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Nemsky v. ConocoPhillips

August 3, 2009

GEORGE "TOM" NEMSKY, PLAINTIFF-APPELLANT, CROSS-APPELLEE,
v.
CONOCOPHILLIPS COMPANY, DEFENDANT-APPELLEE, AND INTERNATIONALUNION OF OPERATING ENGINEERS, LOCAL 399, DEFENDANT-APPELLEE, CROSS-APPELLANT.



Appeals from the United States District Court for the Southern District of Illinois. No. 3:07-cv-00205-MJR-CJP-Michael J. Reagan, Judge.

The opinion of the court was delivered by: Flaum, Circuit Judge.

ARGUED JUNE 4, 2009

Before FLAUM, WOOD, and TINDER, Circuit Judges.

Plaintiff George "Tom" Nemsky brought a lawsuit against defendants ConocoPhillips and the International Union of Operating Engineers, Local 399, for breach of the defendants' Collective Bargaining Agreement and breach of the duty of fair representation, respectively. The district court granted summary judgment to defendants and Nemsky appeals that ruling. Local 399 also cross-appeals the district court's denial of Rule 11 sanctions against Nemsky. For the reasons explained below, we affirm the judgment of the district court in all respects.

I. Background

A. The Collective Bargaining Agreement and the 2004 Substance Abuse Policy

Nemsky worked as an operating engineer at ConocoPhillips's Wood River Refinery. The operating engineers at Wood River were represented by the Inter-national Union of Operating Engineers, Local 399. Local 399 and ConocoPhillips had a Collective Bargaining Agreement ("CBA") that governed the relationship between union members and ConocoPhillips. Article 20 of the CBA stated that a represented employee "may be disciplined, including discharge, only for just cause." Article 20 also provided that, if, after compliance with normal discipline grievance procedures, a "complaint [against ConocoPhillips] is not settled in a satisfactory manner," Local 399 "may submit the complaint to arbitration." The CBA stated that, when arbitration is initiated, "it is understood and agreed that the arbitrator shall determine whether the Company had just cause for discipline."

Article 21 of the CBA stated that ConocoPhillips could make rules and regulations "from time to time . . . which will not be in conflict with anything contained in this Agreement." Purportedly pursuant to the rule-making authority outlined in Article 21, in 2004, ConocoPhillips implemented a revised substance abuse policy for all of its North American employees (the "2004 SAP"). The 2004 SAP provided for random drug and alcohol testing for all employees, including those at the Wood River Refinery. The 2004 SAP also stated that it was a violation of the policy for employees to report for or remain on duty if there were "any detectable trace amount" of alcohol in their systems. The guidelines implementing the policy defined "detectable trace amount" as a blood alcohol content of 0.040 or greater. Under the 2004 SAP, the "consequence of any confirmed positive test result [was] termination."

After the 2004 SAP was promulgated, Local 399, along with the nine craft unions also represented at the Wood River Refinery, filed a collective grievance regarding ConocoPhillips's unilateral implementation of the revised policy. Local 399 wished to arbitrate the issue. However, ConocoPhillips maintained that the 2004 SAP was issued pursuant to its Article 21 rule-making authority, that it was not part of the CBA, and that issues arising from it were not subject to the CBA's grievance procedure. ConocoPhillips indicated that it would not submit to arbitration unless the union agreed that it could seek de novo court review of the policy's substantive arbitrability, if necessary.

In addition to the collective grievance, on September 30, 2004, Local 399 filed an unfair labor practice charge with the National Labor Relations Board ("the NLRB") regarding ConocoPhillips's allegedly unlawful implementation of the 2004 SAP. The NLRB Regional Office dis-missed the charge by letter on December 22, 2004 and an NLRB agent advised George Machino, the business representative of Local 399, of the futility of an appeal. Machino testified that he had expected the NLRB to defer the unfair labor practice charge to arbitration and when that did not happen he concluded that the NLRB agreed with ConocoPhillips that issues arising under the 2004 SAP were not arbitrable. Machino also testified that, around the time the NLRB filing was dismissed, he knew that no ConocoPhillips union in the country had been successful with grievances or unfair labor practices charges resisting ConocoPhillips's new SAP. Floyd Fessler, Local 399's business agent, likewise gave testimony that Local 399 believed its options with regard to the 2004 SAP were weak.

Machino testified that, with these concerns in mind, Local 399 made "a conscious decision . . . to get the best deal that [it] could get on behalf of the [union] members." Accordingly, Local 399 dropped its challenge to the 2004 SAP by entering into a "Memorandum of Agreement" (the "MOA") with ConocoPhillips on January 27, 2005. The MOA stated that a "confirmed positive test" under the SAP "shall be cause for immediate termination and such termination shall not be subject to the grievance and arbitration provisions of the Collective Bargaining Agreement." However, the MOA also stated that Local 399 "continues to maintain the right to grieve and arbitrate the integrity of the chain of custody process of the policy."

At his deposition, Machino expressed satisfaction with Local 399's retention of the ability to grieve chain of custody issues. Machino testified that, as far as he was aware, Local 399 was the "only union in the country that got any movement whatsoever in this policy" and stated that he viewed the retention of Local 399's right to grieve chain of custody issues as "gaining a right for Wood River employees that no other [ConocoPhillips] employees had."

B. Nemsky's Termination

At the time of his termination, Nemsky had worked as an operating engineer for the Wood River Refinery for twenty-two years and had a history of solid work performance. As an operating engineer, he occupied a safety-sensitive post; one of his duties was to ensure that areas of the refinery were cleared of combustible material so as to minimize the possibility of an explosion at the refinery.

Nemsky reported to work on September 20, 2006 (a Wednesday) at 6:45 am. While working that morning, he inadvertently kicked over a can of pipe cement and got cement on his coveralls and shoe. He went to the restroom and used a solvent to remove the pipe cement. During the process of removing the cement, Nemsky was within a small unvented space and he began to feel light-headed.

After Nemsky left the restroom, he received a call from his supervisor informing him that he had been selected for a random drug and alcohol test pursuant to the SAP. Nemsky proceeded to the medical office for testing, where Nurse Pat Diener administered his first alcohol test around 7:45 am. Diener testified that Nemsky was fully cooperative through all testing. Prior to conducting the test, Nemsky told Diener that he had taken Robitussin immediately prior to reporting for work, but Diener was apparently unconcerned that this would taint the test. Nurse Diener used an Intoximeter handheld breath test device to conduct the alcohol testing. The first test given to Nemsky returned a 0.043 blood alcohol level, a result which qualified as a "detectable trace amount" of alcohol under the 2004 SAP. After the first test, the testing instrument automatically ran a "blank." The "blank" test registered a 0.000 alcohol level, indicating that there was no residual alcohol in the testing equipment. After a fifteen minute wait, Diener gave Nemsky a second test. which showed a blood alcohol level of 0.044. After the second test, the testing instrument automatically required a calibration check. Diener conducted the calibration check using a standard ...


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