U.S. DEPARTMENT OF LABOR

                                                    SECRETARY OF LABOR
                                                       WASHINGTON.  D.C.


DATE:     FEB 26, 1996
CASE NO.  95-CAA-1


IN THE MATTER OF

CLIFFORD SUTHERLAND, SCOTT TENBRINK,
FRED E. FRANKLIN AND AARON HAHN,

          COMPLAINANTS,

     v.

SPRAY SYSTEMS ENVIRONMENTAL AND
WILLIAM RAE SMITH,

          RESPONDENTS.


BEFORE:   THE SECRETARY OF LABOR



                                             FINAL DECISION AND ORDER

     This case arises under the employee protection provisions of the Clean Air Act (CAA),
42 U.S.C. § 7622 (1988), and the Toxic Substances Control Act (TSCA), 42 U.S.C.
§ 6971 (1988).  For the following reasons the Administrative Law Judge's (ALJ)
Recommended Decision and Order (R.  D. and 0.) is accepted as modified below.

                                                          BACKGROUND

     The Complainants, Clifford Sutherland (Sutherland), Scott Tenbrink (S.  Tenbrink),
Fred E. Franklin (Franklin) and Aaron Hahn (Hahn) alleged that Spray Systems
Environmental, Inc., (Spray Systems) and its former employee, William Rae Smith (Smith),
wrongfully fired them in contravention of the employee protection provisions of the CAA and
TSCA.

     The Complainants had been employed by Spray Systems as part of a work crew to
remove floor tile and mastic that contained asbestos from a public school in Farmington, NM. 

[PAGE 2]
Shortly after the job began, Smith, Spray System's field superintendent, who was responsible
for the company's jobs over a wide geographic area including the Farmington job, arrived at
the job site to oversee the activity.  The work crew had begun the preparation of the premises
for the tile and mastic removal under the direction of Jeff Tenbrink (Tenbrink), the local job
supervisor.  Chris Boyles, Spray Systems' owner, testified that Smith had been assigned to
take over the local Farmington job in part due to a penalty provision in the contract with the
school district if the job was not satisfactorily completed on time and his concern that
Tenbrink did not have the requisite supervisory experience to timely complete the job. 
Transcript (T.) at 102.

     A dispute arose between Smith and Tenbrink as to the method to be used to contain
any asbestos fibers that might be released during the removal process.  Smith countermanded
Tenbrink's orders for a full containment procedure in favor of a partial containment procedure
which presumably would have been faster to put in place.  Smith, T. at 128-29.  The details
of the dispute became evident to the Complainants when they were ordered to change the
containment procedures originally set out by Tenbrink, to those ordered by Smith.  Tenbrink
continued to denigrate the effectiveness of Smith's method with the Complainants, although
they followed Smith's instructions.

     During the morning of the third day of the job, the Complainants each voiced their
individual concerns to their immediate supervisor, Tenbrink, regarding their dissatisfaction
with Smith's mandated methods, specifically with regard to the safety of the school children
who would be returning to the school a few weeks after the completion of the job.
(Sutherland, T.at 22; S. Tenbrink, T. at 56-57; Hahn, T. at 74; Franklin, T.at 91-92).[1] At
approximately nine a.m., the Complainants congregated in the school parking lot to await a
resolution with regard to the containment preparation method they were to employ.

     Although there is some discrepancy in the testimony as to what actually was said when
the Complainants were in the parking lot, compare Smith, T. at 132-34, with
Tenbrink, T. at 188-89, the result was that Complainants, having failed to get any response
from Spray Systems' managerial staff with regard to their concerns, left the job site. 
Complainants were subsequently terminated from their employment for leaving the job.  T. at
139-44.

                                                              DISCUSSION

     I concur with the ALJ's analysis that the Complainants were covered by the employee
protection provisions of the CAA and TSCA, and that their expressed concerns with regard to
safety of the school children were properly within the ambit of these statutes.  R. D. and 0. at
4-5.  The Secretary of Labor represents the public interest in resolving complaints under the
environmental protection statutes whose broad remedial purpose is to protect workers from
retaliation based on their concerns for the public's safety and the quality of work directly
impinging on that safety.  See English v. General Electric Co., 496 U.S. 72
(1990)(Supreme Court recognized that the whistleblower protection provision of the ERA
provides for the protection of employees); Mackowiak v. University Nuclear Systems, Inc.,
735 F.2d 1159, 1163 (9th Cir. 1984)(same).

     The issue before me is whether a worker has the right not to work because of a good 
[PAGE 3]
faith, reasonable belief that the work would be unsafe or unhealthful.  "Whether the belief is
reasonable depends on the knowledge available to a reasonable [person) in the circumstances
with the employee's training and experience. . . . Refusal to work loses its protection after the
perceived hazard has been investigated by responsible management officials,. . . and, if found
safe, adequately explained to the employee."  [Citations omitted] Pensyl v. Catalytic, Inc.,
No. 83-ERA-2, Dec. and Order (of Remand), Jan. 13, 1984, slip op. at 6-7; Stockdill
v. Catalytic Industrial Maintenance Co. Inc., Case No. 90-ERA-43, Final Dec. and Order,
Jan. 24, 1996, slip op. at 2; Tritt v. Fluor Constructors, Inc., Case No. 88-ERA-29,
Dec. and Order of Remand, Aug. 25, 1993; slip op. at 6-7, appeal docketed sub
nom.  Fluor Constructors, Inc. v. Reich, llth Cir. Jun. 19, 1995, No. 95-2828; Van
Beck v. Daniel Construction Co., Case No. 86-ERA-26, Dec. and order of Remand, Aug.
3, 1993, slip op. at 3.

     In this case, each Complainant testified as to his prior job experience removing
asbestos materials and/or formal schooling to qualify as an asbestos removal technician, and
how he believed that a full containment procedure as originally ordered by Tenbrink was the
proper way to proceed with the job.  Sutherland, T. at 12-13; S. Tenbrink, T. at 43-44; Hahn,
T. at 71-72; Franklin, T. at 82-83, 91-92.  The Complainants raised these concerns with
Tenbrink, their supervisor, who so advised Smith.  Tenbrink, T. at 188.

     At that time, it was incumbent upon Smith to meet with the Complainants and
adequately explain to them that the change in procedure was appropriate given the specifics of
the job, which differed significantly from their previous job experience.  Smith could have
asked Ronald Holtz, the school district's environmental consultant who was present, to
confirm that the partial containment procedure was appropriate.  Had Smith adequately
explained to the Complainants that the partial containment procedure was safe, the refusal to
work would have lost its protection.  Management has the prerogative to determine which
means it deems to be most effective provided such means comport with requisite safety and
health standards.  There is no requirement for management to engage in a dialog with the
refusing workers as to which procedure would be most efficacious.  Pensyl, slip op.
at 8.

     Smith testified that after he was told by his job supervisor, Jeff Tenbrink, that the
Complainants were in the parking lot, he went out and spoke to Complainant Scott Tenbrink,
who told him, ". . if we can't do this thing right, I ain't going to do it at all." T. at 132-33. 
Smith further testified that although he told Jeff Tenbrink to try to get the Complainants back
on the job, he also told him "If they [the Complainants] decided to leave and not do things
the way they were instructed, they were going to have to be reprimanded and replaced."
Id. at 134.  Putting even the most generous interpretation on Smith's own testimony,
it does not rise to the threshold of an adequate response to the Complainants' known concerns
and therefore does not vitiate the Complainants' work refusal protection.  Pensyl at 8.

     Spray Systems argues that Smith's mandated procedure was correct for the job at the
school, and this position was generally substantiated by Holtz's testimony that the job was
conducted and completed consistent with Federal and industry standards.  T. at 163. 
However, protection of the Complainants' work refusal is not dependent on proving an actual
underlying violation of the CAA or TSCA, but whether the Complainants' concerns were
reasonable, and whether management adequately explained the company's position to them. 
See Diaz-Robainas v.

[PAGE 4]
Florida Power & Light, Case No. 92-ERA-10, Dec. and Remand Order, Jan. 19,
1996, slip op. at 11.

     Spray Systems further contends that the dispute was actually a personality conflict
between Tenbrink and Smith, that the Complainants took the side of a local friend against an
outsider, and that the environmental safety issue was raised as an afterthought.  This argument
fails on two grounds.  First, it is not germane to the issue of Smith's inadequate response to
the work refusal.  Second, the Complainants' motivation is a matter of witness credibility,
which the ALJ addressed directly, finding in favor of the Complainants and against Smith.  R.
D. and 0. at 6.

     On June 26, 1995, and on July 13, 1995, Spray Systems' counsel forwarded to the
Office of Administrative Appeals, signed and notarized, but undated, Settlement Agreements
and General Releases pertaining to Complainants Scott Tenbrink and Fred Franklin,
respectively.  Counsel requested that Scott Tenbrink and Franklin be removed as
Complainants in this case.  The agreements by these Complainants were entered into without
benefit of their counsel[2] in this case, and although it is unusual for complainants to act
pro se during the pendency of a case, there is nothing that prevents them from so
acting. [3]

     In the interest of judicial economy, I reviewed these agreements to determine whether
the terms were a fair, adequate and reasonable settlement of the complaints. 24 C.F.R. §
24.6. Macktal v. Secretary of Labor, 923 F.2d 1150, 1153-54 (5th Cir. 1991);
Thompson v. U.S. Dep't of Labor, 885 F.2d 551, 556 (9th Cir. 1989); Fuchko and
Yunker v. Georgia Power Co., Case Nos. 89-ERA-9, 89-ERA-10, Sec. Order, Mar. 23,
1989, slip op. at 1-2.

     The agreements appear to encompass the settlement of matters arising under various
laws, beyond the CAA and TSCA.  See Paragraphs 4, 6 and 7. For the reasons set
forth in Poulos v. Ambassador Fuel Oil Co., Inc., Case No. 86-CAA-1, Sec.
Order, Nov. 2, 1987, slip op. at 2, I have limited my review of the agreements to determining
whether their terms are a fair, adequate and reasonable settlement of the Complainants'
allegations that Spray Systems violated the CAA and TSCA.

     Paragraph 11 provides that the agreement will be governed by the laws of Arizona.  I
construe this provision as excepting the authority of the Secretary of Labor and any Federal
court which shall be governed in all respects by the laws and regulations of the United States. 
See Phillips v. Citizens Assn. for Sound Energy, Case No. 91-ERA-25, Final
Order of Dismissal, Nov. 4, 1991, slip op. at 2.

     I find that the agreements, as here construed, are fair, adequate and reasonable
settlements of the complaints.

                                                                ORDER

     Accordingly, I approve the agreements and dismiss the complaints of Scott Tenbrink
and Fred Franklin, with prejudice.  Settlement Agreements, Paragraph 4.

     It is not necessary to order the reinstatement of the Complainants, since they had been 
[PAGE 5]
offered an immediate unconditional offer of reinstatement by Respondent on October 27,
1994.  ALJ's Supplemental Order, Apr. 21, 1995.

     Further, I ACCEPT the ALJ's Recommended Decision and order of March 30, 1995,
as modified above, and ORDER Spray Systems Environmental, Inc. pursuant to the
Supplemental Decision and Order of May 19, 1995, to pay:

     1.   Complainant Clifford Sutherland a total of $5,212.54 in back pay;
     2.   Complainant Aaron Hahn a total of $2,866.28 in back pay;
     3.   Complainant's counsel, Andrew L. Lichtenberg, Esq., attorney's fees in the
sum of $2,904.00 and reimbursement of costs in the amount of $571.93.
     4.Interest on the back pay awards to be calculated pursuant to 26 U.S.C. 6621 (1988).

     Within 30 days from the date of this Order, Complainants' counsel may submit a
petition for attorney's fees and costs for work attendant to this case before the Secretary. 
Respondent may file an opposition to such petition within 45 days from the date of this order.

     SO ORDERED.

                                                                                 ROBERT B. REICH
                                                                                 Secretary of Labor

Washington, D.C.


[ENDNOTES]

[1]  Franklin testified that he voiced his complaints but it is not clear to whom, if anyone,
he was speaking.  T. at 91-92.  Franklin subsequently settled his claim against Spray Systems,
so the ambiguity in his testimony is of no consequence.

[2]  Letter to the Office of Administrative Appeals from Andrew L. Lichtenberg, Esq.,
dated July 15, 1995.

[3]  I do not address the ethical questions raised by Spray Systems' direct contact with
parties known to be represented by opposing counsel.