428 F.2d 943 (5th Cir. 1970), 27943, N. L. R. B. v. Hondo Drilling Co.

Docket Nº:27943.
Citation:428 F.2d 943
Case Date:June 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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428 F.2d 943 (5th Cir. 1970)




No. 27943.

United States Court of Appeals, Fifth Circuit.

June 16, 1970

Rehearing Denied Aug. 25, 1970.

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Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., N.L.R.B., Washington, D.C., Elmer P. Davis, Director, Region 16, N.L.R.B., Fort Worth, Tex., for petitioner.

Joseph Connally, Odessa, Tex., for respondent.

Before RIVES, GEWIN and INGRAHAM, Circuit Judges.

GEWIN, Circuit Judge:

The National Labor Relations Board seeks enforcement of an order issued against respondent, Hondo Drilling Company (Hondo). The Board found that Hondo violated section 8(a)(5) and (1) of the National Labor Relations Act 1 by refusing to bargain with Local 826, International Union of Operating Engineers (the Union), the certified representative of a unit of Hondo employees. The refusal to bargain is not denied, and was employed in order to contest the certification of the Union. We enforce the order.

Hondo, a New Mexico corporation with its principal place of business in Midland, Texas, is engaged in the business of drilling oil wells under contracts with major oil companies. Its operations are primarily conducted in the proven fields of the area known as the Permian Basin. 2 Hondo owns five drilling rigs, two or three of which are in operation on an average day. 3 Each rig is operated by a four-man crew consisting of one driller and three 'roughnecks.' When a rig is in service, three, four-man crews are required daily to permit continuous operation. For each operating drill rig, Hondo's supervisor assigns a 'tool pusher' who has direct supervisory control of the rig and the responsibility for hiring the drillers necessary for its operation. The drillers in turn hire their own crews of roughnecks.

It takes eighteen days, on the average, for a rig to complete a well. 4 When a particular job is finished and there is no available work elsewhere, the rig is taken out of service ('stacked') and the employees are terminated. Hondo experiences a high turnover of employees; during the year preceding the election petition, it employed 224 roughnecks. The average time worked by each was 34 days. Fifty-three of the roughnecks worked on more than one rig during this period and averaged working 88 days per man; seventy-one worked less than 10 days. One hundred four of the roughnecks voluntarily quit before the completion of the job on which they were employed. Hondo attempts to keep complete crews for two rigs, 6 drillers and 18 roughnecks, constantly available. It also appears from the record that drillers consider it desirable to reemploy former crewmen where possible. Hondo considers any roughneck eligible for re-employment, except those who were terminated for cause and those who quit voluntarily before the completion of the former job.

The Union petitioned for a Board election seeking certification as the representative of all of Hondo's drilling employees. Following a hearing, the Board found that an appropriate unit would include:

All derrickmen, motormen, and floorhands, otherwise referred to as roughnecks, employed by the Employer in drilling operations in the area generally known as the Permian Basin,

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but excluding all tool pushers, drillers, office employees, technical employees, guards, professional employees, and all supervisors as defined in the Act.

Hondo does not contest the unit determination.

In the same proceeding the Union contended that any person who had been employed in the unit for 10 days during the previous fiscal year should be eligible to vote. Hondo urged that voting should be limited to those actually employed at the time of the election, as determined by the payroll list immediately preceding the Direction of Election. The Board rejected both positions and adopted the following eligibility formula:

All roughnecks who have been employed by (Hondo) for a minimum of 10 working days during the 90 calendar-day period preceding the issuance of our Decision and Direction of Election herein, and who have not been terminated for cause or quit voluntarily prior to the completion of the last job for which they were employed, as well as all roughnecks whose names appear on (Hondo's) payroll list immediately preceding the issuance of the Regional Director's notice of election. * * *

Under these criteria 33 persons were eligible to vote in the election ordered by the Board. The Union won by a vote of 20 to 6 with 5 challenged ballots.

Hondo timely filed objections to the conduct of the election, which were denied by the Regional Director following a post-election investigation. The Union was then certified. Hondo filed exceptions to the Regional Director's Supplemental Decision and Certification. This was treated as a request for review and was denied by the Board. Subsequently, Hondo refused to recognize the Union or to furnish requested bargaining information, giving rise to the present unfair labor practice charges.

Hondo, the Union, and the General Counsel entered an agreement stipulating certain facts, waiving a hearing before a Trial Examiner, and transferring the case directly to the Board for decision. The Board found that the issues raised by Hondo had been considered and rejected in the representation proceeding, and did not merit reconsideration. 5


Hondo's refusal to bargain was calculated to obtain judicial review of the Union's certification. Unless...

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