Chaparral Drilling Co.

National Labor Relations Board - Board Decisions

Apr 29, 1970

182 N.L.R.B. 198 (N.L.R.B. 1970)

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Joe Smith and Ray Boling d/b/a Chaparral Drilling Com-
pany and Local 826, International Union of Operating
Engineers , AFL-CIO. Case 16-CA-3766
April 29, 1970
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND
JENKINS
On December 31, 1969, Trial Examiner Harold X.
Summers issued his Decision in the above-entitled pro-
ceeding granting General Counsel's motion for summary
judgment on the ground that there are no unresolved
issues requiring an evidentiary hearing and finding that
the Respondent had engaged in and was engaging in
certain unfair labor practices within the meaning of
the National Labor Relations Act, as amended. The
Trial Examiner recommended that the Respondent cease
and desist from such unfair labor practices and take
certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the National
Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel.
We have carefully reviewed the Trial Examiner's
Decision, the exceptions and brief and the entire record
in this case and in the representation case. We find
that the Board's voting eligibility rule set forth in Hondo
Drilling' was properly applied in this case and that
the disposition of the Respondent's other objections
was correct and requires no hearing. We therefore adopt
the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Rela-
tions 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, Joe Smith and Ray Boling d/b/a Chaparral
Drilling Company, Midland, Texas, their agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
Hondo Drilling Co , 164 NLRB 416
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The Issue
The case arises on a motion of counsel for the General
Counsel for judgment on the pleadings, urging that,
despite denials contained in the answer, any issues sought
to ^ be raised thereby have already been litigated in a
prior related representation proceeding; that, therefore,
there are no litigable issues herein; and that, on the
pleadings viewed in the light of the disposition of the
issues in the representation case, the violations alleged
in the complaint herein should be found without a hear-
ing.
Since a disposition of the motion presents matters
outside the pleadings, it should more properly be labeled
a motion for summary judgment, and I shall so treat
it.'
The Representation Proceeding2
A petition seeking certification as bargaining agent
for certain of the employees of Joe Smith and Ray
Boling d/b/a Chaparral Drilling Company (herein referred
to as Respondent) was filed under Section 9(c) of the
Act by the Charging Party herein, Local 826, Internation-
al Union of Operating Engineers, AFL-CIO (hereinafter
called the Union). Pursuant to notice, a hearing thereon
was held before a Hearing Officer of the National Labor
Relations Board on May 13, 1969. At the hearing,
Respondent raised an issue, inter alia, with respect
to (1) the applicability, under the circumstances of the
Hondo Drilling voting eligibility rule3 and (2) the validity
of said rule.
On May 14, 1969, the Regional Director issued a
Decision and Direction of Election in which he discussed
and rejected Respondent's contentions with respect to
Hondo Drilling. On June 2, the Board denied Respond-
ent's request for a review of the Decision and Direction,
which request was grounded completely upon the Hondo
Drilling issue.
Pursuant to the Decision and Direction of Election,
an election by secret ballot was conducted on June
9, 1969, under the direction and supervision of the
Regional Director to determine the question of represen-
tation. Upon the conclusion of the balloting a tally
of ballots was served to all parties which showed that
of approximately 15 eligible voters, 10 cast ballots for
the Union and 5 cast ballots against the Union. Three
ballots were challenged. The challenged ballots were
not sufficient in number to affect the results of the
election.
On June 16, 1969, the Employer filed timely objections
to election, and conduct affecting the results of the
election, alleging, in substance, the following:
' Rules of Civil Procedure for the United States District Courts,
as amended to July 1, 1966, rule 12(c)
S Administrative or official notice is taken of the record in the represen-
tation proceeding, Case 16-RC-5178, as the term "record" is defined
in Secs 102.68 and 102 69(f) of the Board's Rules (Rules and Regulations
and Statements of Procedure, National Labor Relations Board, Series
8, as amended) See LTV Electrosystems, Inc , 166 NLRB 938, enfd
388 F 2d 683 (C A 4, 1968), Golden Age Beverage Co , 167 NLRB
151, enfd 415 F 2d 26 (C.A 5, July 7, 1969), Intertype Co v Penello,
269 F Supp 573 (D C Va , 1967), Intertype Co. v. N L R B , 401
F 2d 41 (C A 4, 1968), Follett Corp , 164 NLRB 378, enfd 397 F 2d
91 (C.A 7, 1968), Sec 9(d) of the National Labor Relations Act
3 So-called after the Board's decision in Hondo Drilling Co , 164
NLRB 416
182 NLRB No. 32
CHAPARRAL DRILLING CO.
1. That the voting place was closed before the
time scheduled on the notice of election, and that
for this reason it was impossible for voters who
came to vote to enter the building and vote.
2. That eligible voters had been threatened with
physical violence if such voters did not support
the Union and cast "yes" votes in the election.
3. That the notice of election was not furnished
to Respondent in sufficient time to furnish adequate
notice to the employees of the pending election.
4. That the eligibility rule in the Hondo Drilling
case was not applicable to the Employer and was
therefore improperly applied.
5. That the Union failed and refused to cooperate
to the fullest extent in the preparation and compila-
tion of a list containing current addresses of all
eligible voters, thereby' making it impossible for
all voters to be notified.
On August 12, 1969, the Regional Director issued
a Supplemental Decision and Certification of Representa-
tive, in which he discussed each of the above objections,
along with the related evidence. Specifically (among
other things), he concluded that, assuming a premature
closing of access to the voting place, the voting results
could not have been affected, he concluded that whatever
was now being urged as to the Hondo Drilling rule
had been fully considered at the original hearing, and
he concluded that the Union had in fact accorded the
cooperation in furnishing voters' addresses which was
required; and he certified the Union as the exclusive
representative of the employees in the appropriate unit.
Once again , in the form of exceptions, Respondent
requested a review of the Regional Director's action,
making specific reference to the issues of a premature
closing of the polling place, the Hondo Drilling rule,
and the alleged failure of the Union to cooperate in
furnishing voters' addresses; once again, the Board
affirmed the Regional Director.
The Instant Unfair Labor Practice Case
On October 7, 1969, _the Union filed the unfair labor
practice charge initiating this proceeding and, on October
20, 1969, filed the first amended charge, alleging that
Respondent had refused and continued to refuse to
bargain with the Union.
On October 17, 1969, the Regional Director issued
a complaint and notice of hearing alleging that the
Respondent had committed unfair labor practices in
violation of Sections 8(a) (1) and (5) and 2(6) and (7)
of the Act, by refusing and continuing to refuse to
bargain collectively with the Union as the exclusive
collective-bargaining representative of all the employees
in the appropriate unit described hereinafter. '
On Noveitiber 25, 1969, the Respondent filed its
answer to complaint and notice of hearing in which
it admitted most of the material allegations of the com-
plaint but denied the commission of unfair labor prac-
tices. The answer admitted that since on or about Sep-
tember 23, 1969, the Respondent has refused and contin-
ues to refuse to meet and bargain collectively with
199
the Union, denying only that a majority of the employees
in the appropriate bargaining unit selected the Union
as their bargaining agent and that the Union has been
or is their exclusive bargaining agent.
On November 25, 1969, counsel for the General Coun-
sel filed a motion for judgment on the pleadings on
the ground that Respondent's answer raised no issue
not already disposed of in the representation proceeding,
but that, in fact, it admitted violations of Section 8(a)(1)
and (5) of the Act. On November 26, 1969, I issued
an order to show cause on General Counsel's motion
for judgment on the pleadings returnable December 10,
1969. On December 10, 1969, the Respondent filed a
response to the order; no responses have been received
from the other parties.
Ruling on Motion for Judgment on the Pleadings -
The Respondent opposes the motion for judgment
on the pleadings on three grounds: (1) the alleged prema-
ture closing of the polling place, (2) the alleged failure
of the Union to cooperate in furnishing addresses of
eligible voters, and (3) the alleged inapplicability and
the alleged invalidity of the Hondo Drilling rule. These
are among the grounds raised and passed upon in the
related representation proceeding. Thus, Respondent
merely reinterates issues and argument previously con-
sidered and decided by the Board.
It is established Board policy, in absence of newly
discovered or previously unavailable evidence, not to
permit litigation before a Trial Examiner in an unfair
labor practice case of issues which were or could have
been litigated in a prior related representation proceed-
ing.4 This policy is applicable even though no formal
hearing on objections has been provided by the Board.
Such a hearing is not a matter of right unless substantial
and material issues are raised.5 Respondent does not
claim to present any newly discovered or previously
unavailable evidence. Respondent does state that there
are genuine substantial material fact issues which have
never been litigated in an adversary proceeding before
the Board, which contention I do not find to be sustained.
There are thus no unresolved matters requiring an
evidential hearing. The General Counsel's motion for
judgment on the pleadings-treated herein as a motion
for summary judgment-is consequently granted.
On the basis of the record I make the following:
Kneger-Ragsdale & Co , Inc , 159 NLRB 490, enfd 379 F.2d
517 (C.A 7, 1967), cert denied 389 U S 1041, NL R.B V Macomb
Pottery Company, 376 F 2d 450 (C A 7, 1967), Howard Johnson Compa-
ny, 164 NLRB 801, Metropolitan Life Insurance Company, 163 NLRB
579 See Pittsburgh Plate Glass Co v N L.R B , 313 U.S 146, 162
(1941), NLRB Rules and Regulations , Secs 102 67(f) and 102.69(c)
' 0 K Van Storage, Inc, 127 NLRB 1537, enfd 297 F.2d 74
(C.A 5, 1961) See Air Control Products of St Petersburg, Inc , 335
F 2d 245, 249 (C A 5, 1964) "If there is nothing to hear, then a
hearing is a senseless and useless formality " See also N L R.B v
Bata Shoe Company, 377 F 2d 821, 826 (C A 4, 1967), cert denied
389 U S 917 "[t ]here is no requirement , constitutional or otherwise,
that there be a hearing in the absence of substantial and material
issues crucial to determination of whether NLRB election results are
to be accepted for purposes of certification "
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS,
I THE BUSINESS OF THE RESPONDENT
The Respondent is a'partnership consisting of Joe
Smith and Ray Boling doing business as Chaparral Drill-
ing Company with their principal office and, place of
business located in Midland; Texas, where it is, engaged
in the contract drilling of oil and gas wells in the ^ State
of Texas.
During the past 12-month period, which period is
representative of all times material herein, the Respond-
ent, in the course and conduct of its business operations,
performed services valued in excess of $50,000, of which
services valued in excess of $50,000 were performed
for McGrath & Smith, Incorporated; K. K. Amini;
Thornton Petroleum, ' a division of Reading & Bates
Drilling Company; King Resources Company, and have
received revenues in excess of $45,000 for services
performed for Getty Oil Company, all of which compa-
nies are engaged in interstate commerce within the mean-
ing of the Act. ' . i' ,
The Respondent is now, and has been at all' times
material herein , an,employer engaged in commerce within
the'meaning of Section 2(6) and (7) of the Act.1
II.- THE LABOR ORGANIZATION INVOLVED
The Union is now , and has been at all times material
herein, "a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The following employees of Respondent constitute
a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
All employees of the Employer at Midland, Tex-
as, including derrickmen , motormen , and floormen,
but excluding office clerical employees , guards, tool
pushers, drillers and supervisors as defined in the
Act.
On or about August 12, 1969 , the Board certified
the Union as the exclusive collective -bargaining repre-
sentative of the employees in the above described unit
with respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employment.
Since on or about September 23, 1969 , and at all
times thereafter, particularly on or about September
30, 1969 , the Respondent did refuse , and continues
to refuse to bargain collectively with the Union as
the collective -bargaining representative of the employees
in the appropriate unit.
By thus refusing to bargain collectively Respondent
has engaged in unfair labor practices in violation of
Section 8(a) (5) of the Act and has interfered with,
restrained , and coerced its employees in violation of
Section 8(a) (1) of the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
tUpon the foregoing findings and conclusions , pursuant
to Section 10(c) of the Act, I recommend that the
Board issue the following:
ORDER
Joe Smith and Ray Boling d/b/a Chaparral Drilling
Company, its officers,' agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing 'to bargain collectively with Local 826,
International Union of Operating Engineers , AFL-CIO,
as the exclusive collective -bargaining representative of
the employees in the following appropriate bargaining
unit:
All employees of the Employer at Midland, Tex-
as, including derrickmen, motormen, and floormen,
but excluding office clerical employees, guards, tool
pushers, drillers and supervisors as defined in the
Act. `
(b) Interfering with the efforts of said Union to negoti-
ate for or represent employees as such exclusive
collective-bargaining representative
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Local 826,
International Union of Operating Engineers ; AFL-CIO,
as the exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions
of employment, and embody in a signed agreement
any understanding reached.'
(b) Post at its place of business in Midland, Texas,
copies of the notice attached marked "Appendix."'
Copies of said notice, on forms provided by the Regional
Director for Region 16, shall, after being duly signed
by an authorized representative of the Respondent, be
posted by the Respondent immediately upon receipt
thereof, and be maintained by the Respondent for 60
" For the purpose of determining the duration of the certification,
the initial year of certification shall be deemed to begin on the date
the Respondent commences to bargain in good faith with the Union
as the recognized exclusive bargaining representative in the appropriate
unit The purpose of this provision is to insure that the employees
in the appropriate unit will be accorded the services of their selected
bargaining agent for the period provided by law See Mar-Jac Poultry
Co , 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140
NLRB 226, 229, enfd 328 F 2d 600 (C A 5, 1964), cert denied 379
U S 817, Burnett Construction Co , 149 NLRB 1419, 1421, enfd 350
F 2d 57 (C A 10, 1965)
In the event no exceptions are filed as provided by Sec 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 Sec 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 National 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 "
CHAPARRAL DRILLING CO
consecutive days thereafter in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered
defaced, or covered by any other material
(c) Notify the Regional Director for Region 16, in
writing, within 20 days from receipt of this
Recommended Order, what steps the Respondent has
taken to comply herewith B
9 In the event these recommendations are adopted by the Board
this provision shall be modified to read Notify the Regional Director
for Region 16 in writing within 10 days from receipt of this Order
what steps the 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 refuse to bargain collectively with
Local 826, International Union of Operating Engi-
neers, AFL-CIO, as the exclusive collective-bar-
gaining representative of all the following employ-
ees
All our employees at Midland, Texas, including
derrickmen, motormen, and floormen, but
excluding office clerical employees, guards,
201
tool pushers , drillers and supervisors as defined
in the Act
WE WILL NOT interfere with the efforts of the
Union to negotiate for or represent employees as
exclusive collective -bargaining representative
WE WILL bargain collectively with the Union
as the exclusive collective -bargaining representative
of the employees in the appropriate unit and, if
an understanding is reached , we will sign a contract
with the Union
Dated By
JOE SMITH AND RAY
BOLING D/B/A
CHAPARRAL DRILLING
COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
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
Any questions concerning this notice or compliance
with its provisions , may be directed to the Board's
Office, 8A24 Federal Office Building , 819 Taylor Street,
Forth Worth, Texas 76102, Telephone 817-334-2921