Petition — Brahaney Drilling Co. v. National Labor Relations Board

——————— |

Supreme Court, U. S. :

SEP 1975

MICHAEL RODAK, JR. CLERK |

—— <a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1975

No. %5-419

BRAHANEY DRILLING COMPANY and

LEATHERWOOD DRILLING COMPANY ;

Consolidated Petitioner,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

CONSOLIDATED PETITION FOR A WRIT

OF CERTIORARI TO THE UNITED STATES COURT OF

_ APPEALS FOR THE FIFTH CIRCUIT

BROOKS L. HARMAN

112 West 5th Street

Odessa, Texas 79761

COUNSEL FOR PETITIONERS

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Reasons for Granting the Writ ............0.0eeee 7

I. The Decision Below Is Clearly and

Seriously a Misapprehension and a

Gross Misapplication of the Proper

Standards of Review of N.L.R.B.

Decisions and Orders by a Circuit

Court of Appeals As Enunciated By

This Court in Universal Camera Corp.

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II. The Decision Below Is In Direct Con-

flict With Decisions in the Sixth,

Seventh and Eighth Circuit Courts of

Appeal as Well as With Its Own

PEED cueWeecedscctcecsreestceccscvcces 17

III. The Decision Below Raises Important

Federal Questions of Effectuating the

Purposes of The Labor Relations

Management Act, as Amended, Affect-

ing the Rights of MillionsofWorkers...... 20

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1975

No.

BRAHANEY DRILLING COMPANY and

LEATHERWOOD DRILLING COMPANY,

Consolidated Petitioners,

versus

NATIONAL LABOR RELATIONS BOARD,

Respondent.

CONSOLIDATED PETITION FOR A WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

The Petitioners pray that a Writ of Certiorari issue

to review the judgments of the United States Court of

Appeals for the Fifth Circuit entered in the above en-

titled consolidated cases on June 18, 1975, Petition for

Rehearing denied on July 24, 1975, notification of

which was received 8-1-75.

OPINION BELOW

The slip opinion of the Court of Appeals is reported

at _._.._ F.2d ___, printed in Appendix A hereto. The

Board's decision and order in Leatherwood Drilling

Company case is reported at 209 NLRB #92, printed in

Appendix B hereto, and in Brahaney Drilling Com-

2

pany case at 209 NLRB #93, printed in Appendix C

hereto. The judgments enforced the Board's orders re-

quiring the respective Petitioners to bargain with

Local 826, International Union of Operating

Engineers, AFL-CIO.

JURISDICTION

The judgments of the Court of Appeals, printed in

Appendix A hereto, entered on June 18, 1975 and the

Order Denying Rehearing was entered on July 24,

1975. Motion for Withdrawal of Mandate and Stay of

Mandate was denied August 28, 1975. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

These consolidated cases arose when Petitioners

withdrew union recognition more than two years after

the certification year began. The withdrawals were

based on good faith doubt of the union's continuing

majority status. Both employers presented several

grounds as forming the basis of their beliefs. The

questions presented are:

1. Whether the Court below erred in misapprehend-

ing and in grossly misapplying the proper stan-

dards of review of National Labor Relations

Board orders as required by the decision of this

Court in Universal Camera Corp. vs. NLRB, 340

U.S. 474, 491; 71 S.Ct. 456, 466 (1951) by:

(a) Limiting its power to disturb the Board's

findings only upon ashowing of abuse of dis-

cretion in an unfair labor practice case hav-

ing to do with good faith doubt of a union's

majority status and permitting the Board to

rely upon its own surmise and unsupported

by evidence.

(b) Permitting the Board to isolate the various

grounds of Petitioners’ good faith doubt of

the union’s continuing majority status

rather than requiring the Board to consider

all of the elements as a whole.

(c) Not requiring a shifting of the burden of

proof to General Counsel after Petitioners

presented sufficient evidence to cast serious

doubt on the union’s majority status.

2. Whether the Court below erred in holding the

Board did not abuse its discretion in failing to

follow its own guidelines in determining these

Petitioners’ good faith doubt of the union’s ma-

jority status as set out in Celanese Corp. of

America, 95 NLRB 664, 671-673 (1951) and ap-

proved by this Court in Brooks vs. NLRB, 348

U.S. 96, 75 S.C. 176 (1954).

(The opinion of the Court below is in direct conflict

with a decision of this Court and with decisions in the

Sixth, Seventh and Eighth Circuit Courts of Appeal,

as well as with its own decisions.)

STATUTES

“... The findings of the Board with respect to

questions of fact if supported by substantial

evidence on the record considered as a whole

shall be conclusive...”. 28 U.S.C. 160(e),

Public Law 61 Stat 136 Sec. 10(e).

4

STATEMENT OF THE CASE

These are companion cases consolidated for hearing

and decision before the Circuit Court of Appeals for

the Fifth Circuit. Both cases were heard by Ad-

ministrative Law Judge Harmatz and the Board

adopted his decisions in toto and the decisions by the

Board were issued simultaneously. The Ad-

ministrative Law Judge wrote his decision in

Leatherwood first and in writing the Brahaney deci-

sion quoted liberally from the Leatherwood case and

treated the cases identically. The Board took official

notice of the record in the companion cases with

respect to certain common issues to avoid repetition

of testimony.

Both companies were oil and gas drilling contrac-

tors in the Permian Basin area of West Texas and

southeast New Mexico. Brahaney owned 5 drilling

rigs and Leatherwood owned 2 to 3 drilling rigs during

the period. Brahaney withdrew recognition 2 years

and 3 months after certification year began, and

Leatherwood withdrew recognition 2 years and 5

months after certification year began. In Brahaney’s

case, the withdrawal was preceded by a 6 months

period of no communication from the union. In

Leatherwood's case, withdrawal was preceded by 10

1/2 months of no communication from the union.

In both cases, in addition to the above facts.

Petitioners’ good faith doubts were based primarily on

(1) turnover of employees, and (2) union's long silence

after last negotiating session. It was more than mere

turnover or mere silence on the union's part. There

were certain significant facts and circumstances

surrounding the turnover and silence that are very im-

portant.

The number of days required to drill a well vary

from 7 days to about 70 days. The wells were drilled in

the Permian Basin area of West Texas and southeast

New Mexico.

Certain other significant facts in relation to both

companies are set out as follows:

Fact Brahaney Leatherwood

Election date 4-11-68 2-11-69

Certification period

started 3-9-71 11-6-70

Withdrawal of recognition 6-4-73 4-19-73

Varying number of

employees needed 24 to 36 24 to 36

Number of eligible voters 23 77

Number of votes cast 17 21

Number of the eligible voters

working as of May 31,1973 None 3

Total number employed

since election 1,591 1,761

Rate of turnover

for each job 40 to 50 40 to 50

Rate of turnover during

certification period

for each job 21 26

Total employees during

first 5 months of 1973 160 320

Per cent rate of turnover

during first 5 months

of 1973 667% 900%

6

Negotiating sessions during

certification period 6-22-71 3-8-72

(Brahaney:

3/9/71-6/ 4/73) 1-20-72 4-18-72

(Leatherwood:

11/6/70-4/ 18/73) 3-14-72 6-22-72

4-14-72

7-21-72

10-13-72

Total hours of negotiations 16 hours Not indicated

in record.

No communication from Union

(hiatus period)

to 5-31-73 to 4-19-73

Number of rigs operating

during hiatus period 1 to4

Average 2 1/2

Number of wells drilled

at different locations 1971-40 1971-14

1972-17 1972-71

5 months 1973 4 26

There were from 50 to 60 drilling contractors in the

Basin owning about 300 rigs. The union claimed to

represent a majority of the employees of 13 companies

owning 63 rigs, or about 21%. It took about 3,000 rough-

necks to man the rigs operating in the area. In 20 union

elections in the drilling industry, there were 1247

eligible voters but only 923 votes cast, of which the Un-

ion received 396, or 42% of the total votes cast but only

31% of the eligible voters and only about 13% of the

employees in the industry.

The union, during the certification period, was

represented by the business agent and his assistant

and occasionally an international representative. The

union’s geographical territory runs from El Paso,

From 10-13-72 From 6-22-72

Average 2 1/2

7

Texas east to Brownwood, Texas; north to Wichita

Falls, Texas; and west to the Texas - New Mexico line;

and all of southern New Mexico. The union primarily

represents gasoline plants and production com-

panies. In addition it represents the employees at

Johnson Manufacturing Company in Lubbock, Texas.

The union representatives never did go to the rigs

nor did they know where the rigs were working or how

many were working, except from hearsay picked up

periodically.

REASONS FOR GRANTING THE WRIT

I.

The Decision Below Is Clearly And Seriously

A Misapprehension And A Gross Misapplica-

tion Of The Proper Standards Of Review Of

NLRB Decisions And Orders By A Circuit

Court Of Appeals As Enunciated By This

Court In Universal Camera Corp. vs. N.L.R.B.

These consolidated cases raise substantial and im-

portant questions concerning the standards of review

followed by the Court below in its enforcement of

NLRB orders. It has misapprehended and grossly mis-

applied the standards of review as taught by this Court

in Universal Camera Corp. vs. NLRB, supra, and is in

conflict with that case.

First, the sole issue before the Board was whether

Petitioners established reasonable grounds as bases

for their good faith doubts of the union’s majority

status. It was incumbent upon the Board toconsider all

the factual elements and then decide if all those factual

elements, taken as a whole, could cause a reasonable

person to have good faith doubts of the union's con-

tinuing majority status.

It was the function of the reviewing court to examine

the record and decide if the Board properly followed

the guidelines set out in Celanese Corp. of America

and Oil Workers International Union, CIO, supra, in

cases of this kind.

The Board, in adopting the Administrative Law

Judge's decisions, in toto, was arbitrary and abused its

discretion by the manner in which it treated the factual

elements constituting the reasonable grounds for

these Petitioners’ doubts. The Court below merely

sought ways to justify the Board's failure.

Second, the Court below accorded finality to the

Board's findings and deemed itself to be the judicial

echo of the Board's conclusions. After discussing the

Board's ‘‘very broad” discretion in the administration

of the Act with respect to the appropriateness of a

bargaining unit and the certification of bargaining

representatives, the Court below said:

“A reviewing court will give ‘special respect’

to the Board's findings and disturb them only

upon a showing of abuse of discretion.”

That special respect is limited to the specific province

where the Board is presumed to have expertise (deter-

mining bargaining units, certification of bargaining

representatives and fashioning remedies), but it does

not apply to findings of fact in unfair labor practice

cases as here involved. Furthermore, the Beard abus-

ed its discretion as the following will demonstrate.

These are not cases where the Board chose between

two equally conflicting inferences supported by sub-

stantial evidence as a whole. The Board's inferences or

surmises were pure fabrications out of the mind of the

Administrative Law Judge and are not supported by

substantial evidence, while Petitioners’ beliefs are

supported by substantial and uncontradicted

evidence. NLRB vs. Coats & Clark, Inc., 231 F.2d 567

(1956). The relatively few negotiating sessions and the

shortness of the sessions over 2 1/3 or more years; the

vast geographical territory responsibility of the un-

ion; the limited union organizers and representatives

available for contact of employees; the lack of

knowledge of the union of who was employed by

Petitioners at any given time; the union’s non-

visitation at the rigs of Petitioners; the smal!

representation claimed by the union in the industry;

its long delay in seeking negotiations; the extremely

rapid turnover of employees of Petitioners; the depar-

ture of all of the eligible voters in Brahaney and all but

3 in Leatherwood; and the other factors involving the

turnover are all facts in the record and would surely

cause any reasonably knowledgeable person to doubt

the employees were even aware of the union’s ex-

istence and to most certainly doubt the rapidly chang-

ing employees wanted the union to represent them

with these Petitioners. Not to have doubts under the

circumstances is to deny any knowledge of human

nature.

10

Third, the Court below uncritically accepted and

followed the false trail laid out by the Board in mis-

applying the evidence and its meaning with respect to

the controlling question and legal principle.

The question in each case was: Did the Petitioner

have reasonable grounds for doubting the union's con-

tinuing majority status more than 2 years and 3

months after the certification year began?

The legal principle is set out in Celanese Corp. of

America and Oil Workers International Union, CIO,

supra, cited with approval by this Court in Brooks vs.

NLRB, supra.

The principle is: After the certification is a year old,

an employer can, without violating the Act, refuse to

bargain with a union on the ground that it doubts the

union's majority, provided the doubt is in good faith.

It is only necessary to show the employer in good

faith believed that the union no longer represented the

majority of the employees. The employer must only

show it had reasonable grounds for doubting the un-

ion’s majority. It is not whether there was sufficient

evidence to rebut the union's majority status, nor is it

necessary to demonstrate that the union in fact did not

represent a majority, as the Court below indicated was

necessary.

The Board and the Court below are required to look

at the totality of all the circumstances. Instead, the

Board, with approval of the Court below, not only

failed to take into consideration all the grounds for

11

doubt (see Statement of Facts above), but actually

isolated the grounds it did consider and found each

isolated ground, standing alone, insufficient to be a

reasonable basis for a good faith doubt.

This is a further indication of the Board's ar-

bitrariness and abuse of discretion.

Fourth, the Board and the Court below even then

misapprehended the effect of the various grounds (as

set out above) as to whether they were or were not

capable of influencing the employer's belief. Succinct-

ly, the facts in both instances were: a turnover in ex-

cess of 667% (Brahaney) and 900% (Leatherwood) in

the 5 months preceding withdrawal of recognition;

almost a complete turnover in employment every 2

weeks; constant movement of the actual place of

employment; the union being shorthanded and cover-

ing such a wide territory resulting in its inability to

contact the rapidly changing employees; its obvious

reluctance to negotiate for long periods of time; the

limited number of negotiating sessions and their

briefness; the elapse of more than 2 years after cer-

tification and 4 and 5 years after the election; the vast

number of employees hired over the years since the

election; the negligible success of the union in

organizing the drilling industry in the area; lack of

contact between the union and employees; lack of any

conversation on the rigs about the union; the union's

minimal claim of representation in the industry; and

the disappearance of all the eligible voters from the

payroll of Brahaney and all but 3 in Leatherwood.

12

The Board and Court below found the extremely rap-

id turnover did not furnish reasonable grounds for a

good faith belief of doubt of majority status because of

what they said was the recognized inherent rapid turn-

over in the industry. Both cite the representation case

of Hondo Drilling Company, 164 NLRB 416 (1967); af-

firmed NLRB vs. Hondo Drilling Company, 428 F.2d

943 (5th Ct., 1970) for the purpose of disregarding or

avoiding the effect turnover would have on an

employer's doubt.

The Hondo case, supra, was simply acase that deter-

mined the eligibility of voters in the drilling industry

of West Texas because of its inherent rapid turnover,

and has absolutely nothing to do with union majority

status or with preventing turnover from being a fac-

tual bases for an employer's good faith doubt. The

voting formula developed, as set out in footnote 1 of

the opinion below, is tacit admittance on the part of the

Board that it doubted the union could muster a majori-

ty vote under the normal! rules of voting. According to

the Board it was designed to protect the voting rights

of employees who might have an expectancy of future

employment but, even then, required 10 days employ-

ment during the previous 90 days without quitting or

being terminated for cause. With almost 100% turn-

over every 2 weeks, it must be obvious the employees

were quitting and would not be eligible to vote even

under the Hondo formula.

The Board said, in devising the formula, it must be

careful not to permit the question of union representa-

tion to be decided by those individuals that have no

likelihood of re-employment with the employer. And

13

yet, that is exactly what the Board and the Court below

are doing by their findings and rulings in these cases.

The question here was, not eligibility to vote, but

whether the inherent and actual rapid turnover, its

nature, its causes and effects, could and did cause the

employers to doubt the union's majority status? The

answer is yes, according to the uncontradicted

evidence in the record.

In sustaining the Board and in excluding inherent

rapid turnover and the circumstances surrounding it

in an industry as a bases for an employer's doubt on

such ground, the Court of Appeals has, in effect, held

that in any industry with inherent rapid turnover,

such turnover could never be a ground for a good faith

doubt of a union's majority status. This is a novel

theory, is contrary to human experiences, and is in

direct conflict with the Board's own guidelines.

Fifth, the Court below uncritically adopted the

Board's findings that other cases cited by Petitioners

were “inapposite”’ and then stated:

“It was not in the province of the Court to

weigh the imponderables and reconcile the

considerations which prompt the Board to

fashion an appropriate remedy peculiar to

each case.”

The cases referred to are apposite because they all in-

volve the same issue as here involved, i.e., did the

employer have a good faith doubt of the union’s ma-

jority. The cases cited were: Taft Broadcasting,

14

WDAF-TYV, et al, 201 NLRB 113 (2-13-73); Southern

Wipers, Inc., 192 NLRB 1355 (8-19-71); and Viking

Lithographers, Inc., 184 NLRB 16 (7-30-70).

In the Taft case, supra, the Board found essentially:

1. Almost 100% turnover of employees since the

last contract;

2. Relative inactivity by the union in recent years;

and

3. Expressions of employee dissatisfaction with

the union made to company Officials.

The Board pointed out that though each factor relied

upon by the employer may have weaknesses stand-

ing alone, the employer relied upon all of those factors

as a whole and concluded the employer provided suf-

ficient evidence, when considered in its entirety, to

cast a serious doubt upon the union's majority status.

In the Southern Wipers, Inc. case, supra, the Board

held because of:

1. A 4 to 1 turnover in employees, including the

departure of all but 3 of the members of the un-

ion’s negotiating committee;

2. During the latter part of the time the union was

inactive in the employer's plant; and

3. Several employees indicated to the employer

they were glad the union had left the plant.

The Board said the employer did not violate the Act by

refusing to recognize the union as the bargaining

agent of his employees.

15

In Viking Lithographers, Inc., supra, the Board held

the employer did not commit an unfair labor practice

because:

i. The union was wholly inactive in the employer's

plant;

2. Several employees expressed dissatisfaction

with the union; and

3. Only 4 of the unit employees employed at the

time of the election remain in the plant and twoof

them had announced their intention of quitting.

Neither those cases nor these cases involve the

Board “fashioning” an appropriate remedy peculiar

to each case. The only remedy in the 3 cases cited

above and these 2 companies is to require them to

bargain if they are found guilty of an unfair labor

practice.

The Court below then said:

“It suffices that none of the cases involved an

industry with inherent turnover and lack of

union manpower.”

Nothing in those cases indicate whether or not they

involved industry with inherent turnover and lack of

union manpower as asserted by the Court below. But,

the very fact of inherent rapid turnover must be con-

sidered as a strong, if not controlling, factual element

causing Petitioners to believe the union no longer en-

joyed majority status 4 and 5 years after the election,

and particularly so when coupled with the union's

lack of manpower. However, both Petitioners

16

presented other uncontradicted factual bases for their

doubts of the union's majority status.

Finally, where the employer presents evidence, con-

sidered in its entirety, which casts serious doubt on

the union's continuing majority, the burden shifts to

the General Counsel to come forward with evidence

that the union did, in fact, represent a majority of the

employees in the unit. That statement was referred to

by the Board in Taft Broadcasting, supra, decided by

the Board on February 12, 1973. It follows a long line of

cases, one of the earliest of which is Stoner Rubber

Company, Inc., 123 NLRB 1440. At page 1445, the Board

said:

“After the lapse of the certification year, the

certification creates only a presumption of

continued majority. This presumption is

rebuttable. Proof of majority is peculiarly

within the special competence of the union. It

may be proved by signed authorization cards,

dues checkoff cards, membership lists, or any

other evidentiary means. An employer can

hardly prove thata union no longer represents

a majority since he does not have access to the

union’s membership lists and direct in-

terrogation of employees would probably be

unlawful as well as of dubious validity. Accor-

dingly, to overcome the presumption of ma-

jority, the employer need only to produce suf-

ficient evidence to cast serious doubt on the

union’s majority status. The presumption

then loses its force and the General Counsel

must come forward with evidence that on the

17

refusal to bargain date the union in fact

represented a majority of employees in the ap-

propriate unit.”

(Also see NLRB vs. J. S. Swift Company, Inc., 302 F.2d

342 (CA-7, 1962) and NLRB vs. Little Rock Down-

towner, Inc., 414 F.2d 1084 (CA-8, 1969)

There was no attempt by the union or the General

Counsel to prove to the company or to the Board the

union’s majority status. Neither the Board nor the

Court below discussed this important issue.

I.

The Decision Below Is In Direct Conflict With

Decisions In The Sixth, Seventh And Eighth

Circuit Courts Of Appeals As Well As With Its

Own Decisions.

The Decision below is not only in serious conflict

with the decision of this Court in Universal Camera

Corp., supra, as described above, but alsoisinconflict

with decisions of other Circuit Courts of Appeal.

Seventh Circuit Court of Appeals. Ingress-Plastene,

Inc., vs. NLRB, 430 F.2d 542 (1970). In that case, as in

the instant cases, the Board attacked individually the

several grounds of the employers including the factor

of significant turnover. The Court of Appeals said the

company did not rely on any one reason alone, but

rather on all asa whole. It then found the employer had

a good faith doubt. This is in conflict with the instant

cases where the Court below approved the Board's

attacking the employers’ grounds individually and

did not consider them as a whole.

18

NLRB vs. Laystrom Mfg. Co., 359 F.2d 799 (CA-7,

1966). The Seventh Circuit refused to enforce the

Board's bargaining order. The Board’s decision

(Laystrom Mfg. Co., 151 NLRB #144), cited by the

Board in the instant cases, said:

“Turnover standing alone, does not provide a

reasonable basis for believing the union had

lost its majority status.”

The factors were the close vote of 17 to 13 two years

before withdrawal of recognition, 16 eligible voters

out of 35 left since the election and 8 new employees

hired, and the union-shop provision. The Seventh Cir-

cuit Court held those factors (as determined by the

Hearing Officer) were sufficient to form the basis of a

good faith doubt on the part of the employer. The Court

also pointed out the union, when challenged, made no

effort to disclose its majority status.

Sixth Circuit Court of Appeals. Phillip Carey Mfg.

Co., Miami Cabinet Div. vs. NLRB, 331 F.2d 720, 734

(CA-6, 1964) (cert. den., 379 U.S. 888). That Circuit

Court said there would be substantial ground for doubt

concerning the union's majority status after pointing

out the closeness of the vote (122 for the union and 112

against), and the large number of strikers who were

replaced. It refused to enforce the bargaining order.

Eighth Circuit Court of Appeals. National Cash

Register Co. vs. NLRB, 466 F.2d 945 (CA-8, 1974). The

law judge considered the elements seriatum (as in the

instant cases) and concluded that none of them in-

dividually would constitute a sufficient basis for a

good faith doubt. However, the Court said,

19

“Considered together we believe that good

faith doubt has been demonstrated at least to

the point of requiring the General Counsel to

come forward with evidence that the union did

represent a majority of the employees in the

unit on the refusal to bargain date. This the

General Counsel did not do.”

That Court refused enforcement of the Board's orders

to bargain.

The approach of the Court of Appeals for the Fifth

Circuit to judicial review of the Board's considering

seriatum the factual elements forming the basis of an

employer's good faith doubt differs from the approach

required by Universal Camera Corp. vs. NLRB, supra,

and from the approach taken by other Courts of

Appeal. This difference, it is submitted, results in the

court's holding (1) that the Board did not abuse its dis-

cretion in not considering all the elements as a whole

in which other courts find an abuse of discretion, and

(2) allowing the Board to engage in all kinds of in-

ferences and surmises not supported by the evidence.

Such an approach is totally inapplicable to proper

judicial review of the Board's decisions.

The Administrative Law Judge's inferences and sur-

mises as to the effect on the minds of the Petitioners of

the long union silence and intermittent negotiations

and inherent turnover were just inferences and sur-

mises and were not supported by substantial evidence.

When the Court below accepted those inferences and

surmises as fact it was in conflict with its own

decisions in Poultry Enterprises, Inc. vs. NLRB, 216

F.2d 798 (CA-5, 1954) and NLRB vs. Coats & Clark, Inc.,

supra.

ITI.

The Decision Below Raises Important Federal

Questions Of Effectuating The Purposes Of

The Labor Relations Management Act, As

Amended, Affecting The Rights Of Millions Of

Workers.

If the decision below is allowed to stand, workers,

unions, employers and the NLRB will operate under

different standards of procedure in the geographical

area of the Fifth Circuit than those in other areas. The

Board will be able to flout the purposes of the Act re-

quiring Board decisions to be supported by substan-

tial evidence on the record as a whole, thus affecting

the rights of millions of workers. The Board will be

permitted to consider only the evidence it wants to

consider and to make all kinds of inferences and sur-

mises without substantiation in the record.

Unions will be permitted to maintain representation

status over employees for indefinite periods although

the employees change many times and regardless of

how inept the union may be in its ability to actually

represent the workers or even know the workers.

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

BROOKS L. HARMAN

Brooks L. Harman

112 West 5th Street

Odessa, Texas 79761

ATTORNEY FOR PETITIONERS

21

CERTIFICATE OF SERVICE

The undersigned hereby certified that three (3)

copies each of Petitioners’ Petition for a Writ of Cer-

tiorari to the United States Court of Appeals for the

Fifth Circuit in the herein styled case were mailed to

each of the following on the _._. day of September,

2°. . 1975:

Solicitor General of the United States

Department of Justice

Washington, D.C. 20530 and

Honorable Elliott Moore

Deputy Associate General Counsel

National Labor Relations Board

1717 Pennsylvania Ave., N.W.

Washington, D.C. 20570

BROOKS L. HARMAN,

Attorney for

Consolidated Petitioners

Brooks L. Harman

112 West 5th Street

Odessa, Texas 79761

la

APPENDIX A

NATIONAL LABOR RELATIONS

BOARD, Petitioner,

Vv.

LEATHERWOOD DRILLING

COMPANY, Respondent

NATIONAL LABOR RELATIONS

BOARD, Petitioner,

Vv.

BRAHANEY DRILLING COMPANY,

Respondent.

Nos. 74-2415, 74-2421.

United States Court of Appeals,

Fifth Circuit.

May 27, 1975.

Application for enforcement of orders of the

National Labor Relations Board (Texas case).

Before BROWN, Chief Judge, and MURRAH* and

WISDOM, Circuit Judges.

* Of the Tenth Circuit sitting by designation.

2a

MURRAH, Circuit Judge:

This consolidated appeal is before the Court on peti-

tion of the National Labor Relations Board to enforce

the Board's orders finding that the Leatherwood and

Brahaney Drilling Companies each violated §§ 8(a)(5)

and (1) of the National Labor Relations Act, 29 U.S.C.

§§ 158(a)(5) and (1), by withdrawing recognition from

and refusing to bargain with Local 826, International

Union of Operating Engineers, AFL-CIO (the Union).

Both drilling companies challenge the sufficiency of

the evidence to support the Board's conclusion that

neither could assert good faith doubt of the Union's

majority status as a justification for refusal to bar-

gain. We enforce the Board's orders.

Leatherwood and Brahaney are two of the fifty to

sixty oil well drilling companies who operate in the

Permian Basin, an area of 95,000 square miles in

Western Texas and Eastern New Mexico. Companies

in this area normally take less than twenty days to

drill a well, then move the rig to a new site where a sub-

Stantially new crew may be hired or the old crew

rehired, resulting in high employee turnover. Taking

this employment pattern into account, the Board

fashioned and we approved a special voter-eligibil:ty

formula’ for elections to certify the employee bar-

1 The formula grants voting eligibility to the followin .

“All roughnecks who have been me tmnt by [a aun

company] for a minimum of 10 working days during the 90

calendar-day period preceding the issuance of [the

Board's} Decision and Direction of Election herein. and

who have not been terminated for cause or quit voluntari-

ly prior to the completion of the last job for which they

were employed, as well as all roughnecks whose names

— no 4 maa company's] payroll list imme-

“rely r in » iss , i ,

moe oP evi 4 7 ee of the Regional Director's

N.L.R.B. v. Hondo Drilling Co., supra at 945.

3a

gaining representatives in this particular area. Hondo

Drilling Co., 164N.L.R.B. 416 (1967); affirmed, N.L.R.B.

v. Hondo Drilling Co., 428 F.2d 943 (5th Cir. 1970). The

Union was certified in 1969 pursuant to a Hondo elec-

tion conducted among the employees of each of the two

companies. The validity of those elections is not ques-

tioned here.

It is settled that in the absence of special cir-

cumstances, a union's majority status, once establish-

ed by a valid election, is irrebuttably presumed for a

reasonable period, ordinarily one year, following the

Board's certification of the union. Brooks v. N.L.R.B.,

348 U.S. 96, 98, 75 S.Ct. 176, 99 L.Ed. 125 (1954); N.L.R.B.

v. Anvil Products, Inc., 496 F.2d 94, 96 n.3 (5th Cir.

1974); N.L.R.B. v. Gulfmont Hotel Co., 362 F.2d 588, 589

(5th Cir. 1966). Since the certification year has expired

in our case, the presumption of the Union's continued

majority status is rebuttable. N.L.R.B. v. Anvil

Products, Inc., supra at 96 n.3; N.L.R.B. v. Gulfmont

Hotel Co., supra at 589; Terrell Machine Co. v.

N.L.R.B., 427 F.2d 1088, 1090 (4th Cir. 1970), cert. denied,

398 U.S. 929, 90 S.Ct. 1821, 26 L.Ed.2d 91 (1970); N.L.R.B.

v. Frick Co., 423 F.2d 1327, 1330-1331 (3rd Cir. 1970);

N.L.R.B. v. Little Rock Downtowner, Inc., 414 F.2d

1084, 1090-1091 (8th Cir. 1969). And Leatherwood and

Brahaney can lawfully refuse to bargain with the Un-

ion if and only if at the time of their refusal they had

reasonable and good faith grounds for doubting the

Union's continued majority status. N.L.R.B. v. Gissel

Packing Co., 395 U.S. 575, 597 n.11, 89 S.Ct. 1918, 23

L.Ed.2d 547 (1969); N.L.R.B. v. A.W. Thompson, Inc.,

449 F.2d 1333, 1336 (5th Cir. 1971), cert. denied, 405 U.S.

1065, 92 S.Ct. 1497, 31 L.Ed.2d 795 (1972); N.L.R.B. v.

Gulfmont Hotel Co., supra at 589; N.L.R.B. v. Frick Co.,

4a

Supra at 1331; N.L.R.B. v. Little Rock Downtowner,

Inc., supra at 1091. The sole issue for our review is

whether “substantial evidence on the record con-

sidered as a whole” supports the Board's findings that

neither Leatherwood nor Brahaney had reasonable

grounds for such doubt. 29 U.S.C. § 160(e). We know, of

course, of the Board's “very broad” discretion in the

administration of the Act particularly with respect to

the appropriateness of bargaining units and the cer-

tification of bargaining representatives. N.L.R.B. v.

Bogart Sportswear Mfg. Co., 485 F.2d 1203, 1206 (5th

Cir. 1973). A reviewing court will give “special

respect” to the Board's findings and disturb them only

upon a showing of abuse of discretion. N.L.R.B. v.

Muscogee Lumber Co., 473 F.2d 1364, 1366 (5th Cir.

1973); Golden State Bottling Co. v. N.L.R.B., 414 U.S.

168, 172, 94 S.Ct. 414, 38 L.Ed.2d 388 (1973); Universal

Camera Corp. v. N.L.R.B., 340 U.S. 474, 491, 71 S.Ct. 456,

95 L.Ed. 456 (1951).

At the administrative hearing, the companies

argued that the facts support doubt of the Union's ma-

jority status, based upon (1) the employee turnover

rate; (2) the five to ten month Union silence immediate-

ly preceding withdrawal of recognition; and (3) in the

case of Brahaney, evidence of employee indifference

to the Union.

The Administrative Judge who presided over both

cases found the following facts. The Union had not

communicated with either Brahaney or Leatherwood

for five to ten months immediately preceding

withdrawal of recognition, but this silence, together

with other delays in the two-year history of the

bargaining, was caused by the Union's low manpower,

5a

the geographic dispersal of all the Basin drilling com-

panies, and the Union's belief that Leatherwood and

Brahaney had reduced operating levels. Although

employee turnover had reached 900% during the last

period of Union silence and Brahaney and Leather-

wood each employed less than four of the original cer-

tification voters out of the present work force of eligi-

ble voters numbering as high as seventy-seven, such

turnover was not uncommon among Basin companies

and had been assumed to be inherent in the industry

under the Hondo formula. Harman, the attorney for

both Leatherwood and Brahaney, was “highly fam-

iliar with the history of organization by this Union in

the Permian Basin,” and, as attorney for other Basin

drilling companies, had met with a Union representa-

tive on numerous occasions during the period of Un-

ion silence toward Leatherwood and Brahaney. The

sole evidence of employee indifference was testimony

by a Brahaney manager that he did not hear

employees speak of the Union.

The Administrative Judge concluded that (1) even

900% employee turnover did not support doubt of ma-

jority, in view of Hondo’s recognition of inherent turn-

over in this industry; (2) occasional Union silences

were known by the companies to be the result of the

Union's low manpower and not any erosion of Union

support; and (3) there is no substantial evidence of

employee indifference to the Union. Accordingly, he

found that none of the claimed grounds supported a

reasonable doubt of majority and recommended that

the two companies be ordered to bargain with the Un-

ion representatives and to desist from unfair labor

practices. The Board adopted these findings as well as

the proposed order.

6a

The appellants do not dispute the factual data in the

Board's order; but they cite other facts on the record to

argue that other inferences should have been drawn or

that, at the least, the burden of proof was necessarily

shifted to the Union and not met by it. They emphasize

the magnitude of 900% employee turnover. But in our

view, this only reargues what has been decided in

Hondo, i.e., that turnover is inherent in this industry

and cannot be given independent significance as a

sign of Union weakness. N.L.R.B. v. Hondo Drilling

Co., supra at 944-946.

Disputing that the Union's low manpower and the

companies’ dispersal were the evident causes of the

Union silence, appellants point out that an N.L.R.B.

assistant was available to the two Union negotiators

and that the Union's negotiations followed the same

pattern in the case of at least five Basin companies.

Nevertheless, we agree with the Board that such a

negotiating team, faced with over fifty companies ina

95,000 square mile area, would necessarily fail to com-

municate with one or more companies at intervals

without raising doubt of its majority status.

Finally, appellants challenge the basis for dis-

tinguishing other Board cases in which the Board

found that the facts supported reasonable and good

faith doubt of majority status. See Taft Broadcasting,

WDAF-TV, 201 N.L.R.B. 113 (1973); Southern Wipers,

Inc., 192 N.L.R.B. 135 (1971); Viking Lithographers,

Inc., 184 N.L.R.B. 16 (1970). In the findings adopted by

the Board, these cases are said to be “inapposite,” and

it is not our province to weigh the imponderables and

reconcile the considerations which prompt the Board

7a

to fashion an appropriate remedy peculiar to each

case. It suffices that none of the cases involved an in-

dustry with inherent turnover and lack of Union man-

power.

On the record as a whole and given the province of

the Board, we agree that the appellants have not over-

come the presumption of continuity of majority status

and. therefore, have no room for good faith doubt of the

viability of the Union's continued representation of

the bargaining unit.

Enforced.

United States Court of Appeals

For The Fifth Circuit

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus No. 74-2415

LEATHERWOOD DRILLING COMPANY,

Respondent.

JUDGMENT

Before: BROWN, Chief Judge, and MURRAH* and

WISDOM, Circuit Judges.

THIS CAUSE came on to be heard upon the applica-

tion of the National Labor Relations Board for the en-

forcement of a certain order issued by it against the

* Of the Tenth Circuit sitting by designation.

8a

Respondent, Leatherwood Drilling Company, Odes-

sa, Texas, its officers, agents, successors and assigns

on March 13, 1974. The Court heard argument of

respective counsel on January 16, 1975, and has con-

sidered the briefs and transcript of record filed in this

cause. On May 27, 1975, the Court being fully advised

in the premises, handed down its decision granting en-

forcement of the Board’s Order.

ON CONSIDERATION WHEREOF, it is hereby

ordered and adjudged by the United States Court of

Appeals for the Fifth Circuit that the said order of the

National Labor Relations Board in said proceeding be

enforced, and that Respondent, Leatherwood Drilling

Company, Odessa, Texas, its officers, agents,

successors and assigns abide by and perform the

directions of the Board in said Order contained.

ENTERED: Jun 18 1975

Issued as Mandate: August 1, 1975

A true copy

Test: EDWARD W. WADSWORTH

Clerk, U.S. Court of Appeals, Fifth Circuit

/s/ CAROL G. LE SAGE

Deputy

New Orleans, Louisiana Aug 1 1975

9a

United States Court of Appeals

For the Fifth Circuit

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

versus No. 74-2421

BRAHANEY DRILLING COMPANY,

Respondent.

JUDGMENT

Before: BROWN, Chief Judge, and MURRAH* and

WISDOM, Circuit Judges.

THIS CAUSE came on to be heard upon the applica-

tion of the National Labor Relations Board for the en-

forcement of a certain order issued by it against the

Respondent, Brahaney Drilling Company, Oddessa,

Texas, its officers, agents, successors and assigns on

March 13, 1974. The Court heard argument of respec-

tive counsel on January 16, 1975, and has considered

the briefs and transcript of record filed in this cause.

On May 27, 1975, the Court being fully advised in the

premises, handed down its decision granting enforce-

ment of the Board’s Order.

ON CONSIDERATION WHEREOF, it is hereby

ordered and adjudged by the United States Court of

Appeals for the Fifth Circuit that the said order of the

National Labor Relations Board in said proceeding be

enforced, and that Respondent, Brahaney Drilling

Company, Odessa, Texas, its officers, agents,

successors and assigns abide by and perform the

directions of the Board in said Order contained.

ENTERED:

* Of the Tenth Circuit sitting by designation.

10a

APPENDIX B

United States of America

Before the National Labor Relations Board

LEATHERWOOD DRILLING COMPANY

and Case 16-CA-5189

LOCAL 826, INTERNATIONAL UNION OF

OPERATING ENGINEERS, AFL-CIO

DECISION AND ORDER

On November, 20, 1973, Administrative Law Judge

Joel A. Harmatz issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions

and a supporting brief.

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the record and the at-

tached Decision in light of the exceptions and brief and

has decided to affirm the rulings, findings,’ and con-

1 Although not affecting the ultimate conclusions of the Ad-

ministrative Law Judge, we find merit in Respondent's claim that

the Administrative Law Judge's Decision incorrectly referred to

Allstate Construction, Inc., as a drilling contractor. The record

supports Respondent's contention that Allstate is a dirt contrac-

tor. Likewise, we agree with Respondent that four of the

negotiating sessions which Harman held with the Union on behalf

of other contractors during the hiatus period here in question were

held with Howell, the Union's business agent, rather than with

Fortenberry. as the Administrative Law Judge found. These ap-

parently inadvertent errors, however, do not affect any materia!

findings of the Administrative Law Judge.

lila

clusions 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

Relations Board adopts as its Order the recommended

Order of the Administrative Law Judge and hereby

orders that Respondent, Leatherwood Drilling Com-

pany, Odessa, Texas, its officers, agents, successors,

and assigns shall take the action set forth in the said

recommended Order.

Dated, Washington, D.C. Mar 13 1974

Edward B. Miller,

Chairman

John H. Fanning,

Member

John A. Penello,

Member

NATIONAL LABOR

RELATIONS BOARD

(SEAL)

12a

(Dated 11/22/73] [JD-685-73

Odessa, Texas]

DECISION

Statement of the Case

. —— A. HARMATZ, Administrative Law Judge:

iS Case was heard in Odessa, Texas, on September

25, and 26, 1973, upon a charge filed on June 11, 1973

and a complaint issued on J uly 24, 1973, alleging that

Respondent, Leatherwood Drilling Company

violated Section 8(a)(5) and (1) of the Act by, on May 9,

1973, withdrawing recognition from and thereafter

refusing to meet with the Union as the certified collec-

ll cesar representative of unit employees.

panei te as filed by the Respondent and the

Upon the entire record,! including my observation of

1 ,

sn pen 4 Motion to Correct Transcript filed by the General

pe yo _ Hoy ng | a ae and the sense of the

} se’ . ereby t sai

transcript is hereby amended in the avntarenanaee ——

Transcript Line

Page Number Number Reads ws

12 as .

~ a “NLRB 91° “NLRB No. 91”

— os “that” “than”

on jn “confidence” “competence”

- ; “exploration” “expiration”

ned a “interests “inferences”

in (first word omit word

_ “ in line)

— ; “faith and their” “faith in their”

. - “you are” “your”

a prevent” “present”

mo 13 “as” “or”

jo B. “member” “members”

on Zs “ability “admissibility”

almost mis- “also leading”

one : leading”

a : “free” “frequent”

that “than”

13a

the witnesses while testifying, and careful considera-

tion of the post-hearing briefs, I make the following:

Findings of Fact

I. The Business of the Respondent

Respondent, a Texas corporation, maintains an of-

fice and place of business in Kermit, Texas, where itis

engaged in contract oil well drilling. During the calen-

dar year preceding the issuance of the complaint, a

representative period, Respondent performed serv-

ices valued in excess of $50,000 outside the State of

Texas.

I find that Respondent, at all times material, is and

has been an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act.?

Il. The Labor Organization Involved

The complaint alleges, the answer admits, andI find

that Local 826, International Union of Operating Engi-

neers. AFL-CIO, is and has been, at all times material,

a labor organization within the meaning of Section

2(5) of the Act.

Ill. The Alleged Unfair Labor Practices

A. The Issues

It is undisputed that on May 9, 1973, Respondent

withdrew recognition and refused to engage in fur-

2 Leatherwood Drilling Company. 179 NLRB 549, 551; Siemons

Mailing Service, 122 NLRB 81.

14a

ther bargaining with the Charging Union, which has

been certified on March 18, 1969 as exclusive repre-

sentative of employees in the appropriate unit. The

General Counsel argues that by said action, Respond-

ent violated Section 8(a)(5) and (1) of the Act. The Re-

spondent denies any illegality attendant in its with-

drawal of recognition, affirmatively claiming that

said action was supported by objective considerations

furnishing a reasonable basis for a good faith belief

that the Union no longer enjoyed majority status. The

General Counsel attempts to negate said affirmative

defense, on the following grounds (1) the facts on

which Respondent relies are insufficient to establish a

reasonable basis for believing that the Unior lost its

majority, and (2) even if they were, the claim of doubt

was not raised in good faith, but was a mere extension

of Respondent's initial unwillingness to recognize the

Union at the time of certification, and its overall bad

faith approach to its statutory obligations.

B. Concluding Findings

1. Background

It is conceded that on March 18, 1969, the Charging

Union was certified as the exclusive bargaining rep-

resentative for employees in the appropriate bar-

gaining unit, consisting of all employees working out

of the Kermit, Texas, yard, including roughnecks

(derrickmen and floor hands), truckdrivers, welders.

mechanics, and helpers, but excluding office clerical

employees professional employees, guards,

watchmen, drillers and supervisors as defined in the

Act.

15a

That certification resulted from an election con-

ducted pursuant to the eligibility formula first an-

nounced by the Board in Hondo Drilling Company, 164

NLRB 416. The Hondo formula was based generally

upon the unique pattern of employment among the 50

to 60 oil well drilling concerns operating in the Per-

mian Basin of Texas and New Mexico. Furthermore, it

is a well-known fact, that the various contractors

situated similarly to Respondent challenged the

validity of the so-called “Hondo rule,” and contested

certifications based thereon to the Board and then to

the Courts.

Respondent, following the certification and Union

requests for bargaining, elected also to challenge the

certification on this basis, and hence refused to

bargain. On November 10, 1969, the Board issued its

Decision and Order,’ upholding the validity of the cer-

tification, rejecting Respondent's contentions relative

to the Hondo eligibility formula, and directing Re-

spondent to bargain with the Union. Initially Re-

spondent refused to comply with this order, electing to

litigate the issue in the Fifth Circuit Court of Appeals.

However, C. B. Leatherwood, former President of the

Company, and the individual responsible for Re-

spondent’s labor relations policy, died in September

1970. With his death, the Respondent decided to recede

from its legal position. Thus, in November 1970, the

Company notified the Board of its intention to abide by

the Board's order and to recognize the Union.

The first bargaining session, however, was not held

until March 8, 1972. A second session was held on

3 179 NLRB 549.

16a

April 18, 1972, and the third and final meeting was on

June 22, 1972. No agreement was reached. Nonethe-

less, following the June 22 meeting the Union did not

contact the Respondent for purposes of resuming

negotiations until April 19, 1973. By letter of that date

addressed to Brooks Harman (Respondent's attorney

and a principal company spokesman during the

earlier negotiations) over the signature of J. D. Forten-

berry, Senior Business Representative of the Union, a

request for resumption of negotiations was made. On

May 9, 1973, Respondent, through Harman, responded,

advising that it “.. . declines to negotiate further for

the reason it has a good faith doubt Local 826 repre-

sents a majority of the employees in the bargaining

unit.” In this latter regard, testimony adduced on

behalf of Respondent indicates that the doubt was

based upon two factors: (1) a high rate of turnover

since the 1969 election, and (2) the Union's failure to

seek bargaining between June 22, 1972 and April 19,

1973, a period of 10 months, which according to Re-

spondent suggested an abandonment of the employees

by the Union.

2. Analysis

As a matter of settled Board authority, an incumbent

bar — gaining representative enjoys a presumption

of continuing majority.‘ After expiration of the cer-

tification year and during periods in which a collec-

tive bargaining agreement is not in effect that

presumption may be rebutted so as to release as

employer from any further obligation to bargain, but

4 Laystrom Manufacturing Co., 151 NLRB 1482, 1483

be . -1484; Littl

Rock Downtowner, 168 NLRB 107, enfd. 414 F. 2d 1084 (C. A. 8).

en —eeeEeEEeEeEeEeEeEEeEEeE0OEeEeee

17a

the employer. in doing so, “must demonstrate by ob-

jective considerations that it has some reasonable

grounds for believing that the union has lost its ma-

jority status.. .’> The basic question involved here is

whether the factors relied upon by the Respondent

meet that standard, and thereby support a defense to

the instant complaint. However, the General Counsel,

in addition to arguing that they do not, in the alter-

native, contends that Respondent has historically

acted in derogation of the principles of collective

bargaining, and hence is not free to assert a good faith

doubt.®

A. The General Counsel’s Bad Faith Argument

In cases of this type, the Board as a matter of settled

policy precludes an employer from raising a defense

based upon doubt of majority, “... when the

employer's unremedied unfair labor practices have a

direct bearing and effect upon the question of majority

status ...”? Despite the fact that no unfair labor prac-

tice charge has been filed against Respondent in the

period between November 1970, when it agreed to

bargain with the Union, and the present charge filed

on June 11, 1973, which is predicated on the May 9, 1973

withdrawal of recognition, the General Counsel ad-

duced evidence as to the entire course of conduct of the

Respondent dating all the way back to the certification

5 See United States Gypsum Company, 157 NLRB 652, 656. The

standard though quoted from a representation case is equa!liy

applicable as the definition of Respondent's proof obligation on

the issues framed here.

6 The General Counsel in this latter regard relies upon Coca Cola

Bottling Works. Inc., 186 NLRB 1051; and United Electric Corp., 199

NLRB No. 110.

7 Coca Cola Bottling Works, Inc., supra, p. 1053.

18a

in 1969 as a bar to Respondent's affirmative defense

based upon doubt of majority. In doing so, the General

Counsel, through documentary evidence and 43(b)

witnesses sought to establish that Respondent's ap-

proach to bargaining was in bad faith and designed “to

avoid bargaining with the Union.” The complaint con-

tains no allegations that would reasonably be con-

strued as placing such matters in issue. However, I

permitted the General Counsel wide latitude in

eliciting such evidence. I shall assume for purposes of

this decision, without deciding,’ that any evidence

reflecting on state of mind bad faith by Respondent

that might relate to employee defections was

probative and relevant to the issue of whether Respon-

dent was debarred from asserting a defense, based

upon a doubt of majority.

I am convinced, on this record that the evidence ad-

duced by the General Counsel is not sufficient to

preclude the Respondent from raising such a defense.

It is true that following the Union's certification, the

Respondent initially refused to bargain, and did so in

8 Although background evidence, relative to state of mind, is

plainly relevant, I wonder whether the license, possessed by the

General Counsel. and perhaps charging parties as well, to go over-

board in litigating such matters stands, or should stand, unreg-

ulated. To defend against an assertion of surface bargaining re-

quires extensive preparation and study by counsel. Where, as

here, such matters are not alleged, and not the subject of prior

charges or unfair labor practice findings, at a minimum it would

seem that limitations should exist to assure full notification to the

party adversely affected by such litigation. Such a requirement

would not only be consistent with ordinary conceptions of fair

play. but could avoid the granting of time and resource consum-

ing adjournments. I am also curious as to whether with respect to

the background matters involved here, a rule of reason could not

be invoked as to just how far back and how many “old bones” the

General Counsel is free to exhume for inspection in support of the

Charging Party's present claim.

19a

defiance of a Board order. However, its action in this

regard was predicated upon achallenge to the proprie-

ty of the Hondo eligibility formula, the validity of

which was widely questioned by Respondent's com-

petitors, many of whom, to the extent that they were

affected thereby, similarly resisted that eligibility

determination. I am unwilling to find that the asser-

tion of this legal defense was frivolous, or that the

delay in actual bargaining resulting therefrom was

indicative of bad faith.®

I am also not persuaded that the record establishes

that Respondent's conduct at the bargaining table dis-

closed a bad faith state of mind. Respondent accepted

Union proposals, explained its position in refusing to

agree, made counterproposals,'° and duly provided all

information requested by the Union.'! Respondent's

conduct up to April 1973 did not in any sense suggesta

close minded approach or a refusal to accept an agree-

ment it could live with. Concededly, the General

9 The Respondent's failure to provide information requested by

the Union during this period, was no more indicative of bad faith

than its refusal to honor the certification which it felt invalid.

10 I do not believe that Respondent's failure to present its con-

tract proposal until the second bargaining session on April 18.

1972 was unreasonable. Although the Union submitted its

proposal! well in advance of the commencement of negotiations, no

bargaining session was held until March 8, 1972. and it strikes me

as unreasonable to read anything improper into the Company's

submission of a contract proposal! at the very next session.

11 Itis true that on January 5, 1971, the Union requested informa-

tion, which Respondent ultimately provided on May 31, 1971.

However, this delay was adequately explained on the record, since

it was clear that in January of that year the Union agreed to a

suspension of negotiations because the Company had only one

employee on the payroll. Thereafter, bargaining did begin and on

May 11. 1971, pursuant to its intention to resume negotiations the

Union wrote Respondent requesting the bargaining data. I see

nothing untoward in Harman's failure to compile the data on an

earlier date.

20a

Counsel is hard pressed where, as here, he seeks to

prove surface bargaining through negotiations

limited to three meetings. But, as is apparent from the

record, the abbreviated scope of the bargaining prior

to the spring of 1973 can not in fairness be attributed to

Respondent.'2 There is no indication that it refused to

meet, on request of the Union at any time prior to the

withdrawal of recognition.

It is true that, during presentation of the defense, the

General Counsel on cross-examination of Paul

Leatherwood, elicited testimony that Respondent in

February 1973, had granted a general across the board

increase, without notification to the Union. The

General Counsel made no effort to amend his com-

plaint in this regard, and in the circumstances, I donot

find that this single incident precludes Respondent

from asserting a good faith doubt. In so finding, I note

that the Union, during negotiations, had demanded an

immediate wage increase outside the framework of a

contract. Howell, the Union's business manager,

testified, with support from Leatherwood, that wage

rates were not a significant issue to the parties since

both the Union, due to the number of unorganized con-

tractors, and Respondent, due to the scarcity of rough-

necks, had to remain competitive in this regard.

Howell further testified that it is normal practice for

annual wage increases to be granted by drilling con-

tractors in January or February, and that when this oc-

12 The Genera! Counsel argues that bad faith is evidenced by

“Respondent's lack of efforts to expedite bargaining.” Under the

law. Respondent had no obligation to initiate bargaining. N.L.R.B.

v. Columbian Enameling and Stamping Co., Inc., 306 U.S. 501. This

is particularly so, where. as here, it was the practice of the parties

to meet pursuant to Union requests for such meetings.

2ia

curs, the Union, on notification, has, “accepted that

wage increase without tying it to the total contract.”

Although Respondent may have engaged in a

technical refusal to bargain by failing to consult with

the Union, the surrounding circumstances preclude a

conclusion that its failure to do so contributed to

employee defection from the Union, or that this matter

constitutes convincing proof that Respondent at all

times intended to avoid bargaining with the Union.

Although, I find General Counsel’s arguments bas-

ed on the alleged bad faith of Respondent, totally un-

persuasive, this, as will be seen infra, is not fatal tohis

case.

B. The Asserted Good Faith Doubt

I find Respondent's affirmative defense to be un-

substantiated on this record.'3

It is true that the Union made no request for a

resumption of negotiations between June of 1972 and

April 1973. It is also true that in certain circumstances

&@ persuasive argument might be made that substan-

tial delays in requesting a resumption of negotiations

may Carry a strong suggestion that a union has aban-

doned employees in the bargaining unit, thereby

enforcing an employer's belief that a union had lost its

representative status. However, I cannot find, on this

record, that either Paul Leatherwood, or his attorney,

13 The General Counsel's contention that the “objective facts”

upon which Respondent claims a doubt of majority were not

available to Respondent until after recognition was withdrawn is

not supported by a consideration of the record as a whole. Cf

N.L.R.B. v. Gulfmont Hotel Co., 362 F. 2d 588. |

22a

Brooks Harman, could have made any such assump-

tion in the instant case.

It is a well known fact that the effort to organize the

employees among the various drilling contractors in

the Permian Basin involved a long drawn out, time

consuming effort, involving extensive litigation.

Organization, where successful, was attained on a

single employer basis. Upon acceptance as the ma-

jority representative, the Union, following un-

successful attempts to establish a multiemployer

unit, has sought to negotiate contracts on a single

employer basis. Brooks Harman, who impressed me

as a man highly familiar with the history of organiza-

tion by this Union in the Permian Basin, and the

difficulties faced by the Union in that connection, rep-

resented several contractors during such

negotiations, in addition to Leatherwood. In his brief

to me, he concedes knowledge of the difficulties

encountered by the Union in their efforts to organize

employees, and to secure and administer contracts

covering employees in this area.'* The Union simply

had too little manpower to deal immediately with com-

plexities presented by the diverse policies and at-

titudes of the companies with whom bargaining would

take place, operational variations among these com-

panies, and geographical dispersal of the various

employers.

From the foregoing, and other facts, I find that Har-

14 According to Paul Leatherwood's testimony all his positions

taken with respect to the Union were formalized, after consulta-

tion with Harman. It is reasonable to infer that Harman, as a co-

principle in Respondent's dealings with the Union, would have

discussed the “pros” and “cons” of any basis for doubt held by Paul

Leatherwood. and for this reason I find that the latter is properly

charged with knowledge held by Harman.

23a

man, and Leatherwood, as well, had direct knowledge

as to the unlikelihood that the Union would schedule

negotiating sessions, without hiatus, until final

agreement had been reached. That such delays were

known to be inevitable, is evident from Respondent's

bargaining history. For, while the Employer took

steps to comply with the Board's order to bargain and

posted notices to that effect in either November or

December 1970, and despite the fact that the certifica-

tion year would commence running at that time, no

negotiating session was held until March 8, 1972, well

after the Union's protection pursuant to the certifica-

tion had lapsed. This delay was with assent of the Un-

ion, and placed Harman and Leatherwood on notice

that from the Union's point of view, delays would be a

part of the negotiation process.

I fail to see how, Respondent could reasonably

believe that subsequent delays reflected an intention

on the part of the Union to abandon the Respondent's

employees. This is particularly so, when one con-

siders the fact that in the period, June 1972 through

April 1973, Harman was actively engaged in

negotiations with the Union on behalf of other drilling

contractors, including Allstate Construction, Inc..

Chaparral Drilling Co., Hondo Drilling Co., McVay

Drilling Co., Rod Ric Corporation, A.W. Thompson,

Inc., and Tri-Service Drilling Co. On some 23 oc-

casions between June 1972 and April 1973, Harman

and Fortenberry, in addition to their other respon-

sibilities, met in connection with these negotiations.

From the evidence relative to these negotiations it is

apparent that, as to most of the contractors, there were

significant time gaps between bargaining sessions.

- Pee

24a

There is no suggestion that in Fortenberry’s com-

munications with Harman during this period, he in

any sense created the impression that the Union lack-

ed an interest in attaining a contract with Respondent.

On the other hand, Harman knew that Fortenberry was

responsible for representation of the Union in further

dealings with Respondent, and that during this period,

Fortenberry was burdened with other matters.'®

Aside from Respondent's knowledge that delays

would be a characteristic of the negotiations, the un-

reasonableness of its interpretation of the Union's in-

action is enforced by the absence of any sensible ex-

planation as to why Respondent would assume that

the Union would single out Leatherwood for abandon-

ment, contemporaneous with its efforts to secure

bargaining agreements with Leatherwood’s com-

petitors. The Union had long been involved in

organization among the crews in the Permian Basin.

Securing contracts with all contractors in the Basin

was obviously its ultimate objective. It defies common

sense to assume that this was not understood by

Respondent. Furthermore, Respondent cites no facts,

apart from the delay in securing negotiations, which

would suggest that the Union's attitude towards it

would differ from that of the other organized contrac-

tors. Respondent knew, or should have known, that the

Union's interest in obtaining agreements covering

Respondent's operations was no less than its objec-

15 I credit Fortenberry’s testimony that he informed Harman

generally of the nature of his work load and the scheduling prob-

lems they created during the period between the summer of 1972

and spring of 1973. This testimony was not subject to direct con-

tradiction, and it is entirely plausible that such explanations were

afforded by Fortenberry in view of difficulties that the parties had

in scheduling negotiating meetings.

tives with respect to Respondent's organized com-~

petitors. In this regard, it should be noted that the turn-

over facts asserted by Respondent as evidencing a

doubt of majority, are in all material respects

representative of the experience of all drill companies

in this area. They would not so drastically differ with

the experience of contractors with whom the Union

was actively negotiating during 1972 through 1973, as

to warrant a belief by Respondent that the Union, be-

ing impressed by the turnover history among

Respondent's employees, elected to go away. For the

above reasons, I find that Respondent did not, and

could not, have held a reasonable belief that the

absence of communication from the Union between

June 1972 and April 1973, either indicated an intention

on the part of the Union to abandon the unit, or

otherwise contributed to any belief that the Union lost

its majority.'®

As evidence, more directly bearing on a possible

loss of majority, Respondent cites facts revealing a

high degree of turnover since the election in 1969.

Summarized, these facts show (1) that of the 77 names

on the election eligibility list, only 3 employees

remained in Respondent's employ as of the hearing

date herein, (2) that of the 21 employees on a payroll

list furnished to the Union on May 20, 1971, only 4

employees listed thereon were eligible to vote in the

election, (3) that in the 4 years that have passed since

the election, the Company employed a total of 1761

roughnecks to fill 36 jobs, and (4) that in the first 5

16 Cf. Southern Wipers, Inc., 192 NLRB 816, where inactivity of a

union was a factor relied upon by the Board in sustaining a good

faith doubt of majority.

1 orneng

26a

months of 1973, the Respondent experienced a turn-

over rate of nearly 900%.

There is no evidence in this case of employee defec-

tions and all of Respondent's witnesses conceded that

they were unaware of any employee dissatisfaction

with the Union. Furthermore, Respondent, in his brief,

concedes that Board precedent does not accept turn-

over alone as the type of objective consideration that

would legitimately support a withdrawal of recogni-

tion. Under existing Board authority, in turnover

situations, “... new employees will be presumed to

support a union in the same ratio as those whom they

have replaced.”’!? Nonetheless, Respondent argues

that the turnover situation in the Permian Basin is

unique and principles followed in other industries

should not be applied to the drilling contractors in-

volved there. A variety of arguments are advanced to

support the view that turnover should be honored in

this industry as a good faith defense. Most, however,

relate to the high velocity of turnover. In my opinion

this fails to persuade that the presumption that

replacements will support a union to the same extent

as their predecessors is a fallacy in this industry. If it

is fair to assume that replacements will support a un-

ion where the level of turnover is 50%, this assump-

tion is no less valid where the turnover amounts to

900%. The fact that 9 employees might in a given time

period fill a single job previously held by a union sup-

porter, does not warrant an assumption that the ninth

17 Laystrom Manufacturing Co.. supra. p. 1484 and cases cited at

footnote 7: Printers Service, Inc., 175 NLRB 809, 812; N.L.R.B. v. Lit-

tle Rock Downtowner, 414 F. 2d 1084, 1091.

27a

replacement will support the union to any lesser

degree than the first.'§

But, in any event, to recognize an exception, based

on turnover, to the good faith doubt rule would depart

materially from the policy considerations underlying

the Hondo formula. It should be apparent to any reader

of Hondo and other cases involving the drilling con-

tractors in the Permian Basin, that the Board, ap-

preciating the turnover conditions, that existed there,

committed itself to the desirability of fashioning

means to assure that employees of various contrac-

tors operating in this two state area, despite the tran-

sient nature of their employment, could assert their

Section 7 statutory rights “to self-organization, to

form, join or assist labor organizations, [and] to

bargain collectively through representatives of their

own choosing...” I have heretofore stated that it is

fair to assume that the turnover experienced by

Respondent is generally representative of that ex-

perienced by its competitors in the Permian Basin.

Hence, to accept the turnover facts adduced here as

substantiating a good faith doubt of majority would

provide all contractors in the Basin a like defense.

18 In addition to the degree of turnover, I am not persuaded by

Respondent's arguments based on observations that many of its

crew members must have been employed by nonunion contrac-

tors, and that union representatives would have difficulty in main-

taining regular contacts with employees. These factors are simply

too remote to throw any light on the organizational preferences of

crew members hired from time to time by Respondent. These

arguments were not asserted as the basis of Respondent's doubt

when recognition was withdrawn, and hence, though arguably

relevant to the question of whether the Board should alter its view

with respect to turnover in this industry, they are otherwise inthe

nature of afterthought and hence cannot be considered as the basis

for Respondent's doubt of majority. See N.L.R.B. v. Gulfmont

Hotel Co., supra, footnote 13.

28a

Stable collective bargaining could hardly proceed toa

meaningful state under such conditions, for, the drill

contractors, on expiration of each collective bargain-

ing agreement could thereby require the Union to

reestablish its majority as a precondition for negotia-

tion of a successor agreement. See e.g., Emerson

Manufacturing Company, Inc., 200 NLRB No. 33, JD

p. 7.

Although ultimately the Board might sustain

Respondent's contention, or even repudiate Hondo, as

matters now stand, it is my opinion that to regard turn-

over as a justification for the refusal to bargain, would

reduce the elections conducted by the Board in the Per-

mian Basin to a futile exercise and render the status of

certification of representatives resulting therefrom to

little more than a focal point for game playing. Insum,

I envision the exception to Board policy sought by Re-

spondent, as, in practical consequence, eventually

undermining both the policy considerations which

resulted in the Hondo formula and the exercise of self-

organizational rights by employees engaged in the

drilling industry in the Permian Basin. Accordingly, I

find, pursuant to established Board principle,'® that

turnover did not furnish a good faith doubt that the Un-

ion continued to represent a majority of Respondent's

employees, and I find that Respondent, by with-

19 It is true that in Southern Wipers, Inc., 192 NLRB 816, the

Board accepted, “heavy turnover” as one of several factors

supporting a good faith doubt of majority. That case does not

reverse prior precedent to the effect that turnover alone will not

justify a withdrawal of recognition and. though not cited by

Respondent, I note my view that said decision is inapposite. See

also Viking Lithographers, Inc., 184 NLRB No. 16.

drawing recognition from the Union on May 9, 1973,

violated Section 8(a)(5) and (1) of the Act.

IV. The Remedy

Having found that Respondent has engaged in cer-

tain unfair labor practices within the meaning of Sec-

tion 8(a)(5) and (1) of the Act, I shall recommend that it

cease and desist therefrom and take certain affir-

mative action designed to effectuate the policies of the

Act.

Considering the pattern of employment experienced

by Respondent in the conduct of its operations, special

provision is necessary to assure adequate publication

of the provisions of the order herein. Therefore, in ac-

cordance with the earlier Board decision, involving

Respondent, reported at 179 NLRB 549, 551, I shall

recommend that in addition to requiring that copies of

the notice be posted at the offices and yards of the

Respondent in Kermit, Texas, it will be further provid-

ed that copies be posted at crew headquarters on site at

all rig operations, and that copies be provided the Un-

ion for posting, if the Union is willing, at meeting

places in the Permian Basin.

Conclusions of Law

1. Leatherwood Drilling Company is an employer

engaged in commerce within the meaning of Section

2(6) and (7) of the Act.

2. Local 826, International Union of Operating

Engineers, AFL-CIO, is a labor organization within

the meaning of Section 2(5) of the Act.

30a

3. Employees working out of the Kermit, Texas

yard, including rovghnecks (derrickmen and floor

hands), truck drivers, welders, mechanics and

helpers, but excluding office clerical employees,

professional employees, guards, watchmen, drillers

and supervisors as defined in the Act, constitute a unit

appropriate for the purpose of collective bargaining

within the meaning of Section 9(b) of the Act.

4. Atall times since March 18, 1969, the Union has

been and is now the exclusive bargaining represen-

tative of the employees in the aforesaid appropriate

unit for the purpose of collective bargaining within

the meaning of Section 9(a) of the Act.

5. By withdrawing recognition on May 9, 1973 and

refusing thereafter to meet with the Union, Respon-

dent has engaged in and is engaging in unfair labor

practices within the meaning of Section 8(a)(5) and (1)

of the Act.

6. By the foregoing conduct, Respondent has in-

terfered with, restrained and coerced employees in the

exercise of rights guaranteed by Section 7 of the Act,

and has thereby engaged in and is engaging in unfair

labor practices within the meaning of Section 8(a)(1)

of the Act.

7. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

Upon the foregoing Findings of Fact, Conclusions of

Law, and the entire record in this case, and pursuant to

Sila

Section 10(c) of the Act, I hereby recommend the

following:?°

ORDER

Leatherwood Drilling Company, its officers, agents,

successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with Local 826,

International Union of Operating Engineers, AFL-

CIO, as the exclusive collective bargaining represen-

tative of the employees in the following appropriate

bargaining unit:

All employees working out of the Kermit, Tex-

as, yard, including roughnecks (derrickmen

and floor hands), truck drivers, welders,

mechanics and helpers, but excluding office

clerical employees professional employees,

guards, watchmen, drillers, and supervisors

as defined in the Act.

(b) Withdrawing recognition from and refusing to

meet with the Union as exclusive collective bargain-

ing representative of employees in the appropriate

unit.

20 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor

Relations Board, the findings, conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules and

Regulations, be adopted by the Board and become its findings, con-

clusions, and Order, and all objections thereto shall be deemed

waived for all purposes.

ee

32a

2. Take the following affirmative action which is

necessary to effectuate the policies of the Act:

(a) Upon request, bargain collectively with Local

826, International Union of Operating Engineers,

AFL-CIO, as the exclusive representative of the

employees in the appropriate unit with respect to

rates of pay, wages, hours of employment and other

terms and conditions of employment and embody ina

signed agreement any understanding reached.

(b) Post at its offices and yards in Kermit, Texas,

copies of the notice attached hereto marked, “Appen-

dix.’’2! Copies of said notice, on forms to be furnished

by the Regional Director for Region 16, shall, after be-

ing duly signed by an authorized representative of the

Respondent be posted by the Respondent immediately

upon receipt thereof and be maintained by it for a

period of 60 consecutive days thereafter in con-

spicuous places, including all places where notices to

employees are customarily posted. Similar copies

shall be posted at the crew headquarters at all

operating drilling sites. Copies shall also be provided

the Union for posting (the Union willing) at Union

halls or meeting places in the Permian Basin.

Reasonable steps shall be taken by the Respondent to

insure that said notices are not altered, defaced, or

covered by any other material.

21 In the event that the Board's Order is enforced by a Judgment

of a United States Court of Appeals. the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD” shall be changed to read, “POSTED PURSUANT TOA

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD.”

33a

(c) Notify the Regional Director for Region 16, in

writing, within 20 days from receipt of this

Recr mmended Order, what steps the Respondent has

taken to comply herewith.

Dated at Washington, D.C., November 22, 1973.

/s/ Joel A. Harmatz

Joel A. Harmatz

Administrative Law Judge

APPENDIX C

209 NLRB No. 93

United States of America

Before the National Labor Relations Board

BRAHANEY DRILLING COMPANY

ard Case 16-CA-5188

LOCAL 826, INTERNATIONAL UNION OF

OPERATING ENGINEERS, AFL-CIO

DECISION AND ORDER

On November 14, 1973, Administrative Law Judge

Joel A. Harmatz issued the attached Decision in this

proceeding. Thereafter, Respondent filed exceptions

and a supporting brief, and the General Counsel filed a

brief in support of the Administrative Law Judge’s

Decision.

34a

Pursuant to the provisions of Section 3(b) of the

National Labor Relations Act, as amended, the

National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

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, findings,’ and

conclusions of the Administrative Law Judge and to

adopt his recommended Order.

ORDER

Pursuant to Section 10(c) of the National Labor

Relations Acts, as amended, the National Labor Rela-

tions Board adopts as its Order the recommended Or-

der of the Administrative Law Judge and hereby or-

ders that Respondent, Brahaney Drilling Company,

Odessa, Texas, its officers, agents, successors, and

assigns shall take the action set forth in the said rec-

ommended Order.

1 Although not affecting the ultimate conclusions of the Ad-

ministrative Law Judge, we find merit in Respondent's claim that

in his Decision the Administrative Law Judge incorrectly referred

to Allstate Construction, Inc., as a drilling contractor. The record

supports the Respondent's contention that Allstate is a dirt con-

tractor. Likewise, we agree with Respondent that four of the

negotiating sessions which Harman held with the Union on behalf

of other contractors during the hiatus period here in question were

held with Howell. the Union's business manager, rather than with

Fortenberry, as the Administrative Law Judge found. These ap-

parently inadvertent errors, however. do not affect any material

findings of the Administrative Law Judge.

35a

Dated, Washington, D.C. Mar 13 1974

Edward B. Miller,

Chairman

John H. Fanning,

Member

John A. Penello,

Member

NATIONAL LABOR

(SEAL) RELATIONS BOARD

{Issued 11/14/73] [JD-689-73

Odessa, Texas]

DECISION

Statement of the Case

JOEL A. HARMATZ, Administrative Law Judge:

This case was heard in Odessa, Texas, on September

27, 1973, upon a charge filed on June 11, 1973, an

amended charge filed on June 25, 1973, a complaint is-

sued on July 24, 1973, and an amendment thereto filed

on September 12, 1973, alleging that Respondent,

Brahaney Drilling Company, violated Section 8(a)(5)

and (1) of the Act, by, on June 4, 1973, withdrawing

36a

recognition from and thereafter refusing to meet with

the Union, the certified collective bargaining repre-

sentative of unit employees, and, by on June 4, 1973,

without prior consultation or negotiation with said

Union, unilaterally granting wage increases to said

employees. Thereafter briefs were filed by the Re-

spondent and the General Counsel.

Upon the entire record,' including my observation of

the witnesses while testifying, and careful considera-

tion of the post-hearing briefs, I make the following:

Findings of Fact

I. The Business of the Respondent

Respondent, a Texas corporation with its principal

office and place of business in Midland, Texas, is en-

gaged in the business of drilling oil and gas wells in

1 Pursuant to Motion to Correct Transcript filed by the General

Counsel. and consistent with my recollection, and the sense of the

matters set forth in the transcript, I hereby grant said motion, and

the transcript is hereby amended in the following respects:

Transcript Line

Page Number Number Reads Should Read

14 11 “complements” “implements”

53 4 “dates” “doubts”

156 21 “contract” “contracts”

160 7 “keep” “receive”

166 13 “and” “in”

182 11 “did” “did you?”

182 12 “A._etme...” “A. Let me...”

191 5 “date” “data”

194 16 “unclaimed” “unexplained”

197 15 “correspondents” “correspondence

198 21 “made” “make”

201 3 “contracts” “contract”

222 8 “complied” “compiled”

37a

the Permian Basin area in Texas and New Mexico.

During the calendar year preceding the issuance of

this complaint, a representative period, Respondent

performed services valued in excess of $50,000, of

which amount services valued in excess of $50,000

were performed in states other than the State of Texas.

I find that Respondent, at all times material, is and

has been an employer engaged in commerce within

the meaning of Section 2(6) and (7) of the Act.?

II. The Labor Organization Involved

The complaint alleges, the answer admits, and! find

that Loca] 826, International Union of Operating Engi-

neers, AFL-CIO, is and has been, at all times material,

a labor organization within the meaning of Section

2(5) of the Act.

III. The Alleged Unfair Labor Practices

A. The Issues

This is a companion case to Leatherwood Drilling

Company, Case 16-CA-5189, JD-685-73, issued

simultaneously herewith. The issues presented here

and substantially identical to those in Leatherwood

and arise from a similar fact pattern. Thus, it is undis-

puted that Brahaney, on June 4, 1973, withdrew

recognition and refused to bargain further with the

Union as certified bargaining representative of its

employees. The General Counsel contends that by said

2 Siemons Mailing Service, 122 NLRB 81, Brhaney Drilling Com-

pany, 176 NLRB 289.

— ae

38a

action, and through a contemporaneous unilateral

wage increase® Respondent violated Section 8(a)(5).

The Respondent claims that these actions were

legitimate since supported by a good faith doubt that

the Union represented a majority. In response to the

Respondent's affirmative defense, the General

Counsel argues that the facts relied upon by Respond-

ent fail to substantiate a reasonably based doubt of

majority, and, in any event, that Respondent's entire

course of conduct reveals that the doubt of majority

was not asserted in good faith.

B. Concluding Findings

1. Background

It is conceded that on September 11, 1968, the Union

was certified as exclusive bargaining representative

of all derrickmen, motormen and floorhands, other-

wise referred to as roughnecks, employed by Re-

spondent in the drilling operations in the area known

as the Permian Basin, but excluding all tool pushers,

drillers, office employees, technical employees, pro-

fessional employees, guards, and all supervisors as

defined in the Act.

That certification resulted from an election con-

ducted in accordance with the eligibility formula first

announced in Hondo Drilling Company, 164 NLRB

3 Respondent admits the allegations relative to the unilateral

wage increase. Therefore whether or not such action was violative

of Section 8(a)(5) and (1) turns in its entirety upon the validity or

invalidity of the withdrawal of recognition. Accordingly. since the

unilateral action presents a purely derivative issue, the basis for

my ultimate conclusion regarding it will entail no further discus-

$10nNn.

39a

416. That formula evolved as a result of the high

degree of turnover characteristic of the unique pat-

tern of employment among the 50-60 oil well drilling

concerns operating in the Permian Basin of Texas and

New Mexico. Various contractors situated similarly

to Respondent questioned the validity of the so-called

“Hondo rule” and many contested certifications based

thereon to the Board and then the Courts.

Respondent, following the certification and Union

requests for bargaining, elected also to challenge the

certification on this basis, and therefor refused to

bargain. On June 2, 1969, the Board issued its Decision

and Order,‘ upholding the validity of the certification,

rejecting Respondent’s contentions relative to the

Hondo formula, and directing Respondent to bargain

with the Union. Respondent refused to comply with

this order, electing instead to contest the validity of

the certification in the Fifth Circuit Court of Appeals.

On October 6, 1970, that Court enforced the Board's or-

der.

By letter dated March 30, 1971, the Union requested a

meeting for purposes of collective bargaining. On

May 11, 1971, the Union again wrote Respondent,

enclosing a copy of the Union’s proposed contract.

Pursuant to agreement of the parties, the first

negotiating session was held on June 22, 1971. Fur-

ther bargaining sessions were held on January 20,

1972, March 14, 1972, April 14, 1972, July 21, 1972, and

October 13, 1972. However, no final agreement was

reached. Following the meeting in October 1972, the

4 Brahaney Drilling Co., 176 NLRB 289.

5 N.L.R.B. v. Rrahaney Drilling Company, 432 F.2d 1271.

40a

Union by letter dated April 19, 1973, requested a

resumption of negotiations. On June 4, 1973, Re-

spondent, through Brooks Harman, its attorney, an-

swered indicating that Respondent “... declines to

negotiate further for the reason it has a good faith

doubt Local 826 represents a majority of the

employees in the bargaining unit.” At that time, Re-

spondent, without notifying or consulting with the

Union, announced a general wage increase to be ac-

corded unit employees.

C. Analysis

1. The asserted good faith doubt

Under well established principles, Respondent’s

withdrawal of recognition and contemporaneous un-

ilateral action were violations of Section 8(a)(5) and

(1) of the Act, unless the evidence adduced by Re-

spondent establishes that said action was predicated

upon objective considerations furnishing a reason-

ably based belief that the Union no longer represented

a majority.® Testimony establishes that the grounds

for the doubt of majority were devised by Brooks Har-

man, Respondent’s attorney, and Phil Graves, Re-

spondent’s safety engineer and its labor relations rep-

resentative. Graves testified that he questioned the

Union's majority status because of (1) the high turn-

over rate experienced by the Company at various in-

tervals since the election in 1968, (2) the fact that on

visits to drill sites in recent months he did not hear

6 Laystrom Manufacturing Co., 151 NLRB 1482; Frito-Lay, Inc.,

151 NLRB 28. cf. Celanese Corporation of America, 95 NLRB 664;

United Electric Co., 199 NLRB No. 110.

4la

much discussion of the Union among the employees,

and (3) the fact that the Union did not communicate

with the Company between the last bargaining ses-

sion on October 12, 1972, and April 19, 1973, a period of

6 months.

(a) The Union’s delay in requesting a

resumption of negotiations

It is my opinion, that the Union's failure, following

the October 1972 meeting to request a resumption of

negotiations until some 6 months thereafter, failed to

constitute acceptable evidence of a loss of majority.

The testimony of Graves makes it clear that the Un-

ion’s inaction during this period was adopted as a

basis for withdrawing recognition on suggestion of

Harman. As in the Leatherwood case, I am satisfied

that Harman, could not reasonably have held the view

that the mere lack of communication from the Union

suggested an intent on its part to abandon the Re-

spondent’s employees.

Subject to variations as to dates, personalities, and

other facts, my findings and reasoning in this regard

are identical to my treatment of the same issue in the

Leatherwood case. The following is taken from my

decision in Leatherwood and with indicated deletions

and appropriate additions appearing in brackets, con-

stitute my findings and conclusions on the record in

the instant case as to the Union's delay:

It is a well known fact that the effort to

organize the employees among the various

drilling contractors in the Permian Basin in-

42a

volved a long drawn out, time consuming ef-

fort, involving extensive litigation. Or-

ganization, where successful, was attained on

a single employer basis. Upon acceptance as

the majority representative, the Union,

following unsuccessful attempts to establish

a multiemployer unit, has sought to negotiate

contracts on a single employer basis. Brooks

Harman who impressed me as a man highly

familiar with the history of organization by

this Union in the Permian Basin, and the dif-

ficulties faced by the Union in that connection,

represented several contractors during such

negotiations, in addition to. ..[Brahaney]. In

his brief to me, he concedes knowledge to

organize employees, and to secure and ad-

minister contracts covering employees in this

area. The Union simply had too little man-

power to deal immediately with complexities

presented by the diverse policies and attitudes

of the companies with whom bargaining

would take place, operational variations

among these companies, and geographical

dispersal of the various employers.

From the foregoing, and other facts, I find

that Harman, and...[{Graves].. .as well, had

direct knowledge as to the unlikelihood that

the Union would schedule negotiating ses-

sions, without hiatus, until final agreement

had been reached. [Harman and Graves

attended all bargaining sessions involving

Respondent and its spokesmen.] That such

delays were known [by them] to be inevitable

43a

is evident from Respondent's bargaining

history. For, while the. . .[Court’s decree con-

firming the Board’s bargaining order issued

on October 6, 1970, the Union made no request

to bargain pursuant thereto until March 26,

1971. Furthermore, after the first bargaining

session on June 22, 1971, the Union did not re-

quest a further meeting until December 7,

1971, a time lag which not only approximated

the period of union inaction under considera-

tion here, but which involved a wasting of the

Union's protection from the certification.]...

This delay was with assent of the Union, and

placed Harman and.. .[{Graves].. . on notice

that from the Union’s point of view, delays

would be a part of the negotiation process.

[It also appears that Harman had a basis for

suspecting in in the period October 1972,

through April 1973 based on his past ex-

perience with the Leatherwood negotiations,

that the lack of communication from the Union

during that period was consistent with the Un-

ion’s previously manifested disinterest in

negotiating while an employer's rigs were

down. It will be recalled from the Leather-

wood case, that the Union agreed to defer

negotiations therein in January 1971 for acon-

siderable period of time because Leather-

wood’s rigs were down. This fact is significant

because in the instant negotiations Graves, in

Harman's presence, at the meeting of October

13, 1972, told Fortenberry that, with the excep-

tion of one rig all the Company's rigs were

44a

down, and that when that rig stopped

operating, the Company had no further con-

tracts.’ It is undisputed on this record that

thereafter neither Graves nor Harman in-

formed Fortenberry, when its rigs reverted to

normal operating levels. Considering Har-

man’s understanding of the Union's position

with respect to downed rigs as was evident to

him from the Leatherwood negotiations, I can-

not find that the representations as to

Brahaney’s operating condition as of October

13, 1972 would have been overlooked by Har-

man in his assessment of the reasons for the

Union’s subsequent inaction.]

... [There are additional factors that per-

suade me that]. ..Respondentcould...not...

reasonably believe that subsequent delays

reflected an intention on the part of the Union

to abandon the Respondent’s employees. This

is particularly so, when one considers the fact

that in the period October 1972 through April

1973 Harman was active ... in negotiations

with the Union on behalf of other drilling con-

tractors, including Allstate Construction,

Inc., Chaparral Drilling Co., Hondo Drilling

Co., McVay Drilling Co., ... [and] A. W.

Thompson, Inc. On some 18 occasions between

October 1972 and April 1973, Harman and

Fortenberry, in addition to their other respon-

sibilities, met in connection with these

45a

negotiations.* From the evidence relative to

these negotiations it is apparent that, as to

most of the contractors, there were significant

time gaps between bargaining sessions. There

is no suggestion that in Fortenberry’s com-

munications with Harman during this period,

he in any sense created the impression that the

Union lacked an interest in attaining a con-

tract with Respondent. On the other hand, Har-

man knew that Fortenberry was responsible

for representation of the Union in further

dealings with Respondent, and that during

this period, Fortenberry was burdened by

other matters.

Aside from Respondent’s knowledge that

delays would be a characteristic of the

negotiations, the unreasonableness of its

interpretation of the Union’s inaction is en-

forced by the absence of any sensible explana-

tion as to why Respondent would assume that

the Union would single out. . .[Brahaney]...

for abandonment, contemporaneous with its

efforts to secure bargaining agreements with

... [Brahaney’s] ... competitors. The Union

had long been involved in organization among

the crews in the Permian Basin. Securing con-

tracts with all contractors in the Basin was ob-

viously its ultimate objective. It defies com-

mon sense to assume that this was not under-

8 In addition to his attending meetings conducted with

Fortenberry as to these contractors, Harman represented other

7 [Based upon the credited uncontradicted testimony of contractors, as to whom, negotiations during that period remained

Fortenberry. It is noted that the General Counsel's Exhibits 6 and in an open state. These included Rod Ric Corporation and Tri-

7(a) show that on October 13, 1972, five of the Company's six rigs Service Drilling Co.]

were not in operation.]

46a

stood by Respondent. Furthermore, Respond-

ent cites no facts, apart from the delay in

securing negotiations, which would suggest

that the Union's attitude towards it would dif-

fer from that of the other organized contrac-

tors. Respondent knew, or should have known,

that the Union’s interest in obtaining

agreements covering Respondent's

operations was no less than its objectives with

respect to Respondent’s organized com-

petitors. In this regard, it should be noted that

the turnover facts asserted by Respondent as

evidencing a doubt of majority, are in all

material respects representative of the ex-

perience of all drill companies in this area.

They would not so drastically differ with the

experience of contractors with whom the Un-

ion was actively negotiating during 1972

through 1973, as to warrant a belief by Re-

spondent that the Union, being impressed by

the turnover history among Respondent's

employees, elected to go away. For the above

reasons, I find that Respondent did not, and

could not, have held a reasonable belief that

the absence of communication from the Union

between. ..[October].. . 1972 and April 1973,

either indicated an intention on the part of the

Union to abandon the unit, or to otherwise con-

tributed to any belief that the Union had lostits

majority.

(b) Employee lack of interest

As a factor supporting his doubt of majority, Graves

testified that, in his visits to drill sites, he heard no dis-

47a

cussions among the crew hands concerning the Union.

Graves also testified that he had no knowledge that

any employee at any time expressed dissatisfaction

with the Union. Therefore it is the sense of Grave's

testimony that, as a management representative, his

failure to hear employees avowing their union

allegiance suggested to him that the employees did

not support the Union. Such reasoning is hardly per-

suasive. It fails to substantiate a reasonably based

doubt of majority. In these circumstances, Respond-

ent’s arguments in this regard are rejected as neither

constituting nor contributing to a reasonably based

doubt of majority.

(c) Turnover

Remaining for consideration are the Respondent's

contentions based upon turnover. Summarized the

facts offered in support of this claim show: (1) that of

the 23 names on the 1968 election eligibility list, only 1

individual remains on Respondent’s payroll and he

occupies a nonunit position; (2) that in the 5 years that

have passed since the election, the Company

employed a total of 1591 roughnecks, only 30 to 40 of

whom left and then returned to the Company’semploy,

and (3) that in the first 5 months of 1973, the Company

had employed 160 roughnecks to fill 24 to 36 jobs.

Respondent’s contentions in this regard are iden-

tical to those postulated in the companion Leather-

wood Drilling case. The numerical and statistical data

on which it relies, though involving varient figures, is

not so dramatically different from those presented in

Leatherwood as to warrant different conclusions as to

48a

their legal significance. Therefore, in rejecting the

turnover facts as a justification for the withdrawal of

recognition, herein, I do so for the reasons, equally

applicable here, heretofore expressed in the Leather-

wood case, and set forth as follows:

... Respondent, in his brief, concedes that

Board precedent does not accept turnover

alone as the type of objective consideration

that would legitimately support a withdrawal

of recognition. Under existing Board authori-

ty, in turnover situations, “.. .new employees

will be presumed to support a union in the

same ratio as those whom they have re-

placed.”'? Nonetheless, Respondent argues

that the turnover situation in the Permian

Basin is unique and principles followed in

other industries should not be applied to the

drilling contractors involved there. A variety

of arguments are advanced to support the

view that turnover should be honored in this

industry as a good faith defense. Most, how-

ever, relate to the high velocity of turnover. In

my opinion this fails to persuade that the

presumption that replacements will supporta

union to the same extent as their predecessors

is a fallacy in this industry. If it is fair to

assume that replacements will support a un-

ion where the level of turnover is 50°. this

assumption is no less valid where the turn-

17 Laystrom Manufacturing Co., supra. p.

1484 and cases cited at footnote 7: Printers

Service, Inc., 175 NLRB 809, 812; N. L. R. B. v.

Little Rock Downtowner, 414 F. 2d 1084. 1091.

49a

over amounts to 900%. The fact that 9

employees might in a given time period fill a

single job previously held by a union sup-

porter, does not warrant an assumption that

the ninth replacement will support the union

to any lesser degree than the first.'®

But, in any event, to recognize an exception,

based on turnover, to the good faith doubt rule

would depart materially from the policy con-

siderations underlying the Hondo formula. It

should be apparent to any reader of Hondo and

other cases involving the drilling contractors

18 In addition to the degree of turnover, I am

not persuaded by Respondent’s arguments

based on observations that many of its crew

members must have been employed by non-

union contractors, and that union representa-

tives would have difficulty in maintaining

regular contacts with employees. These fac-

tors are simply too remote to throw any light

on the organizational preferences of crew

members hired from time to time by Respond-

ent. These arguments were not asserted as the

basis of Respondent’s doubt when recognition

was withdrawn, and hence, though arguably

relevant to the question of whether the Board

should alter its view with respect to turnover

in this industry, they are otherwise in the

nature of afterthought and hence cannot be

considered as the basis for Respondent’s doubt

of majority. See N. L. R. B. v. Gulfmont Hotel

Co., .. . [362 F. 2d 588, 592]...

50a

in the Permian Basin, that the Board, ap-

preciating the turnover conditions, that ex-

isted there, committed itself to the desirability

of fashioning means to assure that employees

of various contractors operating in this two

State area, despite the transient nature oftheir

employment, could assert their Section 7 stat-

utory rights “to self-organization, to form,

join or assist labor organizations [and] to

bargain collectively through representatives

of their own choosing... .” I have heretofore

stated that it is fair to assume that the turn-

over experienced by Respondent is generally

representative of that experienced by its com-

petitors in the Permian Basin. Hence, to accept

the turnover facts adduced here as substan-

tiating a good faith doubt of majority would

provide all contractors in the Basin a like

defense. Stable collective bargaining could

hardly proceed to a meaningful state under

such conditions, for, the drill contractors, on

expiration of each collective bargaining

agreement could thereby require the Union to

reestablish its majority as a precondition for

negotiation of a successor agreement. See e.g.,

Emerson Manufacturing Company, Inc., 200

NLRB No. 33, JD p. 7.

Although ultimately the Board might sus-

tain Respondent’s contention, or even

repudiate Hondo, as matters now stand, it is

my opinion that to regard turnover as a

justification for the refusal to bargain, would

reduce the elections conducted by the Board in

5la

the Permian Basin to a futile exercise and ren-

der the status of certifications of representa-

tives resulting therefrom to little more thana

focal point for game playing. In sum, I envi-

sion the exception to Board policy sought by

Respondent, as, in practical consequence,

eventually undermining both the policy con-

siderations which resulted in the Hondo for-

mula and the exercise of self-organizational

rights by employees engaged in the drilling

industry in the Permian Basin. Accordingly, I

find, pursuant to established Board prin-

ciple,’® that turnover did not furnish a good

faith doubt that the Union continued to repre-

sent a majority of Respondent's employees,

and I find that Respondent, by withdrawing

recognition from the Union... [June 4, 1973]

... Violated Section 8(a)(5) and (1) of the Act.

19 Itis true that in Southern Wipers, Inc., 192

NLRB 816, the Board accepted “heavy turn-

over” as one of several factors supporting a

good faith doubt of majority. That case does

not reverse prior precedent to the effect that

turnover alone will not justify a withdrawal of

recognition, and, though not cited by Re-

spondent, I note my view that said decision is

inapposite. See also Viking Lithographers,

Inc., 184 NLRB No. 16.

It follows therefore, and I further find, that the uni-

lateral wage increase announced contemporaneous

with the withdrawal of recognition also violated Sec-

tion 8(a)(5) and (1) of the Act.®

Upon the basis of the entire record, I make the

following:

9 The Respondent's failure to substantiate its affirmative

defense makes it unnecessary to consider the General Counsel's

alternative theory to the effect that Respondent's entire course of

conduct, since the 1968 election, established that the doubt of ma-

jority was not asserted by Respondent in good faith. The curiosity

I expressed in footnote 8 of the Leatherwood case as to the proprie-

ty of a procedural system which allows the General Counsel,

without prior notice, to litigate, under the endless umbrella of

“background ’. atters dating back some 5 years ago applies here. In

any event. were I to reach the merits I would reject the General

Counsel's position as not substantiated by the record. I would find

lacking in merit, each of the contentions made by the General

Counsel in his brief as to this issue. Thus, Respondent's refusal to

recognize and provide the Union with requested information,

prior to the Fifth Circuit's action on October 6, 1970, cannot fairly

be regarded as bearing adversely upon Respondent's state of mind.

since all actions in advance of that date were consistent with its

not unreasonably maintained legal position. Similarly, I see

nothing untoward in the fact that Respondent did not submit until

May 26, 1971, information requested by the Union on March 26,

1971. This delay was credibly explained as resulting from a

breakdown in communication following achange in the identity of

Respondent's counsel, the information was provided well in ad-

vance of the first bargaining session, and the delay was not shown

to have in any way prejudiced the progress of negotiations. Ad-

ditionally, it is my opinion that Respondent was not under a duty

to initiate bargaining requests during periods when the Union was

silent, and hence its failure to do so was not indicative of bad faith.

See N.L.R.B. v. Columbian Enameling and Stamping Co.., Inc., 306

U.S. 501. Finally, I disagree with the General Counsel that dilatory

behavior can be attributed to Respondent on the basis of the latter's

failure to provide a counterproposal, in contract form, until the se-

cond negotiating session. In sum, as far as I can discern from the

record, Respondent's conduct, at and away from the bargaining

table. prior to June 4, 1973, was perfectly consistent with the 8(d)

obligation to bargain in good faith, accordingly, were it necessary

to reach this issue. I would find that the background evidence bear-

ing on Respondent's state of mind did not preclude assertion of a

doubt of majority. Cf. Coca-Cola Bottling Works, Inc., 186 NLRB

1050, 1053; United Electric Corp., 1998 NLRB No. 110; Printers Ser-

vice, Inc., 175 NLRB 809, 811.

53a

Conclusions of Law

1. Brahaney Drilling Company is an employer en-

gaged in commerce within the meaning of Section 2(6)

and (7) of the Act.

2. Local 826, International Union of Operating

Engineers, AFL-CIO, is a labor organization within

the meaning of Section 2(5) of the Act.

3. All derrickmen, motormen and floorhands,

otherwise referred to as roughnecks, employed by

Respondent in the drilling of oil wells in the area

known as the Permian Basin, but excluding all tool

pushers, drillers, office employees, technical

employees, professional employees, guards and all

supervisors as defined in the Act, constitute a unit ap-

propriate for the purposes of collective bargaining

within the meaning of Section 9(b) of the Act.

4. Atall times since September 11, 1968, the Union

has been and is now the exclusive bargaining

representative of the employees in the aforesaid

appropriate unit for the purpose of collective bargain-

ing within the meaning of Section 9(a) of the Act.

5. By withdrawing recognition on June 4, 1973,

thereafter refusing to meet with the Union, and uni-

laterally granting a wage increase, Respondent has

engaged in and is engaging in unfair labor practices

within the meaning of Section 8(a)(5) and (1) of the Act.

6. By the foregoing conduct, Respondent has in-

terfered with, restrained and coerced employees in the

a

54a

exercise of rights guaranteed by Section 7 of the Act,

and has thereby engaged in and is engaging in unfair

labor practices within the meaning of Section 8(a)(1)

of the Act.

7. The aforesaid unfair labor practices are unfair

labor practices affecting commerce within the mean-

ing of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in cer-

tain unfair labor practices within the meaning of Sec-

tion 8(a)(5) and (1) of the Act, I shall recommend that it

cease and desist therefrom and take certain affirma-

tive action designed to effectuate the policies of the

Act.

Considering the pattern of employment experienced

by Respondent in the conduct of its operations, special

provision is necessary to assure adequate publica-

tion of the provisions of the order herein. Therefore, as

in Leatherwood Drilling Company, 16-CA-5189, JD-

685-73, I shall recommend that in addition to requiring

that copies of the notice be posted at the offices and

yards of the Respondent in Midland, Texas, it will be

further provided that copies be posted at crew head-

quarters on site at all rig operations, and that copies

be provided the Union for posting, if the Union is will-

ing, at meeting places in the Permian Basin.

Upon the foregoing Findings of Fact, Conclusions of

Law, and the entire record in this case, and pursuant to

Section 10(c) of the Act, I hereby recommend the

following:*°

ORDER

Brahaney Drilling Company, its officers, agents,

successors, and assigns, shall:

1. Cease and desist from:

(a) Refusing to bargain collectively with Local

826, International Union of Operating Engineers,

AFL-CIO, as the exclusive collective bargaining rep-

resentative of the employees in the following ap-

propriate bargaining unit:

All derrickmen, motormen and floorhands,

otherwise referred to as roughnecks,

employed by Respondent in the drilling

operations in the area known as the Permian

Basin, but excluding all tool pushers, drillers,

office employees, technical employees, pro-

fessional employees, guards, and all super-

visors as defined in the Act.

(b) Withdrawing recognition from and refusing

to meet with the Union as exclusive collective

bargaining representative of employees in the ap-

propriate unit.

10 In the event no exceptions are filed as provided by Section

102.46 of the Rules and Regulations of the National Labor

Relations Board. the findings, conclusions, and recommended

Order herein shall, as provided in Section 102.48 of the Rules and

Regulations. be adopted by the Board and become its findings, con-

clusions, and Order, and all objections thereto shall be deemed

waived for all purposes.

Ds aoe

= =

ae

56a

(c) Granting wage increases or otherwise

changing wages, hours, or other terms and conditions

of employment, without first notifying and bargain-

ing with the Union.

2. Take the following affirmative action which is

necessary to effectuate the policies of the Act:

(a) Upon request bargain collectively with

Local 826, International Union of Operating Engi-

neers, AFL-CIO, as the exclusive representative of the

employees in the appropriate unit’ with respect to

rates of pay, wages, hours of employment and other

terms and conditions of employment and embody in a

signed agreement any understanding reached.

(b) Post atits offices and yards in Midland, Tex-

as, copies of the notice attached hereto marked

“ Appendix.’’!! Copies of said notice, on forms to be fur-

nished by the Regional Director for Region 16, shall,

after being duly signed by an authorized representa-

tive of the Respondent be posted by the Respondent

immediately upon receipt thereof and be maintained

by it for a period of 60 consecutive days thereafter in

conspicuous places, including all places where

notices to employees are customarily posted. Similar

copies shall be posted at the crew headquarters at all

operating drilling sites. Copies shall also be provided

the Union for posting (the Union willing) at Union

11 In the event that the Board's Order is enforced by a Judgment

of a United States Court of Appeals. the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS

BOARD’ shall be changed to read “POSTED PURSUANT TOA

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

ENFORCING AN ORDER OF THE NATIONAL LABOR

RELATIONS BOARD.”

57a

halls or meeting places in the Permian Basin. Rea-

sonable steps shall be taken by the Respondent to in-

sure that said notices are not altered, defaced, or cov-

ered by any other material.

(c) Notify the Regional Director for Region 16,

in writing, within 20 days from receipt of this Recom-

mended Order, what steps the Respondent has taken to

comply herewith.

Dated at Washington, D. C. October 14, 1973.

/s/ Joel A. Harmatz

Administrative Law Judge