# Petition — Brahaney Drilling Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1053%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1975 - **Citation:** 423 U.S. 1016 ## Text ——————— | Supreme Court, U. S. : SEP 1975 MICHAEL RODAK, JR. CLERK | —— 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_1053%3A1. Public record. Not legal advice.