Leatherwood Drilling Co.

National Labor Relations Board - Board Decisions

Jan 23, 1970

180 N.L.R.B. 893 (N.L.R.B. 1970)

LEATHERWOOD DRILLING COMPANY
Leatherwood Drilling Company and International
Union of Operating Engineers , AFL-CIO, Local
826. Case 16-CA-3553
January 23, 1970
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 14, 1969, Trial Examiner Harry R.
Hinkes issued his Decision in the above-entitled
proceeding, finding that Respondent had not
engaged in the unfair labor practices alleged in the
complaint and recommending that the complaint be
dismissed, as set forth in the attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Decision and a
supporting brief, and Respondent filed an answering
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 Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner' s findings, conclusions, and
recommendations.
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
orders that the complaint herein be, and it hereby is,
dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY R. HINKES , Trial Examiner: Pursuant to an
original charge filed on February 26, 1969, and amended
on March 11, 1969, by International Union of Operating
Engineers, AFL-CIO, Local 826, hereinafter called the
Union, and served on such dates upon Leatherwood
Drilling Company, herein called the Employer or the
Respondent, a complaint bearing Case 16-CA-3553 was
issued on April 30, 1969, alleging that the Respondent
discharged and failed to recall Paul Trayler, supervisor,
because he had disobeyed the Respondent's instructions to
commit an unfair labor practice and that the Respondent
discharged and refuse to recall three of its employees
because they had joined or assisted in union or concerted
activities. Said acts were alleged to be violations of
Section 8(a)(I) and (3) of the Act, respectively. By answer
893
duly filed Respondent admitted the jurisdictional
allegations of the complaint as well as the supervisory
status of its agents named in the complaint. While
admitting that supervisor Trayler had not been recalled, it
denied the discharge of said Trayler as well as the
discharge of its employees in violation of the Act and the
complaint's allegations of any instructions to commit an
unfair labor practice.
A hearing was held before me at Odessa, Texas, on
June 3, 1969, at which all parties were represented and
were afforded full opportunity to participate, examine
witnesses, and adduce relevant evidence. Briefs have been
received from the Respondent and the General Counsel
after which a communication was received from counsel
for the Respondent pointing out certain alleged errors of
fact in the brief of the General Counsel. Counsel for the
General Counsel replied to the Respondent's
communication but at the same time moved that said
communication be stricken and not considered inasmuch
as no rule of the Board provides for reply briefs to the
Examiner. Rule 102.42 of the Board provides for the filing
of briefs before the Trial Examiner but no mention is
made of reply briefs, either permitting them or prohibiting
them. With due regard to Section 102.35 setting forth the
duty of a Trial Examiner "to inquire fully into the facts"
and in the exercise of the discretionary powers conferred
upon a Trial Examiner by that section I deny the motion
of General Counsel to strike the communication of
counsel for the Respondent.
Upon the entire record in this proceeding, I make the
following.
FINDINGS OF FACT
1. JURISDICTION
Respondent is, and has been at all times material
herein, a corporation duly organized under and existing by
virtue of the law of the State of Texas, maintaining its
principal office and place of business in Kermit, Texas,
where it is engaged in the business of drilling gas and oil
wells. During the past year the Respondent in the course
and conduct of its business operations performed services
valued in excess of $100,000 of which services valued in
excess of $50,000 were performed in states other than the
State of Texas wherein the Respondent is located. The
complaint alleges, Respondent's answer admits and I find
that 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.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent's answer admits and
I find that International Union of Operating Engineers,
AFL-CIO, Local 826, is- a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
In its drilling business Respondent divides the day into
three shifts, each shift having a driller and a three or four
man crew commonly referred to as "roughnecks." The
drillers are responsible for hiring, firing and supervising
their crews. The Respondent operates several rigs and,
when a well is completed, the rig is taken down, a process
180 NLRB No. 141
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
referred to as "stacked." When a new job opens up the
Respondent will contact a driller and tell him when and
where he and his crew are to report for duty. In the
interim , however, the driller and his crew are still
considered employed by the Respondent even though they
may work temporarily for another employer. The only
condition the Respondent imposes is that the employer
report for duty when it has work available. The
Respondent's vacation and hospitalization programs are
based upon this policy.
B. The Discharge and Refusal to Recall
Paul Trayler had been employed by the Respondent as
a driller since May 1967. There is no dispute among the
parties that as a driller for the Respondent he held a
supervisory position.
Early in January 1969 he was informed around
midnight to report with his crew the next morning at 8
a.m. to start drilling on rig No. 2. Trayler's crew
consisted of roughnecks Wright, Keller and Grey. Between
midnight and the next morning he was able to get only
one of three roughnecks to the job (Wright), one of the
other two having been hired by the Respondent to work as
a driller (Grey) and the third (Keller) not reached. That
morning Paul Leatherwood, Respondent's vice president,
came out to the jobsite and asked Trayler where his other
hands were. Trayler explained that he did not have time to
get a full crew together on such short notice. According to
Trayler, Vice President Leatherwood then told him to
"stay away from that union hall and . . get rid of those
union hands." Vice President Leatherwood, however,
testified that when he found Trayler did not have a full
crew he told him that he had to get some help, whereupon
Trayler replied that "hands is hard to come by."
Leatherwood then replied "You might try somewhere
besides the union hall." He denied saying anything about
getting rid of any of his hands.
In any event Trayler kept Wright and Keller and hired
a third roughneck, Smith, whom he procured through
Keller, not knowing whether Smith was union or
nonunion. All three roughnecks came from Hobbs, New
Mexico, area. Trayler and his crew of Wright, Keller and
Smith continued to work for the Respondent and on or
about February 8 stacked rig No. 2. With the stacking of
rig No . 2 Trayler's employment , as well as that of his
crew, ended. None of these employees worked for the
Respondent thereafter.
The parties agree that Trayler is a supervisor for the
Respondent within the meaning of the Act. Counsel for
the General Counsel argues that supervisors are protected
against harsh discrimination if they refuse to commit
unfair labor practices for the Employer , citing Talladega
Cotton Factory. Inc . 106 NLRB 295. In this instance
counsel for the General Counsel contends that Trayler
refused to get rid of his union hands , allegedly as
instructed by the Respondent, and that his failure to obey
that alleged instruction , which would have been a violation
of the Act, was the reason for Respondent's failure to
recall Trayler after rig 2 was stacked.
The first issue to be decided is whether or not Paul
Leatherwood told Trayler to get rid of his union hands. I
have considered the record very carefully as well as the
demeanor of both men as they testified . I have concluded
that the testimony of Paul Leatherwood is more
persuasive on the issue. Counsel for the General Counsel
argues that Trayler should be credited because of the
timing of the instruction, citing the fact that the Union
had started its organizational activity and a representation
case had been held during the latter part of December
1968 shortly before the conversation between the two men.
Counsel for the General Counsel further contends that the
Respondent knew that an election was forthcoming in the
very near future and was trying to get as many nonunion
employees as possible. Respondent also knew that the
Union's strength was in New Mexico rather than in
Texas. Assuming that the Respondent was anxious to
obtain nonunion help before the election was held, an
assumption, however, which is not convincingly supported
by the record, it nevertheless remains unproven that the
Respondent instructed Trayler to get rid of his union
hands except for the testimony of Trayler. That testimony,
however, was specifically contradicted by Paul
Leatherwood who explained that he needed employees and
it would be unreasonable for him to have suggested the
discharge of any employee under those circumstances
particularly since Trayler's inability to have a full crew
meant a loss of truck time and an increase of expense to
the Respondent. Counsel for the General Counsel further
argues that the Respondent's "message was to get rid of
his union hands," whether or not Leatherwood said it,
simply because Leatherwood was so unreasonable in
complaining about Trayler reporting to work with less
than a full crew with the short notice given. Leatherwood
explained, however, that when he spoke to Trayler that
morning he was not aware that Trayler had been called as
late as midnight the night before. Moreover he had no
idea where Trayler was getting his crew and suggested
Trayler try "somewhere else besides the union hall" only
after Trayler had complained that "hands is hard to come
by . ,,
I credit the testimony of Paul Leatherwood in this
respect and conclude that Trayler was not instructed by
the Respondent to get rid of his union hands.
Assuming arguendo that Trayler was so instructed by
the Respondent, it still remains to be determined whether
the Respondent's failure to recall him after rig No. 2 was
stacked was due to Trayler's failure to carry out that
instruction.
As noted earlier rig No. 2 on which Trayler and his
crew were working was stacked on or about February 8,
and it was the practice of the Respondent to retain such
workers as employees, e.g., for hospitalization and
vacation purposes, until they were recalled. C. B.
Leatherwood, president of the Respondent, testified that
many times if the Company knows a rig will be down for
several days or perhaps for I week before it is scheduled
to start up again the Company would make cleanup work
available for the crew in the meantime. Its practice,
however, was not followed at all times. In this case no
substitute work was provided for Trayler or his crew after
February 8 but there is no evidence that the Company
knew the rig would start up again soon. On February 12
Respondent started up rig No. 3 using the same crew that
had been working on rig 3. That crew had completed the
well on which it was working but 2 days before it
restarted on the new well. Both wells were being dug for
the same customer and although the start up of that rig
involved some dismantling of the rig at the first well and
its movement to the second well, it did not involve any
separation of the substructure or the removal of the rotary
cable which was done when rig 2 was stacked. According
to Paul Leatherwood whose testimony I credit, the
Company would hardly consider rig 3 a rig going down.
Rig 2 was started up again on February 20. Trayler
was not recalled for that operation. Instead, Respondent
LEATHERWOOD DRILLING COMPANY 895
used two of the three drillers who had been working on its
rig No. 10 and who had been in layoff status for about I
month, or longer than Trayler and his crew. Moreover,
these two drillers had more seniority than Paul Trayler.
The third driller for that rig was Meredith who had been
in the employ of the Respondent for about 3 months for
seniority purposes. He had last worked on rig No. 5 which
had stacked on February 19th and Respondent
immediately transferred Meredith to rig No. 2. Paul
Leatherwood testified credibly that he thought Meredith
was a superior worker and would do a better job as driller
than Trayler. Indeed, it appears that Respondent has
promoted Meredith since that time to a more responsible
position.
On February 24 Union Business Agent Benson called
C. B. Leatherwood inquiring whether rig No. 2 had
started up again. Leatherwood told him it had and Benson
asked him why the same hands were not back working on
it. According to Benson, Leatherwood then asked him if
Trayler had been down to the union office talking to
Benson to which Benson replied that Trayler had not, but
that his crew had been. Benson further testified that
Leatherwood told him that he would discharge Trayler
and "that would take care of the crew." According to
Leatherwood, however, Benson told him that Leatherwood
could not discriminate against the hands at Hobbs to
which Leatherwood replied they were not trying to
discriminate. Benson then asked him "What about
Trayler?" to which Leatherwood replied "If Paul Trayler
has been coming to you he is my supervisor and works
for me -- and it is my understanding he does not go to
the union for help. Since he is coming to you then I will
see he does not come back out." Leatherwood added,
however, that he told Benson that the crew could go to
work for any of the drillers that worked for the Company
and that he never gave any of his drillers any instructions
regarding Trayler' s crew.
Benson admitted that Leatherwood told him Trayler's
crew could go to work for other drillers of the Respondent
and counsel for the General Counsel admits "We may
assume that Leatherwood did tell Benson that the crew
could go to some other driller ." Benson testified further,
however, that he asked Leatherwood who the drillers were
that the crew could work for and that Leatherwood said
he would have to find out who they were. Leatherwood,
on the other hand, testified that he could not recall
Benson asking for the drillers ' names . He'added , however,
that if Benson had asked him he would have gone to the
records and got the names for him . He further explained
that he could not then and could not at the hearing
remember the names of the drillers on his rigs. In any
event, there is no record evidence that Trayler's crew
applied for work to the Respondent or to any of its
drillers after February 8. Similarly there is no record
evidence that Trayler's crew was recalled by the
Respondent until May 12, 1969, when it sent letters to
Wright, Keller and Smith notifying them that pursuant to
settlement efforts between the parties the driller on rig 2
had agreed to hire each of them as a roughneck.
C. Conclusions
Counsel for the General Counsel contends that
Trayler's discharge violated Section 8(a)(1) of the Act on
the theory that he was fired because he did not get rid of
his union crew as instructed. It must be noted, however,
that the employment of Trayler and his crew was
undisturbed until February 8, when rig 2 was stacked.
Thereafter in accordance with Respondent's practices he
and his crew were in layoff status, subject to recall. The
issue , therefore, is the legality of Respondent's admitted
refusal to recall Trayler and its failure to recall his crew.
I have found that Respondent refused to recall Trayler
because it had the impression that Trayler had gone to the
Union for help The parties appear to agree that
Respondent's refusal to recall supervisor Trayler for that
reason would not violate the Act Talledaga Cotton
Factory, Inc., supra
Moreover, I have concluded that Trayler was told
simply to try somewhere besides the union hall when he
complained that hands were hard to come by. There was
no instruction for him to get rid of his union hands. It
follows, therefore, that Trayler violated no instruction to
get rid of his union hands. Respondent's refusal to rehire
him cannot be traced to Trayler's refusal to obey such
instruction.
I have further concluded that Trayler's so-called
discharge was not due to his failure to carry out the
alleged instruction even if we assume arguendo that such
an instruction was given. Counsel for the General Counsel
argues that Respondent had no intention of recalling
Trayler even before Benson spoke to C. B. Leatherwood
about Respondent's failure to recall Trayler and his crew.
He points to the fact that Trayler was not recalled when
rig 3 started up on February 12. Respondent, however,
credibly explained its failure to recall Trayler when rig 3
started up with testimony to the effect that Respondent
did not consider that rig as having gone down because of
the special circumstances involving that rig which was not
completely dismantled and which continued to drill for the
same customer. Similarly, Respondent credibly explained
its failure to recall Trayler and his crew when rig 2 started
up again on February 20. There, Respondent used two
drillers who had more seniority than Trayler and who had
been in layoff status longer than Trayler. The third driller
was Meredith whom Respondent considered more able
than Trayler. Paul Leatherwood explained that in
selecting a driller for a rig that is starting up, Respondent
"looks at their drive ... at the qualification of not only
being a driller, but how good a crew he does have . .11
He added that he uses both the factors of ability and
seniority, elaborating that he would "put the one out there
that I think will do the best job . . . but if I have got the
seniority boy that is about the equal line, I am going to
take the one with the most seniority." This testimony was
uncontradicted, Trayler admitting that he did not know
whether Respondent "went by seniority or not." I,
therefore, conclude that there is insufficient evidence that
Respondent's decision not to recall Trayler was made
before February 24. Instead, I find that Respondent made
that decision on February 24 when in C. B. Leatherwood's
conversation with Benson it got the impression that
Trayler had visited the union hall for help.
Counsel for the General Counsel further contends that
the Respondent fired Trayler in order to discriminatorily
dispose of his crew. He cites the common practice in the
drilling industry for the employer to hire a driller and
leave it up to the driller to secure his own crew.
Moreover, the discharge of a driller is tantamount to a
discharge of his crew since each driller hires his own crew.
Nevertheless, for a violation of Section 8(a)(3), it is
necessary to find that the Respondent's objective was the
discharge of the crew for their union activity. In support
thereof counsel for the General Counsel cites the fact that
Benson told Leatherwood the crew had come to him for
help. Further, he cites Benson 's testimony that C. B.
896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leatherwood told him the Respondent was using crews
from Texas rather than from New Mexico where it
believed the Union was stronger . In addition he cites the
behavior of the Respondent ' s attorney during the
Leatherwood election which was held on February 11,
1969 At that time the observer for the Union was one
Emory Land , an employee who had been a business
representative for the Union previously . The Respondent's
attorney angrily objected to Land 's presence , accusing the
Union of sending Land down from New Mexico to
Leatherwood ' s operations in order to organize the
Leatherwood Drilling Company . Finally, counsel for the
General Counsel cites Paul Leatherwood 's impatience with
Trayler and Respondent ' s displeasure with Trayler for
having gone to the Union for help as it mistakenly
believed.
In sum , it is the position of the counsel for the General
Counsel that the Respondent "can discriminate against
the drillers" as it pleases but that it is a violation of
Section 8 (a)(3) when the discrimination of the driller is
aimed at the employees.
I find that the counsel for the General Counsel has not
sustained his burden of proof in establishing that
Respondent 's discrimination towards Trayler was aimed at
the employees . Assuming that the Respondent knew that
the crew had gone to Benson for help and was anxious to
secure nonunion help from Texas rather than union help
from New Mexico , I have nevertheless concluded that the
Respondent told Benson the crew could work for any of
the other drillers and has never refused to recall any of
Trayler ' s crew . In this respect it is important to note that
the initial responsibility for the hiring of roughnecks lies
with the driller , not with the Respondent . The record is
devoid of any evidence to indicate that any of
Respondent ' s drillers refused to hire Trayler's crew.
Indeed , it appears that Trayler 's crew made no application
for employment with any other driller. Trayler' s discharge
did not interfere with the right of his crew to be recalled
by the Respondent ' s drillers or to apply for employment
with such drillers . Nor has Respondent deviated from its
established practice in its selection of drillers for a rig that
is starting up or in the selection of crews to work for that
driller.
CONCLUSIONS OF LAW
1. Respondent has not instructed its supervisor Trayler
to commit an unfair labor practice against the
nonsupervisory employees.
2. Respondent has not discharged or refused to recall
supervisor Trayler for his failure to obey such an
instruction
3. Respondent has not discharged or refused to recall
Trayler' s crew.
4. Respondent has not violated Section 8(a)(1) or
Section 8 (a)(3) of the Act as alleged in the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , I recommend that the complaint in
this case be dismissed in its entirety.