Nabors Alaska Drilling

National Labor Relations Board - Board Decisions

Apr 8, 1998

325 N.L.R.B. 590 (N.L.R.B. 1998)

590
325 NLRB No. 105
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The charge in Case 19–CA–24334 was filed by Alaska State Dis-
trict Council of Laborers, AFL–CIO (the Union), on February 1,
1996, and amended on May 13, 1996. The charge in Case 19–CA–
24373 was filed by Steven Couture on February 20, 1996. The
charge in Case 19–CA–24400 was filed by Frank Anderson on Feb-
ruary 29, 1996. On April 3, 1996, a second order consolidating
cases, consolidated complaint and notice of hearing issued consoli-
dating these cases for hearing. Two other cases consolidated for
hearing, Cases 19–CA–24152 and 19–RC–13080, are the subject of
a separate decision (J20-97.SF) [Nabors Alaska Drilling, Inc., 325
NLRB No. 104 (April 8, 1998)]. Counsel for the General Counsel’s
unopposed motion to correct the transcript of these hearings is grant-
ed.
Nabors Alaska Drilling, Inc. and Alaska State Dis-
trict Council of Laborers, AFL–CIO and Ste-
ven Couture and Frank Anderson. Cases 19–
CA–24334, 19–CA–24373, and 19–CA–24400
April 8, 1998
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX
AND HURTGEN
On March 27, 1997, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt her recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Nabors Alaska Drilling,
Inc., Anchorage, Alaska, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
George I. Hamano, Esq., for the General Counsel.
William F. Mede, Esq. and Patrick J. McCabe, Esq. (Owens
& Turner), of Anchorage, Alaska, for the Respondent.
Kevin Dougherty, Esq., of Anchorage, Alaska, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge.
These cases were tried in Anchorage, Alaska, on August 13–
16, and October 1–4, 1996, and are based on a consolidated
complaint alleging, inter alia, that Mike Pearson, Steven
Couture, and Frank Anderson were discharged in violation of
Section 8(a)(1) and (3) of the Act.1
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent is a State of Alaska corporation with its
main office and place of business in Anchorage, Alaska,
where it is engaged in the business of oil drilling services
throughout the State of Alaska. During the 12 months pre-
ceding issuance of the consolidated complaint, the Respond-
ent had gross sales of goods and services valued in excess
of $500,000 and sold and shipped goods or provided services
from its facilities within the State of Alaska to customers
outside the State or sold and shipped goods or provided serv-
ices to customers within the state, which customers were
themselves engaged in interstate commerce by other than in-
direct means of a total value in excess of $50,000. The Re-
spondent admits and I find that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act and that Alaska State District Council of Laborers,
AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
The consolidated complaint alleges and the Respondent
admits that on December 27, 1995, it discharged Mike Pear-
son and on February 10, 1996, it discharged Steven M. Cou-
ture and Frank Anderson and has failed and refused to rein-
state them since those dates. The complaint further alleges
and the Respondent denies that these employees were dis-
charged because they were suspected of supporting and as-
sisting the Union and engaging in concerted activities and to
discourage employees from engaging in such activities in
violation of Section 8(a)(1) and (3) of the Act.
Facts
1. Background
Nabors drills for oil on arctic drilling rigs on the North
Slope of Alaska and elsewhere. Its North Slope operations
consist of four rigs in Prudhoe Bay and three rigs in the
Milne Point area. The Union attempted to organize employ-
ees who worked on Nabors’ Alaska rigs in the spring and
summer of 1995. Although the Union attained authorization
cards from 49 percent of the employees, it ultimately lost the
November 20, 1995 representation election conducted by the
NLRB. Thereafter, the Union filed timely election objections.
In my decision dealing with the Union’s objections to con-
duct affecting the election and a consolidated unfair labor
practice allegation that Nabors violated Section 8(a)(1) of the
Act by denying the Union access to remote camps during the
preelection period to contact off-duty employees, I found that
Nabors violated the Act by denying access and by threaten-
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591NABORS ALASKA DRILLING
2 251 NLRB 1083, 1089 (1980), enfd. on other grounds 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982); approved in
NLRB v. Transportation Management Corp., 462 U.S. 393 (1983).
3 Manno Electric, 321 NLRB 278, 280 fn. 12 (1996).
4 Southwest Merchandising Corp. v. NLRB, 53 F.3d 1334, 1340
(D.C. Cir. 1995).
5 One of the employees was sent home. The other employee at-
tempted to return to work but was taking codeine prescriptions while
attempting to work up to 100 feet on the rig. This employee was
sent to his room but paid for his time.
ing employees and giving the impression that union activities
were under surveillance. In adddition, I recommended that a
new election be held based on the denial of access, threats,
and interrogation. This case involves three postelection dis-
charges.
2. Analytical framework
Section 8(a)(1) and (3) of the Act provides:
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 7 . . . .
. . . .
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor orga-
nization . . . .
In Wright Line,2 the Board outlined the burden and alloca-
tion of proof in cases which turn on the employer’s motiva-
tion in taking personnel action against an employee as fol-
lows:
First we shall require that the General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a ‘‘motivating factor’’ in the
employer’s decision. Once this is established, the bur-
den will shift to the employer to demonstrate that the
same action would have taken place event in the ab-
sence of the protected conduct.
The Board has noted that use of the phrase ‘‘prima facie’’
case to describe the burden of the General Counsel does not
substantively vary from use of the term, ‘‘burden of persua-
sion.’’3 Accordingly,
the General Counsel bears the burden of demonstrating
that the employer acted with discriminatory motive
throughout the case. Although the Board labels the
General Counsel’s burden that of establishing a ‘‘prima
facie’’ case, it has, in fact, traditionally required the
General Counsel to sustain the burden of proving that
the employer was motivated by anti-union animus.4
3. Discharge of Pearson
Facts
The parties stipulated as follows: Ronald Mike Pearson
worked as a forklift operator on rig 22E for Nabors in 1995.
In addition to driving a forklift, Pearson’s job was to serve
as the leadman for the roustabouts. There were two roust-
abouts that worked under Pearson. Pearson had worked on
and off for Nabors. His employment history was as follows:
December 28, 1988, to May 8, 1992, and February 8, 1993,
to December 27, 1995. While Pearson worked on rig 22E in
1995, Nabors’ client was British Petroleum Exploration
(BPX). Gary Gibson was a driller on rig 22E and Pearson’s
immediate supervisor. Laverne Linder was the rig supervisor
for rig 22E and Gibson’s immediate supervisor. Jimmy Py-
rone was a consultant for Nabors’ customer BPX who acted
as BPX’s field representative for rig 22E.
The stipulation continues as follows: on November 9,
1995, Pearson was warned about not wearing safety glasses.
Larkin issued a personnel & payroll action notice to Pearson
on November 9, 1995. The notice advised Pearson that, ‘‘Mr.
Pearson has been asked for his input for alternative sugges-
tions. Since that time he has been told by tool pusher to keep
them on. He is in violation of Nabors and its customer BPX
safety policies. This is a final warning.’’
Concluding, the stipulation states: on November 10, 1995,
Pearson was stopped for speeding 54/35-mile-per-hour zone.
The citation was #10475. The citation noted that Pearson had
not been wearing safety glasses. On November 11, 1995,
BPX’s field manager Tom Gray issued a memorandum to
BPU field representatives on rig 22E which specifically ref-
erenced traffic citation #10475, the citation Pearson had re-
ceived. On November 22, 1995, Belinda Wilson, Nabors’
personnel manager, issued a personnel & payroll action no-
tice to Pearson for the traffic citation incident.
Pearson testified that he talked with employees frequently
about unionization during the spring of 1995. When the
Union became involved, Pearson began passing out union au-
thorization cards in the chow line in plain view of anyone
who wanted to see. He gave a card to his rig supervisor (also
referred to as a tool pusher) Laverne Linder. He passed out
cards in the bus where the drillers were present.
Pearson testified he spoke frequently with Linder about the
Union. As the election neared, Linder told Pearson that
Nabors could not afford the Union. Linder testified that Pear-
son was easy to work with and a proficient operator. How-
ever, Linder noticed that Pearson exhibited animosity toward
Nabors’ pay and benefit package and was outspoken about
safety. Linder agreed that Pearson was quite outspoken about
the Union. Gibson, Pearson’s driller, also agreed that Pearson
was outspoken regarding the Union.
Pearson testified that after an antiunion meeting conducted
by Linder, ‘‘Laverne [Linder] pulled me off to the side . . .
and asked me what do you think it’d take for these guys to
just forget about this?’’
Coworkers testified that Pearson was outspoken during
weekly safety meetings. For example, Pearson asked if the
pad eyes could be checked for cracks. Another employee re-
called that Pearson suggested reflective vests for employees.
On two occasions, Pearson requested that employees who
were sick be paid or sent home.5 The parties stipulated that
Pearson addressed and raised legitimate safety issues fre-
quently throughout his tenure with Nabors.
Problems on Gibson’s crew were reported to Linder by
Nabors’ customer BPX as early as April. Linder felt these
problems were attributable to Pearson. Linder told Gibson to
get his crew straightened out. He told Gibson to meet with
Pearson and tell him not to be disruptive to the crew so that
morale could be improved. Gibson explained that whenever
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592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Larkin knew that Pearson had refused to wear safety glasses on
a number of occasions due to involvement in the Dupont safety pro-
gram. Weeks before Pearson and Larkin discussed Pearson’s dis-
satisfaction with Nabors’ safety glasses. Larkin asked Pearson to
help find safety glasses that would be to his liking. Pearson stated
that the glasses currently being utilized were uncomfortable and that
peripheral vision was distorted. Pearson never got back to Larkin
with suggestions.
7 Pearson and Gibson testified in substantial agreement on these
facts and Gibson added that Pearson’s attitude deteriorated after that.
8 Schiller testified that he saw the note in the mechanics shop
sometime in November. The mechanic was Valentino Emberty.
Schiller read the note and left it in the mechanic’s shop. Schiller
never saw the note on his own desk. Schiller did not discuss the note
with Pearson and did not know who wrote it. Schiller recalled that
Pearson showed the note to him in Larkin’s presence but neither of
them read the note at that time. This was about 2 days after Schiller
saw the note on Emberty’s desk. The note was admitted in evidence
provisionally. As the author was never discovered, it will not be en-
titled to any weight.
the crew went to lunch, Pearson would meet with them and
they would come back in a bad mood and not wanting to
work.
Nevertheless, in April or May Linder asked Pearson to
perform as a relief for Gibson. Linder explained that he be-
lieved Pearson was capable of better work and thought this
might act as a stimulus. Linder offered the position to Coyne
after Pearson turned it down.
Many of Pearson’s coworkers testified that he frequently
failed to wear safety glasses. Pearson was aware of the re-
quirement to wear safety glasses. Pearson felt that the glasses
were a safety hazard and he testified he preferred not to wear
them while in cab of his loader but never refused. His affida-
vit to the NLRB stated that he refused to wear these glasses
while driving the loader because it had side shields and there
were frequently people to the side of his loader. Pearson ad-
mitted that he was orally warned by various members of
management that he needed to wear his glasses. There is no
dispute that Pearson knew that policy required that he wear
safety glasses while operating the forklift. However, Pearson
was not the only employee who failed to wear his safety
glasses.
On November 9, 1995, Larkin issued a personnel action to
Pearson and Reed Thilmony for failure to wear safety glasses
on numerous occasions. Before doing this, he asked manage-
ment to ascertain whether accusations from a BPX represent-
ative that Pearson refused to put on safety glasses when so
instructed were true. Larkin initially determined that there
had been a misunderstanding. Larkin investigated further and
determined that final warning notices were in order for Pear-
son and Thilmony. On Pearson’s notice, Larkin wrote that
Pearson had refused to wear safety glasses on a number of
occasions when asked to do so.6 Larkin warned Pearson that
this was a final warning because he wanted Pearson to un-
derstand the seriousness of the situation. Thilmony also re-
ceived a final warning.
On November 10, 1995, Pearson was stopped for speeding
54/35-mile-per-hour zone. The citation was citation #10475.
The citation noted that Pearson had not been wearing safety
glasses. Valentino Emberty, mechanic, testified that the truck
Pearson was driving at the time of the citation had a mal-
functioning speedometer and had received another speeding
citation in a prior occasion. Emberty had seen other drivers
operate Nabors’ vehicles without wearing safety glasses. On
November 22, 1995, Belinda Wilson, Nabors’ personnel
manager, issued a personnel & payroll action notice to Pear-
son for the traffic citation incident. Wilson explained that it
takes around 9 days for her to receive the traffic citations
after they are issued.
Despite the November 9, 1995 ‘‘final warning,’’ the No-
vember 22, 1995 was marked as a ‘‘warning’’ and stated,
‘‘Please know and obey the road and safety regulations in
your work area. The regulations have been designed for your
safety and safety of others around you.’’ Pearson was asked
to sign for this personnel action with a Nabors’ cross pen
which he received that day as a safety award for preventing
a spill. A random search of the Respondent’s personnel files
indicated 10 other personnel action notices for traffic cita-
tions over a 10-year period. Larkin did not find out about
Pearson’s November 10 traffic citation until December.
Shortly after the November 20 election, Linder told Pear-
son that the office wanted evaluations of everyone. Linder
said he would be evaluating the crew. Later Pearson asked
Gibson about his evaluation and Gibson told Pearson not to
worry, he would get a good evaluation.7
In late December, a ‘‘blow’’ (phase 3, meaning life threat-
ening) occurred. Pearson was extremely busy pulling people
out of ditches. BPX personnel showed another driver where
to plow and Pearson, who relieved that driver, poured mud
in the spot indicated by the driver he relieved. The next day,
December 21, Pyrone told Pearson that he had spilled mud
on the pad. However, an investigation conducted by Richard
Larkin, drilling superintendent, on December 21 concluded
that no employee would be held responsible for the spill that
occurred that night. Management concluded that it was their
problem. Larkin spoke to Pearson and told him that no em-
ployee was going to be held responsible for the spill.
In the meantime, Pearson went to tool pusher Leonard
Schiller’s office and stopped to pick up his orders from the
desk. No one else was present in the office. Next to the or-
ders, Pearson found an undated typewritten note on plain 8-
1/2 x 11 paper. In relevant part, the note stated,
Mike—Good loader operator, keeps up on the yard and
organizes things well. Always has to try and stir up the
other guys or Gibby. Always talking bad about Nabors.
Still trying to stir the guys up on the Union issue by
telling them Nabors is going to take things away from
them and cut pay. Very rude in meetings, doesn’t pay
attention, talks to Lee.
Pearson, who had heard a rumor that layoffs were being
contemplated on Gibson’s crew, testified he confronted
Larkin and Schiller with the note and Larkin said, ‘‘I don’t
know about this firing stuff, we’ll leave it up to Gibby [Gary
Gibson, Pearson’s immediate supervisor].’’ Larkin examined
this note while on the witness stand and said he was not sure
whether this was what Pearson showed him but he recalled
that Pearson did show him something. In any event, accord-
ing to Pearson, Schiller, ‘‘eased off to the side and said he
didn’t want anything to do with this.’’8 Schiller and Larkin
went out saying that they were going to talk with Gibby.
Larkin testified that he knew that there was further dis-
ciplinary action pending against Pearson and Thilmony. He
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593NABORS ALASKA DRILLING
9 Nabors performs under contract with Shared Services Drilling, an
enterprise formed by the owners of Prudhoe Bay such as ARCO
Alaska, Inc., BPX, and Unocal.
spoke to Gibson about this and gave him instruction about
how to handle the discharges.
Gibson testified that Pearson had not followed directives
to put on his safety glasses but Pearson got better toward the
end. Gibson also saw Thilmony not wearing his safety glass-
es but Thilmony always put them on when told. Gibson de-
cided to fire Pearson because Pearson caused ‘‘all kinds of
hazard on the rig’’ and was causing too much chaos for the
hands so that Gibson could not control the hands. Gibson
thought that Pearson spent too much time with his roust-
abouts drinking coffee. When Gibson told Pearson he was
going to let him go, Pearson asked for a second chance and
Gibson called Belinda Wilson, personnel manager, and
Larkin. However, the result was that Gibson lost his job as
a driller.
On the following day, Larkin, who had returned to An-
chorage, called the rig and was informed that Gibson had not
discharged Pearson and Thilmony. Larkin decided that Gib-
son was not going to be a driller for Nabors any more if he
had changed his mind over night about discharging two em-
ployees for safety matters. However, at this point, as far as
Larkin was concerned, Pearson and Thilmony had not been
discharged and Larkin conveyed this information to Joe
Polya, a Shared Services9 representative and a friend of
Thilmony.
Larkin met with Denney, Wilson, and David Hebert, an-
other drilling superintendent, on December 26 to determine
what should be done. Larkin testified that he decided it
would not be fair to saddle a new supervisor with Pearson
and, accordingly, recommended that Pearson be fired. Larkin
testified that his recommendation was not based on failure to
wear safety glasses but due to safety concerns emanating
from Pearson’s negativism: ‘‘It’s on—it’s on the negativism
the keeps this—the crew stirred up. It’s to where they come
back, and they come back from coffee break or lunch or
whatever, and it takes—the complaint was it took 15 to 30
minutes and possibly longer for them to settle back down
and think about the job.’’ Larkin recommended retaining
Thilmony because Gibson had told Larkin that Thilmony was
making some improvement and the problem was more in the
nature of a personality conflict rather than a safety concern.
On December 27, 1995, Wilson wrote a personnel and
payroll action notice for Pearson while he was in her office.
She stated in that document that the reason for Pearson’s dis-
charge was ‘‘personality conflict with supervisor.’’ Accord-
ing to Wilson, Pearson asked if the reason for the discharge
was a spill that had occurred on the rig. Wilson responded,
‘‘I told him that they felt he was being adverse to the per-
formance of his crew; that he was being agitative to his
driller; he was questioning directive, and as his driller said,
he doesn’t have an off switch.’’
After talking with Larkin about the discharge, Wilson was
instructed to prepare a personnel and payroll action notice
with more details. She mailed this second personnel notice
to Pearson via regular mail. It was dated December 28, 1995,
and stated, ‘‘It has been requested that Mr. Pearson be re-
moved from Nabors employment at this time. Rig personnel
report repeated disruption involving Mr. Pearson and his
crew members.’’
Analysis
I find that the General Counsel has sustained the burden
to persuade that Pearson’s union activity was a motivating
factor in the decision to discharge him. Moreover, as to the
Respondent’s affirmative defense that Pearson would have
been discharged in any event, I find that the Respondent has
not shown by a preponderance of the evidence that Pearson
would have been discharged notwithstanding his union activ-
ity.
Pearson engaged in open union activities. Both Linder and
Gibson were aware that Pearson was an outspoken union ad-
vocate. This knowledge is attributable to the Respondent. Di-
rect evidence of animus, found in the companion cases, in-
cluded statements by Linder that employees would ‘‘lose
their asses’’ if the Union were voted in, a statement by Rod
Klepzig, tool pusher on rig 27E, to sewer plant operator Ste-
ven Couture, that the Respondent could find out how em-
ployees voted during the election and that the Respondent
would ‘‘run off’’ supporters of the Union after the election
was over, interrogation of employees about how they would
vote in the election, and threatening employees that if they
voted the Union in, the oil rigs would be stacked.
The Respondent portrays Pearson as, ‘‘a stubborn, in-
tensely aggressive employee who believed he had no duty to
obey directions from his supervisors if he did not agree with
them.’’ The Respondent notes Pearson’s refusal to wear safe-
ty glasses while operating the forklift. However, there are
three problems with this assertion. First, Larkin, the manager
who made the decision to discharge Pearson, claimed that the
safety glasses had nothing to do with the decision and both
notices of discharge are silent regarding safety glasses. Sec-
ond, Gibson, Pearson’s immediate supervisor, claimed that
Pearson had begun complying with the directive to wear
safety glasses while operating the forklift. Finally, the Re-
spondent gave Pearson a final warning for failure to wear
safety glasses on November 9. The following day, he was
given a speeding citation which included a notation that he
did not have on safety glasses. The resultant personnel action
was merely a warning.
The stated reason for discharge was Pearson’s repeated
disruption of the crew. The evidence indicates only that
Nabors’ client reported a ‘‘problem’’ with Gibson’s crew and
that Larkin and Gibson testified that they determined that
Pearson was the ‘‘problem’’ because he agitated employees
on break time. Pearson was admittedly at least an adequate
forklift driver. His concerns for safety led to safety awards.
Gibson told Pearson a month or two before his discharge that
Pearson would be receiving a good evaluation. Moreover,
Pearson’s outspokenness was tolerated throughout two ten-
ures with the Company. Under these circumstances, I find
that the Respondent’s defense fails.
4. Discharges of Steven M. Couture and
Frank Anderson
Facts
According to Nabors’ records, Steven M. Couture and
Frank Anderson were discharged on February 10, 1996, for
violation of the company rule prohibiting use of alcohol or
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594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Martin stated in his affidavit to the NLRB that before February
10, 1996, he had no indication that Anderson smoked marijuana.
However, Martin was later reminded of the bathroom incident. Al-
though Martin denied the conversation with Anderson about one of
the hands being stoned, I find that such a conversation in all likeli-
hood did take place.
other illicit substances. Specifically, on the morning of Feb-
ruary 10, Brian Buzby, tool pusher, testified he entered Ste-
ven Couture’s office in the sewage plant, found Frank An-
derson there with Steven Couture, and smelled marijuana
smoke. Steven Couture and Frank Anderson deny that they
smoked marijuana. It is undisputed that Buzby said nothing
to them at the time about smelling marijuana smoke.
The parties stipulated as follows regarding Steven Couture:
Steven M. Couture was hired by Nabors Alaska Drilling, Inc.
on May 8, 1995. On that date, he received a copy of the ori-
entation packet and executed a receipt for it. At some un-
specified date prior to February 10, 1996, Steven Couture re-
ceived and executed a receipt for a copy of Nabors Alaska
Drilling Employees Safety Handbook. As of the morning of
February 10, 1996, Steven Couture’s position with Nabors
was that of sewage plant operator. As sewage plant operator,
Steven Couture reported directly to tool pushers Brian Buzby
and/or Rod Klepzig.
The parties stipulated as follows regarding Frank Ander-
son: Frank Anderson has worked for Nabors at various times
since at least 1982. Anderson’s most recent period of em-
ployment with Nabors began December 20, 1994. On De-
cember 20, 1994, Anderson received and executed a receipt
for the Nabors orientation packet. On January 4, 1996, An-
derson received and executed a receipt for Nabors Alaska
Drilling Employee Safety Handbook. As of the morning of
February 10, 1996, Anderson’s position with Nabors was that
of pit watcher. The chain of command with respect to Ander-
son was Anderson reported to the driller, Charlie Martin,
who in turn reported to Buzby or Klepzig.
The stipulation continues, Anderson and Couture were dis-
charged on February 10, 1996. The personnel action notice
issued to Anderson and Steven Couture specified they were
discharged for ‘‘Violation of Company Policy—Use of Alco-
hol or Other Illicit Substances.’’ A copy of the personnel ac-
tion notice specifying Nabors’ reason for discharge of Ander-
son was mailed, return receipt requested, to Anderson and re-
ceived by him on February 13, 1996. A copy of the person-
nel action notice specifying Nabors’ reason for discharge of
Steven Couture was mailed, return receipt requested, to Ste-
ven Couture and received by him on February 13, 1996.
Anderson testified that he was quite outspoken for the
Union. He distributed union cards and literature. He stated he
contacted other employees and tried to get them involved. He
had conversations with his tool pushers Brian Buzby and
Rod Klepzig as well as his driller Charlie Martin in which
he was pretty outspoken about the Union. A few months be-
fore the election, Belinda Wilson, personnel manager, asked
Anderson how Nabors could squelch this union talk and An-
derson replied that a $1-an-hour raise would be a step in the
right direction. Shortly thereafter, employees received a $1-
per-hour raise. Frank Anderson is married to a cousin of
Steve and Jeff Couture. Steven Couture’s brother, Jeff Cou-
ture, was an outspoken union advocate. At one point, Martin
requested that Jeff Couture address a crew meeting to explain
why Jeff Couture felt employees needed a union. Klepzig
agreed that he supposed Steven Couture was for the Union
because his brother Jeff was. Steven Couture attended union
meetings at the airport and distributed union literature at the
airport and on the Slope to different rigs. He also had discus-
sions with driller Charlie Noakes about the Union.
Martin recalled a meeting 2 or 3 months before Anderson
was discharged at which he told the hands if he caught them
smoking pot they would be discharged and he would see to
it that they would never work for Nabors again. Martin testi-
fied that he called the meeting because he smelled marijuana
in the bathroom and confronted Anderson, who was leaving
the bathroom, but who denied smoking.
Anderson acknowledged that he was aware that Nabors
maintained a no-tolerance drug policy. Employees were rou-
tinely drug tested as a preemployment condition. Anderson
denied using drugs and specifically denied smoking mari-
juana on February 10, 1996. Anderson recalled a safety
meeting about 8 months prior to his discharge in which
Charlie Martin admonished all employees that anyone caught
smoking pot would be fired. Anderson testified that he
stayed behind and asked Martin what the warning was all
about and Martin told him that he was pretty sure that one
of the hands was stoned all of the time.10 Anderson agreed
that his position of pit watcher was crucial. Inattention to the
pit could cause a blow out or other malfunction, endangering
other employees. In fact, Anderson was aware of fatalities
which had occurred due to a blow out. He agreed that if an
employee caused a blow out due to drug use, the employee
should be discharged.
On Saturday, February 10, 1996, Anderson worked the
p.m. ‘‘tower’’ or shift. One break is allowed on this midnight
to noon shift for lunch. Anderson took his lunch break
around 6 a.m. and on his way back to the pit went to the
office of Steven Couture in the sewage plant to discuss Ste-
ven Couture’s use of Anderson’s snow plow. Because of the
smell of an open sewage tank, Anderson testified he sprayed
Lysol in the office. During their conversation, they heard the
front door open, Anderson, who did not want to be caught
away from his work station, closed Couture’s office door and
because it was in the ‘‘lock’’ position, the door locked. Ste-
ven Couture reached over to unlock the door and at the same
time, Brian Buzby attempted to push the door inward to open
it. According to Anderson, Buzby told him to get back to his
work station and Anderson left. Buzby told Couture to go up
and clean out the housekeeper’s lockers because another
crew was coming and would have to stay in those rooms.
The keys did not fit so Couture had to use a grinder. He
completed this task and fixed a washing machine.
According to Buzby, when he opened the door, he saw
Steven Couture fumbling with ‘‘some stuff’’ on his desk.
Buzby testified that he smelled the aroma of burned mari-
juana and asked Anderson and Couture what the hell they
were doing. Neither of them replied. Anderson left and
Buzby asked Couture if he had a key for the housekeeper’s
lockers. Buzby explained that he was shocked, disappointed,
and angry, and did not know what to do and that was why
he did not mention the smell of marijuana. However, it was
his impression that the two had been smoking marijuana.
Buzby explained that he let Anderson go back to the mud
pits because he was confused and did not know what to do.
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595NABORS ALASKA DRILLING
Buzby returned to his office and decided he should fire the
two. He contacted Belinda Wilson, personnel manager, at her
home. She said she would confer with Jim Denney, president
of the Company, and call him back. When Wilson called
back, she told Buzby to make sure the employees knew why
they were being fired and to have Charlie Martin come in
and be present during their exit interviews. Wilson told
Buzby that if there was any doubt in his mind or in theirs,
someone would meet them at the airport to escort them to
a urinalysis.
After contacting Belinda Wilson by telephone, Buzby went
to the mud pits and told Frank Anderson he was being sent
to town. According to Buzby, Anderson said nothing. Being
sent to town means that one is being discharged. A short
time later, Anderson went to Buzby’s office and told him
‘‘that wouldn’t happen again.’’ Buzby responded he just
could not have ‘‘that’’ out on the rig and Anderson said,
‘‘it’s nothing we do all the time.’’ Anderson explained that
there had been no mention of marijuana and he thought he
was being sent to town because he was in the sewage plant
instead of watching the pits, his assigned job. Buzby agreed
that there had been no mention of marijuana during the meet-
ing. At about 9 Buzby called Steven Couture into his office.
Buzby asked him to close the door and said he would have
to send him to town. Both Couture and Buzby agree that
there was no mention of marijuana during this conversation.
Couture, thinking he was being sent to town because Ander-
son had been found in his office, asked if it would do any
good to tell him it wouldn’t happen again. Buzby said no.
Couture fixed an overflowing shower and then packed his
personal tools and went out to pits to talk with Frank to find
out if he was getting sent to town too. Frank confirmed that
he was on the 1:30 flight.
Buzby then called Steven Couture and Frank Anderson to
his office. Martin was also present in the office. According
to Martin, Buzby initially told them, ‘‘[Y]ou both know why
you’re being sent to town.’’ Neither of them responded.
Buzby told Anderson and Couture that if they wanted to take
a UA (urinalysis) when they got to town, they could, and if
they passed they could come back. Steven Couture and Frank
Anderson recalled the conversation the same as Martin al-
though Anderson recalled asking if he could come back that
hitch and Buzby said that would depend on the flights. Ac-
cording to Buzby, he asked if Steven Couture and Frank An-
derson knew why they were being terminated and they both
nodded their heads yes. Buzby recalled that he asked them
if they would take a urine test and they both immediately
said yes. However, Buzby explained that in his view, such
a test would be for their own personal use because they were
terminated. Buzby also recalled that when he was asked
whether the employees could have their jobs back if they
passed the urinalysis, he told them he did not know. The four
are in agreement that no words such as marijuana, smoke,
pot, dope or any such words were used in the meeting. I
credit Martin, Couture, and Anderson that the employees
were told they could return to work if they passed the urinal-
ysis.
Couture and Anderson arrived at the Anchorage airport
around 5 or 5:30 p.m. because their flight was delayed. They
stayed at the airport waiting for someone from Nabors to ar-
range the drug test. Anderson called Belinda Wilson but got
no answer. Then they went to the airport bar. No one from
Nabors showed up. After having some beers, Anderson and
Couture left the airport.
Wilson stated that she received no calls from Anderson or
Couture that weekend. Although Buzby reported to Wilson
that the employees were on the way back to town, Wilson
did not arrange for a drug test because, in her view, there
was no need for one. She testified she had been assured by
Buzby and Martin that the employees understood the reason
for discharge and just wanted to keep their jobs if they prom-
ised not to do it again. I do not credit this reason. I note that
Martin was not a party to the conversations regarding prom-
ising not to do ‘‘it’’ or ‘‘that’’ again. Moreover, Buzby and
Martin are in complete agreement that the employees were
offered the option of a urinalysis and both agreed that the
employees wanted to take the urinalysis.
On Tuesday, the remaining employees on the rig were
tested (unobserved) and two who tested positive were dis-
charged. However, both of them returned for a 2-week hitch
at a later time. Wilson explained that employees are eligible
for rehire if they flunk a urinalysis but are not eligible for
rehire if they are caught smoking on the job.
According to Wilson, the Company’s drug policy requires
immediate termination for use of drugs in the work place.
From 1985, when Wilson started as personnel director, these
are the only two employees who have been discharged for
use of drugs in the work place. Wilson enforces the drug
policies by making sure that preemployment drug testing and
random drug testing is performed.
Nabors’ policies prohibit working on a drilling rig when
under the influence of a nonprescribed controlled substance.
In addition to preemployment urinalysis screening, the poli-
cies provide for unannounced screening in which a positive
test results in immediate suspension pending investigation.
Postaccident and/or suspected abuse screening is also pro-
vided for as follows:
Employees involved in an industrial accident wherein
drug or alcohol use is a suspected factor, shall be re-
quired to undergo a urinalysis screening. This screening
shall be conducted as soon as practical after the acci-
dent. If drug or alcohol use is detected, the employee
shall be suspended from employment pending a com-
plete investigation of the accident.
Employees suspected of using controlled substances
and/or alcohol shall be required to undergo the urinal-
ysis process. Report of usage or observations of im-
paired performance may be grounds for requesting that
an employee be administered the urinalysis.
Finally, with regard to suspension, termination, and reha-
bilitation, the policies provide:
Employees with a ‘‘positive’’ urine sample will be
immediately suspended and removed from the jobsite.
The remaining urine specimen of the employee in-
volved shall be transported to an appropriate laboratory
for confirmation of the analysis. Chain of custody of
the specimen shall be maintained at all times.
If the laboratory confirms the ‘‘positive’’ analysis
the employee shall be terminated from employment
with Nabors Alaska Drilling, Inc. and will not be con-
sidered for rehire for a period of 90 days.
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596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Given the Respondent’s position that the employees were dis-
charged regardless of the results of the tests, I find irrelevant both
the results and validity of these tests and subsequent tests procured
by Anderson and Couture.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Current employees, or personnel terminated from
employment due to drug or alcohol abuse, may be eligi-
ble to receive assistance from [Nabors] in participating
in a rehabilitation program. Former employees success-
fully completing a bonafide rehabilitation program may
be considered for reemployment with [Nabors].
The parties stipulated that company files indicate a number
of employees over the years since the early 1980s have test-
ed positive on drug or alcohol tests and have in fact been
suspended and then terminated and then afforded an oppor-
tunity to reestablish their employment relationship after a pe-
riod of 90 days. Wilson explained that this policy was not
followed with respect to Steven Couture and Frank Anderson
because, ‘‘it was reported that they were caught violating a
company policy and rule regarding drug usage on the job site
while they were supposed to be working.’’
On Monday, February 12, both Steven Couture and Frank
Anderson underwent urinalysis at the laboratory utilized by
Nabors for preemployment and random drug screening. An-
derson called Wilson while he was waiting to take the test
and Wilson questioned why he was having the test. Anderson
responded that Buzby had told the employees that if they
passed the test they could come back to work. Wilson stated
again that she did not care because they had been caught
smoking marijuana.11
Analysis
I find that both Steven Couture and Frank Anderson were
known or suspected to be union sympathizers. As mentioned
above, animus is supplied by various threats, interrogation,
and impression of surveillance. I draw an inference of unlaw-
ful motivation from the Respondent’s failure to follow its
procedures which require that employees suspected of using
drugs, ‘‘shall be required to undergo the urinalysis process.’’
Buzby volunteered that the two could take a urinalysis.
Moreover, Martin, Couture, and Anderson agree that Buzby
said the employees could return to work if they tested nega-
tive. Wilson cautioned Buzby that if there was any doubt
about the matter, the employees should be tested. All of
these actions are consistent with a policy of immediate sus-
pension pending investigation. However, when Anderson
called Wilson to let her know he was being tested, she said
the decision had already been made to terminate them re-
gardless of the drug test.
In support of its defense, the Respondent overstates its
case in two respects. First, it claims these employees were
‘‘caught’’ smoking marijuana. However, even giving
Buzby’s account full credit, he did not actually observe the
two smoking marijuana. He certainly may have suspected use
of marijuana but there is nothing to distinguish Buzby’s
walking into the sewage plant office and smelling marijuana
from Martin’s smelling marijuana when Anderson emerged
from the private bathroom several months earlier. Buzby did
not claim to have seen a marijuana cigarette or any evidence
of smoke. Buzby did not mention his concerns to the em-
ployees and the matter of the odor from the open sewage
tank was not addressed.
Second, the Respondent’s policies do not mandate imme-
diate discharge if an employee is reported to be using a con-
trolled substance or observed with impaired performance. In
both cases, the employee is required to undergo urinalysis.
The Respondent’s failure to follow its policy in this regard
leads me to conclude that but for their protected activity, the
two would have been allowed to take the urinalysis and re-
turn to work if valid negative results were obtained.
CONCLUSION OF LAW
By discharging Ronald Mike Pearson, Steven Couture, and
Frank Anderson, the Respondent has engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, having
discriminatorily discharged its employees Ronald Mike Pear-
son, Steven Couture, and Frank Anderson, it must offer them
reinstatement and make them whole for any loss of earnings
and other benefits, computed on a quarterly basis from date
of discharge to date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
The Respondent, Nabors Alaska Drilling, Inc., Anchorage,
Alaska, its officers, agents, successors, and assigns, shall
1. Cease and desist from discriminatorily discharging em-
ployees because of their activities and support for Alaska
State District Council of Laborers, AFL–CIO and in any like
or related manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer Ron-
ald Mike Pearson, Steven Couture, and Frank Anderson full
reinstatement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges previously
enjoyed.
(b) Make Ronald Mike Pearson, Steven Couture, and
Frank Anderson whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them in the manner set forth in the remedy section of the
decision.
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597NABORS ALASKA DRILLING
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges and
notify the employees in writing that this has been done and
that the discharges will not be used against them in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying,
all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Order.
(e) Within 14 days after service by the Region, post at its
facilities and offices in the state of Alaska copies of the at-
tached notice marked ‘‘Appendix.’’13 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that,
during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and mail,
at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent
at any time since February 1, 1996.
(f) Within 21 days after service by the Region, file with
the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Alaska State District Council of
Laborers, AFL–CIO or any other union.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ronald Mike Pearson, Steven Couture, and
Frank Anderson full reinstatement to their former jobs or, if
those jobs no longer exists, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed.
WE WILL make Ronald Mike Pearson, Steven Couture, and
Frank Anderson whole for any loss of earnings and other
benefits resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
discharges of Ronald Mike Pearson, Steven Couture, and
Frank Anderson, and WE WILL, within 3 days thereafter, no-
tify each of them in writing that this has been done and that
the discharges will not be used against them in any way.
NABORS ALASKA DRILLING, INC.
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