(Tr. 24). After a few moments Claimant stated that he objected to the IOFF employees that they were polluting the canal. (id.).

    Claimant testified that after some discussion the IOFF employees stopped the pump. They then raised the suction to skim off the top layer of water only. The surface layer was described as rain water or possibly brine. (Tr. 80). Claimant stated that even after the employees raised the suction hose there continued to be a discharge of pollution. Claimant described seeing a sheen on the surface of the water, presumably of the type commonly associated with petroleum based fluids. Mr. Johnson, the project supervisor for IOFF, stated the sludge contained heavy metals such as barium and zinc, among other things. (Tr. 76).

    Claimant stated he was standing next to the captain of the tug called the Todd Michael when IOFF began the discharge. He said that he wished he had a camera to photograph it. The captain then offered Claimant the use of his camera he happened to have on board with him. Claimant testified that he took pictures of the pollution and then returned the camera. (Tr.24). He also stated he had previously watched IOFF clean up another pit in which all of the material was pumped into a barge and hauled away. He did not think they could simply pump the surface water into the canal.

Phillips Petroleum's land base facilities. (Tr. 94).

    Claimant entered the quarters and encountered Mr. Johnson. Claimant testified that Mr. Johnson was angry and immediately confronted him about the pictures. (Tr. 27). It was Claimant's impression that someone in the work crew had reported to Johnson that he had taken pictures of the discharge. (id).

    Mr. Johnson testified when Claimant initially arrived for lunch, he was not aware of the spill or the picture taking incident. (Tr. 83). He stated that he was not acting on this knowledge, but instead initially confronted Claimant about his poor work performance after consulting with the job foreman, Mr. Ponville. The tenor of Mr. Johnson's testimony was that at the time he confronted Claimant, he already intended to terminate him, and he had no knowledge of the pollution incident in question. (Tr. 85-88 & p.20 Employer's post hearing brief). This appeared to conflict with his statement on page 83 of the hearing transcript where he indicated he was informed of this, prior to the time of termination, by one of his employees, but he could not remember by whom. (Tr. 83). He was very vague about the time he learned of this seemingly crucial incident, and the identity of the person that informed him of this. I found this explanation somewhat anomalous, since later in his testimony he indicates that he did not intend to terminate Claimant on-the-spot, but sought to have him remain until a relief skipper could be obtained. This would clearly conflict with the no prior knowledge position taken in Employer's brief and is a contradiction.

    Essentially, Mr. Johnson's testimony appeared to evolve into three general explanations: First, Claimant was terminated without knowledge of the protected activity; Second, Claimant was terminated with knowledge, but for another pre-existing lawful purpose; and Finally, Claimant was not terminated on-the-spot, but was to be relieved later, because of an unsatisfactory job performance, as soon as a replacement could be found. I found the thrust of each of these factual arguments, all premised on the testimony of a single witness, to be contradictory. Accordingly, the explications of this witness were given little weight.

    The foreman at the actual work site, Bobby Ponville, testified he had complained that Claimant was interfering with

the work crew, would not maintain radio contact, was not staying on the boat, at one point refused to dock the crew boat against the levee surrounding the pit, and was not wearing the proper safety attire. (Tr. 170-183). Mr. Ponville, despite his presence at the work site, stated he was not aware of the picture taking incident, presumably, he was not aware of Claimant's complaints concerning the initial discharge. (Tr. 183).

    Claimant conceded that he was not wearing safety shoes or a hard hat, and that he would get off of the boat and walk around. He pointed out that he was on duty for twelve hours and that it was difficult to remain on the little boat the entire time. (Tr.190). Claimant stated that he was able to hear the radio while off of the boat.

    Mr. Ponville testified in detail concerning Claimant's activities at the work site but he did not recall the picture taking incident and stated he did not mention any problems concerning the discharge to Mr. Johnson. His main complaint appeared to be that Claimant would not back his boat into the shallow area near the pit. (Tr. 170). However, it was developed that the area was 1-2 feet deep and that Claimant's vessel drafted three feet. (Tr 1-98) Claimant, as the master of the vessel, has a duty to the owner, as well as the contractor, to use his best judgment in matters such as these and I am not prepared to find fault in the exercise of his discretion in this regard.

    Mr. Ponville also noted that Claimant was interfering with the work operations when they began to cut into a pipe line running from the pit. He stated Claimant used off color language and expressed safety concerns about the line exploding. (Tr.172). Claimant admitted to being present with other workers when this was going on. He indicated the welder that was supposed to perform this task was reluctant to do so. He indicated that the workmen were merely discussing the attendant risks and safety concerns of cutting on the line which appeared to possibly contain gas vapors. Claimant indicated that he was present when they were discussing this and that he merely expressed his agreement that he would not want to cut the line either. (Tr. 196).

    Mr. Ponville also appeared to make a fleeting reference to this welder, and additionally testified to the fact that Mr.

Ponville elected to cut the line himself. (Tr. 172). After considering the testimony by both witnesses concerning this incident, I inferred that the welder ultimately did refuse to cut the line. It was my impression that Claimant did not actively interfere in their operations, but that he was present and did participate in the discussion of the safety concerns. I do not believe this is genuine Proof of interference.

    I carefully considered the testimony of Mr. Ponville, since some of his allegations appeared to be of a serious nature. After a comparison of Claimant's and Mr. Ponville's testimony, I conclude that Claimant did commit two infractions: he was not wearing the proper safety equipment, and he did leave his boat. However, despite leaving his boat occasionally, it would appear that Claimant did remain within "ear shot" of his radio. (Tr.57-60). There was no proof that IOFF was not able to establish radio contact with Claimant until after he and the boat were terminated. While the failure to wear proper safety attire is a lapse of proper employee conduct, in absence of proof to the contrary, I conclude that neither of these lapses were shown to have any significance to IOFF, or CPO, until after the fact of termination. It is my impression that while there may be a basis for employee disciplinary action, there are insufficient grounds for summary dismissal. It is worthy to note Respondent made no effort to offer evidence (extrensic or testimonial) as to what their policies were concerning these alleged violations, or evidence of any personnel policies.

(JX-3).

    Claimant then called the office of CPO and reported what happened concerning the pollution incident. Later, the president, Mr. Castelano, called him back and, according to Claimant's testimony, informed him neither Claimant nor his brother could work for him. (Tr. 28). Claimant stated that he had permission to leave the boat at the landing and go home. Claimant testified the next day Mr. Castelano called and officially fired him. He stated that Mr. Castelano was very upset about the pollution report. (Tr. 31).

    Mr. Johnson testified after the confrontation Claimant returned to his boat but did not return to the dock right away. Later at the dock, Mr. Johnson testified that he made an arrangement with Claimant, that despite having terminated him, he subsequently asked him to remain on the job until his replacement arrived. He described that he had a "feeling" he had an arrangement with Claimant. (Tr. 96). He stated that he went to the dock by fishing boat despite stating earlier that Claimant had basically abandoned them with no other boat to transport them but the tug boat. (Tr. 97).

    Mr. Johnson stated there was a tropical storm warning and he needed to evacuate his employees by 3:00 p.m., but he was unable to do so since Claimant had left them without transportation. (Tr.95). However, he later testified that he had the crew continue working until 4:00 p.m. before returning to the dock. (Tr.98). Despite leaving the quarter boat by 4:00 p.m., he stated that they did not return until 6:00 p.m. on the tug Todd Michael. (At a distance of 2.5 miles this means the tug could only travel 1.25 m.p.h.). Despite earlier statements to the contrary that there were no other boats in the area, Mr. Johnson inadvertently mentioned that he came in on a Phillips Petroleum crew boat. (Tr.100).

    Mr. Johnson also indicated that while he was aware that Claimant had reported a spill to the U.S.C.G., he was not aware that they had conducted an investigation or that Phillips had admitted their fault and paid a fine. (Tr.107).

    I found that much of the testimony offered by both Messrs. Johnson and Ponville was incongruent. On the one hand, it was heavily steeped in hearsay concerning Claimant's unfitness for

reference to, or offering of, any evidence from Claimant's personnel records, or other extrinsic proof concerning Claimant's fitness as an employee, such as periodic evaluations or written reprimands. While such proof is not required, this court does recognize that it is all too easy to impeach an employee's reputation after the fact of dismissal with use of hearsay evidence.

    The testimony reflects that Mr. Castelano was first apprised of the incident between Claimant and IOFF by his wife who took the initial message from Claimant. (Tr. 28, 128). Claimant testified that he reported the entire incident concerning reporting the pollution. Mr. Castelano indicated that he did not learn of this until later, but it was not clear how much later. He testified after learning that Claimant needed to be replaced, he then got in touch with Claimant and lined up a substitute skipper, ostensibly he seeks to have this court believe he did this without making an inquiry into, or learning, the reason this substitution was necessary.

    Claimant testified Mr. Castelano was informed of the reason he had been terminated, that Castelano had relieved him of his duties, and had lined up a substitute skipper. (Tr. 28-30). Claimant stated that he marked the work site on a chart for the substitute and left for home, and that Mr. Castelano was aware he was doing this. (Tr. 31). It is worthy to note that Mr. Castelano did not specifically deny this in his testimony. (Tr. 134-137). I find it hard to believe that the president of the company, upon hearing of the dismissal of one of his boat captains from a job, would not press his captain, the Claimant in this case, for the details concerning the reason for the dismissal while he was on the phone with him.

    The next day, Claimant testified, he was terminated by Employer for using the boat's radio to report the client's pollution spill. (Tr. 32). Mr. Castelano argues that it was due to Claimant's interference with the IOFF's operations and leaving them without transportation. (Tr. 142-143). In light of the analysis and conclusions above; considering the fact that Claimant presented no prior history of personnel difficulties; after considering the temporal nexus between the time Claimant photographed and complained about the discharge and was relieved by IOFF and reported the incident to the U.S.C.G.; and the time frame in which he was terminated by CPO; I conclude that the

evidence adduced strongly supports the conclusion that Mr. Castelano did terminate Claimant for reporting the pollution spill to the U.S.C.G. I also conclude that the evidence offered to attempt to show that Claimant was derelict in attending to his duties, while arguably substantial evidence to the contrary, was not sufficiently dispositive in my mind.

    A review of Claimant's evidence shows the following: that he did take photographs, which is supported by the testimony on both sides; that the photos were confiscated by Mr. Johnson; (testified to by Claimant) Mr. Johnson testified that the camera was voluntarily surrendered by its owner; that Claimant and his boat were fired from the job (this was testified to by both Claimant and Johnson, however what subsequently occurred was not clear); that the photos were processed and mysteriously did not develop, this was testified to by Employer's own witness; that a complaint was filed with the United States Coast Guard on the afternoon of the same day that he was terminated (JX-3); that Phillips Petroleum ultimately admitted guilt and paid a fine concerning this incident, testified to by Claimant and supported with extrinsic evidence; that it was determined by the Louisiana Office of Employment Security that Claimant was not terminated for good cause (JX-4); and that IOFF has not appealed the adverse determination below that they have violated Section 1367(a) of the WPPCA. (Tr. 24-30, 114, JX-3).

    It is my opinion that the many allegations made against this employee, in an attempt to justify the actions of the employers in this case, based on the evidence offered, were heavily outweighed by Claimant's better testimony and evidence. Claimant proved a prima facie case and put forth much more compelling evidence that he was discharged for engaging in protected activity under the WPPCA. There were too many occasions in the testimony where Employer's witnesses were reporting hearsay statements, often times twice removed from an unidentified speaker. While hearsay is admissable in an administrative hearing, after considering the record as a whole, I did not accord. it much weight in this matter. In contrast with Claimant's testimonial and documentary evidence, I found the Employer's witnesses unreliable and for the most part lacking credibility. I concur with the administrative finding that CPO did commit a violation of Section 1367 of the Act.

    Finally, Employer argues that Claimant was to work a seven

and seven shift. (Tr.147). A review of Claimant's pay records does not support this conclusion. (RX-5). It is reasonable to assume that Claimant could have worked most, if not the entire job. The administrator has determined that Claimant could have realistically expected to work 19 days on the project. In the absence of any proof or argument to the contrary, I agree.

    It is therefore recommended that Respondent, Coastal Production Operators, shall take the following steps to remedy their violation:

    1. Pay Claimant for 19 days pay at $80.00 DOLLARS per day or ONE THOUSAND FIVE HUNDRED TWENTY DOLLARS (,520.00), for his lost wages.

    2. Pay interest on the above sum determined to be due at the rate provided by 28 U.S.C. 1961.

    3. Remove all references concerning this incident from Claimant's personnel history, refrain from use of this incident as a basis for an unsatisfactory employee evaluation and refrain from reference to this incident as a basis for termination, or an unsatisfactory rating for future employment references.

    4. Allow Claimant the option of reinstatement to his former position and tenure.

    5. Pay Claimant's counsel a reasonable attorney's fee for the services rendered and costs incurred for representation under the Act. Counsel for Claimant shall have twenty (20) days from the date of service of this recommended order to submit an itemized fee petition with this office, for services and costs, with a copy serviced to Respondent. Respondent shall have ten (10) days after receipt of the petition to make any objections it may have thereto.

    6. This Recommended Decision and Order, enclosing all records in the case, will be forwarded to the Secretary of Labor, for the entry of a final order as provided in 29 C.F.R., Section 24.6.

       BEN H. WALLEY        Administrative Law Judge

Metairie, LA