Nabors Alaska Drilling v. Nat'l Labor Bd.
| Decision Date | 07 September 1999 |
| Docket Number | Nos. 98-70548,98-70550,99-70247,98-70821,s. 98-70548 |
| Citation | 190 F.3d 1008 |
| Parties | (9th Cir. 1999) NABORS ALASKA DRILLING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NABORS ALASKA DRILLING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NABORS ALASKA DRILLING, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NABORS ALASKA DRILLING, INC., Respondent |
| Court | U.S. Court of Appeals — Ninth Circuit |
[Copyrighted Material Omitted] William F. Mead (Argued) and Patrick J. McCabe (On the Briefs), Owens & Turner, Anchorage, Alaska, for the petitioner-cross-respondent.
Sharon I. Block (Argued) and Fred L. Cornnell (On the Briefs), National Labor Relations Board, Washington, D.C., for the respondent-cross-applicant.
On Petitions for Review and Cross Application for Enforcement of an Order of the National Labor Relations Board. NLRB No. 19-CA-24152, 19-CA-24334
Before: Procter Hug, Jr., Chief Judge, Stephen S. Trott, and A. Wallace Tashima, Circuit Judges.
Nabors Alaska Drilling, Inc. petitions this court for a review of two final orders of the National Labor Relations Board ("NLRB" or "Board"). The Board cross-petitions for enforcement of the orders. In one case, the Board held in part that Nabors committed an unfair labor practice under S 8(a)(1) of the National Labor Relations Act, 29 U.S.C. S 158(a)(1) (1994) (the "Act"), by denying non-employee organizers access to Nabors' jobsites during an election campaign (the "access case"). The Board ordered Nabors to permit union organizers access to jobsites and to post a notice of intent to comply with the order. In the other case, the Board held in part that Nabors violated S 8(a)(1) & (3) of the Act, 29 U.S.C. S 158(a)(1) & (3), by discriminatorily discharging two employees because of anti-union animus (the "discharge case"). The Board ordered Nabors to reinstate the terminated employees with back pay and to post a notice regarding the order.
We have jurisdiction under 29 U.S.C. S 160(e) & (f) (1994), and we agree with the Board on all issues with the exception of the remedy imposed in the discharge case. We therefore grant in part and deny in part Nabors' petition for review, and we grant in part and deny in part the Board's cross-petition for enforcement.
Nabors is an Alaska corporation which provides oil well drilling services in Alaska, at four jobsites relevant to this appeal. Milne Point and Prudhoe Bay are on the North Slope, while Granite Point Rig and Bufflehead Rig are offshore in Cook Inlet. The Alaska State District Council of Laborers, an AFL-CIO affiliate ("Union"), sought to organize approximately 290 Nabors employees working at the four jobsites. The Union lost the representational election.
At Prudhoe Bay, Nabors operates a camp where 119 potential bargaining-unit members stay during their two-week work cycle ("hitch"). At Milne Point, 65 potential members live during their hitch in a camp owned by Nabors, and 67 potential members live on the drilling rig. Twenty-nine potential bargaining-unit members work at the Granite Point rig and reside on the offshore platform. Twenty-two potential members work on the Bufflehead Rig, but reside at home and commute to the jobsite. A crew change-out for the North Slope occurs every Friday, when approximately half of Nabors' Milne Point and Prudhoe Bay employees either arrive at or depart from the Anchorage International Airport on oil company charters.
After arriving in Anchorage, the potential bargaining-unit members return home for their two-week leave. Ninety-five potential members live in Anchorage, 138 live in Alaska but outside of Anchorage, and 58 live outside of Alaska. Many employees do not stay at home, but travel during their leave.
The Union's organizational campaign began with meetings in the Anchorage Airport, inviting potential bargaining-unit members for coffee and doughnuts, usually before they departed for their hitch. The meetings were held each Friday from May through September, 1995. The Union received 143 signed authorization cards, about 49 percent of the potential bargaining unit, from employees eligible to vote in the election, and on September 1, 1995, filed a petition, seeking to represent Nabors' employees.
After filing the petition, the Union conducted an election campaign. Pro-union Nabors' employees distributed literature at the North Slope jobsites. The Union sent literature to employees' homes. The Union continued leafletting employees in the airport every Friday through the end of the election, but Union organizer Tim Sharp testified that this mode of communicating with the employees had limited effect. On October 2d, Nabors gave the Union the Excelsior list1 of the addresses and telephone numbers of potential bargaining-unit members, through which the Union attempted to contact the employees individually. Because the first list was partly inaccurate, Nabors later revised it. The Union's efforts to reach potential bargaining-unit members during their leave resulted in contact with a total of 50 to 70 potential members. One pro-union employee spoke with about 75 potential members on the jobsite.
The Union discontinued the airport meetings, for the stated reason that a change in the airport's policy which prevented the Union from reserving the room monthly made it too difficult to plan and publicize the weekly meetings. The Union did not use newspaper or television advertisements, which testimony indicated are cost-prohibitive and unlikely to reach Nabors' employees. Further, Nabors' camps have only a small number of pay telephones, and employees below the supervisory level do not have telephones in their rooms.
On September 21, 1995, the Union requested access to Nabors's jobsites for organizational purposes. Nabors issued a tentative denial on September 25th and a formal denial on October 2d. The Union filed an unfair labor practice charge on October 4th, but chose to proceed with the election.
Within a few months after the Union lost the representation election, Nabors terminated Ronald Pearson, Frank Anderson, and Steve Couture. Nabors does not appeal the Board's conclusion that Pearson was discharged for union activity, in violation of S 8(a)(1) & (3). Nabors contends that Anderson and Couture were terminated as a result of being caught smoking marijuana while on the job, rather than because of union activity.
Brian Buzby, the "tool pusher" -who is Nabors' highest level supervisor on a drilling rig -on Rig 27E at Milne Point terminated Couture and Anderson on February 10, 1996, approximately three months after the Union lost the representation election. That morning, Buzby entered Couture's office. When Buzby first opened the door it was immediately closed in his face. Anderson testified that he was behind the door and jokingly pushed the door shut. When Buzby entered a few seconds later, Couture and Anderson were present. Buzby testified that he smelled marijuana smoke in the room, but at the time he did not mention the smell to the occupants. Anderson left shortly after Buzby arrived, according to Anderson's testimony because he had to return to work.
Buzby telephoned Nabors' personnel manager Belinda Wilson, who called Nabors' president, Jim Denney, and then called Buzby back. Buzby testified that he had decided, on his own and without interference from Wilson or Denney, to terminate Anderson and Couture because they had been smoking marijuana. However, Buzby's testimony and Wilson's testimony alike demonstrate that Buzby spoke with Wilson twice before informing Anderson and Couture of their termination.
Buzby spoke to Anderson, who was at his work station at the time, and informed Anderson that Buzby was sending him to town on an afternoon flight. Both parties agree that "sending you to town" means discharge. Later, Anderson went to Buzby's office and told Buzby "that wouldn't happen again." Buzby responded that he could not have "that" on the rig, and Anderson said: "[I]t's nothing we do all the time." Buzby does not dispute that he never mentioned the marijuana smoke or the specific basis for terminating Anderson. Anderson testified that he thought he was being terminated for socializing.
Buzby called Couture into Buzby's office. According to Buzby's testimony, Couture asked whether it would help to say that he would not ever do it again before Buzby told Couture that Couture was being sent to town. Couture testified that Buzby spoke first, and the ALJ credited Couture's testimony. Couture testified that he thought he was discharged because he was socializing with Anderson during working hours. Couture also testified that he was not surprised by the sanction because of his involvement the previous fall with the Union.
Buzby then called both Couture and Anderson to his office on the Rig in the presence of Charlie Martin, the driller and Nabors' second in command on the Rig. Buzby testified that Wilson had instructed him to be certain, in the presence of a witness, that Anderson and Couture knew why they were being terminated. Martin testified that Buzby had asked him to sit in as a witness during this meeting. Martin testified that Buzby said: "[Y]ou both know why you're being sent to town," and neither Couture nor Anderson replied. Martin testified that Buzby then said that they could each take a urinalysis and return if they passed, and Anderson's and Couture's testimony corroborated Martin's. Buzby testified that he did not say Anderson and Couture could return if they passed the urinalysis. The ALJ credited Martin's testimony.
When Anderson and Couture returned to Anchorage, they each took a urinalysis test. Couture's test returned positive for marijuana use and Anderson's sample was inconclusive because,...
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