Camay Drilling Co.

National Labor Relations Board - Board Decisions

Dec 22, 1978

239 N.L.R.B. 997 (N.L.R.B. 1978)

CAMAY DRILLING COMPANY
Camay Drilling Company and International Union of
Operating Engineers, Local Union No. 12, AFL-
CIO and Lambert Vande Burgt. Cases 31-CA-
6901, 31-CA-6985, al,d 31-CA-7315
December 22, 1978
DECISION AND ORDER REOPENING
RECORD AND REMANDING PROCEEDING
TO ADMINISTRATIVE LAW JUDGE
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 22, 1978, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, the Respon-
dent filed exceptions and a supporting brief, and the
Trustees of the Operating Engineers pension trust
(hereinafter referred to as the Trustees) filed a mo-
tion to intervene and a supporting brief. In addition,
the Respondent filed answering briefs to the Trus-
tees' motion to intervene, and to the exceptions of
the General Counsel and the Charging Party.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the attached Decision in
light of the exceptions and brief and has decided to
grant the Trustees' motion to intervene. Accordingly,
the Board deems it necessary to reopen the record
and remand this proceeding to the Administrative
Law Judge in order to permit the Trustees to intro-
duce relevant evidence with respect to two critical
issues and to direct the Administrative Law Judge to
reevaluate his findings of fact, resolutions of credibil-
ity, and conclusions of law in light of the evidence
adduced on remand.
The complaint in this proceeding alleges, inter alia,
that the Respondent unilaterally withheld wage and/
or fringe benefit contribution increases that were re-
quired to be made by the parties' current collective-
bargaining agreement' and thus violated Section
8(a)(5) and (1) of the Act.
At the hearing held in this proceeding, the Trustees
of the Operating Engineers health and welfare fund,
the pension trust fund, the vacation-holiday savings
trust fund, and the journeyman and apprentice train-
The current agreement between the Union and the Respondent. extend-
ing from February I, 1976, until January 31. 1979, provided that on January
31, 1977, an additional 25 cents per hour would be added to the wage rate
of each job classification and further provided that the Union possessed the
option of allocating any negotiated increases to wages, the vacation-holiday
fund, or pension fund. The agreement also provided. however. that it could
be reopened for renegotiation of wages upon written notice 60 days pnor to
February I, 1977.
ing trust, moved to intervene, through counsel, on
the basis that said trusts were entitled to receive the
increase in fringe benefit contributions described
above. In support of their motion, the Trustees noted
that, pursuant to the Employee Retirement Income
Security Act of 19742 (hereinafter referred to as
ERISA), they owe a fiduciary duty to the benefici-
aries of the trusts to "utilize all reasonable and lawful
means to effect the collection of amounts owed to the
trustIs]." Thus, the Trustees asserted that they had a
vital interest in both the resolution of the alleged un-
fair practices and in any remedy fashioned by the
Board.
The Administrative Law Judge denied the Trus-
tees' motion, however, on the ground that they would
have no interest in the matter until the issue of
whether the Act had been violated as alleged had
first been resolved. Thus, in his view, the Trustees'
interest in this matter would not manifest itself until
a backpay proceeding was held, if indeed one were to
be held.3
The record discloses, and the Respondent does not
dispute, that it paid the additional 25 cents per hour
in wages for only I day, Janaury 31, 1977, and then
withdrew it.4 The Respondent contends that, accord-
ing to the contract, it was obligated to pay the addi-
tional 25 cents only on that day, since the entire sub-
ject of wages would be subject to renegotiation on
February 1, 1977.
The Administrative Law Ju ge found that the Re-
spondent violated Section 8(aX)(5) and (1) of the Act
by (1) discontinuing payment of the additional 25
cents after January 31, 1977, and (2) withholding
pension contributions after that day. The Adminis-
trative Law Judge further found, however, that, al-
though the Union prepared a letter, dated July 16,
1976, advising the Respondent that the Union
wished to have the 25 cents due on January 31, 1977,
allocated to the pension trust fund, the evidence was
insufficient to conclude that the Respondent received
that letter.5 The effect of allocating the 25-cent in-
crease to the pension fund would have been to in-
crease the Respondent's contribution rate from 30
cents per hour to 55 cents.
29 t S.C §1001, et seq
3The Administrative Law Judge, however. did permit counsel for the
Trustees to remain at the hearing in order to consult with either counsel for
the Charging Party or the General Counsel. He also permitted the Trustees
to submit an amicus curiae brief.
4As of February i. 1977. the Respondent also discontinued contributions
to the pension and vacation-holiday trust funds
In making this finding, the Administrative Law Judge noted that neither
the author of the letter nor his secretary testified as to the actual mailing of
the letter or the usual business routine of the office. Affirmative evidence in
this regard came only from the Union's recording secretary, who testified
that the letter introduced into evidence was a copy taken from the Union's
regular business files. While, In the Administrative Law Judge's view, this
created a presumption of mailing, he found that presumption rebutted by
the credited testimonS of Meyer I.uskin, the Respondent's president. who
Continued
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 12, 1977, the Union initiated a strike
against the Respondent in view of the inability of the
parties to reach agreement on wage rates and the Re-
spondent's actions in unilaterally withdrawing the
25-cent increase and terminating its pension contri-
butions. Representatives of both the Respondent and
the Union met on July 6, 1977, in an attempt to settle
the strike. At that meeting, the parties entered into a
handwritten memorandum of settlement which set
forth, in basic terms, conditions for such a settle-
ment. Thereafter, the Respondent prepared a formal
amendment to the current contract, based on the
handwritten agreement of July 6 (Resp. Exh. 7). The
Respondent submitted this document to the Union
for execution but, after some delay, the Union re-
sponded by submitting an amendment to the con-
tract based on its interpretation of the handwritten
agreement (Resp. Exh. 8).
The Administrative Law Judge, relying primarily
on the testimony of Meyer Luskin, the Respondent's
president, found that the Respondent's obligation to
reimburse the pension and vacation-holiday trust
funds should be based on the figures set forth in Re-
spondent's Exhibit 7. Accordingly, as part of his rem-
edy, he ordered the Respondent to pay to the trust
funds all funds withheld since February 1, 1977, in
the amounts and for the period of time set forth in
that exhibit.
The Trustees contend that by finding (1) that the
Respondent never received notice of the Union's in-
tention to allocate the 25-cent increase to the pension
fund and (2) that the amounts due and owing the
trust funds are reflected in Respondent's Exhibit 7,
without affording them an opportunity to intervene
and fully participate in the hearing, the Administra-
tive Law Judge committed prejudicial error. We
agree. While we recognize that the Board's Rules and
Regulations 6 confer a certain amount of discretion
upon the Administrative Law Judge in passing upon
motions to intervene, Section 10(b) of the Act pro-
vides that the Board itself also possesses the authori-
ty to permit intervention in one of its proceedings.
In concluding that, under the circumstances of this
case, the Trustees should be accorded an opportunity
to intervene, we note first that Section 554(c) of the
Administrative Procedure Act 7 (hereinafter referred
to as the APA) provides, in pertinent part:
(c) The agency shall give all interested parties
opportunity for-
denied that the Respondent ever received the letter. Moreover, the Adminis-
trative Law Judge noted that the allocation letter was not mentioned during
the wage renegotiations. He found it unlikely that this subject would not
have been discussed if either party knew of its existence. Finally. as further
support for the proposition that the Respondent did not deliberately fail to
allocate the increase as requested by the Union. the Administrative Law
Judge opined th. t it would not have increased the Respondent's costs to
have complied with the request.
6 See Sec. 102.69.
(1) submission and consideration of facts, ar-
guments, offers of settlement, or proposals of
adjustment when time, the nature of the pro-
ceeding, and the public interest permit.
In light of the rigorous fiduciary obligations im-
posed upon the Trustees by ERISA with respect to
safeguarding and administering the assets of the trust
fund,8 we are of the opinion that the Trustees are
"interested parties" as that term is used in the APA.
Furthermore, we are of the view that none of the
qualifying language in Section 554(c) would serve as
a basis for excluding the Trustees from intervening.
Additionally, we note that the Trustees, in their
brief in support of their motion to intervene, indicate
that they possess evidence bearing on the issues of (I)
whether the Respondent did, in fact, receive notice
from the Union allocating the additional 25 cents per
hour due under the contract to the pension trust fund
and (2) whether the agreement reached on July 6,
1977, with regard to settling the strike provided for
pension contributions in the amount found by the
Administrative Law Judge. The Administrative Law
Judge's findings with respect to those issues are obvi-
ously matters in which the Trustees have a vital inter-
est.9 We therefore deem it necessary to grant the
Trustees' motion to intervene in order to afford them
due process.'0 Accordingly, we shall reopen the rec-
ord and remand this proceeding to the Administra-
tive Law Judge in order to permit the Trustees " to
introduce any evidence relevant to the two issues
75 U.S.C. {551-559.
See, e.g., 29 U.S.C. § 1104(a), 1106(bX2), and 1109(a).
In International Union of Operating Engineers, Local No. 12 (Griffith
Company, er al.), 212 NLRB 343 (1974), reversed and remanded on other
grounds sub nom. Griffith Company v. N.LR.B., 545 F.2d 1194 (9th Cir.
1976), the Administrative Law Judge permitted the Trustees of the trust
funds involved herein to intervene and to fully participate at the heanng.
That case involves allegations that the union violated Secs. 8(e) and
8(b4X)(ii)(B) of the Act by entering into, maintaining, and enforcing provi-
sions in the master labor agreement which prohibit t contractng employer
from subconlractmg work to any other signatory employer who is delin-
quent in its payments to the fringe benefit trust funds jointly administered
by the union and the signatory employers. Admittedly, the issue of the
Trustees' right to intervene arises in a much different context herein. How-
ever, here, as in Griffith Company, our resolution of the issues involved has
a direct impact on the amount of contributions made to the funds. Accord-
ingly, we find Griffith Compan)y to be sufficiently analogous to the instant
situation to lend support to our finding.
0Contrary to the contentions of the Respondent, the interests of the
Trustees are not necessarily identical to that of the Charging Party. While
the Operating Engineers pension trust fund is a joint labor-management
fund established pursuant to Sec 302(cX5) of the Act, the Trustees are
fiduciaries under ERISA, whose sole obligation is to the beneficiaries of the
fund, and not to either of the collective-bargaining parties. Although the
Trustees ma, entertain the recommendations of their appointing parties,
they are bound to use their independent judgment with respect to the ad-
ministration of the trust fund. See Sheet Metal Workers' International Asso-
ciation, Local 493, Sheet Metal Workers International Association and Edward
J. Carlough (Central Florida Sheet Metal Contractors Association Inc.), 234
NLRB 1238 (1978) Accoraingly, we do not feel that the interests of the
Trustees were adequately protected by allowing their counsel to consult
with counsel for the Charging Party during the hearing.
t Since only the Trustees of the pension fund moved to intervene before
the Board, said mltlrr is granted ony wi;th respect to them
998
CAMAY DRILLING COMPANY
stated above 12 and to direct the Administrative Law
Judge to reevaluate his findings and credibility reso-
lutions in light of the evidence adduced on remand.
ORDER
It is hereby ordered that the motion of the Trustees
of the Operating Engineers pension trust to intervene
in this proceeding be, and it hereby is, granted.
IT IS FURTHER ORDERED that the record in this pro-
ceeding be, and it hereby is, reopened and that the
proceeding be, and it hereby is, remanded to Admin-
istrative Law Judge James T. Rasbury for the pur-
pose of taking testimony and receiving further evi-
dence consistent with this Decision in order to
reevaluate his findings and credibility resolutions in
light of such additional evidence.
IT IS ALSO FURTHER ORDERED that the Administra-
tive Law Judge prepare and serve on the parties a
supplemental decision containing resolution of mate-
rial issues, findings of fact, conclusions of law, and
recommendations to the Board and that, following
service of such decision on the parties, the provisions
of Section 102.46 of the Board's Rules and Regula-
tions, Series 8, as amended, shall be applicable.
12 The Respondent shall, of course, be permitted to fully cross-examine
any witnesses presented by the Trustees and present counterevidence to that
introduced by the Trustees.
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY. Administrative Law Judge: This case
was heard before me in Los Angeles, California, on Febru-
ary 7 and 8, 1978.2 The charge in Case 31-CA-6901 was
filed by the International Union of Operating Engineers,
Local Union No. 12 (herein Local 12) on March 14, and on
April 7, complaint and notice of hearing issued. The charge
in Case 31-CA-6985 was filed on April 18, and amended
on May I I. On May 12, Complaint and Notice of Hearing
issued in Case 31-CA-6985. On June 9, an order consoli-
dating cases, amended consolidated complaint and notice
of hearing was issued by the Regional Director.
On July 6, Local 12 and the Camay Drilling Company
(herein Respondent or Camay) reached agreement on a
wage package. On July 7, the Respondent entered into a
Settlement Agreement with the Regional Director (See
General Counsel's Exhibit No. 8) and the Charging Party
submitted a withdrawal request. By letter dated July 18
(See Resp. Exh. 1), the Regional Director advised all par-
Counsel's motion to intervene appears in the record as C. Exh. i. Mr.
Lumsdaine's petition was denied, but he was advised that he would be
permitted to remain at counsel's table to consult with either the Charging
Party's counsel or the counsel for the General Counsel, and that he might
submit an amicus curiae bnrief if he should care to do so.
2 Most of the relevant and significant events herein, occurred during the
calendar year 1'77, and unless otherwise indicated all dates hereinafter shall
refer to that calendar year.
ties that he was approving the withdrawal of that portion
of the outstanding Complaint dealing with the alleged vio-
lation of Section 8(a)(5) of the Act, but that the remaining
portion of the Complaint which was remedied by the Set-
tlement Agreement would remain subject to further pro-
ceedings, pending compliance.
On August 16, Lambert Vande Burgt filed the charge in
Case 31-CA-7315 which was amended on October 18, al-
leging that Respondent had failed and refused to reinstate
Lambert Vande Burgt, Mayo Kennedy, and James Stark to
their former jobs.
After investigation of the new charges, on October 27,
the Regional Director vacated and set aside the unilateral
Settlement Agreement, and withdrew his prior approval of
Local 12's partial withdrawal request in Cases 31-CA-6901
and 31-CA-6985. On October 28, a new order consolidat-
ing cases, amended consolidated complaint and notice of
hearing in Cases 31-CA-6901 , 31-CA-6985, and 31-CA-
7315 issued.3
The complaint alleges violation of Section 8(a)I), (3),
and (5) by the Respondent, and includes allegations such
as unilateral changing of contract terms; efforts by Re-
spondent to encourage the employees to deauthorize the
Union shop; direct interference with the function of the
bargaining representative by employee interrogation and
initiation of employee petitions; and refusal to reinstate
strikers after unconditional offers of return to work.
Respondent's answer, filed on November 4, acknowl-
edged the requisite jurisdictional data required under the
Act, but denied all other allegations of the complaint.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to argue orally if they so desired, and to file
briefs. Helpful briefs were received from the Respondent
and the General Counsel; and amicus curiae brief was re-
ceived on behalf of the Trustees of the Operating Engineers
Trusts. All briefs have been carefully considered.
Upon the entire record in this case, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is now, and at all times material herein has
been, a corporation duly organized under and existing by
virtue of the laws of the State of California, with an office
and principal place of business located in Los Angeles,
California, where it is engaged in oil drilling operations. In
the course and conduct of its business operations, Respon-
dent annually sells and ships goods or services valued in
excess of $50,000, directly to customers located outside the
State of California. Respondent annually derives gross rev-
enues in excess of $500,000. Respondent admits it is, and I
herewith find it to be, an employer engaged in commerce
and in a business affecting commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
3A number of amendments to the General Counsel's complaint were
permitted at the opening of the hearing, and these appear in the record as
G.C. Exh. I(cc). a third amended consolidated complaint and notice of
hearing.
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11 THE LABOR ORGANIZATION INVOLV ED
Respondent admits, and I herewith find, Local 12 to be,
and at all times material herein to have been, a labor crga-
nization within the meaning of Section 2(5) of the Act.
ill. THE SETTLEMENT AGREEMENT
Section 101.9(e)(2) of the Board's Statements of Proce-
dures, Series 8, as amended, provides: "In the event the
Respondent fails to comply with the terms of an informal
settlement agreement, the Regional Director may set the
agreement aside and institute further proceedings." It is
well established that a settlement agreement may be set
aside where independent evidence of subsequent or contin-
uing unfair labor practices reveal a breach of the agree-
ment. Tompkins Motor Lines, Inc., 142 NLRB 1, 3 (1963),
enforcement denied on other grounds 337 F.2d 325 (6th
Cir. 1964); accord United Dairy Co., 146 NLRB 187, 189
(1964).
In this instance it is undenied that Respondent did not
post the notices which formed an integral part of the settle-
ment agreement. The Regional Director was fully justified
in setting aside the settlement and instituting further pro-
ceedings.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
This rather complicated and confusing conflict requires
the resolution of the following issues:
(I) Did Respondent unilaterally change the terms of the
labor agreement?
(2) What caused and/or prolonged the strike?
(3) Was Respondent responsible for either the petition
to force another vote on the last offer, or the union shop
deauthorization petition?
(4) Did Respondent interrogate, threaten, or coerce its
employees?
(5) Did Respondent wrongfully refuse to reinstate cer-
tain strikers?
(6) What is Respondent's financial responsibility to the
trust funds?
B. Background
In 1964, Local 12 was certified as the exclusive bargain-
ing representative of:
All drillers, derrickmen, rotary helpers, mechanics and
truckdrivers employed by the Employer in its Western
Division [G.C. Exh. 6].
However sometime between 1964 and 1976, the parties evi-
dently voluntarily agreed that Local 3 of the International
Union of Operating Engineers would also represent some
of Respondent's employees. 4 The current agreement (G.C.
Exh. 2) is between the "Union" (both Local 12 and Local
3) and Camay Drilling Company, and covers the period
from February 1976 through January 31, 1979, and from
year-to-year thereafter unless terminated by appropriate
notice. (However, the parties provided for a wage reopener
at the end of the first year of the contract and it is the wage
reopener negotiations with which we are primarily con-
cerned here.) The recognition article of the current agree-
ment:
Recognizes the "Union" as the exclusive bargaining
representative of all employees of the Employer en-
gaged in drilling of oil, gas, injection wells or service
wells on shore and off shore in the States of Califor-
nia, Utah and Neveda occupied in job classifications
included in exhibit "A" excluding all other employees,
guards and professional employees as defined in the
National Labor Relations Act.
Exhibit "A" then lists I job classifications and shows the
rate of pay to be received by Local 12 (area) employees
and the rate of pay to be paid to Local 3 (area) employees.
In eath instance there is a difference of 20 cents per hour
in the rates paid Local 12 employees and those paid Local
3 employees. However, Local 3 employees receive 20 cents
additional allocated to their pension and vacation-holiday
trust funds. Thus the total "outlay" of payroll costs is the
same to the employees of each local's jurisdiction.)
The printed copy of the contract shows that one individ-
ual signed for the Company, Gene A. Bowman. There were
four individuals that signed on behalf of Local 12 and
there were four individuals that signed on behalf of Local
3.
Respondent states in its answer that "Local 12 only rep-
resents employees in the southern part of the State of Cali-
fornia and Local 3 represents employees in the northern
part of California, Utah and Nevada." When this pleading
is viewed in light of the language of the contract wherein
there are a number of specific references to the two differ-
ent locals, and the uncontradicted testimony that most of
the negotiations took place with representatives of each
local being present. along with representatives of multiem-
ployers, but that Local 12 only spoke for employees work-
ing in their geographical area and Local 3 only spoke for
employees in their geographical area, then it seems logical
to conclude that the labor negotiations between Camay
.nd Local 12 -at least for the 1976-79 agreement-were
conducted simultaneously with the negotiations on behalf
of Local 3 and Camay, but that each local represented a
separate appropriate bargaining unit of employees. I am
convinced that the negotiations were carried on by Re-
spondent for two separate units of its employees because it
was mutually convenient and advantageous to do so.
Based upon the pleadings, the language of the current
agreement (G.C. Exh. 2) and the testimony, I herewith find
the following to constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
4 The record is not entirely clear whether Respondent's western opera-
tions were expanded into new geographical areas that Local 12 found incon-
venient or cumbersome to handle; or whether Local 3 had always existed
and merely insisted on representing the employees of Respondent when
they worked in the geographical area covered by a Local 3. In any event,
there is no record that the unit was officially changed by action of the
Board.
1000
CAMAY DRILLING COMPANY
All drillers, derrickmen, cathead men, rotary helpers,
mechanics, welders, truckdrivers, roustabouts, yard-
men, crane operators and roustabout foremen em-
ployed by the employer within the geographical juris-
diction of Local 12 excluding all office clerical
employees, professional employees, all other employ-
ees, guards and supervisors as defined in the Act.
C. Agency Status of Richard Fenton
The complaint alleges Richard Fenton to have been an
agent of the Respondenrt during all times material herein.
The answer admitted that Fenton has negotiated on behalf
of Respondent and has appeared on behalf of Respondent
before Region 31 of the Board, but otherwise denied the
agency allegation. The testimony 5 of Respondent's own
witnesses indicates that Mr. Fenton is (or was) 6 an indus-
trial relations consultant who for "many many years"
served as a consultant to Respondent in its labor relations
and has been its spokesman or negotiator. This was true
when the current 1976-79 labor agreement was negotiated.
On various occasions Fenton has addressed small groups
of Respondent's employees on personnel matters. It was
also admitted that Fenton edited the prepared speech given
by Norton at Bakersfield and Gardena-which are related
to some of the allegations herein-and also answered em-
ployees' questions at these two meetings. Fenton was also
present at all of the wage reopener negotiations which pre-
cipitated this current dispute. Respondent did nothing to
limit or circumscribe Fenton's apparent authority in the
area of labor-management relations on behalf of Respon-
dent. "Apparent authority results when the principal does
something or permits the agent to do something which rea-
sonably leads another to believe the agent had the authori-
ty he purported to have." Hawaiian Paradise Park Corpora-
tion v. Friendly Broadcasting Co., 414 F. 2d 750, 756 (9th
Cir. 1969); see Donkin's Inn, Inc., 532 F.2d 138, 141 (9th
Cir. 1976). The conduct of Fenton and officers of Camay
led the Union to the reasonable belief that Fenton was a
responsible agent of Camay in the area of personnel-labor
relations. On the basis of these facts, I find Richard Fenton
to have been an agent of Respondent during all times ma-
terial herein. The Anaconda Company v. N. L R. B., Case 76-
2980, opinion withheld 84 LC 110,826 (9th Cir. 1978), enfg.
224 NLRB 1041 (1976).
D. The Wage Reopener Negotiations
I. The 25-cent raise and its allocation to pensions
As has been indicated, the current agreement runs for
the period from February 1, 1976, through January 31,
1979, subject to a wage reopener upon 60 days' notice prior
to February 1, 1977. If the parties failed to agree on wages,
they were to be free to take "economic action." Due notice
was given under the wage reopener clause and wage negoti-
ations began in December 1976.
From the beginning, these negotiations appear to have
5 Taken from the testimony of Luskin and Norton.
6Norton testified that Fenton's relationship with Respondent herein
cased on or about September 1977.
been very confusing regarding a 25-cent raise that was
granted during the negotiations for the 1976-79 agreement
and which was to have been effective on January 31, 1977.
The record testimony supports the position that some of
the industry settled the 1976-79 contract for a 50-cent in-
crease at the beginning of the contract term plus another
50 cents at the beginning of the second half of the first
contract year--August 1, 1976. (Of course, with the right to
reopen for additional wage negotiations at the end of the
first year or January 31, 1977.) Respondent elected to settle
for 75 cents for the entire first year of the contract, but
with an additional 25 cents to be granted on the last day of
the first year of the contract. Thus the cost to Respondent
of its settlement was essentially the same as that of the rest
of the industry.
During the hearing there was testimony from Norton
indicating that the application of the 25 cents was dis-
cussed in the wage reopener negotiations and it was Re-
spondent's position that the 25 cents was only applicable
for I day-January 31. However, Norton was not present
during the negotiations for the 1976-79 agreement and
Richard Fenton, who had participated in the negotiations
for the basic agreement on behalf of Respondent, was not
called to testify.7
John Spaulding, a union representative who assisted in
the 1976-79 contract negotiations, credibly testified that a
competitor-R. B. Montgomery-had granted two 50-cent
increases during the first year of the contract and that
agreement between Local 12 and Respondent (as well as
Peter Bawden, another drilling contractor) was delayed un-
til an agreement was reached that gave the Respondent's
employees parity with the R. B. Montgomery settlement.
To argue that the 25 cents was only intended to be ap-
plied for I day and then withdrawn is repugnant not only
to good commonsense, but certainly contrary to any aspect
of sound labor relations.
It appears clear from the only available testimony that
settlement between Camay and Local 12 was delayed until
Camay agreed to a rate that would be comparable to that
paid by R. B. Montgomery. In order to be comparable, the
25 cents had to be applicable indefinitely and not just for I
day.' Respondent acknowledged that it only paid the 25
cents for I day and then discontinued payment. I find Re-
spondent guilty of unilateral action contrary to the terms
of the contract in discontinuing payment of the additional
25 cents in wages after January 31, 1977 and thus guilty of
violating Section 8(a)(5) and (1) of the Act.9
However, this additional 25 cents was a point or subject
of much more concern by the parties for another reason.
Article XXIII plainly makes reference to the right of the
Union to allocate negotiated increases to either the pension
7This despite the fact that I suggested to counsel for Respondent that I
expected Fenton to be called as a witness.
The Peter Bawden contract with Local 12 contained the same provision
relating to the 25 cents and there was no indication or testimony to suggest
that Peter Bawden administered its contract in such a tenuous or "strained"
manner.
9 Because the final settlement of the wage reopener negotiation was for an
increase substantially more than 25 cents and the increase was paid retroac-
tively to February 1., 1977, I regard this particular violation as having been
remedied economically.
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or the vacation-holiday fund. (G.C. Exh.2.) Additionally,
at p. 37 of the current agreement, this language appears:
On January 31, 1977, an additional 25 cents (.25c)
per hour will be added to each classification.
The Union shall have the option to allocate any ne-
gotiated increases to wages and/or vacation-holiday
fund and/or pension fund.
The paragraph quoted above relating to the allocation of
negotiated wage increases appears to be free of ambiguity
and subject to only one reasonable interpretation. Clearly
the Union had the right to advise the Company how it
wished the total amount of any "new money" to be appor-
tioned among wages, pension fund trust or the vacation-
holiday trust fund. Moreover, this particular language had
appeared in prior contracts with no testimony in the record
to indicate that it had ever presented a problem to the
parties. John Spaulding-the only witness who participated
in the 1976-79 contract negotiations to testify in this hear-
ing-credibly testified that such was the intent of the lan-
guage.
A letter dated July 19, 1976, from Richard L. Corbit,
business manager of Local Union No. 12, to Mr. Ray
Turner, president of Camay Drilling Company, was of-
fered in evidence by the General Counsel (G.C. Exh. 9).
This letter advised the Respondent Company that the
Union wished to have the 25 cents due on January 31,
1977, allocated to the pension fund which would have
raised the pension fund contribution from 30 cents per
hour to 55 cents per hour effective Janaury 31, 1977. The
letter was identified by the recording corresponding secre-
tary, Dale Vawter, as a copy of a letter found in the union
files. Neither Corbit nor Judd, authors of the letter, is pres-
ently employed by Local Union No. 12. Bob McHale,
whose name is identified as recipient of a copy of the letter,
testified that he is currently employed by Local Union 12
and that he received his copy of the letter. He recalled that
there were meetings held in July 1976 at which time the
members voted to allocate the raise due on June 31 to the
pension fund. Respondent denied all knowledge of the let-
ter and Mr. Ray Turner is no longer president of the Re-
spondent Company.
General Counsel correctly points out that the California
Evidence Code provides:
§641 Letter Received in Ordinary Course of Mail.
A letter correctly addressed and properly mailed is
presumed to have been received in the ordinary course
of mail. (Stats. 1965, c. 229, §641).
Counsel then argues that absent competent testimony that
it was not received, a presumption arises that the letter in
question was received. However, this presumption is not
conclusive, "It is well settled that the presumption that a
duly posted letter was received by its addressee is not con-
clusive. This presumption may be rebutted by evidence
showing that the letter was not received. When evidence of
this nature is offered an issue arises which must be de-
termined by the trier of the facts. Wright v. Grain Dealers,
etc., Ins. Co., 186 F.2d 956, 960 (4th Cir.)." '0 I am con-
vinced, not only from the credited testimony of Meyer Lus-
kin, Respondent's chief executive officer, but also from the
testimony of Norton and Beasley concerning the reopener
negotiations, that no one in a position of authority with
Respondent ever had knowledge of the Union's desired
allocation of the 25 cents.
I reached this conclusion for these reasons. First, there is
no positive proof that the letter (G.C. Exh. 9) was ever
mailed. Neither the author nor his secretary testified as to
the actual mailing or posting of the letter in the normal or
usual business routine of the office. All we have is the testi-
mony of the current recording-corresponding secretary of
the Union that the exhibit came from the Union's regular
busines files. On that basis the presumption that it was
mailed is strong. However, Respondent denies its receipt
and in this regard I credit Respondent's testimony fully.
More importantly, Beasley testified that the letter was nev-
er mentioned during the reopener negotiations. It seems
inconceivable to me that such a critical letter regarding a
topic of such major concern could have escaped discussion
if either party had had knowledge of its existence. Addi-
tionally, I am strongly persuaded by the basic logic of the
situation. The evidence is clear that at all times during the
wage reopener, Respondent was offering more of an in-
crease than the 25 cents that was to have been effective
during the second year of the contract. Respondent had
been making pension and vacation-holiday trust fund pay-
ments under the contract. There would have been no addi-
tional expense or cost to Respondent to allocate the monies
in any manner desired by the Union. Why then should
Respondent deliberately and knowingly fail to allocate an
increase in a manner requested by the Union and consis-
tent with the contract? " I can find no rational answer to
the question posed, and therefore conclude that any failure
by Respondent to allocate the additional 25 cents to the
pension fund trust stemmed from a complete breakdown in
communications between the parties to the collective-bar-
gaining agreement and was not a deliberate or known act
of defiance or failure to comply with the terms of the con-
tract.
2. The primary controversy
So far as can be determined from this record, the real
issue during the wage reopener negotiations related solely
to the total amount of increase Respondent was offering
compared to that offered by R. B. Montgomery, a compet-
itor. Montgomery increased its total rate (wages, plus pen-
sion, plus vacation) for a driller to $11.20 per hour, effec-
tive February 1, 1977, and an additional 95 cents per hour
effective February I, 1978, the last year of the contract.
Respondent's best offer was $10.80 effective on February
1, 1977, $10.93 effective on August 1, 1977, and additional
95 cents per hour to be effective on February 1, 1978. Thus
it would appear that on an annual average basis Respon-
dent's best offer was 33-1/2 cents below Montgomery's set-
'0 See East Texas Steel Castings Company, Inc., 191 NLRB 113. 118 fn. 28
(1971). In Communication Workers of America, Local 2108, AFL-CIO (The
Chesapeake and Potomac Telephone Company of Maryland, Inc.), 186 N LRB
1008 (1970), the conclusion was reached that the presumption had not been
overcome.
I Nor can it be persuasively argued that Respondent was responding to
the wishes of the employees vis-a-vis the Union, because in light of Respon-
dent's apparent desire to rid itself of the Union, if Respondent knew the
employees were opposed to the allocation it would have been an ideal way
to cast the bargaining representative into an awkward and delicate situation.
1002
CAMAY DRILLING COMPANY
tlement agreement for the first year and 27 cents below
Montgomery's settlement agreement for the last year of the
contract. (I have only compared the top-rated job. For a
comparison of the other classifications see Exh. C attached
to G.C. Exh. 3 and Resp. Exh. 12.)
The last and best offer was made to the Union on Febru-
ary 3, 1977.12 This offer was rejected by the Union (see
G.C. Exh. 7(a) ). The offer, however, was accepted by Lo-
cal Union No. 3.1
3. Respondent's acts of interference
The rejection of Respondent's February 3 offer by Local
Union No. 12 was followed by a rather bizarre series of
events.
The Company's response (G.C. Exh. 7) to the Union's
rejection of the wage offer suggests that the employees
were never given an opportunity to vote or consider the
Company's offer. The latter part of February, Ronald
Gardner-whom I regard as an honest witness who acted
out of sincere motives, but who was frequently confused in
his testimony-testified that he circulated a petition seek-
ing to get the employees back to work.14 When asked what
he was trying to do, Gardner replied: ". . .I was trying to
act as a liaison. I guess I got involved. I've been a union
steward for 8 years. And the men wanted to go back to
work. So in getting this petition I thought it might bring it
to their attention." Gardner testified that he mailed a copy
of this petition to Fenton and Norton and to John Irwin
and Freeman Roberts.'S Following this Gardner received a
phone call from Fenton, who advised Gardner that the
petitions would have to have a union number and also the
date it was signed. Thereafter Gardner testified that he had
many phone calls with Fenton, Norton, and Irwin, "trying
to get everybody together since we'd heard so many sto-
ries."
There were meetings of the employees in mid-March at
Camay's yard in Gardens and one at the Hilton in Bakers-
field on March 9. The purpose was apparently to give the
Company an opportunity to communicate their last offer
directly to the employees. At these meetings Norton read a
speech to the employees (G.C. Exh. 5), but Fenton, the
12 There was some minor dispute about the offer being communicated to
the bargaining representative. G.C. Exht. 3 is a bulletin from the Company
to the employees and sets forth their latest offer. The Union promptly re-
ceived a copy from one of the employees and on February 7, 1977. (G.C.
Exh. 7(a)), rejected the offer, but acknowledged that William Waggoner,
business manager of the Union, had received a copy of the Company's latest
offer. I see nothing sinister in this mixup, except that it is indicative of the
total lack of communications between the principals.
13 However, Reap. Exh. 13, which is the formal memorandum of agree-
ment between Respondent Camay and Local Union No. 3, reflects a differ-
ent "allocation" than that shown in the Company's last offer. This change in
"allocations" which was signed and concluded on March 2, 1977. would
seem to strengthen my earlier conclusion herein that Respondent was nor
unwilling to change the amounts allocated to pension and vacation-holiday
trust funds, but that the confusion between Local 12 and Camay stemmed
from lack of communications.
4i The employees were not picketing and were not officially on stnke at
this time although the rejection of the Company's last offer was tantamount
to a strike vote under the Union's bylaws. However, there was very little
work performei by Respondent after the first week of February until the
middle of March. On March 12 the Union started picketing.
industrial relations consultant, answered employees' ques-
tions and made extemporaenous comments.
Donald Hill testified that he was employed by Camay
from 1968 until February 17. In mid-March he was called
by a fellow employee, Melvin Hays, and told there was to
be a meeting of the employees and that representatives of
the Company and the Union would be present. He said he
went to the meeting held in a small office at the Camay
yard in Gardena, but there were no union representatives
present. He testified that Fenton, Norton and Bob Johnson
where there on behalf of Camay. Hill further testified that
a petition was being circulated "out front before we went
in the office to resubmit the contract that we'd just turned
down." Hill said that Fenton, "talked about the negotia-
tions and how they'd been carried on and about the pro-
posals they'd give the Union.... He said that if we
weren't satisfied with our representation we could decertify
it. And that we could represent ourselves to the Company."
John Kelso, an employee of Respondent since 1973, was
called by the General Counsel and generally confirmed
Donald Hill's testimony, but he was less specific because
he stated he was "in a little room off to the side," and thus
had difficulty in hearing and seeing. However, he did con-
firm that the company spokesman said, "With their attor-
neys we could get the Union out as a negotiating power."
Kelso also confirmed Hill's testimony regarding the peti-
tion that was being circulated at the Camay meeting and
identified his signature on General Counsel's Exhibit No.
20 as the petition he signed at the Gardena meeting.
Ronald Gardner testified concerning the meeting at the
Hilton in Bakersfield on March 9 and said that Fenton,
Norton, Bob Johnson, and tool pusher Lorne Kyle were
there for the Company "and I invited John Irwin there. He
was the business agent for the operating engineers."
Gardner's testimony did not explain what had taken place
at the Bakersfield meeting. However, Benny Temple, who
worked for Respondent from June 1976 until the strike,
testified that he received a call from Lorne Kyle the night
before the meeting and Kyle wanted to know why Temple
had not signed the petition that Gardner was circulating.
During the telephone conversation Kyle told Temple, "that
if he didn't get a hundred percent on the petition, was the
words he used, that I would not work for Camay no more."
Kyle also told Temple that his brother-in-law, Chuck
Witcher, would not work for Camay unless he signed the
petition. When asked, Temple said the petition "was to go
back to work, or to accept the contract." Kyle also said he
was going to call Louie Pollard and let him know that
Temple "would not work for Camay no more," because
"Louie didn't sign the petition either, which he said he
knew." Kyle asked Temple not to attend the meeting which
was scheduled for the next day.'6
Donald Hill also testified that he received a telephone
call from J. C. Wisby, a Camay drilling superintendent, on
or about April 17, 1977, offering him an opportunity to
15 Fenton and Norton were the chief negotiators and spokesmen for the
Company and Freeman Roberts was the chief spokesman for Local Union
No. 12. John Irwin was a business agent for Local Union No. 12.
"I Lorne Kyle did not testify although at some point dunng the hearing
Respondent's counsel represented to the court that Kyle was now working
in Alaska
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work at a time when the strike was still going on.
Hill declined because he said he did not want to cross a
picket line. Wisby did not testify.
After Gardner's initial effort of trying to get the Compa-
ny and the Union together (the petition which he prepared,
circulated, and mailed copies of to the Company as well as
the Union) '7 the Company apparently interpreted this as
some sort of open revolt by the employees against the
Union and it-or at least its industrial relations consul-
tant-become more brazen in its course of action.
Garnder testified that in response to a telephone call, he
met Bob Brodt and Claude Coats 's at the main office of
Camay in Los Angeles where they went to Mr. Norton's
office. Mr. Fenton was waiting in Mr. Norton's office. Mr.
Fenton told the three employees that they would have to
get "the signatures and the service numbers of the union
members and the dates on it." Each of the employees then
took copies of petitions which were on Mr. Norton's desk.
Gardner said that he took five of the petitions. He gave one
to Junior Henderson, one to Matt Watson, two to his
brother, and he kept one. Gardner then identified General
Counsel's Exhibit 14 as a petition which he had signed and
circulated; General Counsel's Exhibit 15 as the petition
which he had given to Clarence Henderson and General
Counsel's Exhibit 16 as a petition which he had given to
Matthew Watson.
Norton denied all knowledge of how the petitions hap-
pened to be on his desk or who had prepared them, but did
not otherwise contradict the testimony of Gardner con-
cerning this meeting. As stated earlier Fenton did not testi-
fy.
Gardner said that after obtaining the signatures he
called Norton who said, "good." Gardner then returned to
Los Angeles from Bakersfield and met Norton about 6 p.
m. at the main office of Respondent and delivered the
three petitions (G.C. Exh. 14, 15, and 16) to him. Gardner
returned to Bakersfield the next day. Gardner testified that
he made a third trip to the Los Angeles office from Bakers-
field in response to a phone call from either Bob Brodt or
Claude Coats in connection with still another petition. On
this occasion he met with Brodt, Coats, Fenton, and Nor-
ton in the Respondent's main office, after which they went
to Fenton's office. (The testimony is not too definitive but
I am of the opinion that Norton did not go to Fenton's
office on this occasion.) Fenton said they were going to his
office to meet a lawyer.
Upon reaching Fenton's office they met a lawyer named
Pierpont Laidley after which they all went to the 31st Re-
gional Office of the NLRB and Laidley filed an unfair
labor practice charge with the Board (see G.C. Exh. 17).
Gardner testified that he had never seen Laidley before or
talked to him; that he was never sent a bill nor was there
ever any mention of a fee. After filing the charge they re-
turned to Mr. Fenton's office and there the three employ-
ees-Brodt, Coats, and Gardner--copied in their own
handwriting from a paper prepared, or made available to
17 This incident or occurrence was discussed supra. This particular peti-
tion was never introduced into evidence.
17 Two individuals not definitely identified in the record as to their job
classifications, but whom I believe to have been members of the bargaining
unit.
them, by Fenton caption language for petitions seeking a
union shop deauthorization election (see G.C. Exh. 18).
Gardner identified his signatures on the third page of this
exhibit. The caption lanugage he copied and the signatures
he obtained appear on the fourth page of the exhibit. A few
days later Norton called him and they decided it would be
all right for Gardner to sign the names of a few of his
fellow employees who were then working in Alaska, on the
petition that Gardner was circulating. On or about the first
of April Bob Brodt called him and said they were going to
meet at the Labor Board and file another petition. This
resulted in a UD petition (31-UD-105) which again was
prepared and filed by the attorney, Pierpont Laidley, as a
followup, or consequence, of the petitions that the three
employees had circulated at the request of Richard Fenton
(see G.C. Exh. 19).
The meddling and interference with employees' Section
7 rights as testified to by employees Gardner, Hill, Temple,
and Kelso are essentially undenied. Fenton was a critical
witness who might have enlightened the court regarding his
alleged misconduct, unless, of course, he would have only
corroborated General Counsel's witnesses. Under these cir-
cumstances, it is a fair inference that had he been called by
Respondent his testimony would have been unfavorable to
Respondent's cause. Colorflo Decorator Products, Inc., 228
NLRB 408, 410 (1977); International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America UA W), 459 F.2d 1329, 1335-38 (D.C. Cir. 1972).
I find the interrogation, the threats, and the Respon-
dent's conduct in circulating the "employees" petitions all
to have interfered with Section 7 of the Act and thereby
violative of Section 8(aXl) of the Act.
In addition to the events recited above, Respondent sent
a letter to all employees dated April 7 (G.C. Exh. 4) indi-
cating that within a few days it would be recalling them to
work. While at first blush the letter sounds innocuous,
closer examination reveals it to contain violations. Respon-
dent asserts that it will "never accept any settlements" un-
less the Union withdraws, or prospectively promises to
withdraw, "threats of fines or 'trials' for men who cross the
picket lines."
Union discipline is not a mandatory subject of collective
bargaining and to precondition a settlement of a contract
difference upon such a condition has been held to violate
Section 8(aX5) of the Act.19 During the course of the hear-
ing Respondent acknowledged that it had withheld the
pension and vacation-holiday trust fund payments and this
is set forth in the April 7 letter. While the contract provides
for a wage "reopener" the basic commitments of the con-
tract were firm through January 31, 1979, and Respon-
dent's unilateral act of withholding these payments as pro-
vided for in the contract was also violative of Section
8(aX5) and (1) of the Act. I find no other threats or viola-
tions contained within the letter of April 7.
4. The nature of the strike
General Counsel argues correctly that an unfair labor
practice strike "is actively initiated in whole or in part in
19 U.O.P. Norplex Division of Universal Oil Products Company v. N. LR. B.,
179 NLRB 657 (1969), enfd. 445 F,2d 155 (7th Cir. 1971).
1004
CAMAY DRILLING COMPANY
response to unfair labor practices committed by [an] em-
ployer." N.L.R.B. v. MacKay Radio & Telegraph, Co., 304
U.S. 333 (1938). While it seems apparent from testimony of
Beasley and Norton that the primary area of dispute was
the unwillingness of Respondent to come up to the total
wage package of R. B. Montgomery, nevertheless because
of the unfair labor practices that occurred before tile men
actually struck and the lettering on their picket signs---"un-
fair"-I am compelled to conclude that the strike was at all
times an unfair labor practice strike. I have already found
that the failure of Respondent to continue to pay the 25
cents that was added to the wage structure after January
31, 1977, was an unfair labor practice violative of Section
8(a)5) and (1) of the Act. This conduct on the part of the
Respondent was well known to the Union and its members
4 to 6 weeks before the strike actually started and must
have been a serious consideration in the determination of
their course of action. Also, Respondent acknowledges that
it discontinued required contract payments to the pension
and the vacation-holiday trust funds. This conduct was
also violative of Section 8 (aX5) and (1) of the Act and first
occurred at or about the time the strike started. (Mr. Ha-
rold Epling, a field representative for the union trust funds,
testified without contradiction that no moneys had been
paid to the trusts by Respondent since February 1, 1977.)
These illegal actions by Respondent occurring contempo-
raneously with the strike action convinced me that the
strike was an unfair labor practice strike as well as an effort
to force certain economic concessions from the employer.
Moreover, the persistent meddling and interfering with
rights of the employees to be represented by a collective-
bargaining representative, as heretofore described in detail,
undoubtedly tended to prolong the strike and delay a set-
tlement agreement. 20
Beasley testified without contradiction that he and Free-
man Roberts gave Fenton a list of all employees who de-
sired reinstatement on July 18 and then sent him another
list on July 26 (see G.C. Exh. II). The employees on this
list were entitled to be reinstated to their former job classi-
fications as soon as work was being performed in said clas-
sifications even if it required dismissing replacements that
might have been hired during the strike. This was not done.
Vande Burgt testified that he was recalled or reinstated for
a period of time but he was only offered work as a rough-
neck and he had formerly been employed as a driller. In
N.LR.B. v. Dubo Manufacturing Corporation, 353 F.2d 157,
161 (6th Cir. 1965), the court confirmed the Board's finding
that refusal to reinstate unfair labor practice strikers upon
their unconditional offer to return to work was a violation
of Section 8 (aX3) and (1) of the Act. Unfair labor practice
"striking employees do not lose their status and are entitled
to reinstatement with back pay, even if replacements for
them have been made." Mastro Plastics Corp. v. N.L.R.B.,
350 U.S. 270, 278 (1956).21
5. The contract settlement between the parties on July 6
Meyer Luskin testified that he met with J. C. Turner,
president of the International Union; Conlon, secretary
20
Cf. Fullerion Transfer & Storage Limited, Inc., 224 NLRB 480. 488
(1976).
treasurer of the International Union; Hanley, vice presi-
dent of the International Union; Waggoner, secretary of
Local 12; and Fenton and Norton at the Hyatt Hotel in
Burlingame, California, on July 6. There the contract dis-
pute was settled, which resulted in the partial withdrawal
and settlement agreement with the Regional Office on July
7 (see G.C. Exh. 8 and Resp. Exh. 3). The handwritten
memorandum of agreement between the parties was signed
by Richard Fenton on behalf of the Respondent and was
signed by Mr. Waggoner on behalf of Local No. 12. Re-
spondent's Exhibit 7, a formal amendment to the current
contract between the parties, was drafted by Del.uce based
on the handwritten memorandum of agreement signed by
competent agents of the respective parties. Waggoner was
not called to refute or disagree with Luskin's testimony as
to what had been agreed to in Burlingame on July 6 as to
wages. I therefore find, based on this record, that Respon-
dent's obligation for a reimbursement to the pension and
vacation-holiday trust should be based on the allocations
as set forth on exhibits G and H to be found in the record
attached to and a part of Respondent's Exhibit 7. (For
convenience, the wage allocation data is attached to this
decision as Appendix B.)
IV THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth above, occurring
in connection with Respondent's operations as described in
section 1, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
v THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action necessary to effectuate the policies of the Act.
While I found the unilateral act of the Respondent in dis-
continuing the wage payment of 25 cents after January 31,
1977, to have been violative of the Act, the testimony indi-
c; ted that that 25 cents was picked up in the final settle-
ment of July 6, 1977, and that the employees have been
fully reinbursed by Respondent. However, it will be neces-
sary for Respondent to fully reinburse the Union's pension
and vacation-holiday trust funds for all moneys which
have been withheld since February 1, 1977, in the amounts
and for the periods of time as set forth in exhibits G and H
as they appeared in the record and were made a part of
Respondent's Exhibit 7. In addition, Respondent should
not be allowed to profit from the wrongful withholding of
these trust moneys and I shall direct that payments to the
trust funds include interest at the rate and in the manner
prescribed by the Board in Flordia Steel Corporation, 231
NLRB 651 (1977).
21 The first charge filed by Lambert Vande Burgt (G.C. Exh. lu) listed all
the individuals seeking reinstatement as shown on the lists furnished to
Fenton. However, the amended charge filed 2 months later only listed
Mayo Kennedy, James Stark, and Lambert Vande Burgt as employees
whom Respondent had not reinstated. An explanation as to why some
names were dropped is not clearly revealed by this record, however. I regard
this as a matter for compliance in a manner consistent with this decision
1005
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following group of Camay employees constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All drillers, derrickmen, cathheadmen, rotary helpers,
mechanics, welders, truckdrivers, roustabouts, yard-
men, crane operators and roustabout foremen em-
ployed by the employer within the geographical juris-
diction of Local 12 (International Union of Operating
Engineers AFL-CIO) exluding all office clerical em-
ployees, professional employees, all other employees,
guards and supervisors as defined in the Act.
4. By its unilateral act of discontinuing payment of 25
cents which was added to the employees' wage structure as
of January 31, 1977, Respondent has violated Section
8(a)(5) and (I) of the Act.
5. By its unilateral act of discontinuing payments to the
pension and the vacation-holiday trust funds, Respondent
has violated Section 8(aX3) and (1) of the Act.
6. By failing and refusing to reinstate strikers who re-
quested reinstatement on and after July 18, 1977, Respon-
dent has violated Section 8(aX3) and (1) of the Act.
7. By aiding and abetting employees in the preparation
and circulation of petitions requesting the collective-bar-
gaining agent to reconsider the Respondent's last offer and
by using said petitions as a basis for filing an unfair labor
practice charge against the Union, Respondent has en-
gaged in interfering with the Section 7 rights of employees
in violation of Section 8(a)(1) of the Act.
8. By aiding and abetting the employees in the prepara-
tion of petitions and encouraging their circulation in an
effort to secure a union-shop deauthorization election, Re-
spondent has wrongfully interfered with the Section 7
rights of the employees and thereby violated Section
8(aXl) of the Act.
9. By encouraging employees at employee meetings to
decertify their collective-bargaining representative and
bargain directly with Respondent, Respondent has inter-
fered with the Section 7 rights of employees and thereby
violated Section 8(aXl) of the Act.
10. Respondent violated Section 8(aX1) of the Act when
on or about March 8 and again on April 14 it threatened
employees with termination if they continued to engage in
protected and concerted activities.
11. Respondent violated Section 8(a)(1) of the Act when
it interrogated employees concerning their union activities.
12. The strike which began on March 12, 1977, was at
all times thereafter an unfair labor practice strike initiated,
at least in part, by Respondent's unilateral acts of changing
the terms of a current and effective labor agreement be-
tween Respondent and Local Union No. 12.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, t hereby issue the following recommended:
ORDER 22
The Respondent, Camay Drilling Company, Los Ange-
les, California, its officers, agents, successors, and assigns,
shall:
I. Cease and desist from:
(a) Unilaterally changing or otherwise disregarding any
of the provisions of a lawful labor management contract to
which it is a party.
(b) Interrogating employees concerning their union ac-
tivities and/or threatening employees with discharge be-
cause of their union or protected concerted activities.
(c) Interfering with employees' Section 7 rights by aid-
ing and encouraging employees to circulate petitions seek-
ing to interfere with the collective-bargaining agent's rights
of representation.
(d) Interfering with the employees Section 7 rights by
aiding and encouraging employees to circulate petitions
seeking a union shop deauthorization election.
(e) Refusing to reinstate employees who went on strike
on March 12, 1977, upon the request of said employees to
unconditionally return to work, to their same or former job
classifications as work in said classifications is required.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights as guar-
anteed under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Take all necessary steps to immediately reimburse
the Union's pension and vacation-holiday trust funds for
all moneys withheld from said trusts in the amounts and
with interest thereon as set forth in that Section of this
report entitled "The Remedy."
(b) Immediately offer reinstatement to all employees
who have made unconditional offers to return to work to
their same or substantially equivalent positions, removing
if necessary any new employees who may have been hired,
and in addition reimbursing those employees known to
have made unconditional requests for return to work as
early as July 18, 1977, for wages lost due to failure to prop-
erly reinstate said employees with interest thereon to be
computed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Florida Steel Corpora-
tion, 231 NLRB 651 (1977).23
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other necessary records
to calculate any loss of wages to the employees and/or
income to the Union's trust funds in the amounts and man-
ner as set forth under that section of this Decision entitled
"The Remedy."
(d) Post copies of the attached notice marked "Appen-
dix A" 24 at all places where the Company's drilling opera-
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
23 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
24 In 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
1006
CAMAY DRILLING COMPANY
tions are occurring within the geographical jurisdiction of
Local No. 12.25 Copies of the notice, on forms provided by
the Regional Director for Region 31, after being duly
signed by Respondent's authorized 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. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 31, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the consolidated complaint be
and it hereby is dismissed insofar as it alleges allegations
not specifically found herein to be violative of the Act.
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
25 There is generally a place where employees are required to report for
duty which is referred to in the oil industry as the dog house.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, an Administrative Law Judge of the National
Labor Relations Board has found that we violated the Na-
tional Labor Relations Act and has ordered us to post this
notice.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
EXHIBIT "G"
To refrain from any and all of these except to the
extent that membership in a union may be required
pursuant to a lawful union-security clause.
WE WILL NOT do anything that interferes with, re-
strains, or coerces employees with respect to these
rights. More specifically,
WE WILL NOT interrogate employees concerning their
or other employees' union or protected concerted ac-
tivities.
WE WILL NOT threaten employees with discharge be-
cause of their union or concerted protected activities.
WE WILL NOl aid or encourage employees to circu-
late petitions thereby interfering with the rights of the
collective-bargaining agent as the exclusive represen-
tative of the employees.
WE WILL NOT aid or encourage employees to circu-
late petitions seeking a union-shop deauthorization
election and/or to provide a basis for filing unfair la-
bor practice charges against the Union.
WE WILL NOT unilaterally alter or change the terms
of a written effective labor management agreement.
WE WILL reimburse the Union pension and vacation-
holiday trust funds for all moneys withheld since on or
about February 1, 1977, with interest thereon in the
amounts and manner as prescribed by the Administra-
tive Law Judge in his decision.
WE WILL offer reinstatement rights to all employees
who participated in the strike to their former or sub-
stantially equivalent positions, removing if necessary
any employee who may have been hired to take the
place of those striking employees, upon ther uncondi-
tionally offering to return to work.
WE WILL reimburse all employees for wages lost in
accordance with the Administrative Law Judge's deci-
sion who made unconditional offers to return to work
on or after July 18, 1977, whom we have not properly
recalled or reinstated in accordance with the terms of
this order.
CAMAY DRII.LING COMPANY
Part I--February 1, 1977
Vacation
Wage Holiday
Total Wage
PackagePens ion
Driller
Derrickman
Catheadman
Rotary Helper
Mechanic/Weldez
Truck Driver
Roustabout
Yardman
$10.20 $ .30
8.80
8.53
8.26
8.80
8.10
7.51
6.91
Crane Oper/
Roust. Foreman 10.20
.30
.30
.30
.30
.30
.30
.30
$ .30
.30
.30
.30
.30
.30
.30
.30
$10.80
9.40
9.13
8.86
9.40
8.70
8.11
7.51
.30 .30
Category
1007
10.80
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Part II---August 1, 197;
Driller $10.33
Derrickman
Catheadman
Rotary Helper
Mechanic/Welder
Truck Diver
Roustabout
Yardman
8.93
8.66
8.39
8.93
8.23
7.64
7.04
Crane Oper/
Roust. Foreman 10.33
Part III---February 1, 1978 to January 31, 1979
To Be
Allocated
Ad Local 12
Driller
Derrickman
Catheadman
Rotary Helper
Mechanic/Welder
Truck Driver
Roustabout
Yardman
Crane Oper/
Roust. Foremar
$11.15 $ .30
9.63 .30
9.34 .30
8.91 .30
9.63 .30
8.88 .30
8.24 .30
7.59 .30
n 11.15 .30
EXHIBIT "H"
August 1, 1977
Vacation
Wage HolidayCategory
Driller
Derridckman
Catheadman
Rotary Helper
Mechanic/Welder
$10.33
8.93
8.66
8.39
8.93
$ .30
.30
.30
.30
.30
To Be
Allocated
Pension By Local 12
i .30
.30
.30
.30
.30
Roustabout 7.64 .30 .:
Crane Oper/
Roust. Foreman 10.33 .30 .
February 1, 1978, to January 31, 1979
30
30
$ .30
.30
.30
.30
.30
.30
.30
Driller $11.15
Derrickmian 9.63
Catheadman 9.34
Rotary Helper 8.91
Mechanic/Welder 9.63
Roustabout 8.24
Crane Oper/
Roust. Foreman 11.15
$ .30
.30
.30
.30
.30
.30
$ .30
.30
.30
.30
.30
.30
$ .50
.50
.50
.50
.50
.50
$12.25
10.73
10.44
10.01
10.23
9.34
.50 12.25
$ .30
.30
.30
.30
.30
.30
.30
.30
.30
$ .30
.30
.30
.30
.30
.30
.30
.30
$10.93
9.53
9.26
8.99
9.53
8.83
8.24
7.64
.30 10.93
$ .30
.30
.30
.30
.30
.30
.30
.30
.30
$ .25
.25
.25
.25
.25
.25
.25
.25
.25
$12.00
10.48
10.19
9.76
10.48
9.73
9.09
8.44
12.00
Total
Wage
Package
$11.23
9.83
9.56
9.29
9.83
8.54
11.23
1008
.30 .30