Nabors Alaska Drilling, Inc.

National Labor Relations Board - Board Decisions

Apr 8, 1998

325 N.L.R.B. 574 (N.L.R.B. 1998)

574
325 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Contrary to our colleague, we do not regard this as an appro-
priate case for considering the overruling of Board precedent on the
issue of nonmajority bargaining orders. Member Fox notes that the
8(a)(1) threats on which the Chairman relies were made by low-level
supervisors (‘‘toolpushers’’), and the only violation with demon-
strable widespread exposure in this unit of nearly 300 voters was the
denial of access violation, for which the proposed remedy is well
calculated to make possible a fair second election. Member Hurtgen
is of the view that Gourmet Foods, 270 NLRB 578 (1984), was cor-
rectly decided and would not reconsider it.
1 While Member Fox states that the remedy is inappropriate be-
cause ‘‘low level’’ supervisors were the parties who were engaged
in the threats, it is the combined effect of the discharges, denial of
access and the threats, discussed infra, which make the remedy ap-
propriate.
Nabors Alaska Drilling, Inc. and Alaska State Dis-
trict Council of Laborers, AFL–CIO. Cases 19–
CA–24152 and 19–RC–13080
April 8, 1998
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HURTGEN
On March 27, 1997, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the Charging Party-Petitioner filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt her recommended Order.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Nabors Alaska Drilling,
Inc., Anchorage, Alaska, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
[Direction of Second Election omitted from publica-
tion.]
CHAIRMAN GOULD, dissenting in part.
I agree with my colleagues that the Respondent has
engaged in unfair labor practices and objectionable
election conduct, as described both in this case and in
Nabors Alaska Drilling, Inc., 325 NLRB No. 105
(April 8, 1998), Cases 19–CA–24334, et al. (Nabors
II). I write separately because I find that the traditional
remedies imposed here, even coupled with the direc-
tion of a second election, are inadequate to restore to
the Respondent’s employees the truly free choice,
which Section 7 of the Act guarantees them, to decide
whether or not they want the Union to be their collec-
tive-bargaining representative. In accord with the Su-
preme Court’s remedial analysis in NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969), I would order the
Respondent to recognize and to bargain with the Union
for a reasonable period of time, and I would overrule
Board precedent holding that the Board lacks authority
to impose a remedial bargaining order in the absence
of a showing that a union has at one time achieved
majority support among the employees it seeks to rep-
resent.1
The Respondent’s employees work at remote oil
drilling sites in Alaska. Their work schedule involves
2 weeks on and 2 weeks off. During the nonwork peri-
ods, they disperse widely. Despite the considerable ob-
stacles to communications imposed by these cir-
cumstances, the Union had already secured authoriza-
tion cards from approximately 49 percent of these em-
ployees when it petitioned for a Board election on Sep-
tember 1, 1995. Thereafter, the Respondent com-
menced a vigorous antiunion campaign among its cap-
tive employee audience at the remote drilling camps.
At the same time, it denied the Union’s request for ac-
cess to those camps to deliver its organizational mes-
sage. Consequently, the Union was severely hindered
in its attempts to counter the Respondent’s campaign.
I agree with my colleagues and the judge that this de-
nial of access was unlawful under the narrow inacces-
sibility exception to the general rule precluding non-
employee organizational access to private property. See
NLRB v. Babcock & Wilcox, Inc., 351 U.S. 105
(1956); and Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992).
Furthermore, not all of the Respondent’s election
campaign statements were lawful. At one mandatory
employee meeting, Supervisor Laverne Linder unlaw-
fully threatened that employees would ‘‘lose their
asses’’ if the Union came in. In another instance, Su-
pervisor Rod Klepzig threatened employees that the
Respondent could find out how they voted and that
after the election union organizers would be run off.
Notwithstanding the fact that the Union stood within
a hairsbreadth of a showing of majority support when
it filed an election petition, it lost the mail ballot elec-
tion held 2 months later by a considerable margin. And
the Respondent’s unfair labor practices did not cease
with the electoral defeat of the Union. Within 3
months, it discharged three employees whom it knew
or suspected were union activists. As found by the
judge and affirmed by the Board in Nabors II, these
discharges violated Section 8(a)(3) and (1) of the Act.
They also gave meaning to Supervisor Klepzig’s
preelection threat.
My colleagues have imposed traditional remedies for
the Respondent’s misconduct: the posting of notices to
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575NABORS ALASKA DRILLING, INC.
2 Bradford Dyeing Assn., 4 NLRB 604, 617–618 (1937), affd. 310
U.S. 318 (1940).
3 H. W. Elson Bottling Co., 155 NLRB 714, 715–716 (1965).
4 Bok, The Regulation of Campaign Tactics in Representative
Elections Under the National Labor Relations Act, 78 Harv. L. Rev.
38, 138–139 fn. 274 (1964).
5 United Dairy Farmers Cooperative Assn. v. NLRB, 633 F.2d
1054 (3d. Cir. 1980). The court cited the opinions of the Fourth,
Fifth, and Tenth Circuit in support of its analysis. Id. at 1066 fn.
13.
6 In Linden Lumber Division v. NLRB, 419 U.S. 301 (1974), the
Supreme Court affirmed the Board’s holding that if an employer has
not committed any unfair labor practices it may reject evidence of
a card majority and insist that a union petition for an election. Obvi-
ously, that issue is not presented here and, therefore, I do not pass
on it. However, I note that the Court’s affirmance of the Board was
predicated on deference to our expertise, which leaves us free to re-
verse the decision in Linden Lumber. In this regard, see my concur-
ring opinion in Monson Trucking, 324 NLRB No. 149 (Oct. 31,
1997), explaining the basis for our capacity to reverse the Supreme
Court’s decision in Pattern Makers League v. NLRB, 473 U.S. 95
(1985).
employees, reinstatement and backpay for the unlaw-
fully discharged employees, nullification of the first
election, and the direction of a second election. These
remedies alone will not restore the status quo as of
September 1, 1995. More is required.
In my view, the situation here demands our revival
of a potent remedy that the Board wrongly discarded
14 years ago in Gourmet Foods, 270 NLRB 578
(1984). A majority there held that the Board lacked the
authority to issue a remedial bargaining order, even in
the most egregious cases of employer misconduct dur-
ing an organizational campaign, if the organizing union
had never achieved a showing of majority support. I
would overrule Gourmet Foods.
From the Act’s inception, bargaining orders have
played a prominent role in the Board’s remedial
scheme. As early as 1937 employer unfair labor prac-
tices have been combated with bargaining orders,2 but
their use had always been restricted to situations where
majority support for a union had been shown to exist
at some relevant time. In fact, the Board had expressed
serious doubt that the Act even permitted it to issue a
so-called nonmajority bargaining order, even where
there was a ‘‘strong possibility’’ that, but for the em-
ployer’s unfair labor practices, a union majority would
have been attained.3
Others expressed a different view. Most notably, in
1965, Professor Bok advocated the limited use of non-
majority bargaining orders as a step in the develop-
ment of more effective Board remedies for employer
unfair labor practices. He wrote about the situation
where
[b]y indulging in unfair labor practices, the em-
ployer has made it impossible to ascertain what
the decision of the majority would have been in
a free election. But there is a strong possibility
that the union would have prevailed, in view of
the support which it had already gained among
the employees. Although the Board could order an
election after ruling on the unfair labor practices,
such an election might not provide an accurate in-
dication of what would have occurred but for the
employer’s violation, both because changes in
personnel may have seriously altered the composi-
tion of the unit and because of the lingering ef-
fects of the serious unfair practices. Under these
circumstances, it would be consistent with accept-
ed remedial principles to prevent the employer
from capitalizing on the uncertainty created by his
own unlawful acts and to resolve even substantial
doubts against by conferring representative status
on the union. See, e.g., Bigelow v. RKO Radio
Pictures, Inc., 327 U.S. 251, 265 (1946).4
This concept of a nonmajority remedial bargaining
resurfaced in NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In that seminal case, the Supreme Court
referred to a class of unfair labor practices so ‘‘out-
rageous’’ and ‘‘pervasive’’ that a fair and reliable elec-
tion would be impossible. It suggested the possibility
that in ‘‘category 1’’ violations of this kind the Board
might consider a bargaining order ‘‘without need of in-
quiring into a majority status on the basis of cards or
otherwise.’’ Id. at 613–614. Still, the Board did not act
on the remedial initiative suggested by this dictum
until several years later, after the Third Circuit ex-
pressly held that the language in Gissel signaled the
Supreme Court’s view that, notwithstanding the strong
majoritarian principles inherent in the Act’s guarantee
of employee free choice on matters of collective-bar-
gaining representation, the Board had the statutory au-
thority to issue a remedial bargaining order in excep-
tional cases without a prior showing of majority union
support.5
On remand of this case from the Third Circuit, the
Board finally issued its first ever nonmajority bargain-
ing order in United Dairy Farmers Cooperative Assn.,
257 NLRB 772 (1981). The Board followed up with
another such order the next year in Conair Corp., 261
NLRB 1189 (1982), enf. denied in pertinent part 721
F.2d 1355 (D.C. Cir. 1983). The D.C. Circuit, over a
vigorous dissent from Judge Wald, denied enforcement
of that order and became the only Federal court of ap-
peals to hold that the Board lacked the authority to
issue a remedial bargaining order, regardless of the se-
verity of an employer’s unfair labor practices, in the
absence of a quondam majority showing. The Board
accepted the D.C. Circuit’s view in Gourmet Foods,
Inc., 270 NLRB 578 (1984), and that has been the law,
with little further comment, until now.6
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576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See NLRB v. Armcor Industries, 535 F.2d 239, 244 (3d Cir.
1976); J. P. Stevens Co. v. NLRB, 441 F.2d 514, 519 (5th Cir.
1971), cert. denied 404 U.S. 830 (1971); NLRB v. Montgomery Ward
& Co., 554 F.2d 996, 1002 (10th Cir. 1977); NLRB v. S. S. Logan
Packing Co., 386 F.2d 562 (4th Cir. 1967).
The focus of the Court’s rationale in Gissel is one
of remedy, i.e., to eliminate the incentive and actuality
of profit from wrongdoing under the statute. The Court
of Appeals for the Third Circuit, speaking through
Judge Higginbotham, properly noted that, ‘‘[a]bsent
legal intervention many employers have the capability,
by threat or exercise of economic power, to coerce the
employees’ choice of a representative.’’ United Dairy
Farmers, supra at 1066. In some circumstances, as the
court noted, traditional remedies such as cease-and-de-
sist orders, reinstatement and rerun elections break
down when employees have been effectively deterred
by serious or egregious unfair labor practice conduct.
Under some circumstances the ‘‘reparative actions’’ of
the Board will not suffice. Id. at 1067.
Though the matter was not precisely posed to the
Court in Gissel, the opinion appears not to question the
Fourth Circuit’s view that in certain cases bargaining
orders are appropriate ‘‘without need of inquiry into
majority status on basis of cards or otherwise.’’ NLRB
v. Gissel Packing Co., 395 U.S. at 613–614. Except for
Justice (then Judge) Ginsburg’s view in the majority
opinion in Conair v. NLRB, 721 F.2d 1355 (D.C. Cir.
1983), all of the courts confronted with the issue, like
the Third Circuit, appear to have assumed that bargain-
ing orders in the absence of a card majority are appro-
priate under some circumstances.7 And as Judge Wald
noted in her dissent in Conair:
[T]he principle of majority rule was always dis-
cussed in the context of an employer’s bargaining
obligations or the employees’ representation
choices; it was never discussed as a limitation on
the Board’s powers. Indeed, the Act’s major spon-
sor, Senator Wagner, explicitly approved the pos-
sibility of a remedial bargaining order in the ab-
sence of a current majority when he approved the
result in Texas & New Orleans Railroad Co. v.
Brotherhood of Railway & Steamship Clerks, 281
U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034
(1930). . . . In addressing that case, Senator
Wagner implicitly acknowledged that strict appli-
cation of the principle of majority rule must
sometimes give way to the need to remedy illegal
employer practices in order to permit employees
genuine freedom of choice. Id. at 1395.
As Judge Wald noted, the legislative history with re-
gard to nonmajority bargaining orders is silent. Thus,
the express statutory policy is central to resolution of
this issue.
The principal argument against such orders is that
they contravenes the Act’s majority rule policy set
forth in Section 9(a), i.e., that ‘‘[r]epresentatives des-
ignated or selected . . . by the majority of the employ-
ees in a unit . . . shall be the exclusive representative
of all the employees in such unit for the purposes of
collective bargaining.’’ I cannot accept this contention.
As Judge Wald herself notes such a position exalts
the right to refrain over the right to engage in con-
certed activity under the Act. This idea, as Judge Wald
noted, proceeds upon the ‘‘unjustified premise that the
employees’ right to reject collective bargaining is more
important than their right to choose it . . .’’ Conair,
at 1397. This assumption is inconsistent with the pre-
amble of the Act which does not even speak of the
right to refrain but sets forth the Act’s statutory core
as one which is predicated upon both freedom of asso-
ciation and the public policy in favor of the practice
and procedure of collective bargaining.
Where, as here, it is reasonable to conclude that but
for the Respondent’s lawlessness the Union would
have attained a card majority, I do not find that the
principle of majority rule is undermined by issuance of
a nonmajority bargaining order. In fact, just the oppo-
site is true. As Judge Higginbotham observed in
United Dairy Farmers, 633 F.2d at 1068:
[t]he failure to recognize the authority of the
Board to issue bargaining orders in these cir-
cumstances would undermine the underlying goal
of the Act to further the majority preference of all
employees. Unions which would have attained a
majority in a free and uncoerced election if the
employer had not committed unfair labor practices
would be deprived of recognition merely because
of the employer’s illegal conduct.
Furthermore, to deny a bargaining order in the face of
what I find here were ‘‘outrageous’’ and ‘‘pervasive’’
violations envisioned by the Gissel category 1 para-
digm, would permit the coercive effects of the Re-
spondent’s misconduct to go virtually unremedied and
thereby defeat for the foreseeable future the Section 7
right of employees to make a free choice in selecting
a bargaining representative. The facts of this case dem-
onstrate the validity of these two points.
The Union began its organizing drive in May and,
by the time it filed its representation petition on Sep-
tember 1, it had the support of 49 percent of the unit
employees. The Respondent then began its own cam-
paign against unionization, a campaign that included
unlawful threats of job loss, surveillance, and retalia-
tion against union advocates, and that culminated in
the postelection discharge of union supporters. The
lasting impression of these violations was greatly mag-
nified, in my view, by the Respondent’s unlawful de-
nial of access for the Union to communicate with em-
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577NABORS ALASKA DRILLING, INC.
8 Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
9 Supreme Court precedent in Lechmere did not permit such an ap-
proach in Loehmann’s Plaza, 316 NLRB 109, 114 (1995) (W.
Gould, concurring); Leslie Homes, Inc., 316 NLRB 123, 131 (1995)
(W. Gould, concurring).
10 See, e.g., my opinions in Mod Interiors, 324 NLRB No. 33
(Aug. 7, 1997); and Fountainview Care Center, 323 NLRB No. 172,
slip op. at 2–3 (June 16, 1997) (W. Gould, concurring) advocating
strict adherence to the rule in Excelsior Underwear, 156 NLRB 1236
(1966), that seeks to ensure that all employees are ‘‘exposed to the
arguments for, as well as against, union representation.’’ Id. at 1241.
See also my concurring opinion in Technology Service Solutions,
324 NLRB No. 49 (Aug. 22, 1997).
11 W. Gould, Agenda for Reform: The Future of Employment Rela-
tionships and the Law (MIT Press 1993).
1 The charge in Case 19–CA–24152 was filed by the Union on Oc-
tober 4, 1995. Three other cases, Cases 19–CA–24334, 19–CA–
24373, and 19–CA–24400, involving the postelection discharge of
three individuals, were also consolidated with this case for hearing.
A separate decision (JD(SF)21-97) treats those cases. Counsel for the
General Counsel’s unopposed motion to correct the transcript is
granted.
2 All dates are in 1995 unless otherwise referenced.
ployees. By assuring a communications monopoly at
its remote oil rig base camps, the Respondent gave
concrete example to the Orwellian maxim that ‘‘he
who controls the present, controls the past, and he who
controls the past controls the future.’’ Under the cir-
cumstances, there seems little prospect that any of the
Respondent’s employees who experienced this one-
sided election campaign and its aftermath would truly
be able to make a free and informed judgment about
union representation for a long, long time to come.
The importance of access rights cannot be gainsaid
in situations like this where employees are beyond the
reasonable reach of the Union to communicate its or-
ganizational message. Thus, in establishing the broad
presumption in Lechmere8 that nonemployee union or-
ganizers do not have access to an employer’s private
property, the Supreme Court thought it important to
except from this presumption those situations where, as
here, employees are generally inaccessible to union or-
ganizers away from the workplace. And during my
tenure at the Board, when authorized by the Act or Su-
preme Court precedent,9 I have repeatedly opposed
conduct by employers that has deprived employees
from learning the advantages of self-organization from
union representatives.10 No statutory right contained in
our national labor policy is more fundamentally sig-
nificant than that of the right to hear the union’s mes-
sage at the workplace. Therefore, when the effect of
access deprivation has prevented the Union here from
crossing the magical 50-percent threshold of employee
support, it seems perverse to withhold a remedy that
otherwise would have obtained if the Respondent’s
misconduct had taken place after a card majority had
been secured.
I have often stated my views that in many areas the
Board lacks effective remedies to combat unlawful be-
havior by employers and unions and therefore cannot
fully serve the Act’s purposes.11 In some instances,
only Congress can redress this situation. In the present
case, however, I see no good reason to refrain from
using a remedial tool that the Supreme Court and sev-
eral courts of appeals have suggested or held is within
the Board’s authority to use under circumstances such
as these. As the preceding analysis demonstrates, the
Respondent’s unfair labor practices are of a nature that
precludes any rational expectation that a fair election
among the employees can possibly take place in the
foreseeable future. We should utilize our remedial au-
thority to its fullest extent here and in future excep-
tional cases of outrageous and pervasive misconduct
when it is reasonable to infer that an uncoerced em-
ployee majority would otherwise have chosen union
representation. Not to do so would only reward this
Respondent for its serious and extensive flouting of the
Act, encourage others to engage in similar violations,
and thus ultimately to undermine and frustrate the poli-
cies and purposes of the Act.
George I. Hamano, Esq., for the General Counsel.
William F. Mede, Esq. and Patrick J. McCabe, Esq. (Owens
& Turner), of Anchorage, Alaska, for the Respondent.
Kevin Dougherty, Esq., of Anchorage, Alaska, for the Charg-
ing Party.
DECISION AND REPORT ON ELECTION
OBJECTIONS
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
These cases were heard in Anchorage, Alaska, on August
13–16, and October 1–4, 1996, and are based on a consoli-
dated complaint alleging that Alaska State District Council of
Laborers, AFL–CIO (the Union) was denied access to remote
camps to contact off-duty employees of Nabors Alaska Drill-
ing, Inc. (Nabors or the Respondent) for organizational meet-
ings in violation of Section 8(a)(1) of the Act.1 Consolidated
with the unfair labor practice cases are the Union’s objec-
tions to conduct affecting the outcome of a representation
election conducted November 20, 1995.2
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent is a State of Alaska corporation with its
main office and place of business in Anchorage, Alaska,
where it is engaged in the business of oil drilling services
throughout the State of Alaska. During the 12 months pre-
ceding issuance of the consolidated complaint, the Respond-
ent had gross sales of goods and services valued in excess
of $500,000, and sold and shipped goods or provided serv-
ices from its facilities within the State of Alaska to cus-
tomers outside the State or sold and shipped goods or pro-
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578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Nabors performs under contract with Shared Services Drilling, an
enterprise formed by the owners of Prudhoe Bay such as ARCO
Alaska, Inc. (ARCO), BP Exploration (Alaska), Inc. (BP), and
Unocal.
4 Management on the rigs included ‘‘drillers’’ who reported to
‘‘tool pushers,’’ both admitted supervisory classifications. The tool
pushers and drillers reported to the drilling superintendent, in charge
of all the rigs. In addition, a ‘‘company man’’ on each rig rep-
resented the oil company contracting with Nabors for drilling serv-
ices. Drillers traveled to and from the slopes with their crews. Tool
pushers ‘‘changed out’’ on Wednesdays.
5 Boarding passes were given out 1-1/2 hours before departure so
if employees wanted good seats, they arrived earlier than 1 hour in
advance.
6 The parties stipulated that 119 eligible voters worked on the
Prudhoe Bay rigs and, additionally, stipulated that 115 of these 119
were housed at the Peak base camp.
vided services to customers within the State, which cus-
tomers were themselves engaged in interstate commerce by
other than indirect means of a total value in excess of
$50,000. The Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act and that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Access
1. Background
Nabors drills for oil on arctic drilling rigs on the North
Slope of Alaska and in the Cook Inlet and Kenai Peninsula
areas in southern Alaska.3 Its North Slope operations consist
of four rigs in Prudhoe Bay and three rigs in the Milne Point
area. In addition, Nabors operates two rigs in southern Alas-
ka: a rig on Granite Point Oil Platform in Cook Inlet and an-
other rig in the Swanson River area. The Union attempted
to organize employees who worked on these nine rigs in the
spring and summer of 1995. Although the Union attained au-
thorization cards from 49 percent of the employees, it ulti-
mately lost the November 20 representation election con-
ducted by the NLRB. Timely election objections followed in-
cluding one objection which overlaps the access issue alleged
in the complaint. There is no dispute that Nabors denied the
Union’s request for access to the remote camps during the
preelection period.
2. The sites
The North Slope: Prudhoe Bay and Milne Point—Seventy-
seven percent of the eligible voters worked on the seven rigs
located on the North Slope. Nabors operations were in two
areas on the North Slope: Prudhoe Bay (rigs 2ES, 18E, 28E,
and 3S) and Milne Point (rigs 4ES, 27E, and 22E). Nabors’
North Slope employees regularly worked on these rigs for 2
weeks without break (with 12-hour, 7-day per week sched-
ules) and then had 2 weeks off. Approximately 119 Nabors
employees eligible to vote in the election worked on the 4
Prudhoe Bay rigs and approximately 112 Nabors employees
eligible to vote in the election worked on the 3 Milne Point
rigs for a total of approximately 231 eligible voters working
on the 7 North Slope rigs.
Nabors’ North Slope employees and supervisors4 flew to
the North Slope on Fridays from the Anchorage International
Airport using a Shared Services charter or Alaska Airlines
commercial flights. Many employees arrived at the Anchor-
age Airport at least 1 hour in advance of departure.5 The
northbound Prudhoe Bay employees flew into the Deadhorse
Airport, a facility with regularly scheduled daily jet service
by commercial air carriers such as Alaska Airlines. Prudhoe
Bay Hotel, a commercial hotel facility, is in close proximity
to the Deadhorse Airport. Typically, the northbound Milne
Point employees flew into Kuparuk Airport, located about 45
to 50 miles from the Deadhorse service area. Kuparuk Air-
port is not a public facility.
Crew ‘‘change outs’’ occurred on Fridays, with north-
bound Milne Point crews departing Anchorage on the morn-
ing charter and southbound crews returning in the afternoon.
Prudhoe Bay crews departed Anchorage in the afternoon and
southbound crews returned in the late afternoon. There were
approximately 30 to 35 Nabors’ employees on each of the
2 outbound flights that left the Anchorage Airport on Fri-
days. Similarly, anywhere from approximately 60 to 70
Nabors employees returned to the North Slope each Friday
on Shared Services charter.
Prudhoe Bay employees were housed in Deadhorse at the
Peak base camp (also referred to as the Kodiak base camp),
owned by Kodiak Oilfield Haulers, Inc., (KOH), a wholly
owned subsidiary of Nabors. KOH charges Nabors on a per-
man-day basis for each crew member housed at this camp.
KOH has delegated day-to-day management of the camp to
a third-party caterer, Universal Ogden Services (UOS).
About 115 of the employees eligible to vote in the election
were housed at the Peak camp, only half of whom were on
the Slope on any given day.6 The camp is not in a secured
area. There are three or four telephone booths available for
use by employees on each floor at the Peak base camp but
there are no personal phones in the living quarters. A mail
bag is sent up daily from Nabors in Anchorage to the Peak
base camp. Personal mail for the crew is included routinely
in the bags.
Employees working on Milne Point rigs 4ES and 22E
were housed at BP-owned Milne Point base camp. The par-
ties stipulated that Nabors had no control over access at
Milne Point base camp. Jerry Smith, human resources man-
ager for BP, testified that BP maintains security at Milne
Point but there is no policy against union access. About 65
of the employees eligible to vote in the election were housed
at this camp, only half of whom were on the Slope on any
given day. The crew of rig 27E lived at a wheel mounted
mobile camp which stayed with the rig.
The Milne Point camp had eight telephones available, four
on two floors. All phones were in public areas and were in
great demand. There was no official message procedure but
sometimes if employees were not available to receive a call,
someone would leave a note on the door of their room.
Nabors’ employees shared these facilities with employees of
other employers. Two or three televisions were provided at
Milne Point and the vast majority of employees had their
own TVs as well. Most employees watched CNN, movies,
or ESPN. The Anchorage Daily News was available for $1
while copies lasted. Radio reception was extremely poor in-
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579NABORS ALASKA DRILLING, INC.
7 A letter of September 25 from Sharp to Jim Denney, president
of the Respondent, requested access to meet with employees during
their off-duty time at ‘‘Trading Bay, Swanson River, Granite Point,
Milne Point, PEAK Camp, Any other Nabors satellite camps.’’
Denney did not receive this letter.
side the camps and could be obtained only from the Barrow,
Alaska station. No vehicles were available for employee use
nor was public transportation available. Mail was received
via the Nabors’ mail pouch. There were two bulletin boards
at Milne Point.
Access to the rig 27E camp, owned by Nabors, and lo-
cated on the Milne Point pad, is controlled by BP. Doyon
Universal Services caters the camp. About 45 of the employ-
ees eligible to vote in the election were housed at this camp,
only half of whom were on the Slope on any given day.
Camp 27E had two telephones on the same line. One of the
phones was close to employees’ rooms while the other was
by the drillers’ office. No radio reception is available through
the metal walls. One television was provided downstairs with
satellite reception. There was no Alaska station reception at
this camp. The main TV room controlled broadcast access
for all employees on their own private televisions. The camp
usually received one copy of the Anchorage Daily News. It
remained intact for only a short time. Mail was received
through the Nabors’ mail pouch. There was no private or
public transportation available. There were two bulletin
boards for employee use and one official bulletin board for
company notices.
Granite Point Oil Platform—The rig 156 camp is located
on the Granite Point Oil Platform in Cook Inlet off shore
from Kenai, Alaska. Access to the platform is restricted by
Unocal, the owner, to essential personnel. Access is via heli-
copter or work boat. About 29 unit employees (or 10 per-
cent) worked on this rig, only half of whom were present on
any given day. Prior to departure for the platform, the
Nabors crews gathered in the OSK (off shore Kenai) heliport
facility in Nikiski, Alaska. There are camp units for Nabors’
employees on the platform. The camp units are owned by
Nabors. The platform and camp are private property with ac-
cess restricted by Unocal to essential personnel. There is no
history of providing housing to the general public at this
camp.
Bufflehead Rig, Swanson River—Approximately 22 Nabors
employees eligible to vote in the election worked on rig 154
in the Swanson River area. The Nabors crews working on
this rig represented approximately 7 percent of the employ-
ees eligible to vote in the election. There was no camp in-
volved with this rig. These employees worked a 12-hour day,
lived at home, and commuted to the jobsite. The property on
which this rig is located was owned or leased by ARCO.
Employees drove to a parking lot where a company super-
visor waited and they were then transported to the rig by a
company vehicle.
3. The campaign
Prepetition Activity—The Union’s efforts to organize em-
ployees centered on the Anchorage Airport. Business Rep-
resentative and Organizer Tim Sharp conducted the bulk of
the campaign. He attempted to target departing employees in
the gate area. However, it was extremely difficult to know
which individuals worked for Nabors. Each Friday in May,
June, July, August, and September, the Union rented the
Susitna Room on concourse C. Employees arrived and de-
parted from concourse B. However, employees generally
were not available on their return from the North Slope be-
cause they had already been awake for 20 hours and still, in
many cases, faced a drive to their homes of some distance.
Prior to filing the representation petition in this case, the
Union circulated an undated flyer to Nabors’ employees
which generally described the election process and which
stated that the Union would not file for an election, ‘‘unless
we have a minimum showing of interest of 60 to 70% from
you and your co-workers.’’ The Union filed its representation
petition on September 1, 1995. At the time of filing, the
Union had obtained 143 signed authorization cards or ap-
proximately 49 percent of unit employees.
Petition and Request for Access—The petition was filed
on September 1. After the parties reached agreement on a
stipulated mail-ballot election on September 19, approved by
the NLRB Regional Director on September 25, the Union re-
quested access to Nabors’ remote camps for organizational
meetings by letter dated September 21, from Union Attorney
Kevin Dougherty to John Zenor, counsel for Nabors.7 In a
letter dated September 25, Zenor acknowledged receipt of the
Union’s September 21 letter and advised that Nabors was re-
searching the legal basis for the access request and stated
that, for the time being, the Union’s request for access was
denied.
By letter dated October 2, Zenor wrote to Dougherty set-
ting forth Nabors’ ‘‘formal reply’’ denying union non-
employee organizers access to Nabors’ campsites for em-
ployee meetings. On October 4, the Union filed unfair labor
practice charge, Case 19–CA–24152, regarding Nabors’ de-
nial of the Union’s request for campsite access by non-
employee organizers. Despite the pendency of the unfair
labor practice charge, the Union decided to proceed to an
election.
Postpetition Campaign and Election Results—The Union
relied on prounion employees to distribute literature on the
North Slope. It also sent mailings to employees’ homes and
continued distributing literature at the Anchorage Airport.
Some of these mailings urged employees to call the Union
and set out the Union’s phone number. However, Sharp testi-
fied that it took about a week for the Union to respond to
Nabors’ statements because the Union had to wait for crew
change outs up to a week later to find out about Nabors’
campaign. The Union was unable to secure the Susitna Room
at the Anchorage Airport on a monthly basis after Septem-
ber.
On one occasion, Jeff Couture, an openly prounion em-
ployee, received permission from Danny Abear, tool pusher
on Rig 4ES, to talk with his hands. Jeff Couture told Bryan
Buzby, his tool pusher on 27E, about this at noon and Buzby
said it would be fine. However, when Jeff Couture attempted
to use the Nabors truck to get to the rig, Buzby told him he
could not use it. There was no other way to reach the rig
so Couture abandoned his effort.
Laverne Linder, tool pusher at 22E, recalled a conversa-
tion with Jeff Couture and Brian Buzby in late September in
which Jeff Couture asked if he could show prounion videos.
Linder said he would have to find out. Linder later told
Buzby that it would be permissible for Jeff Couture to show
the video to consenting nonworking employees at rig 27E.
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580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Linder did not know if Buzby relayed this information to Jeff
Couture.
The Union received the Excelsior list on October 2. The
Excelsior list, as originally submitted, indicated that 82 em-
ployees had Anchorage addresses (17 of these were not street
addresses but, rather, post office boxes or rural route boxes);
152 employees were listed with Alaska addresses outside of
Anchorage (and of these, 124 were not street addresses); and
57 employees lived outside the State of Alaska (with 16 of
these addresses not being street addresses). After revisions
were made to the Excelsior list for inaccurate or wrong ad-
dresses, Nabors concluded that 95 employees had addresses
in the greater Anchorage metropolitan area (from Girdwood
in the south to Chugiak in the north); 73 employees had ad-
dresses in the Matanuska-Susitna (Mat-Su) Valley area in-
cluding Wasilla, Palmer, east to Sutton and north to Willow;
58 employees had addresses in the greater Kenai/Soldotna
area including Anchor Point (including 20 to the 22 employ-
ees who worked on rig 154 and commuted daily to work);
7 employees had addresses in out-State Alaska; and 58 had
addresses in States other than Alaska.
Utilizing the Excelsior list as well as phone numbers it ob-
tained from some authorization cards, the Union was able to
find 175 phone numbers. Telephone calls and house calls
were made in an attempt to reach off-duty employees. Jeff
Couture participated in the house call effort. Only about 1
address in 40 yielded an actual employee. The hunting and
fishing seasons were in full swing. Many addresses were post
office boxes or mail drops. Some of the addresses were
wrong or the person no longer lived there. He also partici-
pated in telephoning. He called about 150 employees and
succeeded in reaching about 15 of them. Tim Sharp esti-
mated 1 successful contact resulted in 30 house calls. He
said the Union was never able to deduce which employees
were on the Slope and which were on leave at any given
time.
Duane Allen, international representative for the Union,
came from Idaho to assist in the postpetition campaign effort.
He visited the van pool site for the Swanson River rig but
employees appeared to go directly from their cars to the
company van where a supervisor waited. He also attempted
to reach the helipad area but it was posted ‘‘No Trespass-
ing.’’ Eventually, he reached one employee and through this
employee, was able to meet with three or four more employ-
ees. Allen also made house calls in the Kenai area and aver-
aged 1 successful call out of 34 attempts. He made phone
calls as well but reached an employee on an average of 1
time out of 20 attempts.
The Union did not hold any meetings at the union hall al-
though it has a large hall about 10 miles from the Anchorage
Airport. The Union considered a 30-second TV spot on a
local Anchorage station. It understood that the spot might be
rebroadcast on RATNET, a state subsidized satellite rebroad-
cast available in rural areas including the Slope. The price
was $150 to $160 for 30 seconds. Additionally, the Union
was quoted $2500 to $5000 for a quarter page advertisement
in The Fairbanks Daily News Miner. None of these options
were utilized because the Union did not believe they would
be effective.
Nabors conducted a vigorous campaign. Two tool pushers,
Laverne Linder and Charles Henley, were assigned to make
presentations regarding Nabors’ position on unionization to
employees at the North Slope sites. Approximately 40 paid
meetings were held at the remote camps over a 2-month pe-
riod. Four different antiunion videos were shown to employ-
ees at these meetings and various literature and question and
answer sessions supplemented the videos.
By the end of the campaign, Sharp estimated that he had
been able to reach 50 to 70 employees personally. Jeff Cou-
ture estimated that he handed out about 75 authorization
cards while on the Slope.
Ballots were mailed to employees on October 23 and the
returned ballots were counted on November 20. Of the 209
ballots returned, 2 were challenged, 7 were void, 53 votes
were cast for the Union, and 147 cast against representation
by the Union.
4. Legal framework
The consolidated complaint alleges that the Respondent
violated Section 8(a)(1) on October 2, by denying the
Union’s requests for access to Respondent’s remote camps to
allow the Union to conduct organizational meetings to con-
tact off-duty employees in nonworking areas. A timely elec-
tion objection also claims election interference on the same
basis.
Section 7 of the National Labor Relations Act provides in
relevant part that, ‘‘employees shall have the right to self-
organization, to form, join, or assist labor organizations.’’ An
employer who interferes with, restrains, or coerces employ-
ees in the exercise of their Section 7 rights, violates Section
8(a)(1) of the Act. The right of self-organization depends in
some measure on ability of employees to learn the advan-
tages of self-organization from others. Novotel New York,
321 NLRB 624, 630 (1996) (citing Central Hardware Co. v.
NLRB, 407 U.S. 539, 543 (1972)). As the Court stated in
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 fn. 2 (1994),
The right of employers to exclude union organizers
from their private property emanates from state com-
mon law, and while this right is not superseded by the
NLRA, nothing in the NLRA expressly protects it. To
the contrary, this Court consistently has maintained that
the NLRA may entitle union employees to obtain ac-
cess to an employer’s property under limited cir-
cumstances. [Citations omitted.]
The ‘‘limited circumstances’’ alluded to in Thunder Basin
have been described in several Supreme Court cases. In
NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956), the
Court held that although generally no restriction may be
placed on employees’ rights to self-organization, there is ‘‘no
such obligation . . . owed nonemployee organizers.’’ 351
U.S. at 113. In a later discussion of the holding in Babcock,
the Court stated in Lechmere, Inc. v. NLRB, 502 U.S. 527
(1992),
As a rule, an employer cannot be compelled to allow
distribution of union literature by nonemployee organiz-
ers on his property. As with many other rules, however,
we recognized an exception. Where ‘‘the location of a
plant and the living quarters of the employees place the
employees beyond the reach of reasonable union efforts
to communicate with them,’’ ibid., employers’ property
rights may be ‘‘required to yield to the extent needed
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581NABORS ALASKA DRILLING, INC.
8 See, e.g., Be-Lo Stores, 318 NLRB 1, 10–12 (1995); Schear’s
Food Center, 318 NLRB 261 fn. 2 (1995); Dow Jones & Co., 318
NLRB 574, 575, 587 (1995); Riesbeck Food Markets, 315 NLRB
940 (1994), enf. denied No. 95-1766 (4th Cir. 1996); and Great
Scot, Inc., 309 NLRB 548, 549 (1992), enf. denied 39 F.3d 678 (6th
Cir. 1994).
9 See, e.g., Johnson & Hardin Co. v. NLRB, 49 F.3d 237 (6th Cir.
1995); Nelcorp, 316 NLRB 625 (1995); Bristol Farms, 311 NLRB
437 (1993); and Payless Drug Stores, 311 NLRB 678, 679 (1993).
Although the Respondent argues that it did not control access to
some of the remote camps, none of the parties argue that the Re-
spondent’s property interest in the remote camps was insufficient.
10 The relative strength of Sec. 7 rights and property rights were
weighed and accommodation was attained with ‘‘as little destruction
of one as is consistent with the other.’’ 282 NLRB at 178. Only
when the competing rights were relatively equal were alternative
means of communication examined.
11 Availability of reasonable alternative means must be considered
in every access case. 291 NLRB at 14.
12 In Lechmere, the Court explained that it is only after determin-
ing that reasonable access is not feasible, ‘‘that it becomes necessary
and proper to take the accommodation inquiry to a second level, bal-
ancing the employees’ and employers’ rights . . . .’’ 502 U.S. at
538.
13 As the Court stated in Lechmere, ‘‘We reaffirm [Babcock’s gen-
eral rule that ‘an employer may validly post his property against
nonemployee distribution of union literature’] today, and reject the
Board’s attempt to recast is as a multifactor balancing test.’’ 502
U.S. at 538.
to permit communication of information on the right to
organize,’’ id. at 112.
The Court further noted,
§ 7 simply does not protect nonemployee union organiz-
ers except in the rare case where ‘‘the inaccessibility of
employees makes ineffective the reasonable attempts by
nonemployees to communicate with them through the
usual channels.’’ 351 U.S. at 112. Our reference to
‘‘reasonable’’ attempts was nothing more than a com-
monsense recognition that unions need not engage in
extraordinary feats to communicate with inaccessible
employees—not an endorsement of the view [which we
expressly rejected] that the Act protects ‘‘reasonable’’
trespasses. Where reasonable alternative means of ac-
cess exist, § 7’s guarantees do not authorize trespasses
by nonemployee organizers, even [as we noted in Bab-
cock, id. at 112] ‘‘under . . . reasonable regulations’’
established by the Board.
Moreover, the burden of proving that rare case where inac-
cessibility makes ineffective the reasonable attempts to com-
municate through usual channels is a heavy one. See, e.g.,
Leslie Homes, 316 NLRB 123, 126 and fn. 8 (1995). The
Board therein noted the Court’s admonition that the Babcock
inaccessibility exception was extremely narrow and designed
to safeguard the rights of employees who, ‘‘are isolated from
the ordinary flow of information that characterizes our soci-
ety.’’ Specific examples set forth by the Court in Lechmere
were those locations where the plant and living quarters of
the employees placed them beyond the reach of reasonable
efforts to communicate with them such as employees in min-
ing camps, logging camps, or mountain resort hotels. Bab-
cock, 351 U.S. at 539–540.
5. Contentions
The Respondent initially notes that employees were not in-
accessible due to work or living conditions because for 2
weeks of every 4, employees were at home and, accordingly,
not beyond the reach of union efforts to communicate with
them. Thus, the Respondent argues that cases allowing ac-
cess to remote, isolated locations are factually distinguishable
because in those cases the employees remained in the remote
locations and were inaccessible throughout the critical period.
The Respondent also argues that the Union’s success in ob-
taining authorization cards from about one-half of the em-
ployees conclusively demonstrates that the Union effectively
communicated without the need for trespassory access by
nonemployee organizers. The Respondent additionally notes
that the timing of the request for access—3 months after
commencement of the campaign and 3 weeks after filing the
petition—belies the need for access and, in fact, argues that
there were no unique obstacles to communication due to the
availability of airport meetings and leafleting, on-the-job lit-
erature distribution, in one instance an employee was allowed
to show a prounion video in a common area, availability of
mail, and availability of home addresses and telephone num-
bers pursuant to the Excelsior list.
Counsel for the General Counsel argues that this is one of
those rare instances for which the exception set forth in Bab-
cock and Lechmere applies; i.e., employees isolated from the
ordinary flow of information that characterizes our society.
He relies primarily on Husky Oil NPR Operations, 245
NLRB 353 (1979), enfd. 669 F.2d 643 (10th Cir. 1982). The
Respondent argues that Husky Oil is both factually distin-
guishable and of little precedential value.
6. Analysis
This case does not involve discriminatory enforcement of
an access rule8 nor is there an issue of insufficient property
interest to entitle exclusion from private property.9 Rather,
the issue to be determined is whether the narrow exception
allowing nonemployee access in remote sites, ‘‘where the
plant and living quarters of the employees place them beyond
the reach of reasonable efforts to communicate with them’’
is applicable. As counsel for the General Counsel has argued,
Husky is factually quite similar to the facts here. However,
before examining Husky in depth, it is necessary to deter-
mine its precedential value in light of intervening decisions.
Husky was decided after the Supreme Court issued
Hudgens v. NLRB, 424 U.S. 507 (1976) (rejecting application
of constitutional free speech principles to disputes regarding
nonemployee access to ‘‘quasi-public’’ private property).
Moreover, there is no suggestion in the rationale of Husky
that in granting access, the Board considered any constitu-
tional rights to free speech. Husky was decided before the
Board enunciated the balancing test set forth in Fairmont
Hotel Co., 282 NLRB 139 (1986),10 as modified by Jean
Country, 291 NLRB 11 (1988).11 Further, in determining
whether reasonable alternative access existed, Husky’s analy-
sis is premised solely on Babcock and not on a multifactor
balancing test.12 Accordingly, I find that Husky retains prece-
dential value even though it predates issuance of Lechmere.13
In Husky, the employer was engaged in exploration of the
national petroleum reserve. Employees worked 7 days a
week for 12 hours each shift at Camp Lonely located on the
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582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 In a later section, I deal specifically with allegations of surveil-
lance. My finding regarding access is independent of any alleged
surveillance.
15 The parties disagree as to whether these rooms were available
to the Union. Jay Loesch, asset manager for Nabors, described an
Alaska Airlines meeting room at the Deadhorse Airport, the airport
through which all Prudhoe Bay employees pass. Loesch asserted that
this room was available for anyone to rent. Crews arrive at the air-
port about 1 hour prior to departure. Loesch also described another
meeting room for rent at the North Slope Borough offices, about 2
miles from Peak base camp. In addition, Loesch described a meeting
room in the Kuparuk Airport operated by ARCO and another room
at the Kuparuk Industrial Center owned by the North Slope Borough
Arctic Ocean about 660 air miles from Anchorage, Alaska.
The camp was accessible only by private or chartered aircraft
and the landing strip was apparently under the control of the
employer. The 45 employees worked various schedules in-
cluding 2 weeks on and 2 weeks off, 4 weeks on and 2
weeks off, and 6 weeks on and 2 weeks off. The weather
affected these schedules at times. Employees were housed
two to a room in a camp maintained by the employer. One
public telephone serviced the entire dormitory area. Mail
reached employees via employer carrier. No commercial tele-
vision was available although videotapes of Anchorage tele-
vision programs were available. Commercial radio broadcast
was received intermittently from Barrow, Alaska. When not
at Camp Lonely, employees resided, for the most part, in the
greater Anchorage metropolitan area.
The Board adopted the decision of the administrative law
judge, who stated, ‘‘All of the legal reasoning necessary to
reach a decision in this case was set out by the United States
Supreme Court in the Babcock & Wilcox decision.’’ 245
NLRB at 355. The judge cited four cases supporting his find-
ing that it was impossible for the union organizers to reach
employees through usual means of communication. All four
cases relied on the remoteness of employees in granting ac-
cess. For instances, in NLRB v. Lake Superior Lumber Corp.,
167 F.2d 147 (6th Cir. 1948) (cited in Babcock, 351 U.S. at
109, 111), the court upheld the Board’s conclusion that pro-
hibiting the union from soliciting employees in the bunk-
houses violated Section 8(a)(1). In S & H Hinrichsen
Grossinger’s Inc., 156 NLRB 233, 256 (1965), enfd. in rel-
evant part 372 F.2d 26 (2d Cir. 1967), the Board adopted the
judge’s decision based on Babcock that resident employees
of a mountain resort hotel were beyond the reach of reason-
able union efforts to communicate with them. The union
therein requested access during the election campaign in
order to reach the resident employees.
In Alaska Barite Co., 197 NLRB 1023, 1028 (1972), enfd.
83 LRRM 2992 (9th Cir. 1973), cert. denied 414 U.S. 1025
(1973), the court upheld the Board’s finding that the em-
ployer violated Section 8(a)(1) by denying access to its re-
mote island mining site shortly before the consent election.
Finally, in Sabine Towing & Transportation Co., 205 NLRB
423 (1973), enf. denied in part and granted in part 599 F.2d
663 (5th Cir. 1979), the Board reversed the judge and found
that the union was entitled to access to the employer’s deep
sea oil tankers during the preelection period. The finding was
premised on Babcock.
The Respondent argues that these cases are factually dis-
tinguishable because Nabors employees were only in remote
premises for 2 weeks out of every 4 and their schedules were
regular and predictable during this period while the employ-
ees in Husky had irregular schedules and weather was often
a factor making their transportation schedules erratic. It is
true that the cases are factually distinguishable in this man-
ner. However, I do not find this distinction warrants a dif-
ferent result. Nabors’ employees reported to seven rigs on
the North Slope. There were four crews for each rig, each
crew reporting at 1-week intervals. Under these cir-
cumstances, it was extremely difficult for the Union to dis-
cern specific employee’s schedules.
I find that the North Slope and Granite Point employees
(93 percent of the petitioned-for unit) were beyond the reach
of reasonable efforts to communicate with them because of
the remote location of the rigs and camps. These employees
were isolated from the ordinary flow of information which
characterizes our society. I rely in particular on the remote-
ness of the camp locations, lack of transportation in and out
of these locations, lack of radio and local commercial tele-
vision reception, the paucity of newspapers, lack of privacy
in use of telephones, and company controlled mail service.
These conditions, of course, existed every 2-week period of
work. During their 2 weeks off, employees were dispersed.
However, because the election agreement was reached on
September 19 and ballots were mailed on October 23, only
a 1-month period existed for effective campaigning.
Finally, I find that the Union’s success in attaining 143
signed authorization cards, principally through meetings at
the Anchorage Airport Susitna Room, does not indicate that
the airport provided a reasonable alternative means of access.
Of necessity, management utilized the airport for its meet-
ings.14 Moreover, statutory supervisors accompanied the em-
ployees on chartered flights to and from the slopes and were
present at the airport for this purpose. Finally, I note that the
airport changed its policy regarding advance booking during
the campaign and beginning in October, the Union could no
longer book a regular room more than 1 week in advance.
There are only two meeting rooms at the airport. One of
them, the Ilyamna Room, is quite remote. The Susitna Room
is the only viable meeting room. Due to the rotation of
crews, a 4-week timeframe at the airport is required to reach
all employees who are leaving for the North Slope. The
Union needed a reliable monthly booking in order for the air-
port to afford a reasonable alternative.
The Respondent argues that the Union failed to use other
means of communication to reach employees. Specifically,
the Respondent notes that the Kuparuk and Deadhorse Air-
ports and the Prudhoe Bay Hotel have rooms sufficiently
large for union purposes. Although such rooms undoubtedly
exist, I do not find that they afford meaningful communica-
tion opportunities which might be considered a reasonable al-
ternative means of access. The evidence clearly indicates that
employees have no means of transportation to these areas
while they are stationed on the North Slope. When employ-
ees arrive at these sites from Anchorage, they are imme-
diately transported to their camps. When employees are
transported to these airports for return to Anchorage, it is at
the end of a 2-week tour of duty. Many have worked for 12
hours before coming to the airport and simply want to sleep.
The driller, a statutory supervisor, accompanies each crew
and would be able to view which employees were meeting
with the Union in these locations, assuming that the Union
could obtain rooms in these locations.15
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583NABORS ALASKA DRILLING, INC.
and available for rent with transportation to and from the airport
available as well. A faxed statement from the operator of this room
indicated it was available to the public at large from June through
December 1995. Jeff Ackerman, business representative for Operat-
ing Engineers Local 302, called these facilities in an attempt to rent
them for the union. He was told that Kuparuk Industrial Center was
not available for rent to the public. He received a message from
ARCO that its room in the Kuparuk Airport was in constant use and
it did not rent it out. Finally, Ackerman was told that the North
Slope Borough does not make its meeting rooms available to the
public. It is unnecessary to determine whether the rooms are avail-
able for the Union’s use as they do not present a viable alternative
means of communication. Were it necessary to determine availability
of these facilities, I find that both Loesch and Ackerman truthfully
testified regarding what they were told and the Union would not
have been able to rent these facilities.
The Respondent also argues that a media campaign utiliz-
ing newspapers, radio, and television was a reasonable alter-
native method for the Union to communicate. I reject this ar-
gument. Not only would a media campaign have involved
extraordinary expense, it would also be ineffective due to the
wide area in which employees lived and the fact that they
were on an oil rig 2 of every 4 weeks at which time there
was no live local TV broadcast or radio reception and limited
newspapers.
Finally, the Respondent argues that employees on the
Granite Point Platform were accessible to the Union. About
10 percent of the eligible voters worked at this site. Only
half of them were present at any given time. I find that the
Union exercised great effort in attempting to reach these em-
ployees but was unable to do so because of no trespassing
postings and the use of management van arrangements to
transport employees to the helipad.
Having found that these employees are beyond the reach
of reasonable efforts to communicate with them, it is appro-
priate to balance the employees’ and employers’ rights in
order to accommodate one with as little destruction of the
other as possible. I note that the Union seeks access to the
camps, that is, the living quarters of employees, in order to
speak face to face to employees while they are off duty. Re-
spondent’s property ownership interest varies from one facil-
ity to another. Access to these facilities, whether controlled
by the Respondent or not, must be arranged in advance for
security reasons. Balancing this property interest against the
strong Section 7 right of employees to organize, I find that
the property interest must yield and that the Union should be
granted access to the camps for the purposes of meeting with
off duty employees.
B. Threats and Impression of Surveillance
The consolidated complaint alleges that in the fall of 1995,
the Respondent threatened employees by stating that employ-
ees would ‘‘lose their asses if the Union came in,’’ and by
telling employees that it would ‘‘run off’’ supporters of the
Union after the election. The consolidated complaint further
alleges that the Respondent told employees it could find out
how they voted during the NLRB election.
1. Timeliness of allegations
The charge in Case 19–CA–24152, filed on October 4,
1995, alleged denial of access in October 1995 in violation
of Section 8(a)(1) but did not include allegations of threats
and impression of surveillance. Nevertheless, the consoli-
dated complaint, issued April 3, 1996, alleged the threats and
impression of surveillance.
The Respondent moved to dismiss these allegations be-
cause no underlying charge was filed within 6 months of the
alleged violations. Section 10(b) of the Act provides, ‘‘no
complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge.’’
The General Counsel is not barred from alleging matters
not expressly set forth in a charge if these matters, ‘‘are re-
lated to those alleged in the charge and which grow out of
them while the proceeding is pending before the Board.’’
NLRB v. Fant Milling Co., 360 U.S. 301, 307 (1959). In
Redd-I, Inc., 290 NLRB 1115 (1988), the Board reaffirmed
its adherence to the closely related test for determination of
whether matters alleged in the complaint are time barred,
stating:
In applying the traditional ‘‘closely related’’ test in
this case, we will look at the following factors. First,
we shall look at whether the otherwise untimely allega-
tions are of the same class as the violations alleged in
the pending timely charge. This means that the allega-
tions must all involve the same legal theory and usually
the same section of the Act (e.g., 8(a)(3) reprisals
against union activity). Second, we shall look at wheth-
er the otherwise untimely allegations arise from the
same factual situation or sequence of events as the alle-
gations in the pending timely charge. This means that
the allegations must involve similar conduct, usually
during the same time period with a similar object (e.g.,
termination’s during the same few months directed at
stopping the same union organizing campaign). Finally,
we may look at whether a respondent would raise the
same or smaller defenses to both allegations, and thus
whether a reasonable respondent would have preserved
similar evidence and prepared a similar case in defend-
ing against the otherwise untimely allegations as it
would in defending against the allegations in the timely
pending charge.
290 NLRB at 1118. This holding was later applied to 8(a)(1)
allegations in Nickles Bakery of Indiana, 296 NLRB 927
(1989).
The Respondent argues that the allegations do not meet the
requirements of the closely related test because different
legal theories are involved, there is only one factual similar-
ity—that the camp access issue and the allegations of threats
and surveillance occurred during the same representation
campaign—and this similarity is an insufficient justification
for finding the untimely allegations closely related, and dif-
ferent defenses are involved. The General Counsel relies on
Well-Bred Loaf, 303 NLRB 1016 fn. 1 (1991), in which the
Board stated that there is a sufficient nexus if the allegations
in dispute and the allegations in the timely filed charge oc-
curred within the same general time period and concern con-
duct which constitutes an overall plan to resist a union. In
Well-Bred Loaf, the timely filed charges alleged 8(a)(3) dis-
crimination during a 4-month period. The allegations at issue
involved 8(a)(1) surveillance and discharge in violation of
Section 8(a)(3). The Board found these allegations closely re-
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584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 See, e.g., Fiber Products, 314 NLRB 1169 (1994), enf. sub
nom. FPC Holdings, Inc. v. NLRB, 64 F.3d 936, 941 (4th Cir. 1995).
17 On May 7, 1996, the charge in Case 19–CA–24334 alleging an
8(a)(3) discharge was amended to include the allegations at issue. It
is unnecessary to determine whether there is sufficient nexus to this
charge.
18 See, e.g., Hertz Corp., 316 NLRB 672, 686 (1995) (employees
could lose all their benefits if the union came in); and Forrest City
Grocery Co., 306 NLRB 723, 729 (1992) (employees would prob-
ably get nowhere in bargaining).
19 See NLRB v. Gissel Packing Co., 295 U.S. 575, 617 (1969).
20 See, e.g., Jordan Marsh Stores Corp., 317 NLRB 460, 463
(1994) (statement that union letter setting forth names of union ac-
tivists, ‘‘would give [employee] no protection,’’ violative); and
Ouboard Marine Corp., 307 NLRB 1333, 1335 (1992).
21 See, e.g., Capitol EMI Music, 311 NLRB 997, 1006 (statement
that company will know how employees voted in election constitutes
unlawful impression of surveillance); and Aquatech, Inc., 297 NLRB
711, 713 (1990), enfd. 926 F.2d 538 (6th Cir. 1991) (statement that
employer could learn which employees had signed authorization
cards created impression of surveillance).
lated to the timely filed charge, relying on NLRB v. Braswell
Motor Freight Lines, 486 F.2d 743, 746 (7th Cir. 1973) (alle-
gations involving ‘‘part of an overall plan to resist organiza-
tion’’ are closely related).
Based on Well-Bred Loaf and similar cases,16 I find a suf-
ficient nexus between the allegations of threat and creation
of the impression of surveillance and the allegations based on
the charge in Case 19–CA–24152 alleging denial of access
to warrant expansion of the complaint to include these alle-
gations. I note that all of these allegations involve Section
8(a)(1) of the Act, all of these allegations occurred in the fall
of 1995, and all involve the organizational campaign during
that fall.17
2. Facts
During October and November, captive audience meetings
were held by Laverne Linder and Charlie Henley, tool push-
ers, after the employees’ shifts were completed. All meetings
were mandatory. Employees were paid for the time spent at
the meetings. At each meeting, an antiunion film was shown
first and then discussion followed about the subjects in the
film. According to Kevin Adams, roustabout, at one meeting
Linder said if employees went union they would lose their
ass; the insurance would not be as good and employees
would end up paying dues so it would be money out of their
pockets. O’Neal Coyne, a roughneck, also recalled such a
meeting at which Linder said the employees would lose their
asses if the Union came in and employees paid dues to them
and got nothing in return. Mike Pearson, fork lift driver, tes-
tified,
I don’t recall everything that was said because a lot of
it was so mundane and so ludicrous in my opinion, a
lot of it I blocked out but I do remember Laverne
would come up with things like you’re going to lose
your ass. You know Nabors is here to make money not
give it away. He’d bring up things like ARCO wouldn’t
go for, you know go for a unionized oil working rig.
Linder testified that he told employees that they could end
up with less if they unionized but he did not recall telling
employees they would lose their ass. Linder explained,
‘‘Well, at many times I wanted them to understand that they
could possibly lose in this situation, or be put at a disadvan-
tage. Now, losing your ass might possibly mean that.’’
Steven Couture, sewer plant operator on rig 27E, recalled
a meeting toward the end of October with Rod Klepzig, tool
pusher on that rig, in the break room during morning break.
Two roustabouts were also present. According to Steven
Couture, Klepzig stated that when employees were hired,
they agreed that they could be fired at any time and that
Nabors could find out if they wanted to how we voted. Cou-
ture also testified that Klepzig stated that after the election,
organizers would be run off. Although Klepzig recalled 5 or
10 discussions with Steven Couture about the Union, Klepzig
denied making any statements like these.
3. Legal framework
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing employees in the ex-
ercise of their right to form, join, or assist labor organiza-
tions. It is an unfair labor practice for an employer to threat-
en employees by statements indicating that unionization
would be a futile or detrimental act.18 In determining wheth-
er particular statements constitute threats or are permissible
opinions or predictions reasonably based in fact,19 the state-
ment must be considered in the totality of relevant cir-
cumstances. Action Mining, 318 NLRB 652, 654 (1995) (rel-
evant context may supply meaning to otherwise ‘‘ambiguous
or misleading expression if considered in isolation’’).
Further, an employer may not threaten that union organiz-
ers will be discharged20 nor may an employer indicate that
it can find out how employees voted in a Board-conducted
election.21 Employer motive in making such statements or
proof of whether the coercion succeeded or failed are not rel-
evant to the analysis. Rather, coercion exists if the conduct
reasonably tends to interfere with the free exercise of em-
ployee rights.
4. Analysis
Threat that Employees will lose Their Asses—I credit the
testimony of Adams, Coyne, and Pearson that Linder told
employees they would lose their asses if the Union came in.
The testimony of these three witnesses was straightforward
and clear. Linder did not recall using the phrase but agreed
that his message might be construed to mean that employees
could (not would) lose their asses if the Union came in. The
Respondent argues that the context of the statement indicates
that it was no more than either a statement that Nabors’ cus-
tomers might not find it as competitive or reliable depending
on the terms of any negotiated or contract or a statement re-
garding the possibility that any negotiated contract might
have less favorable economic conditions that currently en-
joyed, when taking into account employees’ dues obligations.
Certainly, such statements were also made. However, I do
not find that the addition of such statement alters the effect
of the credited statement. Whether Linder said employees
would lose their asses because a less favorable contract
would be negotiated or because Nabors might lose its cus-
tomers, such a statement reasonably tends to interfere with
free exercise of employee rights.
Impression of Surveillance and Threat of Discharge—I
credit the testimony of Steven Couture that Rod Klepzig told
him the Employer could find out how employees voted and
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585NABORS ALASKA DRILLING, INC.
22 The Respondent does not contend that its conduct rose to the
level of a repudiation as set forth in Passavant Memorial Hospital,
237 NLRB 138 (1978). However, it notes that this was only because
it was not informed of any such allegation until after the election.
23 HSE employees are health, safety, and environmental employ-
ees.
24 The critical period is the time between the filing of the petition
and the date of the election. Ideal Electric Mfg. Co., 134 NLRB
1275 (1961). In this case, that period is September 1 to November
20.
that after the election union organizers would be run off. As
already indicated, Steven Couture was a straightforward wit-
ness and displayed a clear recollection of the conversation.
Throughout his testimony, Steven Couture quickly admitted
when there were conversations which he simply could not re-
call, but this was not one of them. Although Klepzig flatly
denied making these statements, he admitted that he had
been on vacation during supervisory training regarding per-
missible campaign statements and he admitted that he and
Steven Couture frequently discussed the Union. Furthermore,
Jeff Couture testified that his brother Steven repeated
Klepzig’s threat to Jeff, who was an open union supporter.
Jeff Couture confronted Klepzig regarding the statement and
attempted to give Klepzig a xerox from a labor law book
which set forth employee rights. Klepzig agreed that Jeff
Couture confronted him with literature setting forth employ-
ees’ rights under the Act.
The Respondent argues that even if Steven Couture’s testi-
mony is credited, only 3 employees in a 291-employee unit
would have heard Klepzig’s statements and, accordingly, the
allegations should be dismissed as de minimis. In Musicians
Local 76 (Jimmy Wakely Show), 202 NLRB 620 (1973), the
Board adopted the narrow de minimis doctrine applicable to
conduct which may be in technical contravention of the stat-
ute but is nevertheless so insignificant and so largely ren-
dered meaningless by subsequent conduct that it would not
be utilized as a basis for either a finding of violation or a
remedial order. The exception was meant to apply to viola-
tions having little or no impact on employee exercise of stat-
utory rights. Id. at 621–622. The narrow de minimis excep-
tion does not apply in this situation. See, e.g., Sunnyside
Home Care Project, 308 NLRB 346, 348 (1992) (threat to
discharge union supporter not de minimis). Although the Re-
spondent’s subsequently distributed literature which set forth
employees’ right to a private, confidential ballot,22 Klepzig’s
statements regarding the ballot and the threat to run off union
supporters are not so insignificant and so largely rendered
meaningless by subsequent conduct to be considered de
minimis.
C. The Representation Case
1. Background
On September 1, the Union filed a petition in Case 19–
RC–13080 seeking certification as the representative of all
employees of the Respondent’s Alaska operations in Cook
Inlet and the North Slope. Pursuant to a stipulation for cer-
tification upon consent election, approved September 25, a
mail-ballot election was conducted in the following appro-
priate unit:
All employees working as derrickmen, motormen,
floorhands, forklift operators, roustabouts, solids con-
trol, crane operators, or safety equipment managers
working for the company in the State of Alaska, but ex-
cluding all managers, professional, engineers, super-
visors as defined in the Act (including without limita-
tion, drillers, toolpushers, casing crews, catering man-
agers), satellite camp cooks, HSE employees, clerical
employees, guards and all other employees not included
in the Unit.23
The November 20 tally of ballots indicates that of the ap-
proximately 291 eligible voters, 53 votes were cast for the
Union and 147 were cast against the Union. On November
22, the Union filed timely objections to conduct affecting the
election and on January 12, 1996, the Regional Director for
Region 19 issued his report on objections and direction of
hearing directing that a hearing be held on the objections and
that the objections be consolidated with Case 19–CA–24152
for the purpose of hearing.
2. Analytical framework
Critical period24 conduct which creates an atmosphere ren-
dering improbable a free choice warrants invalidating an
election. General Shoe Corp., 77 NLRB 124 (1948). Such
conduct need not rise to the level of an unfair labor practice.
It is sufficient that the conduct create, ‘‘an atmosphere cal-
culated to prevent a free and untrammeled choice by the em-
ployees.’’ 77 NLRB at 127. As the Board explained, ‘‘In
election proceedings, it is the Board’s function to provide a
laboratory in which an experiment may be conducted, under
conditions as nearly ideal as possible, to determine the unin-
hibited desires of the employees.’’ Id.
3. Facts and analysis
Eight specific objections are set for hearing, each of which
will be discussed seriatim.
Objection 1—Nabors has denied access by the peti-
tioner to the Remote-site work camps in Prudhoe Bay
and on drilling platforms in Cook Inlet, for the purpose
of obstructing the Alaska Laborers ability to discuss the
Union. This objection is fully contained in the unfair
labor practice (ULP) pending before the Board in Case
19–CA–24152 and is incorporated here.
As recognized in this objection, the matter has been fully
incorporated in the unfair labor practice allegations. The
8(a)(1) conduct, a fortiori, interferes with the free exercise of
choice and is objectionable unless, ‘‘it is virtually impossible
to conclude that the misconduct could have affected the elec-
tion result,’’ based on the number of violations, their sever-
ity, the extent of dissemination, the size of the unit, and
other relevant factors. Gonzales Packing Co., 304 NLRB 805
(1991) (quoting Clark Equipment Co., 278 NLRB 498, 5050
(1986)); see also Barton Nelson, Inc., 318 NLRB 712 (1995).
Consistent with my conclusion regarding the unfair labor
practice allegation, I find that Nabors’ denial of access inter-
fered with the conduct of a free and fair election because it
potentially affected all of the employees.
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586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Sec. 8(c) provides:
The expression of any views, argument, or opinion, or the dis-
semination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor prac-
tice under any of the provisions of this Act, if such expression
contains no threat of reprisal or force or promise of benefit.
Objection 2—Prior to the election, supervisors of the
Employer questioned and interrogated employees to de-
termine how they would vote and simultaneously indi-
cated that the Company did not want the employees to
vote for the Union. The Employer further coerced em-
ployees by stating that Nabors would find out how you
voted and may use that against you.
Brett Heim testified that just prior to the election, Charlie
Martin, the driller, asked him on two occasions how he
would vote. One time this occurred in a private conversation
and the other time it occurred on the floor of the rig and,
according to Heim, Martin asked each of the crew how they
would vote. Martin testified, ‘‘I don’t ever remember ask-
ing—no, sir.’’ I credit Heim’s testimony. The Respondent re-
lies on Rossmore House, 269 NLRB 1176 (1984), enfd. sub
nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760
F.2d 1006 (9th Cir. 1985), arguing that even if Heim’s testi-
mony is credited, the interrogation, which is not illegal per
se, is insufficient to justify a new election. I do not find
Rossmore House applicable because there is no evidence
from which to infer that Heim was avowed union supporter.
Moreover, the questioning of an entire crew is not so insig-
nificant as to come within the Gonzales exception.
Consistent with my unfair labor practice findings regarding
the impression of surveillance and the threat of discharge, I
find that Rod Klepzig told Steven Couture that the Employer
could find out how employees voted and that after the elec-
tion, the union organizers would be run off. The Respondent
argues that these statements are not a sufficient basis to over-
turn the election because they were made a single to a group
of 3 employees in a 291-employee unit. Moreover, the Re-
spondent argues that it clearly, unequivocally, and repeatedly
informed employees that their votes would be by secret bal-
lot. I agree. Pursuant to the standard set forth in Gonzales,
I find that it is virtually impossible to conclude that this mis-
conduct could have adversely affected the election results. At
most, 3 employees in the 291-employee unit heard these re-
marks. The Union ultimately lost this election by approxi-
mately 100 votes. Moreover, as the Respondent notes, there
was ample literature setting forth the requirement that ballots
were secret and confidential.
Objection 3—Nabors’ agents unlawfully threatened em-
ployees to vote against the Union or the Oil companies
would refuse to hire Nabors and its employees. This is
not only unlawful but it is inaccurate. (See attached let-
ter of ARCO dated November 20, 1995, yet, too late
to correct the Employer’s coercive statements.)
According to roustabout Kevin Adams and mechanic
Valentino Emberty, during one of the captive audience meet-
ings, Linder said that Nabors would price themselves right
out of a job and the rigs would be stacked if the employees
unionized. Adams recalled that during this same meeting,
Linder spoke about Nabors’ competitive position in the mar-
ketplace. Adams, Brett Heim, a floor hand, and forklift driver
Mike Pearson, who were present at the same meeting, re-
called Linder said ARCO and BP had their feelings and
Nabors might or might not be able to keep the rig running.
Frank Anderson, pit watcher, testified that Charlie Martin
stated during a safety meeting at which the crew was present,
‘‘that we’d probably lose all the work that we’d accumulated
if we voted in the union. We’d all be out—out of work.’’
Jeff Couture, an outspoken union advocate, was asked to
speak to Charlie Martin’s crew about why he thought the
employees should be unionized. Jeff Couture spoke to the
crew and referenced a pay raise, holiday pay, and other bene-
fits. Martin responded, ‘‘a raise is going to cause the day
rates to go up. And then we’ll lose work.’’ Martin testified
that he did not believe Nabors would be as competitive if the
Union came in but he could not recall telling employees that
if they voted for the Union they would be voting themselves
out of a job. However, he did recall telling employees that
the Union would make Nabors less competitive. I credit An-
derson and Couture and find that Martin’s remarks extended
to relating to employees that Nabors would lose work if
unionized.
The Respondent argues that even if these employees are
credited, it is clear that any references to loss of customers
because of loss of a competitive edge was bolstered by ob-
jective, historical fact, noting that when Nabors was union-
ized before, 10 new rigs were bid and awarded on the slope
and Nabors was successful in obtaining only one rig. Ac-
cordingly, relying on Gissel, the Respondent argues that such
statements were reasonable predictions based on available
facts and thus protected by Section 8(c) of the Act.25
Based on the above statements, it is clear that employees
were not told that it was possible the rigs would be stacked
or that customers might consider awarding contracts to other,
nonunion contractors. Nor was there any reference to objec-
tive, historical fact. Employees were told that if they voted
for the Union, they would lose work. I find that these state-
ments crossed the line from objective, historical fact or pos-
sibility to statements that a union victory threatened or prob-
ably threatened employees with loss of work. See, e.g.,
Reeves Bros., 320 NLRB 1082, 1083 (1996); and SPX Corp.,
320 NLRB 219, 221 (1995). Accordingly, I find that these
statements interfered with a free and fair election and rec-
ommend that the election be set aside.
Objection 4—Nabors threatened employees by indicat-
ing it would fail to properly negotiate in good faith
with the Alaska Laborers if the employees chose union
representation.
No evidence was presented regarding this objection.
Objection 5—The Employer has used unlawful surveil-
lance to observe employee communication with the
Union, including Nabors’ personnel director Belinda
Wilson’s surveillance of Laborers’ Tim Sharp leafleting
and discussions with Nabors’ employees, and the ‘‘acci-
dental’’ attendance of Bill Mede at the Laborers meet-
ing at the Anchorage Airport.
Employees testified that they observed Personnel Manager
Belinda Wilson and tool pusher Laverne Larkin at the An-
chorage Airport on a Friday in October standing at the door
of the cafeteria while Sharp was handbilling in front of the
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587NABORS ALASKA DRILLING, INC.
cafeteria. Wilson recalled being at the airport on four occa-
sions during the election campaign. She did not recall view-
ing any leafleting. Her purpose in being at the airport was
to meet with drillers to orient them regarding the union cam-
paign. In addition, contrary to his usual schedule of flying
to the Slope on Wednesdays, Larkin flew with employees on
Fridays several times during the election campaign. Larkin
was aware that it was unlawful to spy on union activity. He
was routinely in and out of the airport for travel to the
Slopes on Tuesday and Wednesday. He met with tool push-
ers on those days to educate them about the ‘‘Do’s and
Don’ts’’ of the union campaign.
In order to meet with the drillers, Larkin testified he also
visited the airport on a Friday in September. Drillers had
been in the bargaining unit the last time that Nabors was
unionized but this time they were excluded. The meeting was
to be in the Ilyamna Room around 6 a.m. Larkin and Wilson
met in the Ilyamna Room and when the drillers did not ar-
rive, discussed whether the drillers knew where the Ilyamna
Room was and decided they might not know. Larkin found
the drillers in the smoking area of the cafeteria. Larkin also
went out on at least one occasion for about 5 minutes to find
drillers who were standing in line who did not know about
the meeting. Larkin did not go to the C concourse or try to
spy on the union activities. Thereafter, the meetings with
other drillers were in the cafeteria.
William F. Mede, attorney for Nabors, was also expected
to attend the drillers meeting in the Ilyamna Room. Mede
testified that he was directed to a room on the C concourse
by a uniformed security officer. As it turned out, Mede had
been directed to the Susitna Room which the Union had
rented for organizational purposes. According to Mede, he
entered the Susitna Room, introduced himself to Tim Sharp
and Jeff Couture, the only two people in the room, Sharp
asked him to leave and he left. According to Tim Sharp and
Jeff Couture, Mede did not immediately leave but, rather, re-
marked, ‘‘I see why we can’t rent the Susitna Room,’’ or
something to that effect. Then Mede introduced himself to
Jeff Couture and asked for Couture’s name. Only on being
asked by Sharp to leave a second time, did Mede comply.
Couture and Sharp told other employees about this experi-
ence in order to demonstrate how desperate they believed
Nabors was.
Jim Denney, president of Nabors, recalled being at the air-
port for meetings with the drillers on several occasions to go
over the union organizing campaign rules. This was probably
in September. At no time on any of these trips did Denney
stand outside the cafeteria except for more than a ‘‘couple’’
minutes in order to catch the driller that was anticipated.
Denney was given literature once by Sharp as Denney
boarded the Shared Services charter plane for Milne Point.
Sharp came back later and introduced himself. Denney could
not place a specific date on this encounter.
Management’s use of the airport, a public facility, to con-
duct its own business was an ordinary event. Belinda Wilson
flew to the North Slope with crews before and after the elec-
tion. Nabors documented its use of the airport both before
and after the election campaign and I find these documents
persuasive that Nabors was simply following its ordinary
course of business in reaching the crews or management per-
sonnel when they were gathered to fly to the Slope. The
union leafletting was in plain view on public property. There
is no evidence of photography, note taking, or disruption.
Accordingly, I find that management’s presence at the airport
did not rise to the level of objectionable conduct. See, e.g.,
Days Inn Management, 306 NLRB 92 (1992). Moreover, I
find that Mede was misled to the Susitna Room and only on
entering did he realize the mistake. Whether he was asked
to leave once or twice is immaterial as, by all accounts, he
was there only briefly. Accordingly, I do not find that
Mede’s actions interfered with employee free choice but,
rather, were an unintentional mistake. See, e.g., Montfort of
Colorado, 298 NLRB 73, 146–147 (1991), enfd. in relevant
part 965 F.2d 1538 (10th Cir. 1992) (employer attorney who
looked into an openly advertised union meeting did not en-
gage in objectionable surveillance).
Objection 6—Nabors interfered with the Laborers
weekly-scheduled meetings with employees at the An-
chorage Airport’s Susitna Room by purposefully seek-
ing to override the Laborers reservation of the room by
booking the Susitna Room for the Company. Nabors
conduct upset the Laborers announced weekly meetings
with employees at the Airport.
Sharp testified that he reserved the Susitna Room on a
monthly basis in June, July, August, and September. How-
ever, when he attempted to reserve that room for October,
airport personnel told him that he could no longer reserve the
room for an entire month. At a later time, Sharp observed
the reservation book which indicated that Nabors had re-
served the Susitna Room for the entire month of October,
preempting him and in contravention of the policy which had
been explained to him. According to Sharp, he complained
to the director of the airport and thereafter, Nabors’ reserva-
tion for October was canceled and the room was placed on
a first come basis, meaning anyone could reserve the room
on Monday for the following Friday. Sharp did not thereafter
attempt to rent the room on this basis. He felt that he needed
to have the same room each Friday in order for the crews
to know where to go.
Belinda Wilson testified that she did not reserve the
Susitna Room but on one occasion, she contacted her friend
Susan Hinshaw, who worked in the airport office, to ask
about availability of a room at the airport for four consecu-
tive Fridays in November or December. Wilson explained
that she was interested in availability of the room in order
to schedule employee meetings for insurance selection pur-
poses. According to Wilson, Hinshaw told her that Wilson
would have to contact the woman in charge of reservations
if she wanted to reserve a room. Wilson was aware that the
Union had been using the Susitna Room on Fridays at the
time she made the phone call. About a week after she made
this call, Wilson learned of the new policy at the airport
which prohibited reserving a room on a monthly basis. Even-
tually, the employees were mailed brochures for insurance
selection. In 1993, meetings were held in the airport for this
purpose because the insurance options had changed.
Mark Lindsey, vice president of Nabors, testified that he
went to the airport during this hearing and asked to copy the
reservation book in question. While observing the book, he
noticed that ‘‘Nabors’’ had been written on the calendar for
Friday, October 6, and Friday, October 13, and then erased.
Another erasure for Friday, October 20, was for an entity
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588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other than Nabors. He did not observe an erasure for Friday,
October 27.
There is no dispute that Nabors has utilized both the
Susitna and the Ilyamna Rooms from time to time for meet-
ings. I find no interference with employee free choice due
to Wilson’s phone call or in reservation of the Susitna Room,
if it was reserved by the Respondent.
Objection 7—Nabors unlawfully threatened to get rid of
the employees who wrote letters or voiced support for
a union.
This objection was discussed in connection with Objec-
tion 2.
Objection 8—The Excelsior List submitted by the Em-
ployer had numerous irregularities which adversely af-
fected the employees’ ability to receive information
from the union or to receive a mail ballot, and further
listed Engineers who were to be excluded from the unit.
Excelsior Underwear, 156 NLRB 1236 (1966), and North
Macon Health Care Facility, 315 NLRB 359 (1994), require
that an employer provide a list containing the full names and
addresses of all eligible voters. The parties’ stipulation re-
garding the Excelsior list is as follows: Nabors transmitted
a 13-page Excelsior list to the Anchorage field office of the
NLRB on October 2, 1995, via mail and facsimile. The
Board field office received the Excelsior list on October 2,
1995. A copy of the Excelsior list was made available by the
Board Office to the Union on October 2, 1995.
The stipulation continues stating, the Excelsior list set
forth the names and addresses for 291 employees eligible to
vote in the election. Of the addresses for the 291 eligible
voters recorded on the list, 16 addresses were inaccurate and
4 were no longer current, for a total of 20 addresses which
were inaccurate or no longer current. The inaccurate address-
es were for Charles Tiulana, Craig Asuchak, Ruben
Castruita, Philip Doyle, James Furry, Sean Holcomb, Randy
Johnson, Ricky Kirby, Jeff Long, Richard McCleary, Robert
Millard, James Russell, Mike Schiller, Ellis Snow, Ed
Tinsley, and Michael Tybrowski.
Nabors’ vice president of finance, Mark Lindsey, was in-
volved in preparation of the Excelsior list. He testified that
the list was prepared using the most current addresses fur-
nished by employees to Nabors. He learned within 2 to 3
weeks after providing the list to the NLRB that there were
inaccuracies on the list. Specifically, there were incomplete
street addresses listed for 15 employees. Lindsey explained
that when the list was generated, a wide enough column had
not been set up to print the entire address of some of the
employees. Street addresses for 15 employees were truncated
due to setting the column width too narrow for those ad-
dresses. A separate transmittal to the NLRB was then sent
without truncation. Wilson was also involved in preparation
of the list and testified she utilized her best efforts to prepare
an accurate list and to correct inaccuracies as she became
aware of them.
I find substantial compliance with the Excelsior list re-
quirement. The full names of employees were provided.
When inaccuracies or truncations were learned of, the Re-
spondent remedied them. Moreover, inaccuracies in addresses
has consistently been viewed as less serious than total omis-
sion of names. As explained in Women in Crisis Counseling,
312 NLRB 589 (1993),
[T]he Board’s greater tolerance of address inaccuracies
in Excelsior lists reflects a pragmatic recognition that
an employer reasonably should know the names of em-
ployees in its current work force but may be less able,
without prompt disclosure from the employees them-
selves, to maintain a completely accurate list of their
current addresses.
The facts do not indicate that the Respondent was either
grossly negligent or acted in bad faith in providing the inac-
curate addresses. Accordingly, I find no objectionable con-
duct with regard to the Excelsior list.
CONCLUSIONS OF LAW
1. By denying the nonemployee union organizers access to
remote camps during the preelection period, the Respondent
has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6) and
(7) of the Act.
2. By telling employees that they would ‘‘lose their asses
if the Union came in,’’ by telling employees that the Re-
spondent would ‘‘run off’’ union supporters after the elec-
tion, and by telling employees that it could find out how em-
ployees would vote during the NLRB-conducted election, the
Respondent has engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
3. By denying the nonemployee union organizers access to
remote camps during the preelection period, by telling em-
ployees they would ‘‘lose their asses if the Union came in,’’
by questioning employees about how they would vote in the
NLRB-conducted election, and by telling employees that if
they voted the Union in the oil rigs would be stacked, the
Respondent prevented its employees from freely expressing
their choice in the November 1995 election. Accordingly, I
recommend that this election be set aside and a new election
be conducted at a time and date to be determined by the Re-
gional Director.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that reason-
able access to employees on the North Slope and Granite
Point facilities is not feasible, and after balancing employees’
and employers’ rights, I recommend granting access to the
Laborers’ nonemployee union organizers to the Respondent’s
North Slope and Granite Point facilities, on request, subject
to reasonable regulations.
In addition, having found that the Respondent engaged in
objectionable conduct affecting the results of the election in
Case 19–RC–13080, I shall recommend that the election held
in that case on November 20, 1995, be set aside, that a new
election be held at a time to be established in the discretion
of the Regional Director, and that the Regional Director in-
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589NABORS ALASKA DRILLING, INC.
26 Lufkin Rule Co., 147 NLRB 341 (1964).
27 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
28 If this 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 read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
clude in the notice of election the following Lufkin Rule26
language:
NOTICE TO ALL VOTERS
The election of November 20, 1995, was set aside be-
cause the National Labor Relations Board found that
certain conduct of the Employer interfered with the em-
ployees’ free exercise of a free and reasoned choice.
Therefore a new election will be held in accordance
with the terms of this Notice of Election. All eligible
voters should understand that the National Labor Rela-
tions Act gives them the right to cast their ballots as
they see fit, and protects them in the exercise of this
right, free from interference by any of the parties.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended27
ORDER
The Respondent, Nabors Alaska Drilling, Inc., Anchorage,
Alaska, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Denying the nonemployee union organizers access to
remote camps during the preelection period.
(b) Telling employees that employees would ‘‘lose their
asses if the Union came in,’’ telling employees that it could
find out how employees would vote during the NLRB-con-
ducted election, and telling employees that it would ‘‘run
off’’ supporters of the Union after the election was over.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) If requested by Alaska State District Council of Labor-
ers, AFL–CIO, grant nonemployee union representatives ac-
cess to its remote camps for organization meetings to contact
off-duty employees in nonworking areas, subject to reason-
able regulations concerned with time, frequency of visits, and
safety considerations.
(b) Within 14 days after service by the Region, post at its
places of operation in the State of Alaska, copies of the at-
tached notice marked ‘‘Appendix.’’28 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent
at any time since September 1, 1995.
(c) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the election conducted in
Case 19–RC–13080 on November 20, 1995, be set aside, and
that a new election be held at such time and under such cir-
cumstances as the Regional Director shall deem appropriate.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT deny nonemployee representatives for Alas-
ka State District Council of Laborers, AFL–CIO access to re-
mote camps during any preelection period.
WE WILL NOT tell employees that employees would ‘‘lose
their asses if the Union came in.’’
WE WILL NOT tell employees that we can find out how
employees would vote during the NLRB-conducted election,
and WE WILL NOT tell employees that we would ‘‘run off’’
supporters of the Union after the election was over.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, if requested by Alaska State District Council of
Laborers, AFL–CIO, grant nonemployee union representa-
tives access to remote camps for organization meetings to
contact off-duty employees in nonworking areas, subject to
reasonable regulations concerned with time, frequency of vis-
its, and safety considerations.
NABORS ALASKA DRILLING, INC.
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