200 F.3d 230 (5th Cir. 1999), 97-60789, Mobile Exploration v. NLRB

Docket Nº:97-60789
Citation:200 F.3d 230
Party Name:MOBIL EXPLORATION AND PRODUCING U.S., INC., Petitioner-Cross Respondent; v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.
Case Date:December 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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200 F.3d 230 (5th Cir. 1999)

MOBIL EXPLORATION AND PRODUCING U.S., INC., Petitioner-Cross Respondent;

v.

NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner.

No. 97-60789

United States Court of Appeals, Fifth Circuit

December 23, 1999

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Petition For Review and Cross-Petition For Enforcement of an Order of the National Labor Relations Board. 15-CA-12801.

Before EMILIO M. GARZA, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Mobil Exploration and Producing U.S., Inc. ("Mobil") seeks review of an order by the National Labor Relations Board (the "Board") finding that it violated § 8(a)(1) of the National Labor Relations Act by discharging its employee, Bob L. Pemberton ("Pemberton") for statements he made to co-employees during a work break (1) advocating that employees elect a new Union president or join a different union; and (2) that he would take legal action if Mobil fired him for his part in a group employee effort (i) to end a possibly corrupt agreement by the Union to reimburse Mobil for funds it paid the Union president for his loss of regular and double time wages during his absences from work on Union business and (ii) to recover for the Union any improper payments received by the Union president. The Board cross-petitions for enforcement. We enforce the order.

I. Factual and Procedural Background1

Bob L. Pemberton was employed by petitioner Mobil for nearly twenty

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years. At the time of Pemberton's discharge on July 29, 1994, he was a field facility operator on an offshore oil platform. For 12 years prior to his termination, Pemberton was a member of the Associated Petroleum Employees Union (the "Union"), and he served as a representative of the Union from 1989 to 1991. Pemberton had a long-standing disagreement with the president of the Union, Glenn Thibodeaux ("Thibodeaux"), concerning the operation and policies of the Union. In December 1991, Pemberton sent a letter to his fellow Union members criticizing Thibodeaux's actions as Union president in proposing to help Mobil cut costs by eliminating some employees' jobs, and calling for his resignation. On January 3, 1994, Pemberton distributed a letter to bargaining unit employees in which he said he had declined nomination for Union representative, in part, because of his criticism and disapproval of Thibodeaux as president. The existence and nature of Pemberton's long-standing disagreement with Thibodeaux about Union matters was well known to Mobil. Prior to July 19, 1994, Mobil and the Union had an agreement whereby the Union president would be compensated by Mobil for time lost, including overtime, during which the president was away from work on Union business. Under the agreement, the Union was obliged to reimburse Mobil for all such compensation paid to the Union president. After Pemberton and an unspecified number of other employees complained, Mobil and the Union rescinded the agreement and practice in or around June, 1994. Pemberton asked a Mobil supervisor how much money had been paid by the Union to Mobil under the agreement but she was unable to provide the information. Sometime between June 15 and 22, on a date not specifically known, Pemberton informed a Mobil supervisor that he planned to file an unfair labor practice charge based on Mobil's payment of the Union president under the rescinded plan but would refrain from doing so if the president refunded to the Union any payments he received for time not actually spent on Union business.

In or around June 1994, Pemberton received information that Thibodeaux had worked as a high school teacher during part of the time covered by the agreement. Between June 15 and 22, 1994, Pemberton informed his supervisor, Mary Ellen Waszczak ("Waszczak"), that Thibodeaux had taught at a high school during a time at which he had been reimbursed for being away from work on Union business. Waszczak told Pemberton that the matter would be investigated. However, Waszczak warned Pemberton that he "had better not leave himself open for anyone to come back and to find something that he [was] doing wrong."

On June 23, 1994, Pemberton went to the Lake Arthur High School on one of his off days. Pemberton asked the principal for the dates Thibodeaux had taught at the school in order to determine if they corresponded to the dates he was paid for absences from work due to Union business. The principal refused to divulge any information. A high school representative told Thibodeaux that someone had inquired as to the dates he served as a substitute teacher. When Thibodeaux asked Mobil Labor Relations Adviser Dan Whitfield ("Whitfield") about the matter, he was told that Pemberton had complained about Thibodeaux's improper receipt of Union business compensation while substitute teaching,

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and that Mobil's security department was investigating the complaint.

On July 7, 1994 Mobil Security Advisor John Burton ("Burton") took a written statement from Thibodeaux, who admitted that he had been paid by the company for one day he worked as a substitute teacher in January 1992, and that he had reimbursed Mobil for his salary on that date. On July 8, 1994, Burton telephoned Pemberton as part of his investigation. During their conversation, Pemberton asked Burton who he was investigating, him or Thibodeaux. Burton stated that he was just going to conduct an investigation into the allegations made by Pemberton and did not know where the investigation would go. Burton told Pemberton that, except for the Union representative, Pemberton should not discuss the investigation with anyone and to tell the representative the investigation was confidential. Pemberton indicated that was fine and he would do that.

On July 17, 1994, Pemberton engaged in a conversation with some co-workers during his and their work break in the galley of a Mobil offshore platform. The galley was a kitchen/living area provided to employees for work and lunch breaks. Waszczak was in a nearby office with the door open. Pemberton began talking about Thibodeaux receiving overtime pay and that Mobil was going to fire Pemberton. Mobil and Pemberton stipulated that Waszczak overheard Pemberton make the following verbatim statements:

The [Company] is trying to fire me, they have gotten a security guy, John Burton after me because I was trying to right a wrong; John Burton will dig something up on me; You know what I'll do, I'll sue the shit out of them.

Waszczak got up, walked into the galley, had a brief conversation with one of the other employees, and returned to her office. She then overheard Pemberton tell his coworkers:

She's the one [Waszczak] who turned me in to John Burton; She knows about it. I wouldn't be surprised if he had this phone [in the galley area] tapped so he can hear what I'm saying out here; Do you know where [Mobil] gets its investigators . . . from the military. John Burton called me at my home on Friday and Saturday night. People say to me, "Bob you are just out to get Thibodeaux." I tell them they are wrong, I'm not out to get him. He is wrong, he is giving things to [Mobil], we don't have a union, we need to get in with the OCAW [another union], we can't do anything because of the [Union]. He's not going to be president much longer.

On July 29, 1994, Mobil told Pemberton that he was being terminated from employment because of: (1) "improper interference with a Mobil security investigation"; and (2) "insubordination." Pemberton filed a grievance with the Union pursuant to a collective bargaining agreement. After a one-day arbitration hearing, the arbitrator found (1) just cause to support Pemberton's discharge because Pemberton's comments to his coworkers on the offshore platform on July 17, 1994 constituted insubordination due to Burton's instruction that he not discuss the investigation; but (2) there was insufficient evidence to support a finding that Pemberton interfered with the company's investigation by visiting the high school on June 23, 1994 and inquiring about the dates of Thibodeaux's teaching. In addition to the finding of insubordination, the arbitrator found the following incidents contributed to the "cumulative weight of the whole of Pemberon's actions" and contributed to a finding "just cause for termination": (1) Pemberton was insubordinate in May 1994 when he walked out of Waszczak's office after being reprimanded for using offensive language, although Waszczak decided to only orally reprimand Pemberton; (2) Pemberton's record showed "repeated misconduct" which contributed to the arbitrator's finding of just cause for termination.

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On April 13, 1996, an administrative law judge ("ALJ") found that deferral to the arbitration award was appropriate, and upheld the arbitrator's decision as not "palpably wrong," finding that the "thrust of Pemberton's remarks was a personal complaint about the investigation." The ALJ also concluded that Mobil had a legitimate business interest in keeping internal investigations confidential, and agreed with the arbitrator that Pemberton's breach of his promise of confidentiality combined with his poor prior conduct was sufficient cause for discharge and compatible with the purposes of the Act.

A divided panel of the National Labor Relations Board refused to enforce the ALJ decision or defer to the arbitrator's award. A majority of the Board found that the award was "palpably wrong" and "repugnant to the Act" because Pemberton's termination was precipitated by his exercise of protected concerted activity, i.e., his July 17 work break conversation with co-workers during which he expressed dissatisfaction with Thibodeaux as a...

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