CASE NO. 81-WPCA-1

In the matter of

WILLIAM DWAYNE PULLIAM
    Complaint

    v.

WORTHINGTON SERVICE CORPORATION
    Respondent

William D. Pulliam
    15710 Rosalita Drive
    Las Mirada, CA 90638
       In Propria Persona

Robert M. Tanner
    Attorney at Law
    Lawler, Felix & Hall
    700 South Flower Street
    Los Angeles, CA 900177
       For the Respondent

Before: THOMAS SCHNEIDER
    Administrative Law Judge

    Complainant alleges that he was discriminated against in violation of 33 U.S. Code § 1367. That section is part of the Water

Pollution Control Act, Public Law 92-500. The cited section is one of several Federal employee protection provisions, for which the Secretary of Labor has been given responsibility. These Federal employee protection provisions were the result of congressional concern for the protection of "whistle blower" employees from discriminatory actions by their employees. The regulations governing these proceedings are condified in 29 C.F.R. Part 24 (1980).     A hearing was held before me on April 21, 1981, in Los Angeles, California. Complainant appeared in person without counsel; the employer, Worthington Service Corporation, was represented by counsel.

    In 1979, complainant filed a complainant against the Environmental Protection Agency to require them to recognize the pollution hazards arising from janitorial and maintenance activities. That action is still pending in Federal District, Court. That action was presumably brought under the Water Pollution Control Act. In June 1980, complainant subpoenaed two employees of Worthington Service Corporation (Worthington) to testify. Complainant contends that his subpoenaing of these two employees upset the then foreman at Worthington, Mr. Thompson, who as a result thereafter discriminated against the complainant by appointing Jim Leach, rather than claimant to the position of leadman in September, 1980. Complainant contends that it was not until approximately December 10th that he was made aware of the alleged discrimination in a conversation with Ralph Ashcraft, the plant manager. I find that complainant's complaint was timely filed, on January 7, 1981, less than thirty days after the alleged December 10th meeting.

    I note, preliminarily, that this case does not squarely fit within the popular definition of "whistle blowing". Complainant did not file any proceeding under the Water Pollution Control Act against Worthington. I would think, without researching, that the protection was intended to protect those who accused their employers of violating the Water Pollution Control Act. 33 U.S. Code § 1367(a) provides:

    "No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that

such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter."

    At first blush it would appear to me that complainant does not allege that he was discriminated against "by reason of the fact that [he] has filed, instituted, or caused to be filed or instituted any proceeding under this chapter, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter". However, I need not decide that question. I assume, arguendo, that complainant's complaint is cognizable under the cited sections and the cited regulations.

    Complainant has the burden of proof to show that his failure to be appointed leadman was a result of his serving subpoenas on the employees of Worthington. To meet that burden, complainant subpoenaed several witnesses to the hearing before me. Some of these subpoenas, which he served by registered mail, were not obeyed. Under the time constraints imposed by the regulations, it is impossible to bring enforcement action to have these subpoenas obeyed. Therefore I asked complainant to state what the witnesses he desired to have appear would say. In his judgment, if they were called. Despite the irregularity of this procedure, I am assuming that the witness would have testified as complainant indicated they would.

    One of complainant's principal assertions is that Mr. Leach, who was appointed leadman in September or October 1980, is less qualified than complainant. Nothing in the record corroborates this. On the contrary, the testimony of Leizar Cupersmith, who was acting foreman at the time that Mr. Leach was appointed leadman, testified that in his judgment Mr. Leach was extremely satisfactory. The complainant attempted to state that Mr. Leach made occasional mistakes in his machinists' assignments and also was frequently tardy. Mr. Cupersmith testified that he made no more mistakes than any other employee and was occasionally later for work, but either with management's permission or no more than any other employee. Even assuming that the complainant's contentions are correct, they do not compel a conclusion of discrimination. It is entirely possible, in fact probable, that the previous foreman or

Mr. Cupersmith simply prefer Mr. Leach to the complainant.

    Complainant also states that complainant's exhibit No. 3, a letter from Mr. Cupersmith to complainant pointing out a mistake was contrived. However, the complainant admitted making the mistake alleged but stated that the light was bad and he had just had the flu when performing the particular job on which the mistake was made. Complainant also testified to an incident where a tool bit broke as result, he alleges, of Mr. Leach's bad judgment, which he, complainant, was called upon to rectify and wasted twelve hours in doing. Even if true, although it was denied by Mr. Cupersmith, this incident shows no more than ordinary variation in the excellence of work that all people do. The fact that complainant may have done one job better than Mr. Leach does not entitle him to be appointed leadman.

    Another reason that complainant gives for feeling discriminated against is that management refused to give a reason to complainant for appointing Mr. Leach and declining to appoint complainant. It is an elementary principle of labor management relations that, absent agreement or legislation, an employer need not give reasons to his employees for exercising management prerogatives. In the instant case respondent's exhibit A. (Article of Agreement between Worthington and the union), preserves to management its prerogatives in Article 2, Section 2.

    Essentially, complainant's argument boils down to the proposition that because he was not appointed leadman after he subpoenaed two witnesses, and because the legal proceeding caused some concern in management, there is a casual relationship between the incidents. Logic does not compel this conclusion, and on the basis of Mr. Cupersmith's testimony, I find the conclusion unwarranted.

    Complainant made a motion at the beginning of the hearing to remand this case to the investigator. Since I believe the record I hereby deny the motion. Complainant also raised other allegations, including interference with his telephone usage and being harassed by the letter of February 25, 1981 (Complainant's Exhibit No. 3). Since these matters were not investigated completely, as far as the record shows, as provided in 29 C.F.R. § 24.4, these matters were not before me and presumably are still being processed by the Employment Standards Administration.

    I recommend that the complaint be denied.

       THOMAS SCHNEIDER
       Administrative Law Judge

Dated: May 15, 1981
San Francisco, California

TS:csw