Conoco, Inc. v. Oil, Chem. & Atomic Workers

• Decision Date: 09 November 1998
• Docket Number: No. 98-CV-91-C(M).,98-CV-91-C(M).
• Citation: 26 F.Supp.2d 1310
• Court: U.S. District Court — Northern District of Oklahoma
• Parties: CONOCO, INC., a Delaware Corp., Plaintiff, v. OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION (AFL — CIO) and its Local 5-857, Defendant.

26 F.Supp.2d 1310

CONOCO, INC., a Delaware Corp., Plaintiff, v. OIL, CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION (AFL — CIO) and its Local 5-857, Defendant.

No. 98-CV-91-C(M).

United States District Court, N.D. Oklahoma.

November 9, 1998.

COPYRIGHT MATERIAL OMITTED

J. Patrick Cremin, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, William D. Fisher, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Conoco Inc., a Delaware corporation, plaintiff.

Steven R. Hickman, Frasier Frasier & Hickman, Tulsa, OK, Kathleen A. Hostetler, OCAW, General Counsel, Lakewood, CO, for Oil, Chemical and Atomic Workers International Union, defendant.

J. Patrick Cremin, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, William D. Fisher, Hall Estill Hardwick Gable Golden & Nelson, Tulsa, OK, for Conoco Inc., counter-defendant.

ORDER

H. DALE COOK, Senior District Judge.

Before the Court is plaintiff, Conoco's, motion for summary judgment, brought pursuant to Rule 56 of the Federal Rules of Civil Procedure. Conoco brings this action under the Labor Management Relations Act, 29 U.S.C. § 185, and the Federal Arbitration Act, 9 U.S.C. §§ 1-16, to vacate an unfavorable arbitration award. The following material facts are undisputed.

The present dispute centers on the termination by Conoco of John Botts for alleged improper conduct. At the time of his termination, Botts was a unit operator at Conoco's Ponca City plant and had been employed by the company for approximately twenty-five years. Also at the time of termination, Botts was the Bargaining Unit Chairman for the defendant, Union. Botts' supervisor at Conoco was Bill Biernacki.

Botts was first accused in 1996 and 1997 of abusing e-mail privileges at Conoco and threatening a fellow employee. In January 1997, as a result of the alleged misconduct involving the company's e-mail system, Biernacki advised Botts that the decision was made to suspend him from work for four days without pay. Botts brought a grievance concerning the discipline, but no final disposition was made prior to his termination.

Also in January 1997, Botts received a subpoena to appear as a witness in a lawsuit involving Roger Rowe, a former Conoco employee. As a result of Rowe's lawsuit, Botts had also been previously subpoenaed by Conoco to appear at a deposition in December 1993. In February 1997, Botts advised his supervisor and time scheduler that he would be absent from work on February 19, 1997 in order to testify, and he represented that since he was being requested to testify a result of Conoco calling him for the 1993 deposition, he would be claiming pay for serving as a witness. Botts also advised these individuals that it was his affiliation with the Union and being chairman that required his presence at trial. Botts testified in Oklahoma City on February 19, and he requested that Conoco pay him for twelve hours under the parties' Collective Bargaining Agreement ("CBA") for being a witness at trial.¹

After his claim for pay was changed to a no pay day by a payroll clerk, Botts complained to his supervisor and filed a grievance on March 6, 1997.² After Conoco initiated an investigation into the pay matter, Botts left a voice mail message for Biernacki on February 21, 1997, advising that his trial testimony resulted from Conoco deposing him, and that his testimony was based on that original deposition. Botts further advised in his message that he was actually a witness for neither party, but that it was his affiliation with the Union that required his presence. Botts concluded the message by representing that he interpreted the time spent testifying as properly payable by Conoco. On March 7, 1997, however, Botts left a voice mail message for Biernacki advising that he had, in fact, received a subpoena from Rowe's attorney, rather than from Conoco. Conoco independently determined, by contacting its attorneys, that Botts had not been subpoenaed by Conoco, but that he had been subpoenaed by Rowe's attorney to testify as a witness in Rowe's case-in-chief.

Following a disciplinary meeting,³ Biernacki advised Botts on March 10, 1997, of Conoco's decision to terminate him, effective March 7, 1997, for continued violations of Conoco's Rules of Conduct. In the written notice of termination, Conoco cited the prior instances of e-mail misuse, threatening behavior, the suspension that followed, Botts' poor attitude, and Botts' attempt to improperly receive twelve hours of pay. With respect to the most recent allegation, Conoco asserted that Botts violated the Rules of Conduct by claiming to have been subpoenaed by Conoco when, in fact, he knew that he had been subpoenaed by Rowe's attorney, and that Botts attempted to profit from the misrepresentation by making a false claim for pay. Conoco also alleged that Botts continued his dishonesty during its investigation of the pay issue by continuing to mislead and withhold facts.

The Union filed a grievance on behalf of Botts on March 10, 1997, protesting the termination on the issue of "just cause." The Union demanded an immediate hearing. The parties met on March 25, 1997, and Conoco advised the Union on April 4, 1997, that it was unable to respond to the grievance unless the Union furnished certain information. The Union declined the request, and Conoco again requested the Union to furnish information on May 7, 1997. No final action was taken, and the matter was ultimately set for a hearing before an arbitrator, which was held on August 27 and September 10, 1997. The arbitrator issued his opinion and award on November 3, 1997.

The sole issue presented for arbitration was: "Did the Company discharge the grievant for just cause and, if not, what shall the remedy be?" In his thorough opinion, the arbitrator outlined the contentions of the parties and referenced the relevant parts of the CBA which govern the dispute. In his findings and conclusions, the arbitrator found that Conoco, pursuant to the CBA, has sole responsibility to discipline and discharge employees for just cause. Because "just cause" is not defined in the CBA, the arbitrator turned to outside sources for guidance. The arbitrator thus stated, "Just cause is a term which has received considerable attention from both arbitrators and the judiciary. However, perhaps the single most important decision handed down on the question of just cause was the 1972 Whirlpool Corp. decision by Arbitrator Carroll Daughtery." See Whirlpool Corp. v. International Union of Elec., Radio, & Mach. Workers Local 808, 58 Lab.Arb. (BNA) 421 (1972) (Daugherty, Arb.). In explaining the reasons behind his decision to utilize the Whirlpool test, the arbitrator said that the "`Seven Test Method' has been subscribed to by many arbitrators since 1972 and the present arbitrator has long felt that the Whirlpool `Seven Test Method' of determining just cause in discharge cases is objective and appropriate in almost every just cause discharge matter." The arbitrator proceeded to describe the "Seven Test Method" of determining whether just cause existed for the discipline Botts received, as developed by the Whirlpool case.

The arbitrator concluded that, under the Whirlpool test, Conoco failed to establish just cause for Botts' discharge. In reaching his conclusion, the arbitrator found that: (1) Conoco did not give Botts forewarning of the probable consequences of his conduct regarding the alleged attempt to receive unearned pay since Conoco has a practice of permitting employees who are in doubt about their entitlement to pay to simply submit the matter to the payroll department for a determination, which Botts did;⁴ (2) Conoco's rules against larceny, fraud, or dishonesty are related to the orderly, efficient and safe operation of its business, and Conoco should be able to expect an employee not to commit such acts; (3) Conoco did make an attempt to determine whether Botts was entitled to be paid under the CBA for the time he spent testifying; (4) Conoco did not conduct a fair and objective investigation;⁵ (5) Conoco did not obtain substantial and compelling proof that Botts was guilty of the allegations against him, since no fair and objective investigation was ever conducted; (6) Conoco failed to apply its rules and penalties without discrimination to all employees since it has allowed many employees to claim pay even when they did not know whether they were entitled to pay or not;⁶ and (7) there is a serious question as to whether the degree of discipline was reasonably related to the seriousness of the offense.⁷ Based on an assessment of all the factors, and especially because the arbitrator concluded that Conoco failed to prove that Botts was guilty of the allegations against him, the arbitrator ordered Conoco to immediately reinstate Botts and give him back pay. Conoco complied with the award.

In considering a motion for summary judgment, the Court "has no real discretion in determining whether to grant summary judgment." U.S. v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). The Court must view the pleadings and documentary evidence in the light most favorable to the nonmovant, Cone v. Longmont United Hosp. Ass'n, 14 F.3d 526, 527-28 (10th Cir.1994), and summary judgment is only appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "A dispute is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir.1998). Further, "`the moving party carries the burden of showing beyond a reasonable doubt that it is entitled to summary judgment.'" Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991) (quoting Ewing v. Amoco Oil Co., 823 F.2d 1432, 1437 (10th Cir.1987))...