Petition — Alaska Roughnecks & Drillers Ass'n v. National Labor Relations Board

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 405 W7-9Y12

ALASKA ROUGHNECKS AND DRILLERS ASSOCIATION

P: Citic rle

NATIONAL LABOR RELATIONS BOARD

Respon 4c)

No. 75-3049 (9th Circuit Court of Appeals)

Mosit Ot, CORPORATION.

Pe fifioner,

NATIONAL LABOR RELATIONS BOARD

Re Sponae nf

No. 75-3328 (9th Circuit Court of Appeals)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Hat R. HORTON

BIRCH, HORTON, BITTNER

& MONROE

1200 Airport Heights Brive

Suite 520

Anchorage, Alaska 99504

Attorney for Petitioner

Wartergtor OC + THIEL PRESS - ALD 6 42"

(1)

TABLE OF CONTENTS

oe oe wghenewne

EARS ae OP a a

QUESTIONS PRESENTED ..............e0eee00:

STATUTES, FEDERAL RULES, AND REGULATIONS

INVOLVED —«_ an cccc creer ccc ccccccccccccees

STATEMENT .nccccccccccccscccesecccsccecs

REASONS FOR GRANTING THE WRIT .........++--

COINCLUBION occ ccc ccc cr cree ccsccccccescces

APPENDIX:

DECISiON AND ORDER, Mobil Oil Corp. and Alaska

Roughnecks and Drillers Ass’n, N.L.R.B. Case

19-CA-7181 (N.L.R.B. July 25,1975) ...........2..

DECISION, Mobil Oil Corp. and Alaska Roughnecks

and Drillers Ass’n., N.L.R.B. Case 19-CA-7181

(N.L.R.B. Div. of Judges Feb. 6,1975) =... 2.2.2...

Alaska Roughnecks and Drillers Ass'n. v. N.L.R.B.,

Civ. No. 75-3049 (9th Cir. filed June 14, 1977) .......

Alaska Roughnecks and Drillers Ass’n v. N.L.R.B.,

Civ. No. 75-3049 (9th Cir., filed August 19, 1977) .....

Alaska Roughnecks and Drillers Ass'n. ». N.L.R.B.,

Motion for Extension of Time Within Wherh

to File Petition for Writ of Certiorari

ee eee eee cess eeees eed

Alaska Roughnecks and Drillers Ass'n. v. N.L.R.B.,

Order Extending Time to File Petition for Writ

of Certiorari (U.S., filed Nov. 5, 1977) .............

29 U.S.C. Sections 158(a)(1) and (5) (1970) ...........

ee ee

29 C.F.R. Sections 102.61 — 102.63 (1977) ...........

(it)

Page

AUTHORITIES CITED

Cases:

Ace-Alkire Freight Lines, Inc. v. N.L.R.B., 431

F.26 SOO (Oth Gir. 19S . wc cc ccccccccecccees 9, 15

Al J. Schneider, Case No. 227 N.L.R.B. No. 191 (1977)... . 18

American Cable and Radio Corp. v. Douds,

111 F. Supp. 482, 485 (S.D.N.Y. 1953) ww... ee eee 17

Boire v. Greyhound Corp., 376 U.S. 473 (1964) ......... 15

Inland Empire District Counsel, Lumber and

Sawmills Workers Union, Lewiston, Idaho v

Millis, $25 U.S. 697 (1945) ....ccccccccccccccees 17

N.L.R.B. v. Fresh’nd — Atre Company, 226 F.2d 737

LoL 3 aPrrrrryrrrrr yr Tree rere cae 17

N.L.R.B, v. Greyhound Corp., 368 F.2d 778,

779-781 (5th Cir. 1966) 2.1... ee ee eee cece ences 15

N.L.R.B. v. Ideal Laundry and Cleaning Company,

$30 F.2d 712 (10th Cir. 1964) ..........-0005- ios =

N.L.R.B. v. Jewell Smokeless Coal Corp., 435 F.2d

1270 (4th Cir. 197@ on ccc cece ccccccccccccsecs 14

N.L.R.B. v. Jordan Bus Company, 380 F.2d 219

Cs Ge, TEED svc ceccccssndecececcesccoceys ©

N.L.R.B. v. Long Lake Lumber Company, 138

F.2d 363 (9th Cir. 1943)... .. 2. eee eee ees 9, 11, 14, 15

N.L.R.B. v. Welcome-American Fertilizer Company,

443 F.2d 19 (9th Cir. 1971) ww we ee eee eee ees 19, 20

Royal Typewriter Company v. N.L.R.B., 533 F.2d

BOBO (Sth Cle. 197@ 2. nccccccccciccece 9, 11, 12, 14

Statutes and Regulations:

Sections 8(a)(1) and (5) of N.L.R.A.,

29 U.S.C. Sections 158(a) and (5)... .....-- 9, 15, 20

Section 9(c) of N.L.R.A., 29 U.S.C Section 159(c)

98 U.S.C. Section UBBELE ccccccccccecccccccesess 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 405

ALASKA ROUGHNECKS AND DRILLERS ASSOCIATION,

Petitioner,

Vv.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

No. 75-3049 (9th Circuit Court of Appeals)

Mosit O1L Corporation,

Petitioner,

v.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

No. 75-3328 (9th Circuit Court of Appeals)

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Petitioner, Alaska Roughnecks and Drillers

Association, prays that a Writ of Certiorari issue to

review the judgment of the United States Court of

Appeals for the Ninth Circuit entered in the above cases

on August 19, 1977.

2

OPINIONS BELOW

The opinion of the National Labor Relations Board is

reported at 219 N.L.R.B. No. 91, the opinion of the

Court of Appeals for the Ninth Circuit is reported at

555 F.2d 732.

JURISDICTION

The opinion of the Court of Appeals for the Ninth

Circuit was made and entered on June 14, 1977, and a

copy thereof is appended to this Petition in the

Appendix at pages 35a-45a. The judgments of the Court

of Appeals for the Ninth Circuit were made and entered

on August 19, 1977, and copies thereof are appended

to this Petition in the Appendix at pages 46a-47a. An

order granting an extension of time to file a petition for

writ of certiorari was entered on November 5, 1977, in

which the Court extended the time until December 23,

1977, and a copy of that order is appended to this Peti-

tion in the Appendix at page 50a. The jurisdiction of this

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

QUESTIONS PRESENTED

Whether an employer who is not found to be an

employer in a representation proceeding under section

9(c) of the National Labor Relations Act is denied

procedural due process if later found to be a joint

employer for purposes of remedying unfair labor

practices?

STATUTES, FEDERAL RULES, AND

REGULATIONS INVOLVED

The pertinent portions of Sections 8(a)(1) and (5) of

the National Labor Relations Act (29 U.S.C. Sections

3

158(a)(1) and (5) (1970)) and Section 9(c) of the

National Labor Relations Act (29 U.S.C. Section

159(c)) and 29 C.F.R. Sections 102.61-102.63 are set

forth in the Appendix at pages 51a-60a.

STATEMENT

The above consolidated cases came to be heard

before the Court upon Petitions of Alaska Roughnecks

arid Drillers Association and Mobil Oil Corporation to

review an Order of the National Labor Relations Board

which held that Mobil Oil Company violated Sections

8(a)(1) and (5) of the National Labor Relations Act

(29 U.S.C. Sections 158(a)(1) and (5) (1970). It had

found that Mobil unlawfully refused to bargain with the

union representing the employees of Santa Fe Drilling

Company which had subcontracted with Mobil to

perform drilling operations on an offshore oil drilling

platform. This decision was based on the following

facts.

The situs of this case is an offshore platform situated

in the Cook Inlet near Anchorage, Alaska. The platform

in question is owned three-fourths by Mobil Oil

Corporation and one-fourth by Union Oil Company.

Mobil is the operator of the platform and has been

since 1966. Upon completion of the platform, drilling

operations were commenced and a number of producing

wells were drilled from the platform. As each well was

completed, producing operations began. The initial

drilling program lasted until 1969.

Mobil Oil Corporation, hereinafter referred to as

“Mobil”, is a Delaware Corporation engaged in several

states of the United States, including Alaska, in the

production and distribution of petroleum products. It is

+

an employer engaged in and affecting commerce within

Sections 2(2), 6 and 7 of the National Labor Relations

Act as amended.

The Alaska Roughnecks and Drillers Association,

hereinafter referred to as “union”’, is a labor organiza-

tion within Section 2(5) of the National Labor

Relations Act as amended.

From 1969 through the spring of 1974 Mobil kept in

effect the contract with Santa Fe Drilling Company to

perform the production and maintenance operation on

the Granite Point Platform. The only workers on the

platform during this period of time have been Mobil’s

supervisors and 15 to 20 employees. The majority of

the employees remained constant over the years.

Throughout both the drilling and production phases,

the essential relationship between Mobil and Santa Fe

was defined by a series of contracts, the latest of which

became effective on June 1, 1972. Under this contract,

Santa Fe was obligated to furnish employees “as

required by Mobil” in the following classifications:

leadman, repairman, senior production operator, crane

operator, production operator, utilityman and roust-

about (ibid.). The contract established the wages to be

paid by Santa Fe to employees in each classification,

specified the several employee fringe benefits to be

provided by Santa Fe, and permitted termination of the

contract by either party on 30 days’ notice (ibid).

With regard to operational control, the contract

provided, inter alia, that any personnel whose qualifica-

tions or performance were unsatisfactory to Mobil

would he replaced, that crew change time and crew

reporting time would be fixed periodically by Mobil,

and that Mobil would provide transportation for

platform employees to and from the work site (ibid.).

5

The ranking Santa Fe personnel on the platform were

its two leadmen, who had at least nominal power to

direct the work of the unit employees. Santa Fe’s

leadmen were subordinate to Mobil’s two production

foremen, at least one of whom was present on the

platform at nearly all times, who actually directed the

operation of the platform work. In practice, the

leadmen served as conduits between Mobil’s foremen

and unit employees: they seldom gave other than

routine directions without first clearing them with a

production foreman, and their orders commonly were

prefaced by comments indicating that they were being

given at the express direction of one of the foremen. In

most instances, the production foremen bypassed the

leadmen altogether in dealing with the unit employees.

Mobil’s production foremen possessed and exercised

the authority to interview prospective unit employees

and advise Santa Fe whom it should send to the

platform. The foremen determined the classifications of

those subsequently hired based on their interview and

thereafter reclassified unit employees as circumstances

dictated. Additionally, the foremen often discharged,

demoted, and otherwise disciplined unit employees

without consulting the leadmen. On a daily basis, the

foremen also prepared and posted work schedules for

the unit employees. With regard to the direction of the

workforce in other than their assigned tasks, the

foremen independently approved requests by employees

for time off, authorized overtime, and periodicaliy

assigned unit employees to tasks at a Mobil facility,

known as the tank farm, off the platform; and jointly

with the leadmen, they approved promotions and

vacations and verified employee’s time slips. In this

latter regard, the production foremen sometimes

6

directed the leadmen to alter and sometimes themselves

altered time slips which they believed had been padded.

Mobil furnished employees with safety gear such as

hard hats, hearing protectors, and safety goggles. At

times the foremen held safety meetings and in other

instances encouraged employees to comply with the

posted safety regulations, some of which, such as the

fire stations drawings, they had designed themselves. In

addition to undertaking responsibility for compliance

with O.S.H.A. regulations, the foremen also advised

employees how to conduct and record pollution control

tests required by the E.P.A. Mobil also furnished the

employees with tools to be used on the platform.

During the fall of 1973, the union organized the

employees on the platform.

At the representation hearing the union stipulated

that Santa Fe was the employer and the Board’s

Regional Director so found. Although the union

proposed a single unit for both the Granite Point

Platform and another one operated by Marathon Oil

Company, the Regional Director established a separate

unit for the Granite Point group.

In January, 1974, the union was certified in Case No.

19-RC-6842 as a collective bargaining representative for,

All employees employed by the employer on the

Mobil Granite Point platform, excluding office and

clerical employees, professional employees, guards

and leadmen, relief leadmen and all other

supervisors as defined by the Act.

After the union’s certification as collective bargaining

agent on January 31, 1974, the union began collective

bargaining negotiations with Santa Fe Drilling Com-

pany. On February 4, 1974, which was a matter of

7

days after the certification, Santa Fe sent Mobil a letter

asking that the daily mark up in the contract be

increased.

Mobil replied by letter dated March 7th refusing to

increase the mark up and withholding comment on the

other portions of Santa Fe’s letter. On March 22nd

Mobil invited four companies plus Santa Fe to submit

bids in contemplation of invoking the 30 day termina-

tion clause in the existing contract with Santa Fe. Santa Fe

submitted a bid April lst, the other four declined to

bid.

Rather than accept Santa Fe’s bid the employer

permitted a belated bid from V.E. Construction, Inc.

V.E. had not been included in the March 22nd bid

invitation. V.E.’s bid submitted April 24th eventually

was accepted.

On June 14th Mobil finally notified Santa Fe that its

services were being terminated as of July 17th. The

employer and V.E. executed a contract on July 12th

calling for V.E. to begin July 17th. The contract was

nearly identical in most respects to that between

employer and Santa Fe including a 30 day termination

clause. A conspicuous dissimilarity is the including in

the V.E. contract of this language.

V.E.’s status hereunder is that of an independent

contractor and neither V.E. or any employees of

V.E. are employees of Mobil. Mobil is interested

only in and shall specify the results to be achieved

in connection with the performance of the services

under this contract in the manner, means and

details of achieving such results in a good and

workmen like manner are the responsibility of

V.E.

8

Meanwhile Santa Fe and the union bargained

collectively from March until May 29th when the

employees struck in support of the union demands.

Thereafter, on June 26th, the Union’s business agent,

W. A. Hacklin, sent a letter to Lee Newton, Mobil’s

production superintendent in Anchorage, requesting

that Mobil meet and negotiate with the Union. Mobil

did not respond in writing, but on July Ist, its attorney,

Risher Thornton, stated to Hacklin that Mobil would

not bargain with the Union, and since that time, Mobil

has not done so.

Subsequently, the unfair labor practice charge was

filed by the union against the employer.

The case was tried before an administrative law judge

who found that Mobil, as a joint employer with Santa

Fe, had violated the Act as charged. Reinstatement of

all employees and of the Santa Fe contract, plus full

back pay, were ordered. Mobil appealed. The Board

modified only the remedy by denying reinstatement

and granting back pay from the date the Santa Fe

contract was terminated until Mobil agreed to bargain

with the union. e

Mobil petitioned for review of the Board’s decision,

claiming inter alia that the union’s June 26th request to

bargain was untimely and that Mobil was not required

to bargain as a joint employer. The union also

petitioned for review, claiming that reinstatement

should have been ordered. In response to both

petitions, the Board cross-petitioned, seeking enforce-

ment of its order. The two appeals were consolidated.

The Court considered the question of whether Mobil

Oil Corporation could refuse to bargain with the union

when it was neither afforded an opportunity to

9

participate in the certification proceedings nor re-

quested by the union to bargain until after Mobil

had terminated its contract with Santa Fe.

On June 14, 1977, the United States Court of

Appeals for the Ninth Circuit issued an opinion granting

Mobil Oil’s Petition to Review in Case No. 75-3328,

setting aside and denying enforcement of the Board’s

Order and dismissing the union’s Petition for Review of

said Order in Case No. 75-3049.

REASONS FOR GRANTING THE WRIT

The Court must grant a writ to review the Ninth

Circuit Court of Appeals decision in this case for several

reasons. The Court’s decision is in direct conflict with

other Circuit Courts of Appeals decisions in similar labor

cases which include the cases of N.L.R.B. v. Long Lake

Lumber Company, 138 F.2d 363 (9th Cir. 1943),

Ace-Alkire Freight Lines, Inc. v. N.L.R.B., 431 F.2d

280 (8th Cir. 1970), and Royal Typewriter Company v.

N.L.R.B., 533 F.2d 1030 (8th Cir. 1970). It is the

petitioner’s position that the Court’s decision is in

conflict with the other Courts of Appeals decisions

because it misinterprets federal labor regulations and

misapplies procedural due process to labor proceedings

under the National Labor Relations Act and mis-

perceives the relationship between representation pro-

ceedings under Section 9(c) of the National Labor

Relations Act (29 U.S.C. 159(c)) and unfair labor

practice hearings under Sections 8(a)(1) and (5) of the

Act (29 U.S.C. 158(a)(1) and (5)). Because the decision

conflicts with other federal court opinions on this same

issue and because these opinions directly affect

employer and unicn relationships in both representation

proceedings and unfair labor practice proceedings, the

10

failure to review this decision and to rule on the issues

involved in this case will disrupt labor relations

throughout this country and will affect the outcome of

countless labor cases.

The Court of Appeals stated on page 6 of its

opinion, which is included at page 40a of the Appendix,

The Board found that Mobil was a joint employer,

primarily because of the control it exercised over

Santa Fe’s employees, but the extent of Mobil’s

control is not determinative of this appeal.

The Court continues by stating that because Mo-

bil was not party to the representation hearing be-

tween the union and Santa Fe, that therefore it was

denied due process by the Board’s finding that it was a

joint employer during an unfair labor practice hearing.

This analysis misperceives the relationship between

representation hearings and unfair labor practice

hearings and is in direct conflict with other cases.

The above statement and the Court’s analysis that

follows directly conflict with the analysis in a number

of other circuit court cases which have followed the

Board’s joint employer doctrine and have found that if

an employer is found to exercise sufficient control over

employees to be a joint employer and it has committed

- an unfair labor practice that the Board may find that it

has violated the National Labor Relations Act and order

appropriate remedies against it.

Other circuit courts have consistently ruled that the

Board’s determination in an unfair labor practice

proceeding that an employer is a joint employer is

solely for the purpose of remedying those unfair labor

practices and such a determination is entirely separate

from representation proceedings under Section 9(c) of

the National Labor Relations Act (29 U.S.C. 159(c)).

11

For example, the Court’s decision ia N.L.R.B. v.

Long Lake Lumber Company, supra, 138 F.2d at 364, is

very much on point. In Long Lake Lumber Company

one employer, Robinson, was under contract to

performed logging services for Long Lake at Long Lake’s

camp. After an organizational campaign, Robinson

initially recognized and bargained for the union

representing his employees. Immediately thereafter

Long Lake ordered Robinson to shut the camp down,

Robinson did so and the employer services were

terminated. Robinson then refused to bargain further

with the union at any time after the shutdown. The

union filed charges against both Robinson and Long

Lake alleging that the latter was a joint employer with

Robinson. The Board found that Long Lake was a joint

employer and ordered it inter alia to bargain with the

union. In the enforcement proceeding against Long

Lake, the Court found that the facts did show that

Long Lake exercised such control over Robinson to

warrant treatment as a joint employer and enforced the

Board’s bargaining order against it. Thus accordingly the

determination of Santa Fe as the employer during the

Board’s certification of the union as the exclusive

representative of Santa Fe’s employees on the plat-

form are not at issue here.

Also in Royal Typewriter Company v. N.L.R.B., 533

F.2d 1030 (8th Cir. 1976), the Court arrived at a

decision which largely conflicts with the lower court’s

decision in this case. In that case, the union had been

certified in 1966 as the bargaining representative for the

production and maintenance workers at the Springfield

plant of Royal Typewriter Company. As the initial

collective bargaining agreement between the union and

Royal approached its expiration date, Royal questioned

the union’s continuing majority status, which led to a

12

series of conflicts culminating in the issuance of unfair

practice complaints by the Board’s General Counsel.

The unfair practice proceeding investigated the corpo-

rate interrelatiofships of Royal, which is an unincorpo-

rated division of Litton Business Systems, which in turn

is a wholly owned subsidiary of Litton Industries, Inc.

An August, 1971, opinion by the administrative law

judge held that Royal and L.B.S. were a single

employer for the purposes of drawing up a remedy.

Thereafter, in February, 1974, the Board granted the

General Counsel’s motion to add Litton Industries, Inc.,

as a respondent and remanded the case for further

hearings on the issue of whether Litton, Royal, and

L.B.S. were a single employer, and for the receipt of

other evidence concerning Litton’s participation in any

unfair practices. The administrative law judge’s ruling

favored Litton, but was overtumed by the Board, which

held that the three entities were a single employer and

that Litton had participated in the unfair practices in

question. The Board’s remedy ordered all three to

accept responsibility for bargaining, and further re-

quired that preferential hiring procedures be adopted at

Royal typewriter plants as well as at other Litton plants

in and around Springfield.

Litton separately petitioned the Court of Appeals for

review of the Board’s single employer finding while also

contending that the manner by which it was added as a

party late in the proceedings denied it due process of

law. The Court determined the issue as follows:

While preserving a degree of operational

autonomy wichin its divisions, it is clear that

Litton reserved to itself a role in major expendi-

tures, budget control, acquisitions, and plans,

including any decision to close a plant. /d., 92

LRRM 2013, at 2023.

13

The Court went on to say that:

In assessing the appropriateness of single em-

ployer treatment, the fact that day to day labor

matters are handled at a local level is not

controlling... A more critical test is whether the

controlling company possessed the present and

apparent means to exercise its clout in matters of

labor negotiations by its divisions or subsidiaries

and whether its course of conduct encouraged or

permitted the local negotiators to so represent the

Situation to union negotiators for the purpose of

achieving a tactical or strategic objective ...We do

not think that a conglomerate can act in

negotiations as a single employer and then expect

to avoid the consequences if unfair labor practice

charges result from such conduct... .

We come next to Litton’s claim that its addition

as a party to the unfair labor practice proceeding

after all the evidence had been received denied it

minimum due process... While we express some

concern about the procedure under which the

General Counsel deferred his effort to obtain

Board approval to amend his complaint, we cannot

say in the circumstances presented here that Litton

has demonstrated that degree of prejudice which

would warrant relief from this court. Due process,

to be effective, must be afforded at a meaningful

time and in a meaningful manner . . . The period

of delay in this case is grounds for careful and

sympathetic scrutiny of Litton’s claims of preju-

dice. The totality of the circumstances, however,

demonstrates that any prejudice resulted from

Litton’s failure to avail itself of the opportunity to

reopen the case, confront the witnesses who had

testified previously, and offer additional evidence

of its own....

The Board points out that the single employer

14

issue could have been reached in a supplemental

contempt proceeding —_ against LBS _—s and

Royal...and that the opportunity to participate

accorded Litton in this case afforded at least as

much due process as such a supplemental proceed-

ing would have provided. This may overstate the

case somewhat because the evidence adduced

before Litton was joined as a party formed the

principle basis for the Board’s findings. On the

other hand, the Board authorized the issue of

Litton’s involvement to be fully reopened; Litton

sought no continuance, but simply refused to

participate. Litton’s attorney had been present

when the evidence on the single employer issue

was presented. There was no real surprise and

Litton’s refusal to participate was with knowledge

of the evidence in the records.

The record thus fails to demonstrate any

prejudicial denial of due process. /d., 2025.

Also see N.L.R.B. v. Jewell Smokeless Coal Corp.,

435 F.2d 1270 (4th Cir. 1970).

In both the Long Lake Lumber case, supra, and the

Royal Typewriter case, the Courts have applied the joint

employer doctrine used by the National Labor

Relations Board to remedy unfair labor practices.

These Courts have consistently held that the findings

of a representation hearing are not res judicata to a

subsequent determination by the Board that Mobil was a

joint employer. The matters determined at a representa-

tion hearing, which may include the Board’s jurisdiction,

appropriateness of the unit and sufficiency of the union

showing for an election, and the fact that Santa Fe was

found to be the employer, are in no way inconsistent

with a subsequent determination in an unfair labor

practice proceeding that Mobil exercised sufficient

15

control over the employees to be a joint employer. As

the cases make clear, the fact that. Mobil may qualify as

an employer or a joint employer of the employces does

not mean that Santa Fe is not an employer, but merely

that both employers are subject to the enforcement of

the Act.

The Courts have consistently held that where such

control is exercised jointly by more than one employer,

the Board is warranted in treating them for purposes of

the Act as joint employers. See Botre v. Greyhound

Corp., 376 U.S. 473, 481 (1964); NLRB. »v.

Greyhound Corp., 368 F.2d 778, 779-781 (5th Cir.

1966); NL.R.B. v. Long Lake Lumber Company, 138

F.2d 363, 364 (9th Cir. 1943); Ace-Alkire Freight Lines

Inc. v. N.L.R.B., 431 F.2d 280, 282 (8th Cir. 1970).

It is clear from the testimony and the facts presented

at the unfair labor practice hearing that Mobil was a

joint employer with Santa Fe and that as such Mobil

violated sections 8(a)(1) and (5) of the Act (29 U.S.C.

158(a)(1) and (5)) by refusing to bargain over the

decision and effects of displacing unit employees.

If the status of a joint employer is not entertained at

the certification stage, the later finding of a joint

employer liability represents a remedy to combat

potential manipulation of rights granted by the National

Labor Relations Act. It is a culmination of an effort to

look behind and beyond the certification investigation

to determine largely different issues relating to the

joint liability of corporations secking to plot a course

of labor relations outside the reach of the law. The

weighing of constitutional due process on the one hand

and the necessity of safeguarding rights granted by the

N.L.R.A. on the other leads to a balancing of such

interests such that joint employer status may be found

16

at an unfair labor practice proceeding which satisfies

the due process requirements by providing the employer

with a full and fair hearing before the complaint is

decided. Where necessary to safeguard the statutory

nights the Board may view separate legal entities as joint

employers and order remedial action by a party

exercising such control in a manner which violates the

National Labor Relations Act.

The Court’s decision in this case not only conflicts

with other Courts’ decisions in not applying the joint

employer doctrine, but also in its analysis and concept of

procedural due process in labor proceedings. It states

that Mobil was denied due process because the National

Labor Relations Board ordered it to remedy unfair

labor practices although it was not a named employer

during the earlier union certification proceedings. This

analysis conflicts with other Court decisions and

overlooks the nature of representation hearings con-

ducted under Section 9(c) of the National Labor

Relations Act (29 U.S.C. 159(c)).

The reason for the adoption of the Board’s joint

employer doctrine by these Courts and the noneffect of

the results of the certification proceedings in relation-

ship to the unfair labor practice proceedings is based

upon the nature of the representation proceedings

themselves. Section 9(c) of the National Labor

Relations Act authorizes the N.L.R.B. to investigate

controversies concerning the representation of em-

ployees. In providing that in any such investigation the

Board shall give an opportunity or an appropriate

hearing upon due notice, either in conjunction with an

unfair labor practice proceeding or otherwise, the Act

contemplates great latitude in procedural details and

in the investigation which is essentially informal not

17

adversarial. Inland Empire District Counsel Lumber and

Sawmill Workers Union, Lewiston, Idaho v. Millis, 325

U.S. 697 (1945).

In these proceedings the Board plays the part of a

disinterested investigator merely secking to ascertain the

desires of the employees as to their representation.

N.L.R.B. v. Fresh’nd-Aire Company, 226 F.2d 737 (7th

Cir. 1955). This comports with the review taken by the

Court in American Cable and Radio Corp. v. Doud, 111

F.Supp. 482, 485 (S.D.N.Y. 1953), as follows:

In broad vein, a representation proceeding is not

technical ... The analogy between a representation

hearing and a trial at law may not be pressed too

far. ‘The preliminary investigation and the hearing

in a representation proceeding are not contentious

litigation; not even litigation, but investigation. It

is made on behalf of the Board by members of its

staff. The outcome is merely a certification of a

bargaining representative.’ N.L.R.B. v. Botany

Worsted Mills, 3rd Cir., 133 F.2d 876, 882. The

issue which arises in the proceeding is_ the

determination of which union, if any, the

employees desire to represent them in collective

bargaining with their employer. Since they are to

choose thejy representative unhindered by the

employer, he is at most a nominal party to the

proceeding. N.L.R.B. v. National Mineral Co., 7th

Cir., 134 F.2d 424; N.L.R.B. v. Whittier Mills Co.,

5th Cir., 111 F.2d 474, 478. Of course, the

employe: has an obvious ultimate interest in who

the collective bargaining representative is to be;

and he may ultimately secure judicial review on

the issue of whether the Board properly followed

the proceeding required by legislation and whether

there is substantial evidence to support its action.

But it has no such immediate interest as to

18

authorize its appearance, as a matter of mnght,

clothed with all the armor of due process in

contentious litigation, in an administrative investi-

gatory proceeding held to determine the employee

representative with whom it must bargain in good

faith. In these circumstances, the claim of a denial

of due process on the grounds advanced is utterly

unpersuasive.

In representation hearings as shown above, there is

no complete litigation. The Natiemal Labor Relations

Board’s views of the inappropriateness of these

proceedings for the ultimate determination of joint em-

ployer issues is expressed in Al J. Schnetder, 227 N.L.R.B.

No. 191, wherein the Board dismissed a petition for unit

clarification brought by an employer seeking a deter-

mination as to its joint employer status in advance

of the disposition of 8(a)(5) refusal to bargain charges

at the unfair labor practice stage. The flexible approach

towards certification proceedings as noted in these cases,

implies no estoppel except as to issues which were

necessarily determined.

The Court’s analysis of procedural due process in this

action is also in direct conflict with the view taken by

other circuit courts in applying procedural due process

to labor relations actions.

According to N.L.R.B. v. Ideal Laundry and Cleaning

Company, 330 F.2d 712 (10th Cir. 1964),

The proceeding under Section 9(c) to determine

the appropriate bargaining unit for purposes of

certification, though conducted as a ‘hearing upon

due notice’, is purely administrative and does not

contemplate a final determination of the rights of

the parties... The Board is entrusted with wide

19

discretion in establishing the procedure and

safeguards necessary to a free.and fair choice of a

bargaining representative by the em-

ployees ... while the proof adduced at the Section

9(c) proceeding is carried forward as_ relevant

evidence in an unfair labor practice hearing

involving the appropriateness of the unit... it is

not conclusive of the issue. /d., 714-715.

The question that the Court should have analyzed as

shown by the above cases, is whether Mobil was

afforded a fair and full opportunity to be heard and to

present evidence at the hearing before the administra-

tive law judge. Clearly that opportunity was afforded to

Mobil at the hearing before the administrative law

judge.

The only basis for the Court’s decision appears to be

N.L.R.B. v. Jordan Bus Company, 380 F.2d 219 (10th

Cir. 1967) and N.L.R.B. v. Welcome-Amencan Fertilizer

Company, 443 F.2d 19 (9th Cir. 1971).

However, these are cases in which the employer did not

have an adequate opportunity to present evidence or

prepare when issues of the joint employership were

raised.

In N.L.R.B. v. Jordan Bus Company, supra, a

representation proceeding where two employers were

found by the Board to be a single employer for the

purposes of jurisdiction, the Court found that one

employer, Denco Bus Lines, was not given adequate

notice of the hearing so that it could effectively

participate, although the Court held that lack of notice

had been cured. However, in the instant case, no such

issue is present for Mobil was the sole party respondent

in the unfair labor practice proceeding and was duly

20

served and notified of the hearing at which it

participated.

Another case that the Court relies upon is N.L.R.B. v.

Welcome-Amencan Fertilizer, supra. However, this case

applies the Board’s single employer doctrine which is an

administrative doctrine developed by the Board to

insure that its jurisdictional standards are met where

several nominally separate entities comprise an inte-

grated enterprise which is in effect, a single employer

having receipts in excess of the Board’s minimal

jurisdictional requisites. In this case, there was no need

to establish jurisdiction via a joint employer theory at

the certification proceedings. The due process argu-

ments in these cases refer only to circumstances where

an alleged joint employer has been named in the

certification proceeding or the joint employer issue is in

fact entertained at this stage.

The above analysis and comparison of the Circuit

Courts of Appeals cases referred to in this action clearly

demonstrate the compelling reason why the Court

should issue a writ in this case. The Court’s failure to

apply the National Labor Relations Board’s joint

employer doctrine to remedy unfair labor practices and

the Court’s analysis and concept of the way in which

procedural due process is to be applied in labor

proceedings whether they be representation proceedings

under section 9(c) of the National Labor Relations

Act (29 U.S.C. 159(c)) or unfair labor practice

proceedings under sections 8(a)(1) and 8(a)(5) of the

National Labor Relations Act (29 U.S.C. 158(a)(1) and

(5)) depart from the majority of precedent and are in

direct conflict with cases in other jurisdictions.

The efiect of not reviewing this decision will cause

total uncertainty in employer-union relationships across

21

this country and will directly affect the method in

which employers and unions proceed during representa-

tion hearings and at unfair labor practice hearings.

It is the petitioner’s position that this conflict is due

to the misapplication of labor statutes, labor proceed-

ings and National Labor Relations Board doctrines and

that the decision allows those employers who may

exercise direct control over employees to violate the

National Labor Relations Act with impunity.

The failure to review this decision has more far reach-

ing consequences as it will allow different results to

occur in unfair labor practice proceedings where there

has been a formal certification hearing for the union as a

collective bargaining representative and where there has

been an informal certification or a stipulated certifica-

tion of the union.

CONCLUSION

For the reasons set forth above, it is respectfully

submitted that this Petition for Writ of Certiorari be

granted.

DATED this 23d day of December, 1977.

HAL R. HORTON

BIRCH, HORTON, BITTNER

& MONROE

1200 Airport Heights Drive

Suite 520

Anchorage, Alaska 99504

Attorney for Petitioner

q

APPENDIX

MJK

219 NLRB No. 91 D—45

Cook Inlet, Alaska

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

MOBIL OIL CORPORATION

and

ALASKA ROUGHNECKS AND

DRILLERS ASSOCIATION

Case 19—-CA~-7181

DECISION AND ORDER

On February 6, 1975, Administrative Law Judge Rich-

ard J. Boyce issued the attached Decision in this proceed-

ing. Thereafter, Respondent filed exceptions and a

supporting brief! and the General Counsel filed an an-

swering bricf.

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 attached

decision in light of the exceptions and briefs and has de-

cided to affirm the rulings, findings, and conclusions of

the Administrative Law Judge and to adopt his recom-

mended Order, as modified herein.

For the reasons stated below, we agree with the Ad-

ministrative Law Judge’s conclusions that Respondent ts

a joint employer with Santa Fe Drilling Company of the

' Respondent's request for oral argument is hereby denied,

as the record and the briefs adequately present the issues and

positions of the parties.

2a

employees employed on the Mobil Granite Point Plat-

form and as such was obligated to bargain, upon request,

with the Union about the decision and effects of dis-

placing the unit employees. We also agree with his conclu-

sion that Respondent violated Section 8(a)(1) when one

of its production foremen, William Barlett, stated to unit

employees that: (1) Respondent was not going to have a

union contractor on the platform and instead would can-

cel its contract with Santa Fe and bring in a nonunion

contractor; and (2) if there was a strike, the contract

would be canceled and a nonunion contractor brought in.

We do not agree, however, with the Administrative

Law Judge’s conclusion that Respondent violated Section

8(a)(1) of the Act through a comment made by Produc-

tion Foreman John Green, nor with his conclusion that

V. E. Construction, Inc., is a joint employer with Respon-

dent. Finally, the Administrative Law Judge’s recom-

mended remedy is modified in the manner described

below.

1. The Administrative Law Judge’s conclusion that

Respondeat and Santa Fe Drilling Company are joint

employers is well supported by record evidence. In addi-

tion to the reasons offered by the Administrative Law

Judge, we note several instances in which Respondent’s

production foremen exercised their authority to fire,

promote, discipline, reassign, and reclassify unit em-

ployees. Indeed, even one of Santa Fe’s own leadmen,

Leonard Dunham, was promoted to this position by

Mobil Production Foreman Barlett. As succinctly stated

by the employees themselves, Respondent’s production

foremen are “the quarterbacks of the team” and the

“captains of the ship.” In view of this daily control exer-

cised by Respondent’s production foremen over the em-

ployees supplied by Santa Fe, we adopt the Administra-

3a

tive Law Judge’s conclusion that Respondent is a joint

employer with Santa Fe.”

2. We disagree, however, with the Administrative Law

Judge’s further conclusion that Respondent also is a

joint employer with V. E. Construction, Inc. The con-

tract which Respondent executed with V. E. Construc-

tion is similar to the contract which it theretofore had

with Santa Fe with one major exception—V. E. Construc-

tion is specifically identified as an independent contrac-

tor and its employees are not to be considered as employ-

ees of Mobil. The Administrative Law Judge nevertheless

concluded that “based upon the terms of its contract

with V. E. Construction, and despite that contract’s

characterization of V. E. as an independent contractor,

the Respondent and V. E. are joint employers for pur-

poses of this proceeding.”

Unlike the Administrative Law Judge, we find nothing

in Respondent’s contract with V. E. Construction which

would negate that contract’s establishment of V. E. Con-

struction as an independent contractor. In addition, no

evidence was introduced regarding the manner in which

the Respondent-V. E. Construction contract was actually

implemented. Accordingly, we do not know whether the

substantial control which Respondent’s production fore-

men exercised over the employees supplied by Santa Fe

carried over to the employees supplied by V. E. Construc-

tion. In the absence of such evidence, we conclude that

the Administrative Law Judge’s finding that V. E. and

Respondent are joint employers is not supported by the

record.

3. A day or two after the union election on January 23,

1974, unit employee Burton DePriest initiated a casual

"Cf. Hamburg Industries, Inc., 193 NLRB 67 (1971).

4a

conversation with Production Foreman John Green.

DePriest asked Green what he thought the possible con-

sequences might be regarding the Union’s recent victory.

Green replied, “I imagine Mobil will put [the job] up for

bid.”” The Administrative Law Judge found this reply vio-

lative of Section 8(a)(1) of the Act.

Contrary to the Administrative Law Judge, we find

Green’s simple response during a casual conversation with

a single employee not to be a violation of Section 8(a)(1).

The opinion espoused by Green was his own and was

offered in reply to a question posed by DePriest. The

casualness of the discussion is reflected in DePriest’s own

testimony:

I just made an off-the-cuff-remark of—after it was

found out that the election had already been held—I

mean the election had already been held and the

vote was 10 to 1,1 believe it was. And I said, I won-

der what will happen now? And his remark was |

imagine Mobil will put this up for bid.

Considering the casualness of the particular conversa-

tion, the fact that only a single employee heard it, and

the apparent camaraderie of the men working on the

platform derived from their close quarters and long work-

ing hours,> we conclude that Green’s reply to DePriest’s

inquiry did not violate Section 8(a)(1) of the Act.

4. In his recommended remedy, the Administrative

Law Judge directed that:

... Respondent be ordered fully to restore the

Status quo ante by reviving its relationship with

Santa Fe on the Granite Point Platform and in so

doing offer reinstatement to the unlawfully dis-

placed employees and make them whole for their

Unit employees work shifts of 10 days on and 5 days off.

5a

monetary losses, from the July 17 date that V. E.

Construction supplanted Santa Fe, occasioned by

their displacement. It is further recommended,

should Respondent then wish to replace Santa Fe,

that it be required first to bargain with the Union

over the decision and its effects on the employees

subject to displacement.

In our view, the recommended remedial order is ex-

cessively broad in scope. We agree that Respondent, as a

joint employer, is obligated to bargain with the Union

over the decision and effects of displacing the unit em-

ployces. We also agree that since Respondent failed to

satisfy this obligation, backpay measured from the date

that V. E. Construction, Inc., supplanted Santa Fe is like-

wise appropriate. We do not agree, however, that rein-

statement of the displaced employces and reinstitution of

the Santa Fe contract is either necessary or warranted.

As noted by the Administrative Law Judge Respon-

dent’s contract with Sant Fe gave Respondent the privi-

lege of termination upon 30 days’ notice. Accordingly,

neither the contract termination nor the actual displace-

ment of unit employees occasioned thereby is alleged as a

violation of the Act. In addition, neither Santa Fe nor

V. E. Construction, Inc., are parties to this proceeding.

Adoption of the Administrative Law Judge’s recom-

mendations, therefore, would require reinstitution of a

legitimately terminated contract with an organization

(Santa Fe) which is not a party to this proceeding and

which has not been represented herein. Simultancously,

we would be abrogating Respondent’s existing agreement

with V. E. Construction, Inc., another organization not

named as a party. In our judgment, it is unnecessary to

tamper with the legal relationships of Santa Fe and V. E.

Construction, Inc., since the bargaining order and back-

6a

pay which we are directing is sufficient to remedy the

violations which have been committed.

Accordingly, in order to effectuate the purposes of the

Act, we shall require Respondent to bargain with the

Union concerning the decision and effects of displacing

the unit employees and shall accompany our order with

backpay designed to make whole the employees for losses

suffered. Thus, we shall order backpay computed in the

manner recommended by the Administrative Law Judge

for all displaced unit employees from July 17, 1974, un-

til the occurrence of the earliest of the following condi-

tions: (1) the date Respondent bargains to agreement

with the Union on those subjects pertaining to the de-

cision and effects of the displacement of unit employees;

(2) a bona fide impasse in bargaining; (3) the failure of

the Union to request bargaining within 5 days of Respon-

dent’s notice of its desire to bargain with the Union; or

(4) the subsequent failure of the Union to bargain in

good faith.*

ORDER

Pursuant to Section 10(c) of the National Labor Rela-

tions Act, as amended, the National Labor Relations

Board adopts as its order the recommended order of the

Administrative Law Judge as modified below and hereby

orders that Respondent, Mobil Oil Corporation, Cook In-

Iet, Alaska, its officers, agents, successors, and assigns,

shall take the action set forth in the said recommended

order, as so modified:

1. Substitute the following for paragraph I,C:

“C. In any other manner interfering with, restraining,

lack L. Williams, D.D.S., d/b/a Empire Dental Co., 211

NLRB No. 127 (1974).

7a

or coercing employees in the exercise of the rights under

Section 7 of the Act.

2. Substitute the following for paragraph II,A:

“A. Give the displaced employees backpay for the

period set forth in this Decision.”

3. Substitute the attached notice for that of the Ad-

ministrative Law Judge.

Dated, Washington, D.C. Jul. 25, 1975

Betty Southard Murphy, Chairman

Howard Jenkins, Jr., Member

Ralph E. Kennedy, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

APPENDIX

NOTICE TO EMPLOYEES

Posted by Order of *he

National Labor Relations Board

An Agency of the United States Government

After a trial at which all parties had an opportunity to

present their evidence, the National Labor Relations

Board has found that we violated the National Labor

Relations Act, and has ordered us to post this notice and

comply with its provisions.

8a

The National Labor Relations Act, as amended, gives

all employees the following right»-

To organize themselves

To form, join, or support unions

To bargain as a group through a representative

they choose

To act together for collective bargaining or other

mutual aid or protection

To refrain from any or all such activities.

In recognition of these rights, we hereby notify our

employees that:

WE WILL NOT state to employees that we will

cancel our contract with Santa Fe Drilling Com-

pany, or with any other employer, rather than have

a union contractor on the Granite Point Platform,

or should the employees go on strike.

WE WILL NOT refuse to bargain collectively with

Alaska Roughnecks and Drillers Association as the

exclusive bargaining representative of the employees

in the bargaining unit set forth below by contracting

out the work of those employees or otherwise

changing their wages, hours, and other terms and

conditions of employment without first bargaining

with the above labor organization. The appropriate

unit is:

All employees of the Employer on the Mobil

Granite Point Platform excluding office clerical

employees, professional employees, guards, and

leadmen, relief leadmen and all other supervisors

as defined in the Act.

WE WILL NOT in any other manner interfere

with, restrain, or coerce employees in the exercise

= a

9a

of the rights guaranteed to them under Section 7 of

the Act.

WE WILL give those employees displaced by our

termination of the contract with Santa Fe backpay

in accordance with the remedial order set forth in

the Board’s Decision.

WE WILL bargain collectively with Alaska Rough-

necks and Drillers Association as the exclusive rep-

resentative of our employees in the unit above with

respect to wages, hours, and other terms and condi-

tions of employment.

MOBIL OIL CORPORATION

(Employer)

Dated By

(Representative) (Title)

This is an official notice and must not be defaced by

anyone.

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

defaced, or covered by any other material.

Any questions concerning this notice or compliance

with its provisions may be directed to the Board’s Office,

2948 Federal Building, 915 Second Avenue, Seattle,

Washington 98101, Telephone 206—442—4532.

10a

JD-(SF)-14-75

Cook Inlet, Alaska

UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR

RELATIONS BOARD

DIVISION OF JUDGES

BRANCH OFFICE

SAN FRANCISCO, CALIFORNIA

MOBIL OIL CORPORATION

and

ALASKA ROUGHNECKS AND

DRILLERS ASSOCIATION

19—CA—7181

Jerome Rubin, Esq., of Seattle,

Wash., for the General Counsel.

Risher M. Thornton, Esq., of

Anchorage, Alaska, for the

Respondent.

Thomas C. McClellan, Esq., of Dallas,

Texas, for the Respondent.

Jack T. Akin, Esq., of Denver, Colo.,

for the Respondent.

William K. Jermain, Esq. and Suzanne

Pestinger, Atty., of Anchorage,

Alaska, for the Charging Party.

DECISION

1. Statement of the Case

RICHARD J. BOYCE, Administrative Law Judge: This

case was tried before me in Anchorage, Alaska, on De-

lla

cember 19 and 20, 1974. The charge was filed July 5,

1974, by Alaska Roughnecks and Drillers Association

(herein called the Union). The complaint issued Octo-

ber 31, was amended in minor respects at the outset of

the trial, and alleges that Mobil Oil Corporation (herein

called Respondent or Mobil) has violated Section 8(a)(1)

and (5) of the National Labor Relations Act.

The parties were given opportunity at ihe trial to intro-

duce relevant evidence, examine and cross-examine wit-

nesses, and argue orally. Briefs were filed for the General

Counsel and Respondent.

II. Issues

The issues are whether Respondent:

1. Violated Section 8(a)(5) [and (1)] when, in

July 1974, it replaced Santa Fe Drilling Company (herein

called Santa Fe) as contractor of labor on Respondent’s

Granite Point Platform without giving the Union a

chance to bargain over the decision and its effects on the

displaced employees (herein sometimes called the unit

employees), whom the Union represented.

2. By its officials, in early 1974, informed unit em-

ployees that it would terminate the contract by which

Santa Fe provided labor for the Granite Point Platform

if those employees persisted in supporting the Union;

violating Section 8(a)(1).

III. Jurisdiction

Respondent is a Delaware corporation engaged in sev-

eral states of the United States, including Alaska, in the

production and distribution of petroleum products. Its

annual gross income exceeds $500,000, and it annually

causes products of a value exceeding $50,000 to be

shipped across state lines.

12a

Respondent is an employer engaged in and affecting

commerce within Section 2(2), (6), and (7) of the Act.

IV. Labor Organization

The Union is a labor organization within Section 2(5)

of the Act.

V. The Alleged Violation of Section 8(a)(5)

A. Facts

Background. Respondent owns 75 percent interest in

the Granite Point Platform, which is situated offshore in

Cook Inlet, Alaska.! The remaining 25 percent is owned

by Union Oil Corporation. Respondent is the “operator”

of the platform, meaning that, between it and Union Oil,

it is responsible for the platfurm’s functioning. The plat-

form was installed in 1966. Its first two or so years were

devoted to drilling for oil, since when it has been con-

cerned mainly with production.

In both the drilling and production phases, until sup-

planted in July 1974 as detailed below, Santa Fe was

under contract with Respondent to furnish labor for the

platform. The complement furnished by Santa Fe during

the drilling phase was about 100 employees; during the

production phase, about 13. On January 31, 1974, fol-

lowing an NLRB election in Case No. 19-RC-6842, the

Union was certified to represent this unit of platform

employees:

All employees employed by the Employer on the

Mobil Granite Point Platform excluding office cleri-

cal employees, professional employees, guards, and

leadmen, relief leadmen and all other supervisors as

defined in the Act.[? ]

' Respondent’s investment in the platform in about $50,000,-

000.

2It is concluded that this is an appropriate unit within

Section 9(b) of the Act.

13a

Santa Fe was a named party to that proceeding; Respon-

dent was not.

Respondent’s Relationship wtth Santa Fe. Under its

latest contract with Respondent, which became effective

June 1, 1972, Santa Fe was obligated to furnish employ-

ees “as required by Mobil” in these classifications: lead-

man, repairman, senior production operator, crane opera-

tor, production operator, utility-man, and roustabout.

The contract set forth the wages to be paid by Santa Fe

to employees in each classification, named the several

employee fringe benefits to be given by Santa Fe,° and

permitted termination of the contract by either party on

30 days’ notice.

Among other provisions of the contract were these:

1. Wage rates “shall be renegotiable at such times as

contractor’s [Santa Fe’s] labor pay scales are changed as

a result of general industry pay scale change.”

2. “[A]ny personnel whose qualifications or perfor-

mance are unsatisfactory to Mobil will be promptly re-

placed by Santa Fe.”

3. “Crew change time and crew reporting time... . will

be designated periodically by Mobil.”

4. “Mobil shall have the option to hire any Santa Fe

employees furnished hereunder.”

5. “Mobil shall provide transportation for Santa Fe

employees . . . to work site and return.”

The contract provided that, in consideration for Santa

Fe’s services, Respondent make it whole for its wage out-

lay, and in addition pay it a fixed amount or “mark-up”

3 Including paid vacations, a profit-sharing and retirement

plan, a stock bonus plan, safety awards, and workmen’s compensa-

tion insurance.

l4a

per employee per day to cover its fringe benefit and over-

head expenses and allow for profit.

The ranking Santa Fe personnel on the platform were

its two leadmen. They had nominal power to hire and fire

and meaningfully direct the work of the bargaining unit

employees.* Santa Fe’s leadmen in turn were subordinate

to Respondent’s two production foremen, at least one of

whom was present on the platform at nearly all times.

The leadmen in many ways were conduits between the

production foremen and the unit employees. They sel-

dom gave other than routine direction without first clear-

ing with a production foreman; and their orders com-

monly were prefaced by comments indicating that they

were being given on the say-so of one of the production

foremen. The production foremien often bypassed the

leadmen altogether in dealing with the unit employees.

Further indicative but not exhaustive of Respondent’s

control, the production foremen regularly interviewed

prospective unit employees and advised whom Santa Fe

should send to the platform;? determined the classifica-

tions of those subsequently hired based on interview im-

pressions; reclassified unit employees as circumstances

dictated; prepared and posted work schedules for the unit

employees; sometimes discharged, demoted, and other-

wise disciplined unit employees without consulting with

the leadmen; independently approved requests by unit

employees for time off; authorized overtime for unit em-

ployees and assigned them to tasks at a Mobil facility (the

*The leadmen were ruled ineligible to vote in the NLRB

election on supervisory grounds.

5 As William Barlett, Respondent’s senior production fore-

man on the platform, testified: “I don’t believe that they [Santa

Fe’s personnel managers] were really well versed in the needs of the

platform.”

15a

Tank Farm) off the platform; and, jointly with the lead-

men, approved promotions and vacations for unit em-

ployees and verified their time slips. In this latter regard,

the production foremen sometimes directed the leadman

to alter and sometimes themselves altered time slips

which they believed had been padded.

The Replacement of Santa Fe. On February 4, 1974,

which was a matter of days after the Union received

NLRB certification to represent the unit employees, San-

ta Fe sent Respondent a letter asking that the daily mark-

up in their contract be increased, and further stating:

In the foreseeable future Santa Fe expects to begin

[collective-bargaining] negotiations that could even-

tually result in changes in both the basic hourly

wages and benefit package earned by our employees

working on the Granite Point Platform. In such

event we would, once this negotiation is finalized,

be requesting a further alteration in the agreed upon

hourly rates billed to Mobil for the services rendered

and an adjustment in the “mark-up” to cover any

such new benefit and overhead package. In addition

there may well be some retroactive pay increases

granted as part of the negotiations which we would

expect Mobil to pay for.

Respondent replied by letter dated March 7, refusing

to increase the mark-up and withholding comment on the

above-quoted portion of the Santa Fe letter. Respondent

further responded, in the words of J. L. White, its pro-

duction manager for Alaska, by electing “to canvass the

market-and find out whether or not this was as good an

offer as I could get to operate the platform with respect

to this mark-up.” Accordingly, Respondent on March 22

invited four companies, plus Santa Fe, to submit bids in

contemplation of invoking the 30-day termination clause

l6a

in the existing contract with Santa Fe. Santa Fe submit-

ted a bid April 1. The other four declined to bid.

Rather than accept Santa Fe’s bid,® in which Santa Fe

had acknowledged that, “as a result of our present negoti-

ations” with the Union, certain cost items could not be

firmly quoted, Respondent permitted a belated bid from

V. E. Construction, Inc. V. E. had not been included in

the March 22 bid invitation. V.E.’s bid, submitted

April 24, eventually was accepted. Respondent calculated

that it would be more favorable than Santa Fe’s by from

$20,000-$50,000 per year. On June 14, Respondent for-

mally notified Santa Fe that its services were being ter-

minated as of July 17. Respondent and V. E. executed a -

contract on July 12, calling for V. E. to begin July 17.

This contract is nearly identical in most respects to that

between Respondent and Santa Fe, including a 30-day

termination clause. A conspicuous dissimilarity is the

inclusion in the V. E. contract of this language:

V. E.’s status hereunder is that of an independent

contractor and neither V. E. nor any emplovees of

V. E. are employees of Mobil. . . . Mobil is interested

only in and shall specify the results to be achieved

in connection with the performance of the services

under this contract, and the manner, means and de-

tails of achieving such results in a good and work-

manlike manner are the responsibility of V. E.

Meanwhile, Santa Fe and the Union bargained collec-

tively from March until May 29, when the employees

struck in support of the Union’s demands.’ There is no

©The bid invitation reserved to Respondent “the right to

reject any and all bids.”

7 The strike continued beyond V.E.’s replacement of Santa

Fe. Respondent manned the platform with its own personnel until

V.E. began to perform. There is no evidence that the strikers

applied for reinstatement.

17a

evidence that Respondent played either an overt or a co-

vert role in those negotiations. On June 21, as a result

of Respondent’s June 14 termination notice to Santa Fe,

John C. Kilroy, one of Santa Fe’s negotiators, sent this

letter to the Union:

Mobil Oil Company has notified us that our contract

to provide labor and service has been cancelled pur-

suant to the terms of the contract. Therefore our

last day for this Company to provide labor for the

Mobil Granite Point Platform will be July 17, 1974.

Because of this, we do not see how we are able to

continue operations there; however, we are willing

to bargain about both of these matters with you. Of

course, if we are able to resume operations (Mobil

Granite Point Platform) within the N.L.R.B. certifi-

cation year, we will certainly give you notice and

bargain with you with respect to any relevant

matters.

If you have any questions concerning the contents

of this letter, please feel free to contact me. °

Consequently, on June 26, the Union’s business agent,

W. A. Hacklin, sent this letter to Lee Newton, Respon-

dent’s production superintendent in Anchorage:

®W.A. Hacklin, the Union’s business agent, testified, how-

ever, that one of Santa Fe’s negotiators, John C. Kilroy, stated

during bargaining that Respondent had the option of getting rid of

Santa Fe if it did not approve of the bargaining outcome.

9 Also on June 21, Santa Fe sent a letter to Respondent

acknowledging receipt of the termination notice and adding:

While agreeing that Mobil is within their contractual right by

giving us the required thirty (30) day contract cancellation

notice, Santa Fe is disappointed that Mobil elected to cancel

our Granite Point Labor Agreement after a tenure of almost

eight years.

18a

It has come to my attention that effective July 17,

1974 Mobil Oil Company will terminate the ser-

vices of Santa Fe Drilling Company. It is my further

understanding that Mobil Oil Company will perform

the services previously performed by Santa Fe.

Accordingly, since you are a successor employer of

Santa Fe Drilling Company, we hereby request that

you meet and negotiate with us for the purposes of

entering into a Collective Bargaining Agreement.

Please respond to our request within ten (10) days

of the date of this letter.

Respondent did not respond in writing, but on July 1 its

attorney, Risher Thornton, told Hacklin by telephone

that Respondent would not bargain with the Union.

As earlier mentioned, the Union filed its charge against

Respondent on July 5.

B. Analysis and Conclusions

Contentions. The General Counsel contends that Re-

spondent violated Section 8(a)(5) by displacing the unit

employees on the Granite Point Platform without giving

the Union a chance to bargain over the decision or its

effects on those employees. This contention is premised

on the assumption that Respondent and Santa Fe were

joint employers of the unit employees; therefore, that

Respondent shared Santa Fe’s bargaining obligation to

the Union.'® Respondent takes an opposing position on

all counts.

lOThere is no contention that Respondent, by terminating

the Santa Fe contract during the strike, in effect discharged

strikers in violation of Section 8(a)(3); nor is it contended,

despite the Section 8(a)(1) statements considered later in this

decision, that Respondent otherwise violated Section 8(a)(3) by

displacing unit employees.

19a

The Joint-Employer Issue. Respondent and Santa Fe

plainly were joint employers of the unit employees. That

Respondent possessed the requisite control over those

employees is best shown by the contract between it and

Santa Fe, which, as previously mentioned, empowered

Respondent, among other things, to (a) dictate the size

of the Santa Fe crew, (b) compel the replacement by

Santa Fe of “any personnel whose qualifications or per-

formance are unsatisfactory to Mobil,” (c) designate

“crew change time and crew reporting time,” (d) hire any

of the Santa Fe crew, and (e) terminate the contract at

will, the only limitation being 30 days’ notice. The con-

tract required, in addition, that wage-rate changes pro-

posed by Santa Fe be negotiated with Respondent.

In practice, moreover, Respondent’s control over Santa

Fe and the unit employees went beyond the letter of the

contract. Again as earlier noted, Respondent’s production

foremen (a) intruded themselves in Santa Fe’s hiring pro-

cess to the extent of interviewing prospective platform

employees and advising Santa Fe which of them to send

to the platform, (b) classified and reclassified the unit

employees, (c) prepared and posted work schedules, (d)

sometimes discharged, demoted, and otherwise disci-

plined unit employees, (e) authorized time off for unit

employees, (f) authorized overtime for unit employees

and assigned them to tasks at a Mobil facility away

from the platform, (g) jointly with Santa Fe’s leadmen

approved promotions and vacations for unit employees

and verified their time slips, and (h) often bypassed the

Santa Fe leadmen when issuing orders to the crew.

A fine-combing of the record would reveal yet other

indicia of Respondent’s control, but the point is abun-

dantly made by the foregoing aggregate of factors that

20a

Respondent and Santa Fe were joint employers.'! It

also is concluded, based upon the terms of its contract

with V. E. Construction, and despite that contract’s

characterization of V. E. as an independent contractor,

the Respondent and V. C. [sic] are joint employers for pur-

poses of this proceeding. See, e.g., Ref-Chem Company,

169 NLRB 376, 377, 379.

The Bargaining Implications of Joint-Employership.

The law seems settled, at least so far as the Board is

concemed, that Respondent, as joint employer with

Santa Fe of the unit employees, had an obligation co-

equal with Santa Fe’s to recognize and bargain with the

lawful bargaining representative of those employees.

Ref-Chem Company, supra, at 380.'? The nature of the

joint-employer relationship is such that it is of no mo-

ment that the Union’s status derived from Board repre-

sentation proceedings in which Respondent was not a

named party, as opposed, say, to a voluntary grant of

recognition by Santa Fe. “As joint employers,” to quote

from Ref-Chem Company at 380, “each is responsible

for the conduct of the other.”

The Duty to Bargain Over Displacement of Unit Em-

ployees. Relevant to the present case are Fibreboard

Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964),

and the copious body of case law that has arisen from it.

Fibreboard involved an employer’s contracting out of in-

MA main argument of Respondent’s is that joint-employer-

ship cannot be found to exist because Respondent has severed its

relationship with Santa Fe. This of course begs the ultimate

question in the case.

12 nforcement denied, 418 F.2d 127 (5th Cir. 1969). The

Fifth Circuit, however, expressly withheld judgment on “the use of

the joint employer doctrine to pass the obligation to bargain

from one employer to another .. . .” 418 F.2d at 129.

2la

plant maintenance work, and the attendant discharge of

its maintenance employees, without first permitting the

employees’ bargaining representative to discuss the mat-

ter. The reasons for the change were validly economic

and free of antiunion taint. The Court held that “the

replacement of employees in the existing unit with those

of an independent contractor to do the same work” was

a mandatory subject of bargaining under Section 8(a)(5)

and 8(d) of the Act, explaining (379 U.S. at 214):

[1] t is contended that when an employer can effect

cost savings... by contracting the work out, there

is no need to attempt to achieve similar economies

through negotiation with existing employees or to

provide them with an opportunity to negotiate a

mutually acceptable alternative. The short answer

is that, although it is not possible to say whether a

satisfactory solution coulc be reached, national

labor policy is founded upon the congressional de-

termination that the chances are good enough to

warrant subjecting such issues to the process of col-

lective negotiation .... [I]t is not necessary that it

be likely or probable that the union will yield or

supply a feasible solution but rather that the union

be afforded an opportunity to meet management’s

legitimate complaints that its maintenance was un-

duly costly.

Further to this point, and responsive to the concern

stated in Respondent’s brief that “if bargaining was re-

quired prior to cancellation, the union would never agree

to the termination of all its employees... [and] ... it

would seem to follow that the contract could never be

cancelled,” the Board observed in Ozark Trailers, Inc.,

161 NLRB 561, 568:

[A]n employer’s obligation to bargain does not

include the obligation to agree, but solely to engage

22a

in a full and frank discussion with the collective-

bargaining representative in which a bona fide effort

will be made to explore possible alternatives, if any,

that may achieve a mutually satisfactory accommo-

dation of the interests of both the employer and the

employees. If such efforts fail, the employer is

wholly free to make and effectuate his decision.

Hence, to compel an employer to bargain is not to

deprive him of the freedom to manage his busi-

ness.!5

Implicit in Fibreboard, however, is the qualification

that a contracting-our [sic] decision attended by considera-

tions not “‘suitable for resolution within the collective

bargaining framework” need not be subjected to bar-

gaining ritual. 379 U.S. at 213-14. The board, following

this lead, repeatedly has stated that it does not read

Fibreboard ‘as laying down a hard and fast new rule to

be mechanically applied regardless of the situation in-

volved.”” Sucesion Mario Mercado E Hiyos, 161 NLRB

696, 700; Westinghouse Electric Corp., 150 NLRB 1574

1576; Shell Oil Co., 149 NLRB 305, 307. The Board

thus has refused to find a violation where “‘it seems cer-

tain that no amount of give-and-take in bargaining negoti-

ations could have forestalled the Respondent’s inevitable

decision” (Sucesion Mario Mercado E Hijos, supra, at

161 NLRB 700); or where the decision involved such “a

13 .

Or, as stated in The University of Chicago, 210 NLRB No

19, slip op. 3: ,

It is well established that an employer may, after the neces-

a bargaining, terminate work done by the union’s mem-

at a particular location and subcontract it, transfer it

elsewhere, or introduce different methods of operation at the

same location, even though such action ... results in the

elimination or reduction in size of the unit involved. -

phasis added.]} ss -

eee es oe

23a

significant investment or withdrawal of capital [affect-

ing] the scope and ultimate direction of an enterprise”

as to “lie at the very core of entrepreneurial control.”

General Motors Corp., 191 NLRB 951, 952.

Even when an employer’s unilateral subcontracting de-

cision is prompted by considerations “suitable for resolu-

tion within the collective bargaining framework,” Section

8(a)(5) is not necessarily violated. The Board in Westing-

house Electric Corp., supra, set forth several criteria,

which if met more or less cumulatively nevertheless war-

rant complaint dismissal. They are if the contracting out

was motivated solely by economic considerations, com-

ported with the employer’s traditional business opera-

tions and established past practice, did not have demon-

strable adverse impact on the unit employees, and the

union had had opportunity in previous negotiation to

bargain about the employer’s subcontracting practices.

See also, Tellepsen Petro-Chem Constructors, 190 NLRB

433, fn. 1.

Whether an employer’s subcontracting decision is of a

nature entitling the union first to bargain—i.e., whether it

is a mandatory subject of bargaining—turns, then, on the

considerations attending that decision. If they were ‘‘suit-

able for resolution within the collective bargaining frame-

work,” the union is entitled unless the exonerating cri-

teria of Westinghouse Electric Corp. are met. If, on the

other hand, those considerations were “‘at the very core

of entrepreneurial control” or otherwise such “that no

amount of give-and-take in bargaining negotiations could

have forestalled the ... inevitable decision,” the union is

not entitled to bargain over the decision itself. But even

where the union is not entitled to bargain over the under-

lying decision, the employer generally must give it a

chance to bargain over the effects of the decision—i.e.,

24a

“an opportunity to bargain over the rights of the employ-

ees whose employment status will be altered by the man-

agerial decision.’’ Ozark Trailers, Inc., supra, at 161

NLRB 563, quoting from NLRB vy. Royal Plating and

Polishing Co., 350 F.2d 191, 196 (3rd Cir. 1965). See

also, Summit Tooling Co., 195 NLRB 479.

Applying these principles to the present case, it must

be concluded that Respondent was under a duty to bar-

gain over the effects on the unit employees of its decision

to replace them, whether or not under a duty to bargain

over the decision proper. Summit Tooling Co., supra;

Ozark Trailers, Inc., supra.

It is further concluded, in the circumstances at hand,

that Respondent was under a similar duty concerning the

decision itself. The saving Westinghouse criteria do not

obtain because of the harshly adverse impact of the de-

cision on the unit employees, the absence of precedent-

setting past practice, and the Union’s lack of prior oppor-

tunity to bargain over Respondent’s contracting-out

practices. It is plain, furthermore, that the decision was

triggered by the anticipated increased costs of continuing

the relationship with Santa Fe, costs which necessarily

were a function, at least in part, of employee wage and

benefit levels—matters at once remote from the core of

entrepreneurial control and uniquely appropriate for

treatment within the bargaining framework.

Respondent being under a duty to permit the Union to

bargain not only over the effects of its decision to dis-

place the unit employees, but the decision as well, it fol-

lows that its failure to do so and its rejection of the

Union’s request to bargain violated Section 8(a)(5) [and

(1)] of the Act.

25a

VI. The Alleged Independent Violations

of Section 8(a)(1)

A. Facts

The NLRB election was held January 23, 1974. A day

or two later, one of the unit employees, Burton DePriest,

conversed with John Green, one of Respondent’s produc-

tion foremen, about the election. DePriest said he won-

dered what would happen now that the Union had won,

to which Green replied: “I imagine Mobil will put this up

for bid.””!*

At about the same time, Respondent’s other produc-

tion foreman, William Barlett, stated in the presence of

Santa Fe Leadman Leonard Dunham and unit employees

William Gray and Billy Mack Nichols that Respondent

was not going to have a union contractor on the plat-

form, and instead would cancel its contract with Santa Fe

and bring in a non-union contractor. Then in May, with

the strike in prospect, Barlett stated to Dunham and unit

employee Glen Cowden that, if there were a strike, Re-

spondent would cancel Santa Fe’s contract and bring in

a nonunion contractor.

Barlett, in his testimony, admitted the substance of

the statements attributed to him. As he put it: “‘Very

likely I did raise these options... [that, if there were a

strike] ... we could shut down... [or] ...we could

replace them with one of the nonunion contractors.”

Barlett added: “I’m sure that everyone was aware that I

was not speaking for Mobil, and that it was my opinion.”

B. Conclusions

Green and Barlett, as Respondent’s production fore-

l4This is based on DePriest’s uncontroverted testimony.

Green did not testify.

26a

men, were agents of Respondent and supervisors of the

platform employees previously found to have been

jointly employed by Respondent and Santa Fe. The one

comment by Green and the two by Barlett set forth

above, whether given as opinions or pronouncements

from Olympus, necessarily would have tended to inter-

fere with, restrain, and coerce the employees who heard

them, violating Section 8(a)(1).!°

VII. Conclusions of Law

A. Respondent is an employer engaged in and affecting

commerce within Section 2(2), (6), and (7) of the Act.

B. The Union is a labor organization within Section

2(5) of the Act.

C. The employees in the bargaining unit described in

the certification of representative in Case No. 19-RC-

6842 constitute a unit appropriate for collective bargain-

ing within Section 9(b) of the Act.

D. Respondent and Santa Fe Drilling Company are the

joint employers of the employees in the above unit.

E. The Union at all material times has been the exclu-

sive collective bargaining representative of the employees

in the above unit within Section 9(a) of the Act.

F. By terminating its contract with Santa Fe and there-

by displacing the employees in the above unit, without

permitting the Union to bargain over the underlying deci-

sion or its effects on those employees, as found herein,

\5since none of the comments in question was spoken to

Leadman Dunham out of earshot of persons who indisputably were

employees under the Act, it is unnecessary to decide as the Gen-

eral Counsel urges, that Dunham was an employee rather than a

statutory supervisor.

27a

Respondent engaged in unfair labor practices within Sec-

tion 8(a)(5) [and (1)] of the Act.

G. By the utterances of Production Foremen Green

and Barlett described herein, Respondent engaged in un-

fair labor practices within Section 8(a)(1) of the Act.

H. The aforesaid unfair labor practices affect com-

merce within Section 2(6) and (7) of the Act.

VIII. Remedy

To effectuate the policies of the Act, it is recom-

mended that Respondent be ordered to cease and desist

from the unfair labor practices found.

Affirmatively, despite the difficulties inherent in ‘“‘un-

scrambling the egg” in cases of this sort, it is recom-

mended that Respondent be ordered fully to restore the

status quo ante by reviving its relationship with Santa Fe

on the Granite Point Platform and in so doing offer rein-

statement to the unlawfully displaced employees and

make them whole for their monetary losses, from the

July 17 date that V. E. Construction supplanted Santa

Fe, occasioned by their displacement. It is further recom-

mended, should Respondent then wish to replace Santa

Fe, that it be required first to bargain with the Union

over the decision and its effects on the employees subject

to displacement.

The inclusion in this recommendation of the backpay

and reinstatement elements is not without awareness that

the employees in question were on strike when their un-

lawful displacement occurred, and of the Board policy

stated in Astro Electronics, Inc., 188 NLRB 572, 573:

It is the settled policy of the Board that striking

employees are not entitled to backpay while they

are on strike. Their rights depend on the termina-

tion of the strike which is ordinarily signified by

28a

the strikers’ application for reinstatement. Employ-

ees who are discharged while on strike [which in ef-

fect happened to the employees in question] also

must indicate abandonment of the strike and a

willingness to return to work in order to establish

their right to their jobs and resumption of wages

unless there ts a showing that such application

would be rejected, 1.e., that it would have been

futile. {Emphasis added.] '®

Rather, it is concluded tat Respondent’s additional act

of contracting out the work to V. E., after earlier ter-

minating the Santa Fe contract, made application for

reinstatement by the strikers so palpably futile as to sat-

isfy the exception—emphasized in the above passage—to

the general rule.

Nor is this recommendation unmindful that its imple-

mentation would involve the Board in a reengineering of

Respondent’s contractual relationships with two entities

who are not named parties herein, Santa Fe and V. E.

Santa Fe and V. E. both being joint employers of Re-

spondent for purposes of this proceeding, however, such

involvement plainly would not exceec the Board’s reme-

dial powers; and, in all the cocumetancm, is essential to

the achievement of a meaningful remedy.!”

l6See also Valley Oil Co., 210 NLRB No. 47, slip op. 2;

Royal Typewriter Company, 209 NLRB No. 174, slip. op. 30;

Sea-Way Distributing, Inc., 143 NLRB 460; Happ Brothers Com-

pany, 90 NLRB 1513, 1518-19.

The Supreme Court expressly considered and approved a

remedy of comparable scope in Fibreboard, 379 U.S. at 215-16.

The Board in special circumstances, however, imposed gentler

sanctions. For instance in Empire Dental Co., 211 NLRB No. 127;

Ozark Trailers, Inc., supra; Royal Plating and Polishing Co., 148

NLRB 545; and Renton News Record, 136 NLRB 1294, it did not

order resumption of the discontinued operations because inter-

[footnote continued]

29a

Backpay shall be computed in accordance with F. W.

Woolworth Co., 90 NLRB 289, and Isis Plumbing &

Heating Co., 138 NLRB 716.

* * * * © © & *F

Upon the foregoing findings of fact, conclusions of

law, and the entire record, and pursuant to Section 10(c)

of the Act, I hereby issue the following recommended:!®

ORDER

Respondent, Mobil Oil Corporation, its officers,

agents, successors, and assigns, shall:

I. Cease and desist from:

A. Stating to employees that it would cancel its con-

tract with Santa Fe Drilling Company, or with any other

employer, rather than have a union contractor on the

Granite Point Platform, or should the employees go on

strike.

B. Refusing to bargain collectively with Alaska

Roughnecks and Drillers Association as the exclusive bar-

gaining representative of the emplcyees in the bargaining

vening events or other extenuating factors made resumption

seriously burdensome.

Similarly, the Board in those cases relaxed or eliminated the

backpay aspect of the remedy. The present case, unlike those, is

not one in which the policies of the Act would be served by a

softened remedy.

18 ay outstanding motions inconsistent with this recom-

mended Order hereby are denied. 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, conclusions, and Order, and all objec-

tions thereto shall be deemed waived for all purposes.

30a

unit set forth in the certification of representative issued

by the NLRB in Case No. 19-RC-6842; and from con-

tracting out the work of those employees or otherwise

changing their wages, hours, and other terms and condi-

tions of employment without first bargaining with the

above labor organization.

C. In any like or related manner interfering with,

restraining, or coercing employees in the exercise of

rights under Section 7 of the Act.

Il. Take the following affirmative action:

A. Revive its contractual relationship with Santa Fe

Drilling Company on the Granite Point Platform; and, in

so doing, offer reinstatement to those employees dis-

placed by its termination of the contract with Santa Fe,

without prejudice to their seniority and other rights and

privileges, and make them whole for any loss of pay and

other benefits suffered by them on and after July 17,

1974.

B. Bargain collectively with Alaska Roughnecks and

Drillers Association as the exclusive representative of the

employees in the aforementioned unit with respect to

wages, hours, and other terms and conditions of employ-

ment.

C. Preserve and, upon request, make available to the

Board or its agents, for examination and copying, all pay-

roll records, social security payment records, timecards,

personnel records and reports, and all other records nec-

essary to analyze the amount of backpay due and the

rights of reinstatement under the terms of this Order.

D. Post on the Granite Point Platform and its office

in Anchorage, Alaska, copies of the attached notice

S3la

marked ‘‘Appendix.”!9 Copies of said notice on forms

providec Ly the Regional Director for Region 19, after

being duly signed by Respondent’s representative, shall

be posted by Respondent immediately upon receipt

thereof, and be maintained by it for 60 consecutive days

thereafter, in conspicuous places, including all places

where notices to employees are customarily posted. Rea-

sonable steps shall be taken by Respondent to ensure that

said notices are not altered, defaced, or covered by any

other material.

E. Notify the Regional Director for Region 19, in

writing, within 20 days from the date of this Order, what

steps the Respondent has taken to comply herewith.

Dated: 6 February 1975

Richard J. Boyce

Administrative Law Judge

'9in the event that this Order is enforced by a Judgment of a

United States Court of Appeals, the words in the notice reading

“POSTED BY ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD” shall read “POSTED PURSUANT TO A JUDG-

MENT OF THE UNITED STATES COURT OF APPEALS EN-

FORCING AN ORDER OF THE NATIONAL LABOR RELA-

TIONS BOARD. [sic]

32a

APPENDIX

NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

AN AGENCY OF THE UNITED

STATES GOVERNMENT

The trial held in Anchorage, Alaska, on December 19

and 20, 1974, in which we participated and had a chance

to give evidence, resulted in a decision that we had com-

mitted certain unfair labor practices in violation of Sec-

tion 8(a)(1) and (5) of the National Labor Relations Act,

and this notice is posted pursuant to that decision.

The National Labor Relations Act, as amended, gives

all employees the following rights:

To organize themselves

To form, join or support unions

To bargain as a group through a representative they

choose

To act together for collective bargaining or other

mutual aid or protection

To refrain from any or all such activities.

In recognition to these rights, we hereby notify our

employees that:

WE WILL NOT state to employees that we will cancel

our contract with Santa Fe Drilling Company, or with

any other employer, rather than have a union contractor

on the Granite Point Platform, or should the employees

go on strike.

WE WILL NOT refuse to bargain collectively with Alaska

Roughnecks and Drillers Association as the exclusive bar-

33a

gaining representative of the employees in the bargaining

unit set forth in the certification of representative issued

by the NLRB in Case No. 19-RC-6842; and WE WILL

NOT contract out the work of those employees or other-

wise change their wages, hours, and other terms and con-

ditions of employment without first bargaining with the

above labor organization.

WE WILL NOT in any like or related manner interfere

with, restrain, or coerce employees in the exercise of

rights under Section 7 of the Act.

WE WILL revive our contractual relationship with Santa

Fe Drilling Company on the Granite Point Platform; and,

in so doing, offer reinstatement to those employees dis-

placed by our termination of the contract with Santa Fe,

without prejudice to their seniority and other rights and

privileges, and make them whole for any loss of pay and

— benefits suffered by them on and after July 17,

1974.

MOBIL OIL CORPORATION

(Employer)

Dated February 1975 By

(Representative) (Title)

THIS IS AN OFFICIAL NOTICE AND MUST

NOT BE DEFACED BY ANYONE

This notice must remain posted for 60 consecutive

days from the date of posting and must not be altered,

34a

defaced, or covered by any other material. Any questions

concerning this notice or compliance with its provisions

may be directed to the Board’s Office, Region 19—Fed-

eral Building, 29th Floor, 915 Second Avenue, Seattle,

Washington 98174—Telephone No. (206) 442-4532

35a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA ROUGHNECKS )

and DRILLERS

ASSOCIATION, No. 75-3049

Petitioner, )

v.

NATIONAL LABOR

RELATIONS BOARD, )

Respondent. OPINION

)

MOBIL OIL

CORPORATION, )

Petitioner,

) No. 75-3328

v.

NATIONAL LABOR

RELATIONS BOARD, )

Respondent. '

On Petition to Review a Decision of

the National Labor Relations Board

Before: LUMBARD,* WRIGHT and ANDERSON, Circuit

Judges.

*Senior Circuit Judge for the Second Circuit.

36a

WRIGHT, Circuit Judge:

This appeal tests the validity of an order of the

National Labor Relations Board which held that Mobil

Oil Company [Mobil] violated sections 8(a)(1) and (5) of

the National Labor Relations Act [29 U.S.C. § § 158(a)(1)

and (5) (1970)]. It found that Mobil unlawfully refused

to bargain with the union representing the employees of

Santa Fe Drilling Company which had subcontracted

with Mobil to perform drilling operations on an offshore

oil drilling platform. The Board asks enforcement, Mobil

asks reversal, and the union seeks to have the order

modified.

FACTS

A. Before Union Involvement.

The situs of this case is the Granite Point Platform,

one of several offshore platforms in Cook Inlet, near

Anchorage, Alaska. Mobil’s financial interest in this

platform is substantial, approximately $50,000,000. Al-

though Union Oil Company has a one-quarter interest

in the platform, Mobil alone operates it. Beginning in

1969, Mobil has awarded contracts for the drilling and

other parts of the operation under a competitive bidding

procedure. Throughout the operation Mobil has had

some of its own employees on the platform for pollution

control, safety measures, and other reasons.

*

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37a

By bidding competitively Santa Fe Drilling Company,

a division of Santa Fe International Corporation, had

been awarded the contract for drilling operations since

1969. This large company performs vil field services

globally for many oil companies.

The contract in issue, executed in 1972, obligated

Santa Fe inter alta to furnish employees “as required by

Mobil” and to replace any whose qualifications or per-

formance Mobil found unsatisfactory. In addition, Mobil

was to fix employees’ work schedules and to provide

transportation by helicopter to and from the platform.

Although employees’ wages and fringe benefits were also

specified in the contract (with a provision for adjustment

to reflect changes in the industry), the employees were

on Santa Fe’s payroll and Santa Fe paid their insurance,

taxes, and other deducted items.

In consideration for Santa Fe’s services, Mobil agreed

to compensate it on a cost-plus basis. In essence, Mobil

made Santa Fe whole for its wage and fringe benefit

outlay and other expenses and paid Santa Fe an addi-

tional fixed percentage of its costs as profit. The con-

tract provided for termination by cither party on 30

days’ notice.

Although the record provides abundant data on the

manner of performance, it is sufficient to note that

Mobil appears to have exercised some supervision of

Santa Fe’s employees. Pursuant to the contract at least

one Mobil employee, a production foreman, was always

present on the platform. He actually directed the drilling

operations.

Santa Fe’s leadmen had at least nominal power to

direct the work but in practice they served as conduits

between Mobil’s foremen and the employees, seldom

38a

giving other than routine directions without clearance

from Mobil’s foremen. As a check on costs, Mobil’s

foremen even approved the employees’ timesheets on

forms supplied by Santa Fe, although Santa Fe actually

paid the employees’ wages and fringe benefits.

B. After Union Involvement.

During the fall of 1973 Alaska Roughnecks and

Drillers Association (the “union”’) engaged in an organiz-

ing campaign aimed at all Santa Fe employees in Alaska.

As a result the union filed two representation petitions

with the Board. The one involved here named Santa Fe

as the employer and Santa Fe was notified of, and partici-

pated in, the hearing conducted by the Board pursuant to

the union’s petitions.

At the hearing the union stipulated that Santa Fe was

the employer and the Board's Regional Director so found.

No claim was made that Mobil was either the employer

or a joint employer with Santa Fe. Although the union

proposed a single unit for both the Granite Point Plat-

form and another one operated by Marathon Oil Com-

pany, the Regional Director established a separate unit

for the Granite Point group.

As a result of the representation hearing the Board

certified the union as the bargaining agent for the Granite

Point unit in January, 1974. Anticipating that collective

bargaining would result in higher wages for the unit

employees, Santa Fe notified Mobil in February 1974

that it would ask Mobil for an increase in wages and

fringe benefits specified in the contract should wagcs

increase.

Within a month the union and Santa Fe commenced

bargaining. Expecting that bargaining would result in

higher wages and benefits, Mobil decided to seek new

39a

bids for the drilling operations. It invited five contractors,

including Santa Fe, to submit bids. Only Sante Fe re-

sponded, but after bids were due V.E. Construction

Company asked and was permitted to bid.

V.E.’s bid was lower than Santa Fe’s (it provided for

fewer fringe benefits) and Mobil staff recommended in

late April or early May that it be accepted. Consequently,

on June 14, 1974 Mobil gave Santa Fe its thirty-day

notice of termination and then contracted with V.E.

Construction Company.

Meanwhile, negotiations between Santa Fe and the

union had been unsuccessful despite the use of a federal

mediator. On May 29, 1974, the employees struck. When

Santa Fe received Mobil’s termination notice it notified

the union on June 21, 1974 that it would bargain with

the union about the contract termination. On June 26,

1974 the union for the first time asked Mobil to bargain

as a “successful employer.””!

Mobil refused to bargain and on July 5, 1974, the

union filed charges of unfair labor practices with the

Board, claiming that Mobil was a successor employer.

After investigation, the Regional Director refused to

issue a complaint and the union appealed. The Board’s

General Counsel sustained the appeal and issued a com-

plaint charging Mobil, as a joint em+loyer with Santa Fe,

with violating sections 8(a)(1) and (5) of the Act.

The case was tried before an administrative law judge

who found that Mobil, as a joint employer with Santa Fe,

had violated the Act as charged. Reinstatement of all

employees and of the Santa Fe contract, plus full back

pay, were ordered. Mobil appealed. The Board modified

only the remedy by denying reinstatement and granting

' For a recent examination of what constitutes a successor

employer, see Pacific Hide & Fur Depot, Inc. v. NLRB, No. 76-

2074 (9th Cir. May 4, 1977).

40a

back pay from the date the Santa Fe contract was termi-

nated until Mobil agreed to bargain with the union.

Mobil has petitioned for review of the Board’s de-

cision, claiming inter alia that the union’s June 26 re-

quest to bargain was untimely and that Mobil was not

required to bargain as a joint employer. The union also

petitioned for review, claiming that reinstatement should

have been ordered. In response to both petitions, the

Board cross-petitioned, seeking enforcement of its order.

The two appeals have been consolidated. There is no

contention, nor is there support in the record for any,

that Mobil was guilty of anti-union bias.

Il.

DUE PROCESS — NOTICE AS A PREREQUISITE

TO THE DUTY TO BARGAIN

The unfair labor practices involved are predicated on

the Board’s finding that Mobil, as a joint employer with

Santa Fe, unlawfully refused to bargain. The Board

found that Mobil was a joint employer primarily because

of the control it exercised over Santa Fe’s employces.

But the extent of Mobil’s control is not determinative of

this appeal. The appeal presents the question whether

Mobil could refuse to bargain with the union when it was

neither afforded an opportunity to participate in the

certification proceedings nor requested by the union to

bargain until after Mobil terminated its contract with

Santa Fe. As we shall see, our answer is that Mobil

acted lawfully.

The conceptual basis for our decision is due process.

Its application to NLRB proceedings, like other adminis-

trative proceedings, is not novel. See NLRB v. Welcome-

American Fertilizer Company, 443 F.2d 19, 20 (9th Cir.

1971); NLRB v. Jordan Bus Company, 380 F.2d 219,

4la

222-23 (10th Cir. 1967); Russell-Newman Mfg. Co. v.

NLRB, 370 F.2d 980, 984 (5th Cir. 1966). Two closely

related aspects of procedural due process are involved.

One is the requirement of notice and an opportunity to

be heard:

“The fundamental requirement of due process of

law is the opportunity to be heard.” Grannis v.

Ordean, 234 U.S. 385, 394 (1914). The hearing must

be “at a meaningful time and in a meaningful manner.”

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). In

the present context these principles require that a

recipient have timely and adequate notice detailing the

reasons for a proposed termination, and an effective

opportunity to defend by confronting any adverse

witnesses and by presenting his own arguments and

evidence orally.

Goldberg v. Kelly, 397 U.S. 254, 267-8 (1970).

e@

The other relevant aspect of due process relates to the

Board’s own regulations for certification proceedings,

29 C.F.R. §§ 102.61 et seg. As we stated in NLRB v.

Welcome-American Fertilizer Company, supra at 20:

When administrative bodies promulgate rules or regu-

lations to serve as guidelines, these guidelines should

be followed. Failure to follow such guidelines tends

to cause unjust discrimination and deny adequate

notice contrary to fundamental concepts of fair play

and due process.

These principles demonstrate that if we are to affirm

the Board’s finding of Mobil’s joint employer status (and

the resultant unfair labor practices), the record must

reveal that Mobil was afforded notice and a timely op-

portunity to challenge that finding. There is no such

evidence.

What the record does indicate is that the first notice

42a

Mobil received that anyone believed it to be an em-

ployer of Santa Fe’s employees was when the union

asked it to bargain. Even then it was not notified it was

a joint employer. The union asked only that Mobil

bargain as a successor employer. Not until the Board

issued a complaint charging Mobil with unfair labor

practices was Mobil notified of its duty to bargain as a

joint employer. Because Mobil had already terminated

its contract with Santa Fe, the notice was clearly un-

timely.

Perhaps the employer could have anticipated its duty

to bargain, but the Act imposes no such duty. As the

Supreme Court held in NLRB v. Columbian Co., 306

U.S. 292, 297 (1939):

Since there must be at least two parties to a bargain

and to any negotiations for a bargain, it follows that

there can be no breach of the statutory duty by the

employer — when he has not refused to receive com-

munications from his employees — without some

indication given to him by them or their representa-

tives of their desire or willingness to bargain.

Therefore, because due process necessitates notice and

a meaningful opportunity to be heard, we hold that the

notice to Mobil and opportunity to be heard were wholly

inadequate.

Although Mobil may have been aware of the union's

activities before the union requested bargaining, the

record also indicates that Mobil knew that the Board

conducted certification proceedings in which it was not

asked to participate. The Board’s regulations provide

that the petition for certification shall contain the em-

ployer’s name and that the employer shall be notified of

the hearing. 29 C.F.R. § § 102.61, 102.63. They also

specify a procedure for amending the petition which

43a

shall contain the employer’s name. 29C.F.R. § 102.61 (e).

In this case the union named Santa Fe in the original

petition and never attempted to file an amended petition

to include Mobil as a joint employer.

Because Mobil was neither named as an employer nor

given an opportunity to object as permitted by 29 C.F.R.

§ 102.63, it was entitled to rely on the certification result

that Santa Fe was the employer, not Santa Fe and

Mobil.

As we have noted, failure to follow promulgated rules

tends to deny adequate notice. NLRB v. Welcome-

American Fertilizer, supra at 20. Relying on regulations

which do provide for adequate notice, Mobil terminated

its Santa Fe contract before having either notice of its

alleged status as employer, or any duty to bargain. Rely-

ing on those regulations, we hold that the notice received

was inadequate.

NLRB v. Jordan Bus Co., supra, supports our holding

that Mobil was entitled to notice and an opportunity to

challenge its status as employer at the Board certification

proceedings. In Jordan, Denco alleged that it was denied

due process because the original representation petition

of the union sought only to represent the Jordan drivers

and thus only Jordan had notice of the evidentiary hear-

ing. The union was also allowed to amend its petition to

include Denco, however, alleging it to be a single cm-

ployer with Jordan. The court stated:

[A] Ithough the Board’s regulations make no pro-

vision for the minimum length of time required be-

tween notice and the representation hearing, it is

certain that notice on the day of the hearing is not

reasonable notice . . . . The Board advances the some-

what incredible contention that since Jordan and

Denco constituted a single employer, notice to Jordan

44a

was notice to Denco. But, this assumes the existence

of a single employer status — the very issue to be

resolved at the hearing — and Denco is certainly en-

titled to a reasonable opportunity to present evidence

on this issue.

380 F.2d at 223.

Although the court ultimately concluded that Dcnco

had been afforded ample opportunity to challenge its

status as employer, this was only because Denco failed to

indicate it could produce evidence that it was not the

employer. The court did not reason, as the Board urges

here, that the results of the representation proceeding

should be ignored. On the contrary, as the quoted

passage indicates, the representation proceeding, not the

unfair labor practice proceeding, is where employer status

should be litigated. Because Mobil had no opportunity to

participate in the representation proceeding, it was not

accorded due process. See also Potter v. Castle Construc-

tion Co., 355 F.2d 212 (5th Cir. 1966).

The Board contends that because Mobil was a joint

employer with Santa Fe and the latter was notified of the

certification proceedings, Mobil received adequate notice.

It relies principally on three cases to support its position:

Ace-Alkire Freight Lines, Inc. v. NLRB, 431 F.2d 280,

282 (8th Cir. 1970); NLRB v. Dayton Coal & Iron Corp.,

208 F.2d 394 (6th Cir. 1953); NLRB v. Long Lake

Lumber Co., 138 F.2d 363 (9th Cir. 1943). We do not

read them to support that position.

Ace-Alkire did involve a situation in which the Board’s

representation proceeding was not the method utilized to

ascertain the proper parties for collective bargaining. But

the method that was utilized, presentation of cards signed

by the majority of employees, afforded notice to both

45a

employers claimed to be joint employers because both

were approached with cards by the union.

Dayton Coal might be relevant but the opinion does

not indicate what method was utilized or whether Dav-

ton received notice and an opportunity to challenge its

status as employer. We cannot therefore view it as sup-

porting the Board’s position.

In Long Lake Lumber, as in Ace-Alkire, certification

proceedings were not involved. Long Lake, the party

contesting its joint employer status, actively intervened

in the labor dispute between Robinson, its contractor

and the union. Had Mobil cither intervened in Santa Fe’s

labor dispute with the union, as in Long Lake, or been

approached by the union earlier, as in Ace-Alkire, those

cases might be relevant. Because neither event occurred,

however, the Board’s finding that Mobil was a joint

employer cannot be sustained.

The petition to review the decision and order of the

Board is granted, the Board’s order is set aside, the

Board’s petition to enforce its order is denied, and the

union’s cross-petition is dismissed.

46a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALASKA ROUGHNECKS

AND DRILLERS

ASSOCIATION,

Petitioner,

v. No. 75-3049

NATIONAL LABOR

RELATIONS BOARD,

Respondent.

me ee eee ee”

**e eK KKK KEK KE KK *

MOBIL OIL

CORPORATION,

Petitioner,

v. No. 75-3328

NATIONAL LABOR

RELATIONS BOARD

Respondent.

Nm ee ee eee ee eee”

JUDGMENT

Before: Lumbard,* Wright and Anderson, Circuit Judges.

*Senior Circuit Judge for the Second Circuit

47a

The above consolidated causes came on to be heard

upon the petitions of Alaska Roughnecks and Drillers

Association and Mobil Oil Corporation to review an order

of the National Labor Relations Board issued on July 26,

1975, against petitioner in No. 75-3328 and upon a cross-

application of the National Labor Relations Board to en-

force said order. The Court heard argument of respective

counsel on May 5, 1977, and has considered the briefs

and transcript of record filed in this cause. On June 14,

1977, the Court issued an opinion granting the petition

to review in No. 75-3328, setting aside and denying en-

forcement of the Board’s order and dismissing the Union’s

petition for review of said order in No. 75-3049. In con-

formity therewith, it is hereby

ORDERED AND ADJUDGED by the United States

Court of Appeals for the Ninth Circuit Court that en-

forcement of the order of the National Labor Relations

Board directed against Mobil Oil Corporation, its officers,

agents, successors, and assigns be and it hereby is set

aside and denied.

Endorsed, Judgment Filed and Entered

SO ORDERED: /s/ Emil E. Melfi, Clerk

A TRUE COPY, /s/ J. Edward Lumbard

CIRCUIT JUDGE

ATTEST: Emil E. Melfi /s/ Eugene A. Wright

Clerk CIRCUIT JUDGE

By: /s/ J. Blaine Anderson

Vivienne L. Thompson CIRCUIT JUDGE

Deputy

August 19, 1977

48a

IN THE SUPREME COURT FOR

THE UNITED STATES OF AMERICA

October Term, 1977

NO.

ALASKA ROUGHNECKS AND DRILLERS

ASSOCIATION,

Petitioner,

US.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

No. 75-3049 (9th Circuit Court of Appeals)

MOBIL OIL CORPORATION,

Petitioner,

vs.

NATIONAL LABOR RELATIONS BOARD,

Respondent.

No. 75-3328 (9th Circuit Court of Appeals)

MOTION FOR EXTENTION OF TIME WITHIN

WHICH TO FILE PETITION FOR

WRIT OF CERTIORARI

Petitioner moves that the time within which it may

file 2 petition for Writ of Certiorari to review the judg-

49a

ment of the Court of Appeals for the Ninth Circuit

entered on the nineteenth day of August, 1977, in the

causes consolidated and pending therein entitled Alaska

Roughnecks and Drillers Association v. National Labor

Relations Board, No. 75-3049, and Mobil Oil Corporation

v. National Labor Relations Board, No. 75-3328, be

extended from the seventeenth day of November, 1977,

to and including the second day of January, 1978.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1254(1).

JUDGMENT SOUGHT TO BE REVIEWED

The consolidated judgment of the Court of Appeals for

the Ninth Circuit was made and entered on August 19,

1977, following an Opinion issued on June 14, 1977.

.opies of the Judgment and Opinion are appended hereto

as Exhibits ‘‘A” and “‘B”’, respectively.

REASONS WHY EXTENTION OF TIME

IS JUSTIFIED

There are presently no printers in the State of Alaska

who are able to print the Petition for Writ of Certiorari

in accordance with the Rules of the Supreme Court. The

Petition must therefore be sent to Washington, D.C. to be

printed, returned to Alaska to be proofread, and then

submitted to the Court. See Affidavit, Exhibit “C”’.

RESPECTFULLY SUBMITTED this 2nd day of

November, 1977.

BIRCH, HORTON, BITTNER & MONROE

BY /s/ Hal R. Horton

Birch, Horton, Bittner & Monroe

733 W. Fourth Avenue

Anchorage, Alaska 99501

50a

SUPREME COURT OF THE UNITED STATES

No. A-405

ALASKA ROUGHNECKS AND DRILLERS

ASSOCIATION,

Petitioner,

| v.

NATIONAL LABOR RELATIONS BOARD

ORDER EXTENDING TIME TO FILE PETITION

: FOR WRIT OF CERTIORARI

'UUPON CONSIDERATION of the application of

counsel for petitioner,

IT IS ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 23,

1977.

/s/ William H. Rehnquist

ASSOCIATE JUSTICE OF THE

SUPREME COURT OF THE UNITED STATES

Dated this 5th Day of November, 1977.

5la

29 U.S.C. 158(a)(1)

It shall be an unfair labor practice for an em-

ployer to interfere with, restrain, or coerce employ-

ees in the exercise of the rights guaranteed in section

157 of this title.

29 U.S.C. 158(a)(5)

It shall be an unfair labor practice for an employer

to refuse to bargain collectively with the representa-

tives of his employees subject to the provisions of

section 159(a) of this title.

29 U.S.C. 159

Representatives and elections — Exclusive repre-

Santatives; employees’ adjustment of grievances

directly with employer.

(c)(1) Whenever a petition shall have been filed, in

accordance witn such regulations as may be pre-

scribed by the Board —

(A) by an employee or group of employees

or any individual or labor organization acting

in their behalf alleging that a substantial num-

ber of employees (i) wish to be represented for

collective bargaining and that their employer

declines to recognize their representative as the

representative defined in subsection (a) of this

section, or (ii) assert that the individual or labor

organization, which has been certified or is

being currently recognized by their employer as

the bargaining representative, is no longer a

representative as defined in subsection (a) of

this section; or

(B) by an employer, alleging that one or

more individuals or labor organizations have

52a

presented to him a claim to be recognized as

the representative defined in subsection (a) of

this section;

the Board shall investigate such petition and if it

has reasonable cause to believe that a question of

representation affecting commerce exists shall pro-

vide for an appropriate hearing upon due notice.

Such hearing may be conducted by an officer or

employee of the regional office, who shall not make

any recommendations with respect thereto. If the

Board finds upon the record of such hearing that

such a question of representation exists, it shall

direct an election by secret ballot and shall certify

the results thereof.

(2) In determining whether or not a question of

representation affecting commerce exists, the same

regulations and rules of decision shall apply irrespec-

tive of the identity of the persons filing the petition

or the kind of relief sought and in no case shall the

Board deny a labor organization a place on the

ballot by reason of an order with respect to such

labor organization or its predecessor not issued in

conformity with section 160(c) of this title.

(3) No election shall be directed in any bargaining

unit or any subdivision within which in the preceding

twelve-month period, a valid election shall have

been held. Employees engaged in an economic

strike who are not entitled to reinstatement shall be

eligible to vote under such regulations as the Board

shall find are consistent with the purposes and pro-

visions of this subchapter in any election conducted

within twelve months after the commencement of

the strike. In any election where none of the choices

on the ballot receives a majority, a run-off shail be

conducted, the ballot providing for a selection be-

tween the two choices receiving the largest and second

largest number of valid votes cast in the eicctin”

53a

(4) Nothing in this section shall be construed to

prohibit the waiving of hearings by stipulation for

the purpose of a consent election in conformity

with regulations and rules of decision of the Board.

(5) In determining whether a unit is appropriate for

the purposes specified in subsection (b) of this sec-

tion the extent to which the employees have or-

ganized shall not be controlling.

29 C.F.R. 102.61

Contents of petition for certification; contents of

petition for decertification; contents of petition for

clarification of bargaining unit; contents of petition

for amendment of certification.

(a, A petition for certification, when filed by an

employee or group of employees or an individual

or labor organization acting in their behalf, shall

contain the following:

(1) The name of the employer.

(2) The address of the establishments involved.

(3) The general nature of the employer’s business.

(4) A description of the bargaining unit which the

petitioner claims to be appropriate.

(5) The names and addresses of any other persons

or labor organizations who claim to represent any

employees in the alleged appropriate unit, and

brief descriptions of the contracts, if any, cover-

ing the employees in such unit.

(6) The number of employees in the alleged

appropriate unit.

(7) A statement that the employer declines to

recognize the petitioner as the representative

54a

within the meaning of section 9(a) of the act or

that the labor organization is currently recognized

but desires certification under the act.

(8) The name, affiliation, if any, and address of

the petitioner.

(9) Whether a strike or picketing is in progress at

the establishment involved and, if so, the approxi-

mate number of employees participating, and the

date such strike or picketing commenced.

(10) Any other relevant facts.

(b) A petition for certification, when filed by an

employer, shall contain the following:

(1) The name and address of the petitioner.

(2) The general nature of the petitioner’s busi-

ness.

(3) A brief statement setting forth that one or

more individuals or labor organizations have pre-

sented to the petitioner a claim to be recognized

as the exclusive representative of all employees in

the unit claimed to be appropriate; a description

of such unit; and the number of employees in the

unit.

(4) The name or names, affiliation, if any, and

addresses of the individuals or labor organiza-

tions making such claim for recognition.

(5) A statement whether the petitioner has con-

tracts with any labor organization or other repre-

sentatives of employees and, if so, their expira-

tion date.

(6) Whether a strike or picketing is in progress

at the establishment involved and, if so, the

55a

approximate number of employees participating,

and the date such strike or picketing commenced.

(7) Any other relevant facts.

(c) Petitions for decertification shall contain the

following:

(1) The name of the employer.

(2) The address of the establishments and a de-

scription of the bargaining unit involved.

(3) The general nature of the employer’s busi-

ness.

(4) Name and address of the petitioner and

affiliation, if any.

(5) Name or names of the individuals or labor

organizations who have been certified or are being

currently recognized by the employer and who

claim to represent any employees in the unit

involved, and the expiration date of any con-

tracts covering such employees.

(6) An allegation that the individuals or labor

organizations who have been certified or are

currently recognized by the employer are no

longer the representative in the appropriate unit

as defined in section 9(a) of the act.

(7) The number of employees in the unit.

(8) Whether a strike or picketing is in progress at

the establishment involved and, if so, the approxi-

mate number of employees participating, and the

date such strike or picketing commenced.

(9) Any other relevant facts.

56a

(d) A petition for clarification shall contain the

following:

(1) The name of the employer and the name of

the recognized or certified bargaining representa-

tive.

(2) The address of the establishment involved.

(3) The general nature of the employer’s business.

(4) A description of the present bargaining unit,

and, if the bargaining unit is certified, an identifi-

cation of the existing certification.

(5) A description of the proposed clarification.

(6) The names and addresses of any other persons

or labor organizations who claim to represent

any employees affected by the proposed clarifica-

tions, and brief descriptions of the contracts, if

any, covering any such employees.

(7) The number of employees in the present

bargaining unit and in the unit as proposed under

the clarification.

(8) The job classifications of employees as to

whom the issue is raised, and the number of em-

ployees in each classification.

(9) A statement by petitioner setting forth rea-

sons why petitioner desires clarification of unit.

(10) The name, the affiliation, if any, and the

address of the petitioner.

(11) Any other relevant facts.

(e) A petition for amendment of certification shall

contain the following:

(1) The name of the employer and the name of

the certified union involved.

57a

(2) The address of the establishment involved.

(3) The general nature of the employer’s business.

(4) Identification and description of the existing

certification.

(5) A statement by petitioner setting forth the

details of the desired amendment and reasons

therefor.

(6) The names and addresses of any other persons

or labor organizations who claim to represent

any employees in the unit covered by the certifi-

cation and brief descriptions of the contracts, if

any, covering the employees in such unit.

(7) The name, the affiliation, if any, and the

address of the petitioner.

(8) Any other relevant facts.

29 C.F.R. 102.62

Consent-election agreements.

(a) Where a petition has been duly filed, the em-

ployer and any individuals or labor organizations

representing a substantial number of employees

involved may, with the approval of the regional

director, enter into a consent-election agreement

leading to a determination by the regional director

of the facts ascertained after such consent election.

Such agreement shall include a description of the

appropriate unit, the time and place of holding the

election, and the payroll period to be used in de-

termining what employees within the appropriate

unit shall be eligible to vote. Such consent election

shall be conducted under the direction and super-

vision of the regional director. The method of con-

58a

ducting such consent election shall be consistent

with the method following by the regional director

in conducting elections pursuant to § §102.69 and

102.70 except that the rulings and determinations

by the regional director of the results thereof shall

be final, and the regional director shall issue

to the parties a certification of the results of

the election, including certification of representa-

tives where appropriate, with the same force and

effect as if issued by the Board, provided further

that rulings or determinations by the regional di-

rector in respect to any amendment of such

certification shall also be final.

(b) Where a petition has been duly filed, the em-

ployer and any individuals or labor organizations

representing a substantial number of the employees

involved may, with the approval of the regional

director, enter into an agreement providing for a

waiver cf hearing and a consent election leading to

a determination by the Board of the facts ascer-

tained after such consent election, if such a deter-

mination is necessary. Such agreement shall also

include a description of the appropriate bargaining

unit, the time and place of holding the election, and

the payroll period to be used in determining which

employees within the appropriate unit shall be

eligible to vote. Such consent election shall be

conducted under the direction and supervision of

the regional director. The method of conducting

such election and the postelection procedure shall

be consistent with that followed by the regional

director in conducting elections pursuant to § §102.

69 and 102.70

59a

29 C.F.R. 102.63

Investigation of petition by regional director, notice

of hearing; service of notice; withdrawal of notice.

(a) After a petition has been filed under §102.61

(a), (b), or (c), if no agreement such as that provided

in §102.62 is entered into and if it appears to the

regional director that there is reasonable cause to

believe that a question of representation affecting

commerce exists, that the policies of the act will be

effectuated, and that an election will reflect the

free choice of employees in the appropriate unit,

the Regional Director shall prepare and cause to be

served upon the parties and upon any known individ-

uals or labor organizations purporting to act as

representatives of any empioyees directly affected

by such investigation, a notice of hearing before a

hearing officer at a time and place fixed therein.

A copy of the petition shall be served with such

notice of hearing. Any such notice of hearing may

be amended or withdrawn before the close of the

hearing by the regional director on his own motion.

(b) After a petition has been filed under § 102.61

(d) or (e), the regional director shall conduct an in-

vestigation and, as appropriate, he may issue a de-

cision without a hearing; or prepare and cause to be

served upon the parties and upon any known in-

dividuals or labor organizations purporting to act as

representatives of any employees directly affected

by such investigation, a notice of hearing before a

hearing officer at a time and place fixed therein; or

take other appropriate action. If a notice of hearing

is served, it shall be accompanied by a copy of the

petition. Any such notice of he..ing may be amended

60a

or withdrawn before the close of the hearing by the

regional director on his own motion. All hearing

and posthearing procedure under this paragraph (b)

shall be in conformance with § §102.64 through

102.68 whenever applicable, except where the unit

or certification involved arises out of an agree-

ment as provided in §102.62(a), the regional di-

rector’s action shall be final, and the provisions for

review of regional director’s decisions by the Board

shall not apply. Dismissal of petitions without a

hearing shall not be governed by §102.71. The

regional director’s dismissal shall be by decision and

a request for review therefrom may be obtained

under §102.67 except where an agreement under

§ 102.62(a) is involved.