Mississippi Employment Sec. Com'n v. Phillips, 07-CC-59287

• Decision Date: 23 May 1990
• Docket Number: No. 07-CC-59287,07-CC-59287
• Citation: 562 So.2d 115
• Parties: MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Halliburton Services v. Dennis R. (Ray) PHILLIPS.
• Court: Mississippi Supreme Court

Page 115

562 So.2d 115

MISSISSIPPI EMPLOYMENT SECURITY COMMISSION and Halliburton Services v. Dennis R. (Ray) PHILLIPS.

No. 07-CC-59287.

Supreme Court of Mississippi.

May 23, 1990.

Charles A. Adams, Jr., Bart N. Sisk, and Robert A. Bogdan, Kullman Inman Bee & Downing, New Orleans, Fred J. Lotterhos, Jr., Jackson, for appellants.

Len Melvin, Melvin & Melvin, Laurel, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BLASS, JJ.

ROBERTSON, Justice, for the Court:

I.

Halliburton's Services discharged Dennis Phillips, an employee of ten-plus years, for refusing an assignment to correct a potential blow-out on an Exxon oil drilling rig in the Gulf of Mexico, and the question is whether Phillips' refusal constitutes "misconduct" such that he may be denied benefits under the Mississippi Employment Security Act. Without contradiction, Phillips held an objectively reasonable belief that the job he was asked to do was substantially dangerous to life and limb, and for that reason, he declined it.

We hold that Phillips' actions did not constitute misconduct and that he is entitled to benefits under the Act. We affirm the judgment of the Circuit Court to that effect.

II.

On July 20, 1976, Dennis Ray Phillips entered into an employment contract with Halliburton Services, a division of Halliburton Company. Halliburton specializes in servicing oil well problems. Phillips established an exemplary employment record over the next ten years. In early 1987 Phillips served Halliburton as a "fract operator." He was then 35 years old and working out of Laurel, Mississippi.

On January 29, 1987, an Exxon representative called Phillips about a potential blow-out on an off-shore well out from Houma, Louisiana. The well had 8,000 pounds of pressure on it and was leaking at the tabin hanger below the master valve above the ground. Early the next morning, the Halliburton dispatcher called Phillips in and instructed him to undertake the job, which was expected to require installing an oil well head isolation tool to pump sand through a pipe into the well in order to "kill" the well.

Phillips declined the assignment, without visiting the scene. Halliburton assigned another employee to the job, although after he arrived on the site another solution was chosen. On February 2, 1987, Halliburton fired Phillips.

Based on the information he had been given, Phillips described the circumstances presented to him and the job he was asked to do. "You can't visually inspect the tree [the well] and see how bad it has been leaking. You don't know what kind of corrosion has occurred inside that tree because you can't visually inspect the thing to see how bad it's leaking. You're just going on to it blindfolded knowing you've got a lot of tree damage and knowing that you're fixing to pump into a plug. That right there seems to me it's every potential in the world for a blow-out ... You're out there on the water, on a barge, you've got nowhere to go. It's every potential, it's every potential in the world of getting somebody killed."

When asked if he would consider the job dangerous, Halliburton's district manager, Jack Hilton, replied, "Yes, very much so." Former Halliburton employee Jerry Hill said it would have been dangerous to even get in the vicinity of the Exxon well to examine it. Retired Halliburton employee John R. Sterns testified that the job was quite dangerous and that, in his twenty years of service with the company, he had never seen one like it.

Halliburton's district engineer, Woody Whatley, said a leak at the flange on the tree about the ground would be "unusual" but that he had seen it "several" times. Whatley acknowledged that Phillips was a competent and experienced employee who had probably done as many as 500 jobs as a fract operator.

Following his discharge, Phillips was without work for a time and applied for benefits under the Mississippi Employment Security Act. On April 15, 1987, an MESC Referee held Phillips entitled to benefits. Halliburton presented the matter to the MESC Board of Review which reversed, holding that, on the uncontradicted facts, Phillips' refusal was "misconduct" connected with his work. Miss.Code Ann., Sec. 71-5-513(A)(1)(b) (Supp.1987). Phillips appealed and on March 23, 1988, the Circuit Court for the Second Judicial District of Jones County reversed, holding that Phillips is entitled to benefits.

MESC and Halliburton now appeal to this Court.

III.

Several general premises are not at issue and need be expressed. Halliburton is in the business of servicing oil wells and particularly of conducting blow-out/well kill operations, which as a matter of common sense are inherently dangerous. Nothing said here questions--or even addresses--Halliburton's right to insist that those who accept employment with it be willing to undertake these dangerous operations on pain of discharge. Cf. Perry v. Sears, Roebuck & Co., 508 So.2d 1086 (Miss.1987) (considering status of "employment at will" in Mississippi); Shaw v. Burchfield, 481 So.2d 247, 253-255 (Miss.1985) (same); but see Whirlpool Corp. v. Marshall, 445 U.S. 1, 100 S.Ct. 883, 63 L.Ed.2d 154 (1980) (upholding OSHA regulation that employee may walk off an unreasonably dangerous job). Moreover, Phillips' complaint that the assignment he was given was...