Opposition Brief — Brahaney Drilling Co. v. National Labor Relations Board

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CITATIONS

Cases:

Brooks v. National Labor Relations Board,

RE eae or SRO eae a OC 9

Hondo Drilling Co., 164 NLRB 416, en-

forced, National Labor Relations Board

v. Hondo Drilling Co., 428 F. 2d 943__ 3

Ingress-Plastene, Inc. v. National Labor

Relations Board, 430 F. 2d 542 10

National Cash Register Co. v. National

Labor Relations Board, 466 F. 2d 945 10

National Cash Register Co. v. National

Labor Relations Board, 494 F. 2d 189. 10-11

National Labor Relations Board. v. Bra-

haney Drilling Co. and National Labor

Relations Board v. Tri-Service Drilling

Co., 482 F. 2d 1271, certiorari denied,

ee Sr oer 4

National Labor Relations Board v. Gulf-

mont Hotel Co., 362 F. 2d 588 _... 9,11

Cases—Continued Page

National Labor Relations Board v. John

S. Swift Co., 302 F. 2d 842 —.............. 11

National Labor Relations Board v. Lay-

strom Mfg. Co., 359 F. 2d 799 10

National Labor Relations Board v. Little

Rock Downtowner, Inc., 414 F. 2d

REPRE rete Ak Hay SE eee NOR 11

Philip Carey Mfg. Co., Miami Cabinet

Div. v. National Labor Relations Board,

ae ek ERR beer enna i cect 10

Southern Wipers, Inc., 192 NLRB 816_.. 10

Taft Broadcasting, WDAF-TV, 201

UN aid fo er 10

Viking Lithographers, Inc., 184 NLRB

aides ee 10

Statutes :

National Labor Relations Act, as amend-

ed (61 Stat. 136, 73 Stat. 519, 29

ines ee Oe ON 2

er 7

IRS Se A

Iu the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-419

BRAHANEY DRILLING CoMPANY and LEATHERWOOD

DRILLING COMPANY, PETITIONERS

Vv.

NATIONAL LABOR RELATIONS BOARD

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE NATIONAL LABOR RELATIONS

BOARD IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals (Pet. App. A,

la-7a) covering both the Leatherwood and Brahaney

cases (which were consolidated for decision) is re-

ported at 513 F. 2d 270. The decision and order of

the National Labor Relations Board in Leatherwood

(Pet. App. B, 10a-38a) are reported at 209 NLRB

618, and the Board’s decision and order in Brahaney

(1)

(Pet. App. C, 33a-57a) are reported at 209 NLRB

624.

JURISDICTION

The judgment of the court of appeals enforcing

the Board’s orders (Pet. App. A, 7a-9a) was entered

on June 18, 1975. The petition for a writ of certio-

rari was filed on September 16, 1975. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254

1).

6 QUESTION PRESENTED

Whether, in the circumstances of these , the

Board properly concluded that the employé"s lacked

a Yteasonable basis for believing that the union certi-

fied as representative of their employees no longer

enjoyed majority support and thus that the employ-

ers violated the National Labor Relations Act by

withdrawing recognition from the union.

STATUTE INVOLVED

In addition to the provisions set forth at Pet. 3,

the other relevant provision of the National Labor

Relations Act, as amended (61 Stat 136, 73 Stat.

519, 29 U.S.C. 151, et seq.) is:

Sec. 8(a) It shall be an unfair labor practice

for an employer—

© + + 2 ”

(5) to refuse to bargain collectively with the

representatives of his employees, subject to the

provisions of section 9(a).

8

STATEMENT

A. The Board’s Findings of Fact

Leatherwood Drilling Company and Brahaney

Drilling Company are two of 50 to 60 oil well drill-

ing contractors who operate in the Permian Basin

of Texas and New Mexico (Pet. App. A, 2a). In

1968 and 1969, the Board certified Local 826, Inter-

national Union of Operating Engineers, AFL-CIO

(“the Union’), as the bargaining representative for

the employers’ drilling employees* pursuant to its

special election formula for the Permian Basin drill-

ing industry? (Pet. App. A, 2a-3a).

*The Brahaney certification was issued in 1968, and the

Leatherwood certification in 1969 (Pet. App. A, 14a, 38a).

* Permian Basin drilling contractors characteristically un-

dertake jobs of relatively short duration. After the completion

of a job the contractor either immediately moves his drilling

rig to a new site or takes it out of service until a new job

is available. In either situation, when the rig is again placed

in operation it may be stationed many miles from its former

location; in that case, a sizeable component of its new crew

will be hired out of the general area of the new site. Thus,

frequent relocation of operations and high turnover of em-

ployees is a feature of this industry. See Hondo Drilling

Co., 164 NLRB 416, 417, enforced, National Labor Re-

lations Board v. Hondo Drilling Co., 428 F. 2d 943 (C.A,

5). In order to protect the voting rights of the employees of

the Permian Basin drilling contractors, the Board, in Hondo

Drilling, fashioned a formula of voter eligibility which took

the industry’s special pattern of employment into account

(164 NLRB at 417) (see Pet. App. A, 2a, n. 1). Pursuant to

this Hondo formula, the Board conducted a series of elections

and thereafter certified the Union as the collective bargaining

representative for the employees of 13 industry contractors,

including, petitioners.

4

Following the Union’s election victories and its

certification, Leatherwood refused to recognize the

Union until November 1970 (Pet. App. B, 15a). Bra-

haney refused to do so until ordered by the Fifth

Circuit on March 9, 1971." Due to the drilling com-

panies’ refusal to engage in multi-employer bargain-

ing, which required the Union to use its limited man-

power in individual negotiations over a wide geo-

‘graphic area, and the companies’ normal operating

lulls, the subsequent bargaining negotiations between

the Union and Brahaney and Leatherwood were char-

acterized by delays (Pet. App. A, 4a; Pet. App. B,

15a-l6a, 21a-25a; Pet. App. C, 39a-40a).

Thus, in January 1971, Leatherwood announced

that its rigs were out of service for an indefinite pe-

riod, and the parties agreed to postpone negotiations

(Pet. App. B, 19a, n. 11). The Union submitted its

initial contract proposal to Leatherwood in May 1971,

and the parties’ first bargaining session was sched-

uled for June 1971 (LGCX 13, 18).* However, al-

though the Union met with Company Attorney Har-

man * with respect to other drilling contractors dur-

* National Labor Relations Board v. Brahaney Drilling

Co. and National Labor Relations Board v. Tri-Service Drilling

Co., 482 F. 2d 1271, certiorari denied, 401 U.S. 940, judgment

entered March 9, 1971.

*“R.” references are to the original record in the Brahaney

case, which includes the transcript before the Board and the

volume of pleadings. “L.R.” references are to the record in the

Leatherwood case. “LGCX” and “I.RX”, respectively, refer

to the General Counsel’s and the Respondent’s exhibits in that

case.

*’ Harman was the bargaining negotiator for 10 of the 18

unionized drilling companies (Pet. App. B, 22a).

5

ing this period, the Union, with Leatherwood’s ac-

quiescence, cancelled the meeting scheduled for June

and did not request another meeting until December,

some five months later. The difficulties in coordinat-

ing the schedules of Attorney Harman and the Union’s

representatives with respect to the eight separate ne-

gotiations which they were then carrying on (LGCX

22-27) prevented the parties from sitting down for

their first bargaining session until March 1972. By

June 1972, Leatherwood and the Union had come to

an agreement on some items, but were still divided

over such issues as wages, a grievance-arbitration

procedure, and various fringe benefits (Pet. App. 15a-

16a; L.R. 242-252, 256-266).

Contract talks between the Union and Brahaney

followed a similar pattern. In May 1971, the Union

submitted its proposals for a contract (Pet. App. B,

39a), and in June the parties held their first bargain-

ing session (Pet. App. B, 39a). As with Leatherwood,

and for the same reasons, a five-month hiatus oc-

curred before the Union requested another meeting,

which was scheduled for December. Again, due to

scheduling difficulties, the parties did not actually sit

down for their second bargaining session until Janu-

ary 1972 (Pet. App. C, 39a). At this meeting, Bra-

haney submitted its counterproposals to the proposals

submitted by the Union eight months earlier (R. 200-

202). Thereafter, the parties had further bargain-

ing sessions in March, April, July, and October of

1972 (Pet. App. B, 39a). At the conclusion of the

6

October 13 session, the parties had come to agreement

on some items, but were still divided over such issues

as compulsory arbitration and various fringe benefits

(Pet. App. C, 39a; R. 146-156).

Following its June 1972 meeting with Leather- J

wood and its October 1972 meeting with Brahaney,° |

the Union did not.communicate with Attorney Har-

man regarding either Company until April 19, 1973

(Pet. App. B, 16a, 40a). However, between June 1972

and April 1973, Harman was actively engaged in

contract negotiations with the Union’s two negotia-

tors on behalf of other drilling contractors (Pet.

App. A, 5a, 10a, n.1; Pet. App. B, 23a). (See L.R.

466, n.1, 438; 236-238, 253-254, 266-275, 280-281,

290-291, 299-304, 316, 335-336, 362-363; LRX 16).

On several occasions, one of the Union negotiators

told Harman about his heavy workload and the sched-

uling problems it created (Pet. App. B, 24a, n. 15)."

On April 19, 19738, the Union asked Harman to

resume negotiations for Leatherwood and Brahaney,

just as the Union had done after the earlier bargain-

ing hiatus in 1971 (Pet. App. B, 19a, n. 11; Pet.

App. C, 42a-44a). By letters dated May 9, 1973 |

*The Union had suspended negotiations with Brahaney |

after the Company informed it that all its rigs were down

(Pet. App. C, 48a-44a).

* Throughout the Leatherwood negotiations, Harman “as-

sumed that [the Union was] anxious to negotiate the contract,

and when they could do it, they would do something about it”

(L.R. 227), and he never complained about the Union’s not

requesting more frequent bargaining sessions during that

period (L.R. 276-277).

ee. |

7

(from Leatherwood) and June 4, 1973 (from Bra-

haney), Harman stated that the Companies refused

to bargain further because they each had a “good

faith doubt” of the Union’s majority status (Pet.

App. B, 16a; Pet. App. C, 40a).*

B. The Decisions Below

The Board held that Leatherwood and Brahaney

violated Section 8(a) (5) and (1) of the Act by with-

drawing recognition from and refusing to bargain

with the Union (Pet. App. B, 28a-29a; Pet. App. C,

5la-52a). In so holding, the Board, adopting the

decisions of the Administrative Law Judge, rejected

the Companies’ assertions that the hiatuses in bar-

gaining (lasting 10 months at Leatherwood and 6

months at Brahaney), coupled with high employee

turnover at both Companies, justified their doubts

of the Union’s continuing majority (Pet. App. B,

21a-29a; Pet. App. C, 40a-51la).

The Board pointed out that neither employer had

produced any evidence of employee defections or dis-

satisfaction with the Union (Pet. App. B, 26a; Pet.

App. C, 46a-47a). Regarding the hiatuses, the Board

noted that the Companies knew that they were char-

acteristic of the industry due to the geographic dis-

persal of employers aid Union manpower problems,

which were exacerbated by the requirement that the

Union bargain with each employer individually (Pet.

® About June 4, 1973, Brahaney also unilaterally granted its

employees a general wage increase without notifying or con-

sulting the Union (Pet. App. C, 40a).

8

App. B, 22a-24a; Pet. App. C, 41a-48a). The Board

found that, during the hiatuses, the Companies’ nego-

tiator was actively negotiating with the Union on be-

half of other drilling companies and there was no

“sensible explanation as to why [the Companies]

would assume that the Union would single out [them]

for abandonment, contemporaneous with its efforts to

secure bargaining agreements with [their] competi-

tors” (Pet. App. B, 24a; Pet. App. C, 44a-45a).° Fi-

nally, the Board concluded that, while the Permian

Basin drilling industry was characterized by a high

rate of turnover, “this fails to persuade that the pre-

sumption that replacements will support a union to

the same extent as their predecessors is a fallacy in

this industry. If it is fair to assume that replace-

ments will support a union where the level of turn-

over is 50%, this assumption is no less valid where

the turnover amounts to 900%. The fact that 9 em-

ployees might in a given time period fill a single job

previously held by a union supporter, does not war-

rant an assumption that the ninth replacement will

support the union to any lesser degree than the first”

(Pet. App. B, 26a-27a; Pet. App. C, 48a-49a).

*The Board also observed (Pet. App. C, 43a-44a) that

Brahaney, having in October 1972 led the Union to believe

that all its rigs would soon be out of operation (see n. 6,

supra), could not have overlooked—in assessing the reasons

for the hiatus—the fact that “the lack of communication from

the Union during [the hiatus) was consistent with [its] pre-

viously manifested disinterest in negotiating while an em-

ployer’s rigs were down.”

9

The Board ordered the Companies, inter alia, to

bargain with the Union upon request (Pet. App. B,

31la-32a; Pet. App. C, 55a-56a). The court of ap-

peals upheld the Board’s decisions and enforced its

orders (Pet. App. A, la-7a). The court held that

substantial evidence supported the Board’s findings

that the Companies had not “overcome the presump-

tion of continuity of majority status and, therefore,

have no room for good faith doubt of the viability

of the Union’s continued representation of the bar-

gaining unit” (id. at 7a).

ARGUMENT

Board certification of a union as the bargaining

representative of unit employees creates a rebuttable

presumption of continuing majority status after the

expiration of the certification year. Brooks v. Na-

tional Labor Relations Board, 348 U.S. 96, 98. Bra-

haney and Leatherwood were privileged to withdraw

recognition from the Union after the certification

year only if they had a reasonable basis for a good

faith doubt of the Union’s continuing majority status.

National Labor Relations Board vy. Gulfmont Hotel

Co., 362 F. 2d 588, 589 (C.A. 5). These well settled

propositions are not in question here. The sole issue

raised by the petition is whether substantial evidence

supports the Board’s findings that petitioners did not

have such a good faith doubt. That issue, which rests

on the particular factual circumstances here, does

not warrant further review.

10

Petitioners’ contention that the Board “was arbi-

trary and abused its discretion” by failing to “look

at the totality of all the circumstances” (Pet. 8, 10)

is belied by the Board’s careful, detailed assessment

of the record (supra, pp. 7-8). Nor is there merit

to petitioners’ assertion (Pet. 17-20) that the deci-

sion herein conflicts with decisions in other cases, for

those cases are factually distinguishable.”

1° The total absence of any evidence of employee dissatis-

faction with the union distinguishes the instant case from

Taft Broadcasting, WDAF-TV, 201 NLRB 801, South-

ern Wipers, Inc., 192 NLRB 216, and Viking Lithographers,

Inc., 184 NLRB 139 (Pet. 13-15). In Ingress-Plastene, Inc. v.

National Labor Relations Board, 430 F. 2d 542, 546-547 (C.A.

7) (Pet. 17), in addition to significant employee turnover and

four documented instances of dereliction of duty on the union’s

part, the union admitted to the employer that in a unit of 156

employees the 49 checkoff authorizations represented the up-

per limit of its employee support. In National Labor Relations

Board v. Laystrom Mfg. Co., 359 F. 2d 799, 800-801 (C.A.

7) (Pet. 18), the court relied, inter alia, on the fact that,

while the union had deen willing to prove its continued ma-

jority status after the first two yearly contracts, it refused

to do so after the latest agreement following a very close

election. In Philip Carey Mfg. Co., Miami Cabinet Div. v.

National Labor Relations Board, 331 F. 2d 720, 734-735 (C.A.

6) (Pet. 18), the union originally won the election by a 122

to 112 margin but as a result of a strike that 122 employees

joined, all but 15 of the 122 strikers were permanently re-

placed. National Cash Register Co. v. National Labor Rela-

tions Board, 466 F. 2d 945 (C.A. 6), cited by petitioners (Pet.

18), does not deal with the “good faith” doubt issue; petition-

ers apparently rely on a case of the same name reported at

494 F. 2d 189 (C.A. 8). In the latter case, however, in addi-

tion to turnover, employee decertification petitions were filed

with enough signatures to require an election under Board

ll

Finally, the Board and the court below properly

rejected petitioners’ argument (Pet. 11-13) that the

usual principle concerning the impact of employee

turnover ™ should not be applied to the Permian Basin

drilling industry. A high degree of turnover is in-

herent in that industry, and, as the Board noted

(supra, p. 8), “[i]f it is fair to assume [in the ab-

sence of evidence to the contrary] that replacements

will support a union where the level of turnover is

50%, this assumption is no less valid where the turn-

over amounts to 900%.”

procedures, which “fact alone,” the court concluded, would

justify an employer’s refusal to bargain (494 F. 2d at 194).

There was also evidence of employee resignations from the

union as well as evidence of a decline in the number of em-

ployees authorizing dues checkoff.

“It is well settled that turnover does not itself afford a

reasonable basis for an employer to conclude that a union

has lost its majority status, for it is presumed that the new

employees will support the union in the same proportion as did

the old employees. See, e.g., National Labor Relations Board

V. Little Rock Downtowner, Inc., 414 F. 2d 1084, 1091 (C.A.

8); National Labor Relations Board v. John S. Swift Co.,

302 F. 2d 342, 345 (C.A. 7); National Labor Relations Board

V. Gulfmont Hotel Co., 8362 F. 2d 588, 592 (C.A. 5). Neither

Company produced any evidence that the new employees sup-

ported the Union less avidly than the old. Indeed Company

President Leatherwood admitted that he had not even given

the question “a thought” (L. R. 154).

12

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

ROBERT H. Bork,

Solicitor General.

JOHN C. MILLER,

Acting General Counsel,

JOHN S. IRVING,

Deputy General Counsel,

Norton J. COME,

Deputy Associate General Counsel,

LINDA SHER,

BERT BISGYER,

Attorneys,

National Labor Relations Board,

NOVEMBER 1975.

DR ©. 8. eoveenment permrime orrice; 1078 secere 106