* Pursuant to Local Rule 47.5, the court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 97-60471

Summary Calendar

__________________

MOBIL EXPLORATION AND PRODUCING U.S., INC.,

 Petitioner - Cross-Respondent,

versus

NATIONAL LABOR RELATIONS BOARD,

 Respondent - Cross-Petitioner.

______________________________________________

Petition for Review and Cross-Application for Enforcement of an

Order of the National Labor Relations Board

(15-CA-13481)

______________________________________________

August 5, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Mobil Exploration & Producing U.S., Inc. (“Mobil”) petitions

for review of an order of the National Labor Relations Board

(“NLRB” or “the Board”), and the NLRB cross-applies for enforcement

of that order, which found that Mobil had violated Section 8(a)(1)
2

of the National Labor Relations Act (“the Act”), 29 U.S.C. §

158(a), by discharging Paul Cailleteau because he engaged in

concerted activity protected under the Act, and which ordered him

reinstated and compensated for back pay. 

In reviewing decisions of the NLRB, we apply a substantial

evidence standard to issues of fact and review questions of law de

novo. See N.L.R.B. v. Motorola, Inc., 991 F.2d 278, 282 (5th Cir.

1993). We have emphasized, however, that where “the Board’s

construction of the statute is reasonably defensible, its orders

are to be enforced.” Id. (internal quotation marks and citations

omitted).

Mobil argues that Cailleteau did not engage in “concerted

activity” within the meaning of the Act and therefore is not

entitled to protection under it. Alternatively, Mobil argues that

it was not aware that Cailleteau engaged in concerted activity and

therefore his termination did not constitute a violation of the

Act. According to Mobil, the allegedly concerted activity engaged

in by Cailleteau was, in fact, simply his expression of personal

dissatisfaction with his failure to be promoted.

It is true that if Cailleteau’s activities consisted wholly of

“individual griping or complaining” on his own behalf, he was not

engaged in concerted activity within the meaning of § 8(a)(1). On

the other hand, if in Cailleteau’s efforts to gain more favorable

treatment for himself there was “some element of collective
1 Section 7 of the NLRB establishes the right to engage in

concerted activities that is protected by § 8, under which the

claim at hand was brought.

3

activity or contemplation thereof,” then it was protected activity.

N.L.R.B. v. Buddies Supermarkets, Inc., 481 F.2d 714, 717-18 (5th

Cir. 1973). The Board affirmed the administrative law judge’s

finding that Cailleteau’s dissemination of a packet of materials to

his fellow employees was a protected concerted activity. While the

disseminated packet included materials concerning personal

grievances of Cailleteau’s, it also included complaints that were

framed as objections to some of Mobil’s employment policies, and

references to achieving changes that would benefit his fellow

employees. We note that to affirm the Board’s decision on this

issue, we need not conclude that we would have reached the same

one, but simply that the Board’s was not unreasonable. See

N.L.R.B. v. City Disposal Systems, Inc., 104 S. Ct. 1505, 1510

(1984) (“[T]he task of defining the scope of § 7 [of the NLRB1] is

for the Board to perform in the first instance as it considers the

wide variety of cases that come before it, and, on an issue that

implicates its expertise in labor relations, a reasonable

construction by the Board is entitled to considerable deference.”)

(internal quotation marks and citations omitted). We find that it

was reasonable for the Board to conclude that Cailleteau’s

distribution of the packets was concerted activity.

We also reject Mobil’s argument that it cannot have violated
2 It should be clear that the question is not whether Mobil knew

the legal status of Cailleteau’s activity but rather whether it

knew of the protected activity itself.

4

§ 8 of the Act because it did not know of the concerted nature of

Cailleteau’s activities. Unlike the question of what constitutes

concerted action within the meaning of the Act, the question of

whether the knowledge element of the § 8 claim was met here is an

entirely factual determination. See Reef Industries, Inc. v.

N.L.R.B., 952 F.2d 830 (5th 1991) (applying substantial evidence

standard to question of whether employer knew of concerted action

and a reasonableness standard to question of what constituted

protected activity). It is not disputed that Mobil was aware that

Cailleteau had disseminated the packet to his fellow employees;

indeed, Mobil acknowledges that it discharged Cailleteau because he

distributed that packet. The NLRB found that the contents of the

packet clearly indicated that it was intended to induce group

action by employees at Mobil, and therefore concluded that Mobil

knew that Cailleteau was engaged in protected activity.2 As noted

above, the packet included materials that can be read to advocate

for changes in Mobil policies on behalf of other employees as well

as on behalf of Cailleteau himself. Thus it was not untenable for

the Board to conclude that its distribution was intended to rally

group action, and that that would have been apparent to Mobil.

Mobil points to evidence that prior to the dissemination of the

packet Cailleteau had expressed personal grievances that may not
3 Mobil relies heavily on Southwest Latex Corporation v. N.L.R.B.,

426 F.2d 50, 56-57 (5th Cir. 1970), and Buddies Supermarkets, 481

F.2d 714, both of which are distinguishable from the case at hand.

In Southwest Latex, while the employer may have been aware that the

complainant had written a letter of complaint to the employer, the

letter had not been presented to the employer and there was “no

evidence in the record” to show that the employer knew it had been

written on behalf of other employees. 426 F.2d at 56-57. And,

while employees at Southwest Latex had requested a meeting with

management, at which they intended to present that letter, there

was “credited and uncontradicted testimony” that management was not

aware of the purpose of the meeting or that the complainant would

be representing other employees there. Id. The situation here is

significantly different because Mobil admittedly had direct access

to the disseminated packet and therefore cannot disavow knowledge

of its content. 

In Buddies Supermarkets, this court found that the evidence

disclosed that one of the discharged employee’s complaints “were

advanced entirely in pursuit of personal, not group, economic

goals” and that “there is nothing to indicate that the Company was

ever actually informed of [the other dismissed employee’s] union

sympathies.” 481 F.2d at 720, 722. Thus the Board’s finding of a

§ 8 violation in Buddies rested on unwarranted speculation of a

sort not required to reach such a finding here. 

5

have had any concerted-action component. Even in such a context,

the packet alone provided a substantial basis from which the Board

could find that Mobil discharged Cailleteau because of a protected

activity.3 Accordingly, we find there was substantial evidence on

the record as a whole to support the finding that Mobil had the

requisite knowledge.

For the foregoing reasons, the decision of the NLRB is

AFFIRMED and the cross-petition for enforcement is GRANTED.