Slusher v. N.L.R.B.

• Citation: 432 F.3d 715
• Decision Date: 23 December 2005
• Docket Number: No. 04-3793.,04-3793.
• Parties: Nick SLUSHER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

432 F.3d 715

Nick SLUSHER, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 04-3793.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 2005.

Decided December 23, 2005.

Jeffrey B. Gilbert, Anne M. Davis (argued), Johnson, Jones, Snelling, Gilbert & Davis, Chicago, IL, for Petitioner.

Roberto G. Chavarry, National Labor Relations Board, Chicago, IL, Joan E. Hoyte (argued), Aileen Armstrong, National Labor Relations Board, Office of the General Counsel, Washington, DC, for Respondent.

Before ROVNER, WOOD, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

Exxon Mobil Corporation ("Exxon Mobil" or the "Company") suspended and then terminated union steward Nick Slusher after he gave certain coworkers copies of a court record showing that an Exxon Mobil truck driver previously had been fined, placed under supervision, and ordered to participate in a remedial education program for driving under the influence of alcohol ("DUI"). Exxon Mobil viewed circulation of the record as a violation of the Company's anti-harassment policy; it also concluded that Slusher lied about his conduct in the course of the Company's investigation. Slusher filed a charge with the National Labor Relations Board ("NLRB" or the "Board") contending that his suspension and discharge amounted to an unfair labor practice. Slusher claimed that he had distributed the driver's court record in connection with a disparate treatment grievance he was pursuing on behalf of another union member. Whereas the driver whose DUI record he showed to others was still driving for the Company, other drivers with prior DUIs on their records had been suspended from driving duties and reassigned. Slusher averred that he distributed the record not to harass the driver in question but rather to demonstrate to union members that Exxon Mobil was not applying the Company's drug and alcohol policy in an evenhanded manner and to explain why the union was pursuing a disparate treatment grievance. Given that purpose, Slusher asserted that his distribution of the record was protected by the National Labor Relations Act ("NLRA" or the "Act") and that Exxon Mobil could not lawfully punish him for it. Following an evidentiary hearing, an Administrative Law Judge ("ALJ") agreed, finding that Slusher's motive in distributing the abstract was legitimate. On review, however, a divided panel of the NLRB found that Slusher's motive was to harass the truck driver whose abstract he distributed and that, consequently, Slusher's conduct was not protected by the Act. Based on that finding, the Board ordered that Slusher's complaint be dismissed. Exxon Mobil Corp., 343 NLRB No. 44, 2004-05 NLRB Dec. (CCH) ¶ 16,808, 2004 WL 2245467 (Sep. 30, 2004). Slusher petitions for review of the Board's decision, contending that it is not supported by substantial evidence. We grant the petition, reverse the Board's order, and direct the reinstatement of the ALJ's decision.

I.

Exxon Mobil came into being as the result of the November 30, 1999, merger between Exxon and Mobil Corporations. Slusher was employed by Mobil and its successor Exxon Mobil for a total of about 14 years prior to his discharge in 2003; Slusher was a truck driver who delivered gasoline to Mobil, and later Exxon Mobil stations in the Chicago metropolitan area. Local 705 of the International Brotherhood of Teamsters, AFL-CIO ("Local 705," the "Local," or the "Union") had represented fuel truck drivers and product technicians at the Mobil facilities in (or near) Des Plaines and Lockport, Illinois since 1996, and it continued to represent these employees after the merger: Exxon Mobil executed a new collective bargaining agreement ("CBA") with the Union effective May 17, 2000 through April 30, 2002.

Slusher, who had been elected chief Union steward of the Local in January 1998, continued in that capacity until April 11, 2003. As the chief steward, Slusher was responsible for enforcing the terms of the CBA, a job which included the investigation, filing, and processing of grievances on behalf of Union members. Slusher was known to be an "extremely aggressive" advocate for the Union who enforced the CBA "to a T." Tr. 196. Slusher estimated that he filed at least 15 to 20 grievances in the two years preceding his discharge. Steven Matter, the Union representative for the Lockport and Des Plaines facilities, thought that Slusher had filed more grievances than most other stewards. In Matter's view, Slusher "was very good at what he did." Tr. 197.

In the wake of the merger between the two companies, Exxon Mobil decided to implement Exxon's pre-merger drug and alcohol policy, which barred employees with drug or alcohol dependencies or who had drug or alcohol related incidents in their pasts from performing certain designated safety-sensitive jobs, including driving fuel tanker trucks. Upon implementation of this policy, every employee working in such a position was required to file an initial "Statement of Compliance for Designated Positions" in which the employee disclosed any participation in a drug or alcohol rehabilitation program and any prior "DUI incident," a term defined (at that time) to include not only convictions but also arrests for alcohol or drug related traffic violations.¹ On a going-forward basis, employees were again required to disclose any and all arrests for drug or alcohol related traffic violations, as well as convictions. According to Exxon Mobil, if an employee disclosed a current DUI charge, the employee would be suspended with pay and then reassigned to a different, non-"designated" position within the Company pending the resolution of that charge. New charges that resulted in a conviction, as well as prior DUI convictions less than five years old, would bar the employee from working as a tanker driver. But, according to the Company, a single conviction or other incident more than five years old would not necessarily bar the employee from that position; rather, Exxon Mobil would exercise its discretion on a case-by-case basis. In the event the Company discovered that an employee had failed to disclose a conviction or other DUI incident that should have been reported, the employee would be terminated.

The Union opposed implementation of this policy because it was more onerous for employees than Mobil's pre-merger policy. Evidently, Mobil had not asked its drivers about prior incidents or previous participation in rehabilitation programs; moreover, a single DUI charge, even if it resulted in a conviction, would not necessarily bar an employee from working as a driver for Mobil so long as he or she had no other history of drug or alcohol abuse, agreed to participate in the Company's rehabilitation program, and did not re-offend. Exxon's policy, by contrast, was described by Matter as a "zero tolerance" policy. Tr. 237. The Union, believing that the new policy amounted to a unilateral change in the terms of employment for drivers, filed an unfair labor practices charge challenging the policy. However, the NLRB's regional director declined to issue a complaint.

When the new policy was implemented in 2001, two members of Local 705—Rick Moreno and Dan Wallace—were suspended from driving duties and reassigned based on their disclosure of prior drug or alcohol related matters that the Company considered disqualifying. Wallace later resigned. Slusher filed grievances on behalf of both drivers. However, the Union declined to take them to arbitration and, as a result, both grievances lapsed.

In early August 2002, driver Frank Blommaert disclosed that the recently had been arrested and charged with DUI. Exxon Mobil immediately suspended Blommaert with pay from driving. On November 22, 2002, the Company discontinued Blommaert's pay based on his failure to cooperate with its efforts to place him in a non-driving position. (Blommaert had failed to appear for a test to assess his qualification for an opening at Exxon Mobil's Joliet refinery.) On December 20, 2002, Slusher filed a grievance on Blommaert's behalf asserting that the Company's decision to suspend him without pay pursuant to the drug and alcohol policy amounted to a "unilateral change in terms of employment." GC Ex. 2. On January 10, 2003, while that grievance remained pending, Exxon Mobil terminated Blommaert for his failure to cooperate with the Company's efforts to reassign him and for his failure to provide the Company with information regarding the disposition of the DUI charge. (Evidently Blommaert was not convicted on the charge.)

In February 2003, during the investigation phase of the grievance regarding Blommaert's suspension, Slusher reviewed the personnel files of other unit employees to look for any evidence of disparate treatment in enforcement of Exxon Mobil's drug policy. Slusher had asked to see the files after hearing a rumor that driver Dan Breneisen had a DUI incident in his past but was permitted to continue driving. Slusher discovered that Breneisen had indeed "checked off that box" on his compliance statement, indicating that he had a prior DUI incident. Tr. 25. On February 10, 2003, the Union's legal counsel notified Exxon Mobil that the Union would take the grievance over Blommaert's suspension to arbitration. The decision to arbitrate ended Slusher's involvement with the grievance.

Meanwhile, the 2000 CBA between the Union and Exxon Mobil had expired in April 2002, and by mid-February 2003, negotiations for a new agreement had reached an impasse. According to Matter, the drug and alcohol policy as well as the cost of health benefits were two of the primary issues that the Company and the Union could not agree upon.

The stalemate prompted the Union to schedule a strike vote among the members of the Local. Some unit members were opposed to a strike. One such individual, Michael Ostergaard, distributed flyers urging his fellow employees to vote against a strike. Slusher, who served on...