Santa Fe Drilling Company v. NLRB

• Decision Date: 18 September 1969
• Docket Number: No. 22923.,22923.
• Citation: 416 F.2d 725
• Parties: SANTA FE DRILLING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.2d 725 (1969)

SANTA FE DRILLING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 22923.

United States Court of Appeals Ninth Circuit.

September 18, 1969.

James N. Adler (argued) & Roderick M. Hills, of Munger, Tolles, Hills & Rickershauser, Los Angeles, Cal., for petitioner.

Ronald Wm. Egnor (argued), Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., Washington, D. C., for respondent.

Before CARTER and HUFSTEDLER, Circuit Judges, and BYRNE,^* District Judge.

HUFSTEDLER, Circuit Judge:

Santa Fe Drilling Co. ("Santa Fe") petitions for a review of an order of the National Labor Relations Board ("the Board"), and the Board applies for an enforcement of the same order.

The order affirmed the decision of a Trial Examiner holding that Santa Fe had engaged in the following unfair labor practices during a union representation election held on an off-shore drilling platform near Kenai, Alaska: (1) coersive statements and threats to employees in violation of section 8(a) (1) of the National Labor Relations Act¹ ("the Act"), and (2) discriminatory discharges of employees in violation of section 8(a) (3) of the Act.² Santa Fe was ordered to cease and desist from coercing employees and from making discriminatory discharges. The Board further ordered Santa Fe to offer immediate and full reinstatement to five discharged employees and to make them whole for loss of pay.

Santa Fe contends that its agents did not coerce or threaten employees, that the discharges were for good cause and were not discriminatory, and that, in any case, reinstatement of three particular employees should not have been ordered. The Board contends that substantial evidence on the record as a whole supports the Board's findings that Santa Fe had coerced and discriminatorily discharged employees and that the remedies imposed were within the Board's discretion. We review the Board's findings seriatim.

The oil drilling platform in question is owned by the Shell Oil Company. Sante Fe performs the drilling operations on the platform under a labor contract with Shell. The platform began operation in March of 1965. Drilling operations are conducted on a 24-hour basis by three 7-man drilling crews, each working a 12-hour shift, 10 days on and 5 days off. Each crew is under the immediate supervision of a driller. The crews are supervised by foremen or pushers, two employed by Santa Fe, two by Shell. During the period herein in question, the pushers for Santa Fe were Vernon Blair and Coleman "Prim" Roady. Vernon "Bud" Furry of Shell was in charge of the overall operation of the platform.

On January 25, 1966, the Alaska Petroleum Crafts Council ("APCC") petitioned the Board for a representation election. The International Union of Petroleum Workers, AFL-CIO ("IUPW"), intervened. By consent of all the parties, an election was scheduled for February 20, 1966. The tally of ballots from the election showed 15 for IUPW, 2 for APCC, 14 for neither, and 5 were challenged.

1. Section 8(a) (1) Violations

The Trial Examiner found that certain statements made before and after the representation election by Santa Fe's supervisors Blair and White violated section 8(a) (1) of the Act by restraining and coercing employees in the exercise of rights guaranteed by section 7.

a. Interrogation of Gordon

The first violation, as found by the Trial Examiner, occurred in January 1966, when Blair called employee Gordon aside to talk about "this union deal." Blair had information that Gordon had been involved in strike violence occurring with another Alaskan drilling contractor. Blair questioned Gordon about this though he assured Gordon that he "didn't mind people that were in union activities, just as long as they did their work well." Gordon disclaimed interest in union activities. Blair mentioned existing company benefits and urged Gordon to vote in the election. The Trial Examiner found that this conduct was unlawful interrogation and violated section 8(a) (1).

The interrogation of employees concerning their union activities is not unlawful per se. Interrogation becomes unlawful under the Act only when it is expressly or implicitly threatening or coercive. A number of factors must be considered in determining whether such interrogation is coercive. (See N. L. R. B. v. Hotel Conquistador, Inc. (9th Cir. 1968) 398 F.2d 430, 434; N. L. R. B. v. Milco, Inc. (2d Cir. 1968) 388 F.2d 133; N. L. R. B. v. Consolidated Rendering Co. (2d Cir. 1967) 386 F.2d 699.) The Trial Examiner concluded that "Blair's statements to Gordon and his none too subtle interrogation were reasonably calculated by Blair and interpreted by Gordon as an attempt to ascertain the latter's union sentiments and to instill in him apprehension of the consequences of any renewed union activity." This conclusion is supported by substantial evidence in the record considered as a whole and suffices to indicate a violation of section 8(a) (1) by Santa Fe.

b. Threats to Carter, Sherwood, and Gardner

The next violations found by the Trial Examiner consisted of threats by Blair that certain existing benefits would be withdrawn if the employees chose a union. Carter, Sherwood, and Gardner testified at the hearing that Blair expressly threatened that benefits would be withdrawn if the employees chose to unionize. Blair denied such threats, and a number of employees — including three who were found to have been discriminatorily discharged — acknowledged that no explicit threats were made by Blair. The Trial Examiner did not expressly resolve this conflict, but he found that whether or not explicit threats were made, Blair's repeated enumerations of existing benefits in head-to-head confrontations with employees constituted implicit threats of reprisal, because Blair thereby reasonably conveyed the impression that benefits might be withdrawn and employees compelled to work harder if they voted for a union.

Threats by an employer to withdraw existing benefits if employees unionize are not speech which is protected by section 8(c) of the Act. (N. L. R. B. v. TRW-Semiconductors, Inc. (9th Cir. 1967) 385 F.2d 753.) Such threats violate section 8(a) (1) of the Act. (N. L. R. B. v. Luisi Truck Lines (9th Cir. 1967) 384 F.2d 842, 845.) Whether language has a threatening or coercive effect upon employees depends upon the totality of the circumstances in which it is used. (N. L. R. B. v. Sinclair Co. (1st Cir. 1968) 397 F.2d 157, aff'd sub nom. N. L. R. B. v. Gissel Packing Co. (1969) 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547.) The Trial Examiner's finding, affirmed by the Board, that Blair's enumerations of benefits were implied threats of reprisal under the circumstances is supported by ample evidence. The Trial Examiner and the Board correctly concluded that the resolution of the conflict over the existence of express threats was legally irrelevant to the issue whether section 8 (a) (1) had been violated.

c. Threats to Gardner, Barefield, Carter, and Bloodsworth

The next violations of section 8 (a) (1) found by the Trial Examiner occurred immediately after the election. Blair told employees Gardner and Barefield that he was not going to let the men run him off by dragging their feet and jeopardizing his record. According to Gardner and Barefield, Blair also stated that 17 men had voted for the union, and "I am going to run every one of you off — and you two Gardner and Barefield are going to be first." Carter and Bloodsworth testified to similar statements by Blair. Blair denied making these statements threatening discharges. But the Trial Examiner considered all the circumstances and credited Gardner's version and discredited Blair's version of Blair's remarks after the election. Threats of the kind attributed to Blair violated the Act. Santa Fe admits that the Trial Examiner's assessment of credibility cannot be overturned unless the finding contains clear error. (N. L. R. B. v. Luisi Truck Lines, supra.) We do not perceive any error.

The Trial Examiner and the Board also found a violation of section 8(a) (1) by driller Troy White. Employee Bloodsworth testified that White told the men that since they voted for the union, there would be no more coffee breaks, movies would be curtailed, and visits to the lavatory would be restricted. White denied making these statements, except for the statement about lavatory restrictions. The Trial Examiner did not believe White.

We conclude that substantial evidence on the record as a whole supports the Board's finding that Santa Fe, through its agents White and Blair, violated section 8(a) (1) by threatening to withdraw benefits should the employees choose a union and threatening to discharge employees who voted for the union.

2. Section 8(a) (3) Violations

The representation election was held on the platform on February 20, 1966. On February 22, employee Lloyd W. Collins was discharged; on February 24, employee Arthur W. Gordon was discharged; on March 20, 1966, employee Sidney R. Sherwood was "bumped" by a man with seniority and was not offered the opportunity to "bump" a man with a lower position and less seniority; on May 7, 1966, employee David L. Gardner was discharged; and on June 9, 1966, employee Ernest N. Barefield was discharged. The Board adopted the Trial Examiner's finding that all these discharges were discriminatory and in violation of section 8(a) (3) of the Act. Santa Fe contends that all the discharges were for good cause and were not motivated by an antiunion animus. The Trial Examiner found that the good causes offered for the discharges were mere pretexts for the antiunion motive.

The general principles governing our review of Board findings of discriminatory discharges have been adequately summarized elsewhere. (N. L. R. B. v. Miller Redwood Co. (9th Cir. 1969) 407 F.2d 1366; N. L. R. B. v. Hotel Conquistador, Inc., supra, 398 F.2d...