True Drilling Company

National Labor Relations Board - Board Decisions

Jul 30, 1981

257 N.L.R.B. 426 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
True Drilling Company and Don G. Reichert. Case
27-CA-6772
July 30, 1981
DECISION AND ORDER
On January 28, 1981, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Re-
spondent filed an answering brief to the General
Counsel's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case was held on October 30, 1980, and is
based on an unfair labor practice charge filed by Don G.
Reichert on June 20, 1980. A complaint issued August 8,
1980, on behalf of the General Counsel of the National
Labor Relations Board, herein called the Board, by the
Regional Director for Region 27, alleging that True
Drilling Company, herein called Respondent, has en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the National Labor Relations Act,
herein called the Act, by terminating the employment of
Don G. Reichert and Jeffrey Terry on or about Febru-
ary 23, 1980, because they engaged in protected concert-
ed activity to protest unsafe working conditions. Re-
spondent filed an answer to the complaint, which denies
the commission of the alleged unfair labor practices.'
Upon the entire record, and having considered the
post-hearing briefs submitted by the General Counsel and
Respondent, I make the following:
FINDINGS OF FACT
A. The Evidence
Respondent owns oil drilling rigs, which it operates in
the several western States of the United States. Its head-
quarters is located in Casper, Wyoming.
' In its aswer Respondent admits that it is an employer engaged in
commerce within the meaning of Sec 2(6) and (7) of the Act and meets
the Board's jurisdictional standard
257 NLRB No. 72
In operating an oil drilling rig, Respondent employs a
tool pusher who has overall supervisory responsibility
for the rig's operation, 24 hours a day, 7 days a week.
He lives at the site of the rig. The tool pusher hires three
drillers who work the 24-hour schedule necessary to
keep the rig operating properly. Each driller is responsi-
ble for hiring a crew of four persons-a derrick man, a
motor man, and two floor hands-who work under the
driller's immediate supervision. The drillers and their
crews work staggered shifts in order to keep the rig op-
erating 24 hours a day.
The rig is a steel structure approximately 100 feet
high, comparable to a derrick. There is a platform at-
tached to its base on which the work crews spend a sub-
stantial portion of their worktime. The derrick man also
spends a part of his worktime working about 80 feet
above the platform on a board 2 feet wide and 8 feet
long. There is a sheltered area on the ground adjacent to
the platform which is called a doghouse and is used by
the crews to change into their work clothes. There is an-
other similar sheltered area on the platform used by the
crews during working hours, when not working, to pro-
tect themselves from the weather.
The instant dispute arose from an incident which took
place on February 23, 1980,2 at Respondent's rig number
17 which was located at McFadden, Wyoming. E. W.
Wattenberg was responsible for the operation of the rig.
On or about 11 p.m., February 23, the work crew super-
vised by driller Bill Britton was scheduled to be relieved
by a crew supervised by driller David Baxter. At the
time, Britton's crew was engaged in the process of "trip-
ping out of the hole"; namely, pulling the drill stem out
of the hole in order to replace a drill bit. At approxi-
mately 10:30 p.m., the derrick man who was scheduled
to work on Baxter's crew, Marcial Calderon, arrived
with an unidentified person who came with Calderon to
substitute for Calderon's brother who was scheduled to
work with Baxter's crew, but was absent. It was shortly
after 11 p.m. when Baxter arrived accompanied by the
two other members of his crew, Don Reichert and Jef-
frey Terry. Reichert and Terry were relatively new
workers with either little or no prior experience. Rei-
chert had been working at rig 17 for only about I month
and had no prior experience in this line of work. Terry
had been working at rig 17 for about 2 weeks with only
3 or 4 months prior experience working on other rigs.
The witnesses who testified about the events of Febru-
ary 23 were Reichert and Terry for the General Counsel,
and Britton and Wattenberg for Respondent. A summary
of their testimony follows.
Reichert testified that when he arrived at the rig on
February 23 he overheard Baxter tell Calderon that
Baxter would not allow Calderon to work that night be-
cause he was drunk and that Calderon was fired because
this was not the first time Baxter had warned him about
being drunk on the job. Baxter then unsuccessfully tried
to get a replacement for Calderon. Shortly thereafter,
Wattenberg, who lived at the site of the rig in a house-
trailer, told Baxter that Baxter would have to work Cal-
! Unless otherwise specified, all dates herein refer to 1980.
426
TRUE DRILLING COMPANY
deron because Calderon was "the best man we've got."
Baxter answered, "No, you'll work him" and took off his
coveralls. Reichert further testified that at this point in
time Reichert spoke up and told Baxter, "I am with you,
I am not going to work under the drunken bastard."
Wattenberg asked Terry how he felt about the matter.
Terry told Wattenberg, "I'm with them." Baxter, Rei-
chert, and Terry removed their clothing and other per-
sonal belongings from their lockers and left the rig.3 On
the subject of Calderon's state of intoxication, Reichert
testified that he thought Calderon was drunk because
"he was talking very loud, his eyes appeared to be very,
very bright, he had difficulty maintaining stability, he
was rocking back and forth and on occasion I saw him
back against the wall and he hit the wall to catch his bal-
ance."
Terry testified that after Baxter indicated he did not
intend to work if Wattenberg did not permit him to dis-
charge Calderon Wattenberg asked Terry what Terry in-
tended to do. Terry answered that he was "going to
town with [Baxter]" and left the rig with Baxter and Rei-
chert. Terry testified that he left because he felt it would
be unsafe to work with Calderon who, in Terry's opin-
ion, was drunk. Terry testified that he believed Calderon
was intoxicated because Calderon who normally never
talked very much was talking quite a bit; that Calderon's
eyes were glassy and a little bloodshot; and that Cal-
deron kept repeating that he was "happy."
Britton testified that Baxter informed him he was not
going to work Calderon because he was drunk. Baxter
also told Britton that he did not know what he was
going to do because he did not have a derrick hand and
asked if there was anyone on Britton's crew who would
stay and work on Baxter's crew that night as the derrick
hand.4 When Baxter failed to find a replacement for Cal-
deron, Britton testified that he offered to do Calderon's
job and that Baxter accepted his offer.' At this point,
Wattenberg entered the doghouse and told Baxter to
work Calderon because Calderon was the most experi-
enced employee on Baxter's crew. 6 Wattenberg stated
that if Baxter wanted to fire Calderon to do it some
other time. Baxter replied that he had the right to hire
and fire whomever he wanted on his crew and if he
could not do that he was going to quit; he walked over
to his locker and packed up his clothing. Wattenberg
asked Terry if he was going to stay. Terry replied that
he did not know. Baxter asked whether Terry and Rei-
chert were going to remain. Terry and Reichert stated
they would leave with Baxter, and the three of them left
the rig. Regarding Calderon's state of intoxication, Brit-
ton testified that Calderon did not appear drunk but only
3 The record establishes that it is understood in the drilling industry
that when a worker, besides leaving a rig, removes his clothing and other
belongings from his locker it indicates that the worker has quit the job.
' It is undisputed that it was not unusual for a worker on one crew to
stay over and work the next shift on another crew to fill a vacancy
I Britton testified that, when he offered to take Calderon's place, Terry
and Reichen were within 2 feet from where he was talking with Baxter.
Terry and Reichert testified that they did not remember any such discus-
sion between Britton and Baxter.
I Britton testified that he did not have a chance to tell Wattenberg that
he would take Calderon's place and did not hear Baxter communicate
this information to Wattenberg.
looked tired from a lack of sleep and that there was
nothing in his speech or motions which indicated he was
drunk, and that in fact Calderon worked for Britton later
that night and did not appear to be drunk.
Wattenberg testified that Britton woke him up February
23 and advised him that there was a problem at the rig,
and that shortly thereafter Calderon came to his trailer
and asked for a termination slip, explaining that Baxter
had discharged him for supposedly being intoxicated. In
Wattenberg's eyes, Calderon did not look as if he was in-
toxicated but just looked tired. Wattenberg went to the
rig and told Baxter that he would have to work Cal-
deron for that shift. Baxter replied that he would not
work someone that was drunk. Wattenberg told Baxter
that he did not think Calderon was "that bad," where-
upon Baxter took the position that he would hire and fire
whomever he desired. Wattenberg told Baxter that
Baxter had no choice but to employ Calderon for that
night because Calderon was needed to keep the rig oper-
ating, but if Baxter wanted to replace Calderon the next
day that Wattenberg had no objections. Baxter stated he
would not comply with Wattenberg's instruction and
went to his locker and removed his personal belongings.
Wattenberg asked Reichert and Terry if they intended to
stay or to quit like Baxter. They indicated they would
leave with Baxter and, in fact, did so.
Britton and certain members of Britton's crew stayed
and worked the shift that Baxter's crew, on February 23,
had been scheduled to work. The next morning it is un-
disputed that Wattenberg, who was under the impression
that Baxter, Terry, and Reichert had quit their employ-
ment, made arrangements for the employment of another
crew to replace Baxter's. Wattenberg contacted another
driller whom he hired to replace Baxter. On Monday,
February 25, at 7 a.m., when Baxter and his crew were
next scheduled to work, the new driller and his crew
began work at rig 17 in place of Baxter's crew.7 Baxter's
crew, on February 25, did not show up for work.
On Monday, February 25, at approximately 11 a.m.,
Baxter, Reichert, and Terry spoke to Respondent's assist-
ant drilling superintendent, Earl Sides, at Respondent's
headquarters in Casper, Wyoming. They spoke to him a
second time that afternoon. Reichert and Terry testified
about these conversations for the General Counsel
whereas Sides testified on behalf of Respondent.
B. Testimony
Reichert testified that Baxter acted as the spokesperson
for the group and told Sides that they wanted their jobs
back, but that if they could not have their jobs back they
wanted their bottom hole pay.8 Sides told them that it
was up to the tool pusher to hire the drillers and that it
was up to the drillers to hire their own crews, and that
Baxter would have to speak to Wattenberg about getting
' The record establishes that it is Respondent's practice to hire a
driller, who in turn is responsible for hiring the members of his cress.
I Bottom hole pay is incentive pay which Respondent pays its workers
to stay until a hole is completed. The pay is equal to 15 percent of the
total pay of an individual worker earned while working on a particular
hole It is undisputed that bottom hole pay is not paid before a well is
completed
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his job back and that as far as the bottom hole pay was
concerned they were not eligible for that because the job
on which they were working was not finished. Reichert
spoke up and stated that they had intended to stay
through to the completion of the hole but Wattenberg
had forced them to choose between their jobs and their
safety. Sides stated that if they failed to get their jobs
back that he would give them their paychecks for the
time they had worked and if they did succeed in getting
back to work they would receive bottom hole pay if
they remained until the job was finished. At this point,
Baxter apparently tried to contact Wattenberg by phone
to determine their employment status, but was unable to
reach him. Sides told them to return later in the day for
their paychecks. When they returned for their checks,
Sides asked them to sign a so-called pink slip, entitled
"termination date," dated February 25, and which, in the
portion captioned "reason for termination" was marked
"quit?" Reichert refused to sign the slip. He stated that
he was not quitting, but was trying to get his job back.
Sides stated that the purpose of the slip was to provide
the Company with a receipt showing that it had paid the
employees the moneys it owned them. Reichert asked
whether he could sign the back of the slip. Sides agreed.
Reichert wrote on the back of the slip that he had re-
ceived his paycheck dated February 25 for the money
owed him. He signed his name next to this statement.
Reichert told Sides that he felt they had been treated un-
fairly by the Company and had the right to receive
bottom hole pay because they had intended to stay until
the end of the job, but rather than work with Calderon
under unsafe conditions had chosen their own safety.
Sides told them that they would have to speak to Wat-
tenberg about their jobs. Reichert replied that, if he did
not get his bottom hole pay and if, when he got back to
the rig, he discovered another crew had been hired to re-
place them, he intended to prosecute Respondent. The
next day Reichert phoned the rig and was informed by
an unidentified person that there was another crew
working in place of Baxter's.
Terry's recollection of what took place in Sides' office
on February 25 was sketchy. He testified that Baxter and
Reichert did most of the talking and further testified, "I
can remember asking for our checks, asking about get-
ting our jobs back and asking about bottom hole [pay],"
and testified that Sides told them, "We'd have to come
back and get our checks in the afternoon and that he
doubted if we could get our bottom hole [pay]," and if
they wanted to return to work for the Company they
would have to contact Wattenberg. Later that day Terry
testified that he returned to pick up his check and signed
a slip which stated he had "quit?" Terry crossed this out
and instead wrote that he "did not want to work for a
drunk." Later that week Terry drove out to the rig and
observed there was a new crew working there which
had replaced Baxter's crew. Terry asked the driller
whether he was short handed. The driller told him no.
Sides testified that when Baxter, Reichert, and Terry
entered his office on February 25, they initially asked for
their paychecks and that in response to Sides' inquiry
they told him they had quit their job due to a safety
problem and explained to Sides that they thought Cal-
deron had been intoxicated Saturday evening. With
regard to their paychecks, Sides testified that they asked
for their bottom hole pay and that, when Sides told them
they were not eligible for such pay unless they worked
to the completion of the hole, for the first time they
asked about getting their jobs back, at which time Sides
told them that they would have to go back to the rig
and determine whether the driller who had taken
Baxter's place needed any roughnecks for his crew.
Later that day when Baxter, Terry, and Reichert re-
turned for their paychecks, Sides testified that he asked
them to sign the above-described "pink slips," which had
been made out by personnel so that Respondent would
have a receipt for the moneys they had paid to the em-
ployees.
C. Conclusionary Findings
The General Counsel contends that Reichert's and
Terry's refusal to work with Calderon on February 23
constitutes protected concerted activity within the mean-
ing of Section 7 of the Act. Respondent takes the posi-
tion that, assuming, arguendo, the conduct of Reichert
and Terry constitutes protected concerted activity Re-
spondent did not violate the Act inasmuch as Respond-
ent permanently replaced them with other workers, as
was its right under the Act, rather than discharge them.
I agree with Respondent's position. Thus, I have not re-
solved the several conflicts in the evidence set forth
above and have not resolved the question of whether the
conduct of Reichert and Terry herein was protected by
Section 7 of the Act.
As described in detail, supra, the record as a whole,
when construed most favorable to the General Counsel,
contains no evidence that Respondent discharged Rei-
chert or Terry. Indeed, they testified in effect that they
were not notified by anyone from management that they
had been terminated.9 Quite the contrary, when Reichert
and Terry, on February 23, refused to work with Cal-
deron and left the job, they cleaned out their lockers
which was the type of conduct calculated to lead Re-
spondent to believe that they had voluntarily terminated
their employment. And, it is undisputed that following
Reichert's and Terry's February 23 refusal to work with
Calderon, on February 25, before they had indicated to
Respondent their desire to return to work, Respondent
had permanently replaced them with other workers be-
cause of a legitimate business purpose. Under these cir-
cumstances Respondent, on February 25, was not legally
obligated to reinstate Reichert or Terry because even
though Respondent, as a matter of law, had no right to
discharge or otherwise punish them for refusing to work
with Calderon if their conduct was protected concerted
activity, Respondent did have a legitimate interest in
continuing to operate rig 17 and, thus, was legally au-
9 The "pink slips" given Reichert and Terry to sign on February 25
fail to establish that they were terminated by Respondent. They were
asked to sign these slips so as to provide documentation for Respondent
that they had received the money owed them by Respondent. Moreover.
the slips, on their face, indicate that Respondent did not terminate Rei-
chert or Terry but give the impression that they had voluntarily quit
their employment on February 23 when they cleaned out their lockers
and walked off the job.
428
429
TRUE DRILLING COMPANY
thorized to permanently replace Reichert and Terry with
other workers. N.L.R.B. v. MacKay Radio & Telegraph
Co., 304 U.S. 333, 345-346 (1938); N.L.R.B. v. Fleetwood
Trailer Co., Inc., 389 U.S. 375, 379 (1967). The fact that
Reichert and Terry may have believed, in good faith,
that Calderon was intoxicated and thus was a danger to
their safety if they worked with him did not circum-
scribe Respondent's right to permanently replace them as
striking employees. I recognize that Section 502 of the
Act, among other things, states that "the quitting of
labor by an employee or employees in good faith because
of abnormally dangerous conditions for work at the
place of employment of such employee or employees
[shall not] be deemed a strike under this Act." In con-
struing Section 502, the Board, with the approval of the
Supreme Court, applies "an objective, as opposed to a
subjective test. What controls is not the state of mind of
the employee . . . concerned, but whether the actual
working conditions shown to exist by competent evi-
dence might in the circumstances reasonably be consid-
ered 'abnormally dangerous."' Redwing Carriers, Inc. and
Rockana Carriers, Inc., 130 NLRB 1208, 1209 (1960);
Gateway Coal Co. v. United Mine Workers of America, et
al., 414 U.S. 368, 385-387 (1974). Thus, without deciding
whether Section 502 is only applicable in the context of
a contractual no-strike clause as urged by Respondent,'
°
I am of the view that the conditions complained of
herein, while having an element of remote risk to the
employees, could not be considered "abnormally danger-
ous" within the meaning of Section 502. The sole evi-
dence presented by the General Counsel to establish why
the employees felt unsafe working with Calderon was
Terry's testimony that he thought that, due to Calderon's
apparent intoxication, Calderon might fall from the
board down onto the workers on the platform or that
Calderon's hardhat might likewise have fallen. On cross-
examination Terry admitted, and it is undisputed, that
Calderon did not wear a hardhat and that when Cal-
deron worked on the board above the platform that he
was always strapped to his position, thus he could not
have fallen. In addition, the record establishes that Cal-
deron spent only a small part of his working time at
work on the board above the platform. In my opinion,
considering the aforesaid circumstances, the evidence
presented by the General Counsel that it would have
been dangerous for Reichert and Terry to have worked
with Calderon if he was intoxicated was not the kind of
objective evidence to support an employee's conclusion
that an abnormally dangerous condition for work existed.
Based upon the foregoing, I shall recommend that the
complaint in this case be dismissed in its entirety.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER "
The complaint is dismissed in its entirety.
Io Here there is no claim that the emplovees' conduct violated a con-
tractual no-strike pledge.
"t In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board. the
findings, conclusions. and recommended Order herein shall. as provided
in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and
become its findings. conclusions, and Order, and all objections thertto
shall he deemed ssaived for ll purposes