drillers, office
employees, technical employees, professional employees,
'Reap . Exh. I shows that 228 roughnecks worked a total of 7 ,339 8-hour
days during the 10 -month period when Respondent's rigs were operating in
1967. The record affords no explanation as to why no rigs were operating
in March and April of that year.
'An examination of Resp . Exh. I shows that only four roughnecks
worked for Respondent for more than 200 days in 1967 . A stipulation
entered into by the parties (G. C. Exh. 3), however, shows that between
April I, 1967 and March 31 , 1968, 43 of the total of 204 roughnecks
employed by Respondent during that period worked more than 50 days, 9
of them working for more than 200 days . King, unlike Respondent, had
hospitalization benefits and a vacation plan for employees working for
substantial periods of time and this fact may have contributed to longer
periods of service by some of its roughnecks.
291
guards and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
2. Since September 11, 1968, Local 826, International
Union of Operating Engineers, AFL-CIO, has been the
certified and exclusive representative of all employees in
the aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(a) of the Act.
3. By refusing on or about September 12, 1968, and at
all times thereafter to bargain collectively with the
above-named labor organization as the exclusive
bargaining representative of all its employees in the
appropriate unit, Respondent has engaged in and is
engaging in an unfair labor practice within the meaning of
Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that Respondent has engaged in
and is engaging in an unfair labor practice within the
meaning of Section 8(a)(5) and (1) of the Act, my
Recommended Order will require that it cease and desist
therefrom and, upon request , bargain collectively with the
Union as the exclusive representative of all employees in
the appropriate unit and , if an understanding is reached,
embody such understanding in a signed agreement.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is hereby ordered:
A. For the purpose of determining the effective period
of the certification, the initial year of certification shall be
deemed to begin on the date Respondent commences to
bargain in good faith with the Union as the recognized
bargaining representative in the appropriate unit described
herein below.'
B. Brahaney Drilling Company, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Local 826,
International Union of Operating Engineers, AFL-CIO,
as the exclusive bargaining representative of the employees
in the following appropriate unit:
All derrickmen, motormen and floorhands, otherwise
referred to as roughnecks, employed by Respondent in
the drilling operations in the area known as the
Permian Basin , but excluding all tool pushers, drillers,
office employees, technical employees, professional
employees, guards, and all supervisors as defined in the
Act.
(b) In any like or related manner interfering with,
restraining or coercing employees in the exercise of their
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
The purpose of this provision is to insure that the employees in the
appropriate unit will be accorded the services of their selected bargaining
representative for the period provided by law. See Mar-Jac Poultry Co.,
Inc., 136 NLRB 785; Commerce Co. d/b /a Lamar Hotel. 140 NLRB 226,
229, enfd . 328 F 2d 600 (C.A. 5), cert . denied, 379 U .S. 817, Burnett
Construction Co., 149 NLRB 1419, 1421 , enfd . 350 F .2d 57 (C.A. 10).
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Upon request, bargain collectively with Local 826,
International Union of Operating Engineers , AFL-CIO,
as the exclusive representative of the employees in the
aforesaid appropriate unit with respect to rates of pay,
wages , hours of work , and other terms and conditions of
employment , and embody in a signed agreement any
understanding reached.
(b) Post at its Midland , Texas , headquarters copies of
the attached notice marked "Appendix ."' Copies of said
notice, on forms to be furnished by the Regional Director
for Region 16, after being duly signed by an authorized
representative of Respondent , 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 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
Recommended Order, what steps it has taken to comply
herewith.' e
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT refuse to bargain collectively with
Local 826, International Union of Operating Engineers,
AFL-CIO, as the exclusive representative of the
employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, upon request , bargain with the
above-named Union , as the exclusive representative of
all employees in the bargaining unit described below
with respect to wages , hours, and other terms and
conditions of employment , and, if an understanding is
reached , embody such understanding in a signed
agreement.
The bargaining unit consists of:
All derrickmen , motormen and floorhands , otherwise
referred to as roughnecks , excluding tool pushers,
drillers , office employees , technical employees,
professional employees , guards and supervisors as
defined in the Act.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read . "Notify the Regional Director for
Region 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
BRAHANEY DRILLING
COMPANY, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 8A24 Federal
Office Building , 819 Taylor Street, Fort Worth, Texas
76102, Telephone 334-2921.