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(FAX)
Date: April 11, 2000
Case No.: 1999-CAA-13
In the Matter of:
BRUCE DAVID MOURFIELD II,
Complainant
against
FREDERICK PLAAS & PLAAS, INCORPORATED,
Respondents
APPEARANCES:
EDWARD A. SLAVIN, JR., ESQ.
On behalf of the Complainant
ALEC J. BECK, ESQ.
On behalf of the Respondents
BEFORE: RICHARD D. MILLS
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a "whistleblower" complaint, alleging that Respondents
discriminated against Complainant in violation of the employee protection provisions of a number
of different federal environmental and pollution control statutes.1
1 These include: Clean Air Act (CAA),
42 U.S.C. § 7622; Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), 42 U.S.C. § 9610; Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-
9(i); Solid Waste Disposal Act (SWDA), 42 U.S.C. § 6971; and Toxic Substances Control Act
(TSCA), 15 U.S.C. § 2622.
2 Mr. Mourfield also complained that
the investigation performed by the Dallas Regional OSHA office was inadequate. (See,
e.g., Complainant's April 16, 1999 Amended Complaint, items 29 and 30).
3 In its Order Granting Respondents'
Motion for Reconsideration, the court only reversed its finding of protected activity, and did not
address Respondents' knowledge of any protected activity. However, by vacating the finding of
protected activity, the court also impliedly vacated its finding of awareness of protected activity.
4 OSHA provides whistleblower
protections similar to the environmental laws, but 29 U.S.C. § 660(c)(2) provides (in part) that
if after investigation the Secretary feels a violation has occurred, he or she shall bring an action
against the violator, and "In any such action the United States district courts shall have
jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all
appropriate relief . . . ." The Labor Management Relations Act provides protection for workers
against "unfair labor practices," including discrimination in the terms of employment
as a result of union activity, but jurisdiction is vested in the National Labor Relations Board, and
enforcement power in the federal district and circuit courts of appeals. (See 29 U.S.C.
§ 158(a); 29 U.S.C. § 160).
5 The TSCA (15 U.S.C. §
2622(a)), SDWA (42 U.S.C. § 300j-9(i)), and CAA (42 U.S.C. § 7622(a)) are very
similar, with only minor differences. Likewise, the provisions of CERCLA (42 U.S.C. §
9610(a)) and the SWDA (42 U.S.C. § 6971(a)) are nearly identical.
6 References to the transcript and
exhibits are as follows: Hearing Transcripts, June and September, 1999 (TX); Complainant's Exhibit
(CX-__); Employer's Exhibit (EX-__). "EX" is used for Respondents's exhibits for
convenience, as this is how the parties usually referenced the exhibits; however, they should more
properly be listed as Respondents' Exhibits, or "RX."
7 Mr. Plaas said he thought Mr.
Heiskell was "a good superintendent, a very fine individual . . . intelligent in the field that he
has been instructed to do for me." (TX, p. 865).
8 Mr. Mourfield testified that he
understood both Mr. Heiskell and Mr. Rogers to be in charge, as both could hire, fire, and reprimand
workers. (TX, p. 395). Mr. Dennis Smith, another Plaas, Inc. employee, also testified that Mr.
Heiskell had told the men that Mr. Rogers could hire and fire. (TX, p. 47).
9 Mr. Plaas was unaware of any
certifications Mr. Mourfield might hold (TX, p. 139), and Mr. Heiskell said he had not actually seen
Mr. Mourfield's certifications. (TX, p. 740).
10 Mr. Mourfield explained he was
afraid that a non-union contractor would not hire him if he listed previous work primarily for union
contractors or on union jobs. (TX, p. 376).
11 Mr. Mourfield says Mr. Rogers
told him that Plaas, Inc. will "cull" out bad workers, but will keep good workers with
the company and move them from job to job. (TX, p. 373).
12 Mr. Rogers said that since 1987,
he has been laid off several times himself, and has laid others off several times. (TX, p. 607-08). Mr.
Heiskell also agreed that layoffs are common in the construction industry. (TX, p. 626).
13 Mr. Plaas agreed that a job
superintendent normally will make layoffs to reduce costs as a job winds down. (TX, p. 158).
14 Mr. Plaas testified he visited the
site at least twice, in August and November 1998 (the week before Thanksgiving). (TX, p. 119). Mr.
Plaas said he met Mr. Mourfield during his November visit, but Mr. Mourfield did not complain of
environmental hazards, did not report a hostile work environment or other problems, nor did he
indicate he was a "union organizer," a "troublemaker," or that he intended
to call OSHA. (TX, p. 803, 820, 1000-01).
15 Mr. Heiskell had seven welders
in November, but decided he would only need four in the coming months. (TX, p. 637). These
seven welders were: Travis Atkinson, Barry Richmond, Dennis Smith, Shawn Clampet, Jay
Dodderer, Scott Setser, and Mr. Mourfield. (TX, p. 637, EX-1). However, Mr. Setser quit soon after
he was hired. (TX, p. 637-38).
16 Mr. Plaas earlier testimony
described only three men, Mr. Clampet, Mr. Pond, and Mr. Mourfield (TX, p. 256); later testimony
added Mr. Atkinson to the list of layoffs. (TX, p. 817).
17 Mr. Plaas said he would not lay
off a worker with a needed specific skill just because he was the more recent hire. (TX, p. 818). Mr.
Plaas also admitted that a worker who was doing poor work might have his skills considered in any
decision to lay him off. (TX, p. 818).
18 Mr. Don Green, a local union
official, said in his experience, there have been only a few instances of companies laying off based
on seniority. (TX, p. 922). Mr. Green is employed by Plumbers and Steamfitters Local Union 196.
(TX, p. 905). Mr. Green has been in construction for 38 years, and has worked across the country.
(TX, p. 920-21).
19 Mr. Heiskell said EX-1 probably
lists Mr. Dodderer as a welder because his initial welds looked good, so he began to receive welder's
pay. (TX, p. 914).
20 However, he denied he had been
inaccurate when he testified previously that he always lays off by seniority, but he admitted he
sometimes did take competence into account. (TX, p. 918). Mr. Heiskell said he would lay off a
clearly incompetent person, even if they were senior to other workers. (TX, p. 918-19).
21 However, Mr. Mourfield
testified that Mr. Brown did weld at the Bimbo Cereal plant, although the court notes Mr. Mourfield
does not say he was a welder. (TX, p. 926).
22 Mr. Smith testified that he was
present when Mr. Mourfield spoke to the workers about their rights, and that management knew of
this activity. (TX, p. 64).
23 Mr. Don Green is an officer of
Plumbers and Steamfitters Local Union 196. (TX, p. 905). Mr. Mourfield is not a member of this
local, but is a "traveling member" of Local 102 of Knoxville, Tennessee. (TX, p. 905-
06).
24 The court notes that at the
second hearing in September, 1999, Mr. Mourfield did not mention Mr. Rogers screaming. (TX, p.
1055).
25 Mr. Rogers said the only
disruption Mr. Mourfield caused prior to December 16 was this passing out of flyers and
information before work, at lunch, and after work. (TX, p. 592). Mr. Rogers also said the union was
picketing at the gate of the Bimbo Cereal site December 12. (TX, p. 590).
26 Mr. Plaas admitted he did not
take notes of these problems. (TX, p. 184). Later he said notes on the circumstances of Mr.
Clampet's quitting were made on his personnel file. (TX, p. 186).
27 Mr. Plaas disagreed that he had
mentioned Mr. Mourfield's union status when asking Mr. Rogers to apologize for the events of
December 16, 1998. (TX, p. 894). Mr. Plaas also disagreed that he had ever said to "to lay off
[Mr. Mourfield] and on other. Insted of firen him." [errors in original] (TX, p. 897; EX-40, p.
3).
28 For example, during an incident
with Mr. Rogers on December 16, 1998 where Mr. Mourfield allegedly was fired, Mr. Rogers' notes
indicate that Mr. Mourfield said he would "shut this fucking job down"; however, Mr.
Mourfield specifically denied he said this. (TX, p. 1046).
29 Mr. Rogers testimony on this
point varied from the typed transcript of this page of notes (EX-8), and from what the court could
decipher from the handwritten page (EX-7). However, in all the intent is clear: Mr. Rogers was
reporting that Mr. Mourfield had requested a lay off around January 20, 1999.
30 Mr. Rogers did not recall Mr.
Mourfield saying he might not have to go, nor did he recall asking Mr. Mourfield if he would be able
to return to work, but he agreed that Mr. Mourfield had said he would let him know later "for
sure." (TX, p. 589).
31 This conversation was recorded
on one of the tapes submitted to the court. (CX-11B). During this conversation, Mr. Mourfield
suggested that the request for a doctor's excuse showed harassment and discrimination against a
union worker, because others were not asked for doctor's excuses when absent. (See CX-
11A, p. 1; CX-11B).
32 This letter, dated December 15,
1998, was prepared by Plaas, Inc. headquarters because Mr. Heiskell did not have a computer or
typewriter available to prepare it on site. (TX, p. 649). EX-6 is unsigned because a copy was sent to
Mr. Heiskell in Texas for his signature and mailing. (TX, p. 842). When discovery requests were
made, letters were either printed from computer files or pulled from other Plaas, Inc. files, since the
signed copy already had been mailed out. (TX, p. 842-43). Mr. Plaas said both signed and unsigned
copies of documents may be in the files, but he was unaware whether any signed copy of EX-6
existed. (TX, p. 843).
33 As a former law enforcement
officer, Mr. Mourfield agreed that this probably constituted an assault. (TX, p. 448).
34 Mr. Plaas said he would expect
his men to report any hostile work environment from Mr. Rogers or other workers to Mr. Heiskell.
(TX, p. 200).
35 Mr. Rogers testified Mr. Plaas
never asked about Mr. Mourfield raising concerns of a hostile work environment prior to December
16, 1998. (TX, p. 594).
36 Mr. Heiskell explained that
HAZCOM training deals primarily with chemicals and acids, and personal protective equipment.
(TX, p. 630).
37 Mr. Rogers also testified a
meeting was held every Tuesday morning. (TX, p. 530). However, Mr. Smith denied any
"toolbox training meetings" occurred, except for the day before the OSHA visit of
December 16, 1998. (TX, p. 65). Mr. Smith later testified that the men signed a document similar
to CX-5F every Monday morning, although he could not remember the title; the pre-printed title of
this is "Tool Box Safety Meeting Report." (TX, pp. 68-70; CX-5F). Mr. Smith then said
planning and operational issues were usually discussed, and safety issues were only occasionally
discussed. (TX, pp. 69-70, 71).
38 "Housekeeping"
refers to keeping work areas clean, to prevent tripping. (TX, p. 660).
39 Mr. Heiskell said the general
contractor had no hazards on the site, other than what the Plaas, Inc. employees were working with.
(TX, p. 741).
40 The court notes CX-5F is
original, and EX-35 is a copy. The phrases "job handbook hazard communication," and
"no hazards other than what we work with" were written with a different pen than the
rest of the original. The court also notes that the printed names on EX-35 are not present on the
original. Mr. Heiskell said he did not know who printed the names on this copy. (TX, p. 661-62).
41 Mr. Heiskell admitted he had
never seen any of Mr. Mourfield's certifications, and never gave him a formal welding test. (TX, p.
740).
42 Mr. Mourfield taped a
conversation with Mr. Heiskell about HAZCOM and MSDS; the transcript of this conversation is
dated December 16, 1998. (See CX-12A). In addition, EX-6 (Plaas, Inc.'s letter regarding
absences and tardiness) indicates he was absent December 15, 1998, except for a meeting with Mr.
Heiskell where he was told to get a doctor's excuse.
43 Later, Mr. Mourfield could not
recall exactly what time this occurred, but said it was sometime in the morning. (TX, p. 423). Mr.
Mourfield admitted: receiving the handbook when hired, still possessing his copy, and that he was
being asked to sign the last page of a handbook he had already seen and read. (TX, p. 420-21).
However, Mr. Heiskell could not recall whether Mr. Mourfield was asked to sign this same
document when he was hired. (TX, p. 708).
44 Mr. Mourfield said Mr. Heiskell
was calm and did not get angry. (TX, p. 422, 429-30, 675).
45 However, Mr. Heiskell testified
that the Plaas, Inc. HAZCOM book was present on the Bimbo Cereal site. (TX, p. 631). Mr. Rogers
also said "they had all you needed to have, everything if you didn't feel safe, he had the
paperwork on it." (TX, p. 529).
46 Mr. Heiskell denied he
"mocked and trivialized" Mr. Mourfield's concerns by focusing on rubbing alcohol. (TX,
p. 740).
47 Mr. Mourfield's counsel
questioned Mr. Plaas' qualifications to make such a blanket statement; Mr. Plaas admitted that he
received little or no welding training over the last 30 years, that he did not know airborne welding
byproducts, etc. (TX, pp. 145, 148-49).
48 Later, Mr. Mourfield flatly
denied were any MSDS. (TX, p. 1076).
49 However, Mr. Heiskell testified
previously that he did discuss the subject with Mr. Mourfield once, and he had told Mr. Mourfield
where the MSDS were, but Mr. Mourfield never said what he wanted to see. (TX, p. 655-56; see
also CX-12A, 12B).
50 Mr. Plaas said that even if the
allegation regarding denial of access to the general contractor's trailer were true, he still felt Mr.
Mourfield should have first raised any concerns or questions to Mr. Heiskell, who would have then
obtained the requested information or sent Mr. Mourfield to the general contractor's trailer. (TX, p.
164)
51 Plaas, Inc. did not appeal the two
OSHA citations it received (TX, p. 167-68), and no monetary penalties were proposed. (CX-3A, pp.
5-6; EX-30, pp. 5-6).
52 Mr. Rogers has heard of welder
deaths as a result of argon gas filling up a plastic "hooch," but he has not heard of any
deaths while working "in a building ... once it's roofed in and it's got walls," especially
an open building with no doors and ventilation such as on the Bimbo Cereal site. (TX, p. 584).
53 While Mr. Mourfield admitted
that burning frequently does occur on construction sites, he said toxic or hazardous materials usually
are not burned. (TX, p. 393).
54 Mr. Plaas disagreed that the
videotape introduced by Mr. Mourfield accurately reflected the site, especially some of the distances
discussed in the audio portion of the videotape. (TX, p. 151; see also CX-1)
55 In contrast, Mr. Smith said the
work site was actually a fairly safe place; he rated it as a five on a scale of 1 to 10. (TX, p. 73). Mr.
Smith also said the only toxic chemical releases he was aware of were paint and welding fumes,
which he described as "pretty typical." (TX, p. 52).
56 Mr. Mourfield explained argon
is heavier than air and settles low to the ground; when a worker using argon is low and surrounded
by toolboxes and other construction equipment, a confined space of sorts is created, impeding the
dispersal of the argon. (TX, pp. 298-99). Mr. Mourfield explained a person will suffocate from
breathing too much argon. (TX, p. 1036)
57 Mr. Heiskell identified EX-37B
as a poster describing various worker's rights. (TX, p. 663). Mr. Heiskell said that this poster, or one
like it, was posted next to the door inside the trailer. (TX, p. 663). He also said that the poster in the
office contained all of the information contained in EX-37B. (TX, p. 663).
58 The court notes that at the first
hearing, Mr. Mourfield only described burning in general terms, and that some burning occurred near
ammonia tanks (as shown in CX-1). (TX, p. 387).
59 The court notes that protected
activity was not at issue in that hearing, although the parties did put forth some evidence on the
subject anyway.
60 Mr. Mourfield admitted he had
seen the OSHA citations at the time of the first hearing, and thus was aware of what Mr. Gallop had
focused on, and that Plaas, Inc. had not been assessed any penalties. (TX, p. 1051). Mr. Mourfield
said he has never seen any notes Mr. Gallop may have taken of the private meeting. (TX, p. 1050).
61 Despite requests by the parties,
none of the OSHA personnel involved in this matter agreed to testify.
62 Mr. Smith's testimony on the
exact wording used is unclear. He later agreed that Mr. Rogers told them to go back to work or they
"could be" fired" (TX, p. 41, 60). However, under questioning from the court, he
stated Mr. Rogers had "said we was fired." (TX, p. 54).
63 Mr. Mourfield later denied
specifically refusing to return to work, but said he insisted he "needed to find the OSHA
man." (TX, p. 431-32). Mr. Mourfield disagreed that his insistence equaled a refusal to return
to his work area, although he admitted he would not return until he had spoken with the investigator.
(TX, p. 432). Mr. Mourfield later agreed that regardless of his reasons, he had refused an order to
return to work. (TX, p. 433).
64 Despite his frequent audio
recording, Mr. Mourfield said he was unable to record this incident due to his bulky clothing,
although he did attempt to reach the recorder. (TX, p. 433). Mr. Mourfield denied he ever said he
had a tape of the incident. (TX, p.437). Mr. Mourfield also did not recall whether he took any notes
regarding the events of December 16, 1998. (TX, pp. 416-17).
65 However, Mr. Heiskell did not
recall Mr. Gallop saying this. (TX, p. 726).
66 Mr. Heiskell said he thinks Mr.
Rogers may have spoken to Mr. Plaas at this time too. (TX, p. 667).
67 Mr. Smith testified he
voluntarily quit January 9, 1999. (TX, p. 52).
68 CX-10 was introduced and
admitted at the hearing as phone bills documenting calls from the Plaas, Inc. trailer. Somehow these
records are not present in the exhibits in possession of the court. However, the court's review of the
transcript shows that the parties did not dispute the substance of the records, and therefore the court
will rely on the transcript for the relevant information.
69 Later, Mr. Plaas testified this
call came in around 4 p.m. (TX, p. 847). Mr. Mourfield's attorney disputed who actually called, and
said it was not Mr. Mourfield. (TX, p. 848-49).
70 Under repeated questioning from
Mr. Mourfield's counsel as to why Mr. Plaas would believe a supervisor instead of a worker, Mr.
Plaas consistently responded that he has chosen his supervisors because he feels he can trust them.
(See, e.g., TX, p. 134).
71 Mr. Mourfield said he did not
"yell and scream" at Mr. Rogers, nor did he wave a tape recorder in his face. (TX, p.
361-362).
72 Mr. Heiskell said Mr. Smith
never said anything. (TX, p. 670; see also CX-6A, 6B). Mr. Mourfield said Mr. Smith was
quiet because "he was scared," and was primarily with Mr. Mourfield for support. (TX,
p. 477).
73 Mr. Plaas continuously denied
that the men were fired that day. (TX, p. 266-67, 1025). Mr. Mourfield denied both during the
conference call and at the first hearing that he wanted to be fired that day or that he had told anyone
that. (TX, p. 344-45; CX-6A, 6B).
74 At the hearing, Mr. Plaas
admitted that the location of these notes probably wasn't something he had any right to know. (TX,
p. 197).
75 Mr. Mourfield alleges that
during the conference call Mr. Rogers and Mr. Heiskell were "smirking, looking at each other,
smiling, rolling their eyes, whispering ...." (TX, p. 466). However, the court's own review of
the tape reveals only Mr. Mourfield's laughter. (CX-6B). Mr. Heiskell denied that either he or Mr.
Rogers were laughing or making fun of anyone or anything during the call. (TX, p. 669-70).
76 Mr. Mourfield admits this
allegation is based on the content and tone of the taped conference call, and Mr. Plaas' alleged
inaction afterwards. (TX, p. 464, 488). Mr. Mourfield argues that the tone of Mr. Plaas on the tape
shows animus; however, the court finds Mr. Plaas' tone of voice to be unremarkable.
77 Mr. Plaas admitted interrupting
Mr. Mourfield numerous times during the call (TX, p. 200), but said "I can't say that I was
angry, that I was real angry. I was trying to get my point across that I was concerned about the hostile
environment ...." (TX, p. 852, 854).
78 Mr. Heiskell said he could not
recall whether Mr. Mourfield laughed. (TX, p. 670). Mr. Mourfield explained that any laughs heard
on the tape were nervous laughs. (TX, p. 345).
79 Mr. Heiskell said Mr. Plaas is
"easy to get along with . . . [and] he's never raised his voice at me." (TX, p. 723). Mr.
Heiskell also said he has never heard or seen Mr. Plaas swear at him or another employee. (TX, p.
770).
80 Mr. Heiskell's testimony in this
area was especially confused.
81 However, Mr. Mourfield said
he could not recall any previous filing in which he made the allegation that Mr. Rogers had asked
if he called OSHA. (TX, p. 405, 406-07).
82 Mr. Smith agreed an "all
hands" meeting was held on December 17,1998, and he believes OSHA was discussed, but
he did not recall whether any apologies were offered. (TX, p. 65-66).
83 Mr. Heiskell said he was present
when apologies were given. (TX, p. 672).
84 Apparently this refers to Mr.
Pond, Mr. Atkinson, and Mr. Clampet. (See below for further discussion of these voluntary
quits).
85 Mr. Heiskell made the actual
decision to lay off Mr. Mourfield. (TX, p. 675). He thought the rest of the crew could handle the
remaining work on the project. (TX, p. 676-77).
86 Mr. Rogers identified EX-39 and
EX-40 as his notes (and a typed transcript) of events on December 16, 17, and 23, 1998. (TX, pp.
540-41). The quoted passage comes from a page dated December 14, 1998, although the opposite
page has had December 14 scratched through and replaced with December 16, 1998. (EX-40, p. 3).
It is unclear from the notes themselves which date covers this particular passage, as there is no clear
continuation from the opposite (and re-dated) page.
87 Mr. Heiskell said he could not
explain Mr. Rogers' note. (TX, p. 767). Mr. Heiskell denied that Mr. Plaas wanted to fire Mr.
Mourfield. (TX, p. 745)
88 Mr. Smith said Mr. Pond quit
because he received a lower pay rate than promised, and Mr. Clampet quit because he rode to work
with Mr. Pond. (TX, p. 58). Mr. Pond was hired as a helper, but wanted to be a welder; however,
he did not want to weld before receiving the raise. (TX, p. 579-80; 609, 628). Mr. Rogers said when
he quit, Mr. Pond simply said "it was time to go," and did not explain further. (TX, p.
579). Later, Mr. Rogers acknowledged the dispute over pay could have influenced Mr. Pond's
decision. (TX, p. 581). Mr. Atkinson took another job which also hired his wife, but he allegedly
mentioned before leaving that he didn't like working with Mr. Mourfield. (TX, p. 535). Mr. Smith
said he never heard them mention any concern with unions. (TX, p. 58).
89 Mr. Rogers' notes of December
22, 1998 indicate that Mr. Plaas had said to go ahead and lay off Mr. Mourfield as Plaas, Inc. was
now a "welder heavy." (EX-7, 8). Mr. Heiskell said he tries to keep one welder per
fitter. (TX, p. 635).
90 Mr. Heiskell denied that Mr.
Mourfield was in the middle of a series of welds when he was told he was being laid off. (TX, p.
758).
91 Mr. Rogers confirmed Mr.
Mourfield was absent or tardy several times, but said he would rate Mr. Mourfield's work area
cleanliness as productivity as average. (TX, p. 554).
92 (Mr. Clampet, Mr. Pond, and
Mr. Atkinson), but he admitted he did not have any written proof of their reasons for quitting. (TX,
p. 658, 689).
93 For example, Mr. Heiskell said
information learned from a subsequent employer could lead to a decision to rehire someone
previously marked ineligible for rehire. (TX, p. 687).
94 Mr. Smith said Mr. Rogers told
him December 23, 1998 that he had not attempted to fire him on December 16, 1998, and said that
he had been speaking to Mr. Mourfield. (TX, p. 57, 60). Mr. Smith said he felt Mr. Rogers was
apologizing to him on December 23, 1998, although the words "apology" or
"sorry" were not used. (TX, p. 62).
95 Mr. Smith said that welders and
fitters were paid at the same rate. (TX, p. 274).
96 Mr. Mourfield alleges Ms.
Nardizzi, the OSHA investigator assigned to his complaint, first told him he could not file an OSHA
11(c) whistleblower claim since he was a union member. (TX, p. 364). Mr. Mourfield also filed a
complaint of unfair labor practices with the NLRB on January 4, 1999. (EX-25).
97 Interestingly, Mr. Smith told Ms.
Nardizzi he felt Mr. Mourfield was fired or laid off because he was a union organizer. (TX, pp. 47-
48).
98 Mr. Plaas said he has never met
Ms. Nardizzi in person. (TX, p. 215).
99 Mr. Plaas admitted he was
"upset" over events at the job site and the litigation. (TX, p. 179). Mr. Plaas also
indicated he was "upset" over the disruption caused by Mr. Mourfield on December 16,
1998, which caused "nonproductivity." (TX, pp. 179-80, 182). However, Mr. Plaas has
consistently denied that he was angry with Mr. Mourfield specifically.
100 Mr. Heiskell said there were
no other former Plaas, Inc. welders in the area at the time. (TX, p. 768).
101 Mr. Heiskell denied Mr.
Mourfield was offered reinstatement because he had filed an OSHA complaint. (TX, p. 691-92).
102 The court also presumes this
was recorded in portions of Mr. Rogers notes not formally submitted as exhibits.
103 Mr. Heiskell he did not know
whether Plaas, Inc. usually made offers via certified letter; he also said he knew of no other intensive
effort to rehire a man previously marked ineligible for rehire. (TX, p. 687-88). Mr. Plaas said he
could not recall ever sending a certified letter to offer a rehire before. (TX, p. 899).
104 Mr. Plaas apparently
believed that the requested attorney fees were for the preparation of a single letter. (TX, p. 1016-17).
105 Mr. Mourfield said a
statement in EX-16 (that the only remaining issue is attorney fees) is incorrect because Ms. Nardizzi
falsely reported Mr. Plaas had accepted the other terms, and his counsel was therefore incorrect when
he said this was the only remaining issue because he relied on "falsified information from a
federal agent." (TX, p. 1068-1070).
106 Mr. Plaas said he did
communicate directly with Mr. Mourfield's attorney. (TX, p. 1010). Presumably the implication is
that Mr. Plaas knew Mr. Mourfield had hired counsel, but continued to negotiate, thus showing he
did not break off talks simply because Mr. Mourfield retained counsel.
107 Mr. Plaas said after Mr.
Heiskell's investigation, he determined there never was a hostile work environment. (TX, p. 882).
Mr. Plaas seemed to evade a question about what the harm would be in agreeing to a non-hostile
environment if there never was one in the first place. (TX, p. 882).
108 Mr. Plaas admitted he does
not usually talk with one worker about another, but said he mentioned this because Mr. Clampet
knew Mr. Mourfield also was a local resident. (TX, p. 887). Mr. Smith also testified he spoke with
Mr. Clampet, and Mr. Clampet said he was told Mr. Mourfield, had refused the offer. (TX, p. 270,
272).
109 Plaas, Inc. was re-hired to
correct a flaw in the original design of the piping. (TX, pp. 160-61). Mr. Plaas said only one of the
newly hired hands was a welder. (TX, p. 162).
110 However, Mrs. Mourfield
said he has worked construction for seven years, and has held "very many" jobs during
that time, as it is common for construction jobs to end. (TX, p. 1090).
111 Mrs. Mourfield was not
working at the time of the lay-off or at the time of hearing. (TX, p. 365).
112 Questions in this area were
cut-off by the court after Mr. Mourfield alleged Respondents may have obtained confidential
information from a previous employer, in violation of a settlement agreement and protective orders
in that case. This has been addressed in more detail in the court's previous April 5, 2000 Order on
Pending Motions.
113 Mrs. Mourfield did not know
the eligibility period was for health insurance through Plaas, Inc. (TX, p. 1084-85). Mr. Rogers said
Plaas, Inc. does offer medical insurance to employees, but only after a certain number of hours or
days are worked. (TX, p. 583). Mrs. Mourfield said they also were not eligible for union health
insurance because "you have to work so many hours with the union." (TX, p. 1085).
114 Mr. Mourfield said he also
worked less than one week for a company that went bankrupt, but was never paid. (TX, pp. 484-85).
115 When asked if he had
worked anywhere else, she looked to Mr. Mourfield, and Respondents' counsel objected that he was
shaking his head. The court then warned Mrs. Mourfield not to look for help in answering questions.
She indicated she did not want to answer the question, but was ordered to by the court. Mr.
Mourfield then objected that by answering this question he might be subjected to blacklisting and
lose the job. The court agreed to order Respondents not to contact his current employer;
Respondents agreed to so comply. (TX, p. 1085-1087).
116 Mr. Green admitted that
some of the men may not want to work. (TX, p. 908). Mr. Mourfield and other "traveling
members" are not included on out of work lists. (TX, p. 909).
117 The transcript lists this as
$35.00 per hour, but the court has assumed the correct amount is $35.00 per day.
118 For example, Mr. Rogers
said Mr. Plaas paid for his hotel room and lost wages so he could testify at the hearing, and he said
Mr. Plaas reiterated a previous offer to rehire him on other Plaas, Inc. projects. (See, e.g.
TX, pp. 131, 495, 551-53, 602, 868).
119 For example, Mr. Heiskell,
Mr. Rogers, and Mr. Plaas all testified that no one was fired December 16, 1998; but later Mr.
Heiskell said "that was the day yes they were fired." (TX, p. 704).
120 Mr. Rogers said did not
consider Mr. Mourfield to be an honest person, citing an example of Mr. Mourfield offering to sell
police handguns, but refusing to have his name listed on a bill of sale. (TX, pp. 556-57).
121 Mr. Rockefeller
acknowledged Mr. Mourfield's counsel is his attorney in a whistleblower case against the
Department of Energy (on appeal at the time of this hearing). (TX, p. 974-75). Mr. Rockefeller
denied the case had been dismissed for making unfounded allegations. (TX, p. 976).
122 Based on Mr. Mourfield's
testimony, there were presumably many instances of argon leakage, but only one report (prior to
December 16, 1998) is described in the transcript. Although there is no testimony from Mr. Rogers
regarding this conversation, the court notes the absence of corroborating testimony will be a frequent
problem because the June 1999 hearing did not address protected activity, and several witnesses who
testified at the first hearing did not testify at the September, 1999 hearing (particularly Mr. Smith,
Mr. Rogers, and Mr. Heiskell).
123 It is the court's understanding
that argon is an "inert" gas, hazardous only if allowed to build up to high concentrations;
it can displace oxygen in a poorly ventilated area and therefore lead to asphyxiation. (See
TX, pp. 298-99, 1036; CX-4B).
124 This is work done in an area
where it is difficult or impossible to properly ventilate fumes or gases, such as might be found in the
enclosed space of a storage tank or vessel. The danger increases because gases are unable to
dissipate and become more concentrated.
125 On remand, the ALJ
concluded the Secretary's finding was binding, but noted certain concerns, which this court agrees
with: "Notwithstanding the Secretary's order ... it is questioned whether the Clean Air Act
applies to this claim since it cannot be determined, based on a plain reading of the statute, if
Congress intended to regulate negligible amounts of [ethylene oxide] released into an environment.
Moreover, it cannot be determined whether Congress intended to regulate offgassing ... into a
restricted environment such as a shuttle cabin or laboratory. It is unknown whether Congress
intended to regulate the release of contaminants only into the outside environment where the
pollution can drift from city to city and affect a large geographic area and a large number of
people." Stephenson v. National Aeronautics & Space Administration , 94-TSC-5,
note 49 (ALJ Nov. 13, 1997).
126 However, no other witness
testified regarding exploding aerosol cans, and Mr. Rogers, Mr. Heiskell, and Mr. Smith were not
asked about this during their testimony at the first hearing.
127 Although Mr. Mourfield said
Mr. Rogers seemed surprised this activity was allowed, and acted as if the exploding cans were
funny, there is no indication that they directly discussed the environmental risks of the exploding
cans, or specifically how this was "dangerous." (See TX, pp. 1030-31).
128 The date stamp on the
videotape indicates it was recorded May 5, 1999, more than four months after Mr. Mourfield last
worked for Plaas, Inc. (December 23, 1998), and more than three months after his whistleblower
complaint was filed (January 1999). (See CX-1).
129 Unlike the burning that
occurred on the Bimbo Cereal site itself, the court finds no evidence or testimony describing what
was being burned, and thus there is no basis for the court to even begin to evaluate whether the
burning itself would constitute a reasonably perceived violation of environmental law.
130 Mr. Smith also testified
workers were unable to review MSDS. (TX, p. 39, 64).
131 Even the name,
"Material Safety Data Sheets" (emphasis added), suggests they are more
concerned with worker safety than possible environmental hazards.
132 These chemicals included
(but were not limited to): argon, oxygen, acetylene, diesel, gasoline, PVC solvent cement, Rapid-Tap
cutting fluid, and PVC purple primer. (See EX-61 (unnumbered)).
133 The court believes this
especially unlikely, based on testimony that there were no hazardous materials on site except those
commonly used by Plaas, Inc. welders. (See, e.g., TX, p. 661, 740-410).
134 However, the court will
consider the reported hostile work environment as a possible "adverse employment
activity," below.
135 The court will not address
whether such recordings are legal in the state of Texas.
136 The court notes that the
OSHA report (EX-61) does mention improper use of extension cords, and Mr. Mourfield testified
he had spoken with Mr. Rogers about safety harnesses. (TX, pp. 306-07). However, these are two
of the clearest instances of possible OSHA protected activity, not environmental protected activity.
137 Mr. Rockefeller did not
know whether welding indoors or in confined space without proper measurement and ventilation
would be a violation of the Clean Air Act. (TX, p. 973).
138 Mr. Mourfield blamed this
omission on poor questioning by attorneys. (TX, p. 1048). The court notes that protected activity
was not at issue in the first hearing, although several possible instances were discussed anyway.
139 Mr. Mourfield blames the
absence of this information from the OSHA report on the dishonesty of the investigator. (TX, pp.
1050-51).
140 The closest he comes is a
claim that he discussed potential pollution of the local aquifer. (TX, p. 1049).
141 Other terms included:
reinstatement with non-discriminatory terms and conditions in a non-hostile environment; back pay
(approximately $4,000.00); purging of derogatory information related to the lay off / termination
from employment records; up-to-date posting of employee rights information; and attorney's fees of
over ,500.00. (CX-14, EX-14; see also EX-15).
142 The parties had been
exploring settlements using Ms. Nardizzi as a mediator of sorts since the end of December, 1998.
143 Arguably the break-off of
negotiations could be seen as adverse employment activity, and this question will be addressed
separately below.
144 Some decisions have found
settlement agreements which contain "gag provisions" preventing the employee from
testifying or assisting in any investigation to be illegal; however, the court points out that in this case,
there was no such provision preventing testimony, and the offer to waive Mr. Mourfield's rights to
file a claim was made by him and his counsel, not Respondents.
145 The court also finds it
curious that neither Mr. Gallop's report nor Mr. Smith's testimony mention any discussion of
chemicals released by the bonfire.
146 This is not meant to suggest
that hostility based on union preference is acceptable, just that such activity is not covered by
environmental whistleblower laws.
147 The only evidence was Mr.
Mourfield's testimony that Mr. Rogers and some other men had spread "propaganda"
about him and called him a "union son of a bitch, union troublemaker." (TX, p. 444-46).
Assuming the truth of these assertions, it is clear that they were based on Mr. Mourfield's union
activity.
148 Mr. Mourfield frequently
used the phrase "dog stares" to describe the "looks" he received from Mr.
Rogers, and complained of hostile tones of voice. It is unclear how this treatment may have
negatively affected him.
149 The motive, if any, for
blacklisting will be discussed below. The present discussion only concerns whether any blacklisting
occurred at all.
150 As discussed above, the court
is not entirely convinced a break off of negotiations is an adverse employment activity, but has
assumed so for the purposes of this discussion.
151 The various records also
show that Mr. Smith was "senior" to Mr. Mourfield. (See, e.g., EX-1). Mr.
Smith testified he voluntarily quit on January 9, 1999. (TX, p. 52).
152 Mr. Plaas said several times
that he refused to pay attorney fees because he had been told that OSHA Section 11 did not allow
for such fees. The court suspects the confusion on this point stemmed from the difference between
a settlement and an adjudication; while there may not be any provision in Section 11 which allows
for the award of fees, that does not mean that the parties can not agree such fees in a settlement
agreement worked out between them.