Camay Drilling Co.

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 239 (N.L.R.B. 1981)

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, and 31-CA-7315
January 14, 1981
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND TRUESDALE
On June 22, 1978, Administrative Law Judge
James T. Rasbury isued his original Decision in
this proceeding.
On December 22, 1978, the National Labor Rela-
tions Board issued a Decision and Order Reopen-
ing Record and Remanding Proceeding to Admin-
istrative Law Judge' permitting the Trustees of the
Operating Engineers Pension Trust to intervene
and to introduce evidence with respect to two
critical issues 2 and directing the Administrative
Law Judge to reevaluate his findings of fact, reso-
lutions of credibiity, and conclusions of law in light
of the evidence adduced on remand.
On September 27, 1979, the Administrative Law
Judge issued the attached Supplemental Decision in
which he reaffirmed the rulings, findings, and con-
clusions of his original Decision. Thereafter, the In-
tervenor filed exceptions and a supporting brief,
the General Counsel filed exceptions and a sup-
porting brief, and Respondent filed an answering
brief to the exceptions of both the Intervenor and
the General Counsel.
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 Administrative
Law Judge's original Decision and the attached
Supplemental Decision in light of the exceptions
and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative
Law Judge to the extent consistent herewith, to
modify his remedy, and to adopt his recommended
Order, as modified herein.
The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of
the Act by: (1) interrogating employees concerning
their union activities, (2) threatening employees
with termination if they continued to engage in
i 239 NLRB 997.
2 The two issues were (I) whether Respondent did, in fact, receive
notice from the union allocating an additional 25 cents per hour per wage
classification due under the parties' then-existing 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.
254 NLRB No. 19
protected activities; (3) encouraging employees to
decertify their collective-bargaining representative
and bargain directly with Respondent; (4) aiding in
the preparation and encouraging the circulation of
a petition in an effort to secure a union-shop
deauthorization election; and (5) aiding employees
in the preparation and circulation of petitions re-
questing the Union to reconsider Respondent's last
wage offer and using such petitions as a basis for
filing an unfair labor practice charge against the
Union.
The General Counsel filed exceptions claiming
that Respondent violated Section 8(a)(l) of the Act
in several additional respects. We find merit in cer-
tain of the General Counsel's exceptions. The Gen-
eral Counsel asserts that, during the strike referred
to above, employee John Kelso was threatened
with termination unless he abandoned the strike.
Kelso's uncontradicted testimony reveals that on
April 14 he was approached by J. C. Wilsby, a
drilling superintendent, who asked him to abandon
the strike and begin working on a drilling rig
which Respondent recently had put into operation.
When Kelso responded that he was not going to
cross a picket line, Wilsby stated, "Well, all these
hands that I call that refuse to go, they will no
longer be working for Camay again after the
strike's over." Since the strike was an unfair labor
practice strike, it is clear that the striking employ-
ees were entitled to reinstatement whether or not
replacements had been hired for them. According-
ly, Wilsby's solicitation to abandon the strike coup-
led with his threat to replace Kelso if he did not do
so violated Section 8(a)(1) of the Act. 3
The General Counsel further contends that the
contents of a letter sent by Respondent to its strik-
ing employees on April 7 violated Section 8(a)(1)
of the Act. 4 We agree. At the outset, the General
Counsel asserts that the first paragraph set forth in
footnote 4 solicits employees to abandon the strike.
Although in certain instances the solicitation of em-
ployees to cross a picket line and work during a
strike is not violative of the Act, we have specifi-
cally noted, in such situations, the absence of a
a Marlock Truck Body & Trailer Corp.. and its Agent Roy L. Matrlock,
217 NLRB 346 (1975).
4 The letter states, inter alia:
Camay will ask you to return to work as our rigs are started up
knowing that you may have to deal with crossing a picket line if one
exists ....
The Company's first offer will be to the Camay men now laid off.
Following this we will call in men from whatever sources we can.
We feel and have an obligation to the new men that will be on our
payroll. And we will honor that obligation.
Union threats of fines or "trials" for men who cross the picket lines
may be expected. It should be stated, however, that Camay will
never accept any settlement of its strike unless such threats are with-
drawn.
239
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promise of special benefit or a threat of detriment
in the request. 5 In the instant case, the solicitation
in the letter was soon followed by a similar request
coupled with a threat of detriment made to Kelso.
In addition, the direct appeal to employees con-
tained in the letter occurred during the midst of an
unfair labor practice strike and within the context
of other violations of the Act by Respondent, sum-
marized above, disparaging the Union as the em-
ployees' collective-bargaining representative.
Under these circumstances, we find that the re-
quest to employees to abandon the strike contained
in the letter is violative of Section 8(a)(1) of the
Act. 6
We further find that the portion of the letter
wherein Respondent asserts that it will "never
accept any settlement" unless the Union withdraws
or promises to withdraw "threats of fines or 'trials'
for men who cross the picket lines" is violative of
the Act. The issue of union fines imposed on strik-
ers is one in which Respondent may have a genu-
ine concern and, to that end, it may legitimately
discuss the issue with the Union, although since it
is a nonmandatory subject of bargaining it cannot
insist to impasse on this matter. 7 We are of the
opinion, however, that Respondent is not privi-
leged to communicate directly with employees re-
garding this issue which involves a matter that is
fundamentally an internal union affair while at the
same time engaging in unfair labor practices dispar-
aging the Union. Accordingly, we find that the
above-noted portion of the letter is an attempt to
undercut the Union's status as a collective-bargain-
ing representative in violation of Section 8(a)(1) of
the Act. 8
The Administrative Law Judge found, and we
agree, that Respondent failed to properly reinstate
unfair labor practice strikers as of July 18, 1977,
the date on which they unconditionally offered to
return to work. As noted by the Administrative
Law Judge, the original charge filed with respect
to this issue alleged that 10 individuals had been
improperly denied reinstatement, while an amended
charge filed approximately 2 months later listed
only Lambert Vande Burgt, James Stark, and
Mayo Kennedy as having been unlawfully denied
reinstatement. Absent an explanation as to why the
names of certain individuals were deleted in the
amended charge, the Administrative Law Judge re-
a Mosher Steel Company, 220 NLRB 336 (1975); Coca-Cola Bottling
Company of Louisville. 166 NLRB 134, 135 (1967).
e O'Land, Inc., d/b/a Ramada Inn South, 206 NLRB 210 (1973).
UOP Norplex. Division of Universal Oil Products Company, 179 NLRB
657 (1969), enfd. 445 F.2d 155 (7th Cir. 1971).
s Cf. General Electric Company, Battery Products, Capacitator Depart-
ment, 163 NLRB 198 (1967), enforcement denied in pertinent part 400
F.2d 713 (5th Cir. 1968).
served final determination of this matter for the
compliance stage of this proceeding.
We note that the complaint in this proceeding al-
leges only that the three above-named strikers were
unlawfully denied reinstatement when they made
unconditional offers to return to their former posi-
tions of employment. The complaint does not
allege that Respondent has unlawfully discriminat-
ed against any other of its employees nor does it
claim that there are any other strikers who are situ-
ated similarly to the three strikers named in the
complaint. Accordingly, we find a violation of Sec-
tion 8(a)(3) of the Act only with respect to Lam-
bert Vande Burgt, James Stark, and Mayo Kenne-
dy and our remedial order will apply only to
them.9
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take affirmative
action designed to effectuate the policies of the
Act.
The Administrative Law Judge found, and we
agree, that the unilateral act of Respondent in dis-
continuing the wage payment of 25 cents after Jan-
uary 31, 1977, was violative of the Act, but that
this 25 cents was picked up in the final settlement
of July 6, 1977, and that the employees have been
fully reimbursed by Respondent. We also agree
with the Administrative Law Judge's finding that
Respondent must fully reimburse the Union's pen-
sion 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 attached to the
Administrative Law Judge's original Decision. Ac-
cordingly, we shall order such reimbursement.' 0
9 In a footnote in his brief to the Board, counsel for the General Coun-
sel requests a finding by the Board that Respondent violated Sec. 8(aX5)
and (1) of the Act by unilaterally implementing its final wage proposal of
February 3. Counsel for the General Counsel contends that, even though
it was not alleged as a violation of the Act in the complaint, the issue
was fully litigated at the hearing. We do not agree with counsel for the
General Counsel that this issue was sufficiently litigated at the hearing,
and, accordingly, we shall make no findings regarding it. Moreover, to
determine an issue of this magnitude when it is raised for the first time as
a post-hearing theory would place an undue burden on Respondent and
deprive it of an opportunity to present an adequate defense.
'O Because the provisions of employee benefit fund agreements are
variable and complex, the Board does not provide at the adjudicatory
stage of a proceeding for the addition of interest at a fixed rate on unlaw-
fully withheld fund payments. We leave to the compliance stage the
question whether Respondent must pay any additional amounts into the
benefit funds in order to satisfy our "make-whole" remedy. These addi-
tional amounts may be determined, depending upon the circumstances of
each case, by reference to provisions in the documents governing the
funds at issue and, where there are no governing provisions, to evidence
of any loss directly attributable to the unlawful withholding action,
which might include the loss of return on investment of the portion of
Continued
240
CAMAY DRILLING COMPANY
As we have found that Respondent has unlawful-
ly failed or refused to reinstate unfair labor practice
strikers Lambert Vande Burgt, James Stark, and
Mayo Kennedy, we shall order that Respondent
offer the three above-named individuals immediate
and full reinstatement to their former positions or,
if such jobs no longer exist, to substantially equiv-
alent positions, without loss of seniority and other
rights and privileges previously enjoyed, discharg-
ing, if necessary, any replacements hired. We shall
further order that Respondent make Lambert
Vande Burgt, James Stark, and Mayo Kennedy
whole for any loss of earnings or other benefits
they may have suffered as a result of the discrimi-
nation against them from the date Respondent un-
lawfully refused to reinstate them to the date of
Respondent's offer of reinstatement in accordance
with the formula set forth in F W Woolworth
Company, 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977).11
We shall order that Respondent preserve and
make available to the Board or its agents, upon re-
quest, all pertinent records necessary to determine
the amounts of backpay due, and we shall order
Respondent to post appropriate notices.
Finally, since Respondent has engaged in unfair
labor practices of a sufficiently egregious nature so
as to demonstrate a disregard for its employees'
fundamental statutory rights, we shall order Re-
spondent to cease and desist from in any other
manner infringing upon the rights guaranteed to
employees by Section 7 of the Act.12
CONCLUSIONS OF LAW
1. Camay Drilling Company is an employer en-
gaged 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 employees constitute a unit ap-
propriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All drillers, derrickmen, cathead men, rotary
helpers, mechanics, welders, truckdrivers,
roustabouts, yardmen, crane operators and
roustabout foremen employed by the employer
within the geographical jurisdiction of Local
12 [International Union of Operating Engi-
neers, AFL-CIO], excluding all office clerical
employees, professional employees, all other
funds withheld, additional administrative costs, etc., but not collateral
losses. Merryweather Optical Company, 240 NLRB 1213 (1979); see also
Fitzpatrick Electric. Inc., 242 NLRB 739 (1979).
1' See, generally, is Plumbing d Heating Co., 138 NLRB 716 (1962).
12 See Hickmott Foods. Inc., 242 NLRB 1357 (1979).
employees, guards and supervisors as defined
in the Act.
4. By its unilateral act of discontinuing payment
of 25 cents per hour which was added to the em-
ployees' wage structure as of January 31, 1977, Re-
spondent has violated Section 8(a)(5) and (1) of the
Act.
5. By its unilateral act of discontinuing payment
at 30 cents per hour to both the Operating Engi-
neers pension fund and vacation-holiday trust fund,
Respondent has violated Section 8(a)(5) and (1) of
the Act.
6. By failing and refusing to reinstate unfair labor
practice strikers Lambert Vande Burgt, James
Stark, and Mayo Kennedy on or about July 18,
1977, Respondent has violated Section 8(a)(3) and
(1) of the Act.
7. By aiding and abetting employees in the prep-
aration and circulation of petitions requesting the
collective-bargaining agent to reconsider Respon-
dent's last offer and by using said petitions as a
basis for filing an unfair labor practice charge
against the Union, Respondent has interfered with
the Section 7 rights of its employees and thereby
has violated Section 8(a)(1) of the Act.
8. By aiding and abetting employees in the prep-
aration of petitions and encouraging their circula-
tion in an effort to secure a union-shop deauthori-
zation election, Respondent has interfered with the
Section 7 rights of its employees and thereby has
violated Section 8(a)(1) of the Act.
9. By encouraging employees at employee meet-
ings to decertify their collective-bargaining repre-
sentative and bargain directly with Respondent,
Respondent has interfered with the Section 7 rights
of employees and thereby violated Section 8(a)(l)
of the Act.
10. Respondent violated Section 8(a)(l) of the
Act when it threatened employees with termination
if they continued to engage in protected concerted
activities.
11. Respondent violated Section 8(a)(1) of the
Act when it interrogated employees concerning
their union activities.
12. Respondent violated Section 8(a)(1) of the
Act when it threatened an employee engaged in an
unfair labor practice strike with replacement if he
continued to engage in protected concerted activ-
ity.
13. Respondent violated Section 8(a)(1) of the
Act in its letter of April 7, 1977, by soliciting em-
ployees to abandon an unfair labor practice strike,
and by attempting to intervene in internal union af-
fairs and undercut the Union as a collective-bar-
gaining representative.
241
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
14. 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 act of changing the terms of a current
and effective labor agreement between Respondent
and Local Union No. 12.
15. The consolidated complaint is dismissed inso-
far as it alleges violations of the Act not specifical-
ly found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Camay Drilling Company, Los Angeles, California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Unilaterally changing or otherwise disregard-
ing any of the provisions of the collective-bargain-
ing agreement existing between the parties during
the time material herein.
(b) Failing and refusing to reinstate unfair labor
practice strikers Lambert Vande Burgt, James
Stark, and Mayo Kennedy upon the request of said
employees to unconditionally return to work.
(c) Interrogating employees concerning their
union activities and/or threatening employees with
discharge because of their union or protected con-
certed activities.
(d) Interfering with employees' Section 7 rights
by aiding and encouraging employees to circulate
petitions seeking to interfere with the collective-
bargaining agent's rights of representation.
(e) Interfering with employees' Section 7 rights
by aiding and encouraging employees to circulate
petitions seeking a union-shop deauthorization elec-
tion.
(f) Soliciting unfair labor practice strikers to
abandon a strike and threatening them with re-
placement if they fail to do so.
(g) Interfering in internal union affairs in an at-
tempt to undercut the Union's status as collective-
bargaining representative.
(h) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them under Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Take all necessary steps to immediately reim-
burse the Union's pension and vacation-holiday
trust funds for all moneys withheld from said trusts
in the amounts as set forth in the section of this
Decision entitled "The Remedy."
(b) Offer Lambert Vande Burgt, James Stark,
and Mayo Kennedy immediate and full reinstate-
ment to their former positions or, if such positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority and other
rights and privileges previously enjoyed, discharg-
ing, if necessary, any replacements hired, and make
Lambert Vande Burgt, James Stark, and Mayo
Kennedy whole for any loss of earnings or other
benefits they may have suffered as a result of the
discrimination against them in the manner set forth
in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay and fund payments due under
the terms of this Order.
(d) Post copies of the attached notice marked
"Appendix" 13 at places where Camay Drilling
Company drilling operations are occurring within
the geographical jurisdiction of Operating Engi-
neers, Local Union No. 12. Copies of said notice,
on forms provided by the Regional Director for
Region 31, after being duly signed by Respondent's
authorized representative, shall be posted by Re-
spondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 31,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
'3 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 of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
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 an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
242
CAMAY DRILLING COMPANY
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represen-
tatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT do anything that interferes
with, restrains, or coerces employees with re-
spect to these rights. More specifically,
WE WIL.L NOT interrogate employees con-
cerning their or other employees' union or
protected concerted activities.
WE WILL NOT threaten employees with dis-
charge because of their union or protected
concerted activities.
WE WILL NOT aid or encourage employees
to circulate petitions thereby interfering with
the rights of the collective-bargaining agent as
the exclusive collective-bargaining representa-
tive of the employees.
WE WILL NOT aid or encourage employees
to circulate petitions seeking a union-shop
deauthorization election and/or to provide a
basis for filing unfair labor practice charges
against the Union.
WE WILL NOT solicit unfair labor practice
strikers to abandon a strike or threaten to re-
place them if they fail to do so.
WE WILL NOT intervene in internal union
matters in an attempt to undercut the status of
the Union as the exclusive collective-bargain-
ing representative of the employees.
WE WILL NOT fail or refuse to reinstate
unfair labor practice strikers when they uncon-
ditionally offer to return to work.
WE WILL NOT unilaterally change or disre-
gard the terms of the written, effective collec-
tive-bargaining agreement.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their Section 7 rights.
WE WILL offer Lambert Vande Burgt,
James Stark, and Mayo Kennedy immediate
and full reinstatement to their former positions
or, if those positions no longer exist, to sub-
stantially equivalent positions, removing, if
necessary, any employees who may have been
hired to take the place of those striking em-
ployees, and WE WILL make them whole for
any loss of earnings or other benefits they may
have suffered as a result of the discrimination
against them, with interest.
Wl WilI. reimburse the Union's pension and
vacation-holiday trust funds for all amounts
withheld since February 1, 1977, in the
amounts and manner prescribed by the Nation-
al Labor Relations Board.
CAMAY DRILI.ING COMPANY
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This
case was first heard before me in Los Angeles, Califor-
nia, on February 7 and 8, 1978. My Decision issued on
June 22, 1978, in which Respondent Camay Drilling
Company was found to have violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
(herein the Act), in several instances. Respondent was
ordered to cease and desist certain specified conduct and
to take certain affirmative action designed to effectuate
the purposes of the Act.
At the original hearing, counsel for the Operating En-
gineers Pension Trust appeared and petitioned to inter-
vene. At that time the Petitioner's motion was denied on
the ground that the Petitioner's interest in the matter
would not be established until the issue of whether the
Act had been violated, as alleged, had first been re-
solved. The Petitioner's counsel, however, was permitted
to remain at counsels' table and consult with both the
Charging Party's counsel' and the General Counsel. The
Petitioner's counsel was also advised that he would be
welcome to submit an amicius curiae brief. The Petition-
er's Counsel did remain at the counsel table and did
submit a brief.
On December 22, 1978, the Board issued its Decision
and Order (239 NLRB 997) reopening the record and re-
manding this proceeding to the Administrative Law
Judge for the purpose of allowing the Petitioner to inter-
vene and present evidence on the issues of (1) whether
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 set-
tling the strike provided for future contributions in the
amount found by the Administrative Law Judge.
Pursuant to the Board's remand instructions, a further
hearing was held on April 3, 1979, in Los Angeles, Cali-
fornia, in which all parties were permitted to examine
and cross-examine witnesses and to present evidence
bearing on the two issues as specified by the Board in its
remand.
Upon the entire record in this case, and from my ob-
servations of the witnesses and their demeanor, I make
the following: 2
I Counsel for the Charging Party appeared at the original hearing hut
did not appear to participate in the remand.
2 Two inadvertent errors in the original Decision are hereby corrected.
In sec. DI, par. 8. instead of June 31 the date should he January 31. in
Conclusion of Law 5 the violation should have read Sec. 8(aHS) and (1)
of the Acl
243
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
A. The Additional Evidence and Testimony as It
Relates to the Two Issues Specified in the Board's
Remand
Levena Bell testified that she has been employed by
Local 12 for the past 13 years "doing secretarial work,
taking care of agreements, records." She identified Inter-
venor's Exhibit I (a duplication of G.C. Exh. 9) as a
letter she had typed for Mr. Judd, then director of agree-
ments for Local 12, dated July 19, 1976, and directed to
Ray Turner, then president of Camay Drilling Company.
The letter asked that an additional 25 cents be allocated
to the pension fund as of January 31, 1977, bringing the
total contribution to the pension fund to 55 cents (per
hour). Bell further testified that after putting the letter in
an envelope she placed it in the mailroom, where mail is
then handled by the mailroom employees of Local 12.
The exhibit Bell identified had a checkmark after the
word "Files" in the lower left-hand corner indicating
that this particular copy was the office file copy.
Bell testified that the procedure followed with this
piece of mail was the normal and usual routine of the
office and that there was nothing in the file to indicate
that the letter was returned as being undelivered.
On cross-examination Bell acknowledged that she
typed as many as 50 letters a month and there was no
reason why she should remember this particular letter.
She also testified that she made carbon copies of letters
and not Xerox copies. (The exhibit-Intervenor's Exh. I
as well as G.C. Exh. 9-is some form of photocopy and
not a carbon copy. While leave was granted to substitute
a photocopy for the exhibit utilized during the testimony,
the exhibit identified at the hearing by the witnesses was
not a carbon copy.)
Leo Majich, manager of the Operating Engineers trust
funds since 1972, identified Intervenor's Exhibit 2 as the
trust funds' copy of the July 19, 1976, letter from Judd
to Turner directing that the additional 25 cents be allo-
cated to the pension fund as of January 31, 1977. He
identified the letter as one taken from the regular office
files relating to Camay Drilling Company. Majich identi-
fied Louise Blaine-the person named on said letter-as
an employee of the trust funds who works on the desk
"that recorded all details in connection with contributing
employers. , Majich further testified concerning
the internal procedures that took place at the trust fund
offices following receipt of their copy of the letter re-
garding the change in contributions to the pension fund.
Majich explained the apparent mixup on the trust fund
report form relating to Respondent for the month of
March 1977 (see Intervenor's Exh. 5). It appears that the
form sent out from the trust to Camay had shown 55
cents in the pension column, making a total contribution
rate (for both the vacation/holiday and the pension) of
85 cents, but these figures had been marked out and the
figures of 30 cents and 60 cents, respectively, inserted in
their place. When received by the trust fund, the larger
D Again it should be noted that the particular exhibit was a photocopy
and not a carbon copy as Bell testified she had made and placed in the
mailroom.
figures were reinstated and the shortage noted, but no
one informed Camay. The April form (Intervenor's Exh.
6) reflects a similar misunderstanding between the trust
and Respondent with a similar failure of communications
between the parties. (Internal records of the trust contin-
ued to show an underpayment by Respondent based on
the July 19 letter the trust had in its files.)4
Majich's testimony also made it clear that mail passing
between the offices of the trust fund and the union of-
fices is not placed in the United States mail. Both the
trust office and the union offices are located in the same
building and written communications are directly deliv-
ered by each party to the other by their respective mail-
room employees.
William Wilson, an auditor for the Operating Engi-
neers trust funds, identified Intervenor's Exhibit 8 as a
payroll record of Respondent which he explained re-
flects that Respondent continued to show 30 cents for
vacations and holidays and 30 cents for pensions during
the first part of 1979, but in mid-August 1977 started
showing 30 cents for vacations and 55 cents for pensions.
(My original Decision found Respondent to have violat-
ed Sec. 8(a)(5) by withholding payments to the trust
fund insofar as the basic 30 cents for vacation and holi-
days and the basic 30 cents for pensions are concerned.
Luskin credibly testified that in the fall of 1977 there was
an accounting reserve fund established to protect Re-
spondent against possible future liabilities.)
William Waggoner has been business manager of the
Union since 1976, and for 9 years before becoming busin-
ees manager he served as president of the Union. Wag-
goner was asked if Camay had agreed at the Burlingame
meeting of July 6, 1977, to pay the 75 cents to the pen-
sion fund or the 80 cents to the vacation/holiday fund,
to which question he replied, "No sir." When asked
what, if anything, was said with regard to the rate of
contributions to the two trust funds that would apply to
offshore drilling platforms, Waggoner replied:
A. The only thing we were concerned about at that
particular time at the Hondo platform was the
Montgomery rates as reflected in Exhibit A [of In-
tervenor's Exh. 10] would be identical in total com-
pensation and wages and fringes as that we negoti-
ated with Montgomery.
With regard to the rates to be paid at Elk Hills (par. 3
of Resp. Exh. 3), while Waggoner stated, "We were dis-
cussing the Montgomery rates at Elk Hills, "Waggoner
was quick to acknowledge that he did not recall Camay's
discussion with regard to Elk Hills. (The exhibit sheds
no light whatsoever on the compensation to be paid,
except to say that Camay would comply with the Davis
Bacon Act.)
4 While Intervenor's Exh. 7 was rejected as not being relevant to the
issues being litigated in this hearing and I remain of the same opinion, it
is interesting to note that attached to said exhibit is a form the trust ad-
ministrator uses to notify participating companies of any delinquency.
However. there was no evidence introduced to indicate that this form
was utilized to notify Respondent in March 1977 of any delinquency
244
CAMAY DRILLING COMPANY
On cross-examination, Waggoner testified that he did
not recall any discussion of Camay's rate of contribution
to the pension fund.
Richard Squyres testified that he was employed by the
Union as an oil field business agent. During May of 1978,
he said he saw a notice on the "dog house" 5 of Camay's
drilling operation in Elk Hills which indicated that a 55-
cent pension contribution was being withheld on behalf
of the employees.6 Squyres also identified Intervenor's
Exhibit 2 as check stubs for the pay period ending April
29, 1978, for employees Pollard and Peterson which indi-
cated that Camay was setting aside a total of 55 cents
per hour for the pension trust fund. (See the nontax fund
on said exhibit which indicates a deduction of $22. Forty
hours times 55 cents per hour equals $22.)
Barney Hoy, a business representative for the Union,
testified that he talked to Bob Brodt, a crane operator
for Camay on the Hondo platform in May 1978, and was
told by Brodt that Camay was deducting 55 cents per
hour from each employee's paycheck to be paid to the
pension trust fund.
Meyer Luskin, president and chief executive officer of
Respondent, testified that, although he had given instruc-
tions in August 1977 to make the 55-cent deduction from
the employees' checks and to set up said sums as an ac-
counting reserve pending the outcome of the litigation,
the actual deduction (of the additional 25 cents) was not
made until October. (See Intervenor's Exh. 8. The
nontax figure shown in September versus the nontax
figure shown in October confirms his testimony.) Luskin
further testified that on one occasion in the spring of
1978 he was questioned by the employees on the Hondo
platform regarding the pension deductions and that he
had explained that the extra 25 cents would either be
paid directly to the employees or to the pension trust
fund in accordance with the final decision in the pending
litigation.
Both Luskin and Waggoner testified that they had one
or two get-togethers in 1978 in an effort to resolve the
problems, but had been unsuccessful in reaching an
agreement.
B. Analysis and Conclusions
The total impact of Levena Bell's testimony did noth-
ing more than confirm that the July 19, 1976, letter noti-
fying of the increased pension allocation was typed in
the union office and was delivered to their mailroom.
While this was the usual mail routine, there is still no
positive proof that said letter was ever deposited in the
U.S. mails. The fact that the pension trust received their
copy of the letter does not aid in explaining the mystery
because their mail was hand delivered by the Union.
5 The term "dog house" refers to an oilfield change room for the em-
ployees.
6 The notice, or piece of tablet paper, was rejected as being inad-
equately authenticated as a document for which Respondent was in any
way responsible. It should be noted, however, that Luskin testified that
Camay began to establish an accounting reserve in the fall of 1977 when
the principals were unable to resolve their differences. According to
Luskin, on one occasion when some employees on the Hondo platform
inquired about the pension money, he explained that the additional 25
cents per hour would either be paid directly to them or to the pension
trust fund when litigation was finally settled.
Moreover, I remain puzzled by the rather positive testi-
mony of Bell to the effect that the copies she made were
all carbon copies and yet not a single carbon copy was
ever produced as evidence. The "file" copy produced by
the General Counsel at the original hearing (G. C. Exh.
9) has certain information contained thereon which is not
found on the "file" copy produced by the Intervenor
(Intervenor's Exh. 1). Neither "copy" was a carbon
copy.
The testimony of Majich-while confirming the fact
that the trustees received their copy of the July 19, 1976,
letter-shed absolutely no light whatsoever on the issue
of whether or not Respondent did, in fact, receive notice
from the Union allocating the additional 25 cents to the
pension fund. The fact that the payments made to the
trusts by Respondent for February and March 1977 were
on the basis of 30 cents and 30 cents, rather than 30 cents
and 55 cents tend to further show that Camay never re-
ceived notice of the increased allocation to the pension
fund. (Camay had evidently changed the figures in
March and April 1977 back to what it believed to be the
correct figures and the trust never advised Camay of the
apparent misunderstanding until February 1978, which
would have been during the time of the first hearing and
well after the conflict had come to light.)
William Wilson's testimony shed no light on either of
the two issues to be considered here. His testimony only
confirmed what Respondent was willing to stipulate;
namely, that an accounting reserve was established by
Camay in the fall of 1977 to protect itself against a possi-
ble adverse ruling with regard to the money due the pen-
sion fund.
Waggoner's testimony was quite convincing that there
was no discussion at the July 6, 1977, meeting in Burlin-
game between the parties regarding the pension contribu-
tion by Respondent. Waggoner's testimony was to the
effect that the Union was seeking parity on the part of
Camay with the total compensation of Montgomery.
Waggoner admitted that he did not recall any discussion
as to the specific rates of pension contributions by
Camay and the union spokesmen certainly were not talk-
ing about Camay's making contributions to the various
funds in the same amount as Montgomery because these
were totally different figures. (Montgomery was to con-
tribute 75 cents an hour to the pension fund and 80 cents
to the vacation/holiday fund. There has never been any
dispute about Camay's allocation of 30 cents to the vaca-
tion/holiday fund. This entire dispute concerns the addi-
tional 25 cents to the pension fund or a total of 55 cents.)
Thus when Waggoner testified of total compensation he
could not possibly have meant identical compensation
and allocation as that paid by Montgomery. Respon-
dent's typed version of the July 6 agreement (Resp. Exh.
7) reflects the Montgomery total compensation.
Having carefully reviewed the entire record in this
case, I remain of the opinions expressed in my original
Decision. Based on the credited testimony of Meyer
Luskin and the logical reasoning as previously set forth
in detail, I am convinced that Respondent never received
the letter of July 9 notifying it of the desired change in
the pension fund allocation. Nor has there been any con-
245
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vincing evidence at either the first hearing or the remand
to indicate that the parties even discussed the pension
fund contribution. Under such circumstances the parties
could not possibly have agreed to a specific amount. 7
The Intervenor further argues in its brief that Camay
violated Section 8(a)(5) of the Act by insisting to impasse
on agreeement concerning nonmandatory subjects for
collective bargaining and by refusing to sign the Burlin-
game agreement on wages. It is true-as the Intervenor
argues-that the duty to bargain in good faith does not
permit a party to condition agreement upon withdrawal
of a pending unfair labor practice charge. However, such
an argument in this instance distorts the facts. There was
no impasse at Burlingame. Nor is there any evidence that
Respondent insisted on the dropping of the lawsuits.
Luskin testified that as far as he was concerned the strike
action of the Union had been totally ineffective and was
not giving Respondent any difficulty. It was the Union
The Intervenor's brief points to a colloquy between the Administra-
tive Law Judge and Beasley during the first hearing as supporting the
proposition that there was discussion in the early negotiations regarding
the pension fund contribution; however, Beasley concluded the question-
ing by saying, "Well, that was my impression that I got .... " I find
Beasley's testimony totally inadequate to support a finding that the par-
ties discussed the 25 cents in additional contributions to the pension fund.
that was looking for some means to save face and asked
for something additional over Respondent's final offer of
February 3, 1977. These assertions were not challenged.
The only reason Respondent agreed to sweeten the pot
was to rid itself of the pending litigation. While it is il-
legal to insist to impasse on the withdrawing of pending
Board charges, it is not illegal for the parties to voluntar-
ily agree to do so in connection with a final settlement
and this is exactly what the parties agreed to do. As indi-
cated in my original Decision, Respondent's Exhibit 7
accurately reflects what the parties agreed to on July 6,
1977, in Burlingame, and the Union's refusal to sign said
agreement fully justified any failure of Respondent to
carry out said contract.
CONCLUSIONS OF LAW
The Remedy, the Conclusions of Law, and the Order
and notice to employees remain as set forth in my origi-
nal Decision issued on June 22, 1978.8
8 The Remedy section of my original Decision indicated that interest
should be paid on certain trust fund money that were not paid during the
pending litigation. The Board has determined that any "additional
amounts" depend upon the circumstances of each case and thus should be
left to the compliance stage. See Fitzpatrick Electric. Inc., 242 NLRB 739
(1979), and cases cited therein.
246