By contrast, Anderson produced no similar written or testimonial evidence that OCAW or the Metro employees had "selected" or authorized her to act on their behalf during her tenure as a director on the Metro board. In her January 30, 1998 affidavit, Anderson stated that she had had "a close association" with OCAW for more than 15 years, but admitted that during a December 1996 board meeting she "clarified that she does not now, nor did she when she was appointed to the Metro [board] work for [OCAW]." CX 44; ALJ EX 25; TR at 7-10.
At the hearing, Anderson submitted two letters dated June 4, 1996, and June 25, 1997, that she claimed reflected her status or relationship with OCAW. The former was from a representative of the lab workers at OCAW and explained some background about the union's lawsuits. CX 10. The latter was from Anderson in her "capacity as a board member" to other Metro directors seeking a special meeting. CX 68. Neither document remotely indicated that Anderson was an "authorized representative" of OCAW.
Anderson also submitted several newspaper articles dated April 26, May 22, and June 26, 1997, in support of her assertion that she was the authorized representative of OCAW. CX 51, 52, 64. These articles described Anderson in that manner but public statements reporting her own view of her status are hardly sufficient to designate her as a person acting on behalf of another with authority from that person to do so.
Nonetheless, Anderson alleged that the "record is replete with evidence that [she] was acting hand in hand with the Metro Lab workers to pursue health and safety issues arising from Metro's plan to accept wastewater from" Lowry. Complainant's Reply to Respondent's Closing Argument at 4. However, after reviewing the transcript and exhibits, we believe that Anderson was, at best, self-authorized.
The record reveals that Patricia B. Farmer, chief negotiator of Local 2-477 (OCAW), wrote to Donna Good in the Office of the Mayor of Denver on December 12, 1995. CX 4. Farmer requested that Anderson be considered to fill an open position on the Metro board of directors. She indicated that Anderson is a "recognized expert" on environmental issues, including the Lowry landfill, and should be appointed to hold Metro management accountable for its obligation to clean up the landfill.
Farmer added that Anderson had also "been helpful to the employees" of Metro, who are represented by OCAW, "in their fight for a fair contract." Farmer then stated that she, as "a representative for the Metro OCAW bargaining unit," believed that the Denver directors had a duty to represent the citizens of this city, and that the appointment of directors like Anderson would lead to Metro managers putting people and the environment first. CX 4. Farmer later testified that OCAW wanted a "union-friendly voice" on the Metro board, and felt that Anderson would be that voice "to get us a contract." TR at 635-39.
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None of this evidence or that of former OCAW President Donald S. Holmstrom, Metro Director Albert S. Levin, OCAW research associate Alison Laevey, Denver City Councilman Dennis Gallagher, and retired laboratory technician Marilyn Ferrari establishes that OCAW or Metro employees authorized Anderson to act as their representative. What is established is that these witnesses believed that Anderson was sympathetic to their concerns, both generally regarding the Lowry landfill and specifically regarding OCAW's frustration over its inability to secure a contract, and would be supportive of their goals.
Holmstrom testified that he believed that OCAW needed "representation" on the Metro board and understood from a conversation with the Mayor's labor liaison, Paul Wishard, that the Mayor would appoint Anderson as "a worker representative." TR at 1497-98. Holmstrom indicated that Anderson had informed the union of her concerns about Lowry and had helped them draft letters to the Environmental Protection Agency and Metro. CX 41-42; TR at 1503, 1506.
He also described the letters the union wrote to Mayor Webb about his failure to re-appoint Anderson. In one letter Holmstrom stated that Anderson was as "a dedicated and tireless advocate for worker and community health and safety issues." He warned that her removal from the board "may now link" the City of Denver with violations of whistleblower violations afforded to "workers' representatives." A second OCAW letter to Mayor Webb referred to Anderson as "one of the few dissidents on the board, who consistently stood up for workers' issues." CX 83-84; TR at 1507.
As the local union president, Holmstrom undoubtedly had the power to select or authorize Anderson to act as OCAW's representative. Yet his December 12, 1997 affidavit merely reiterates that the union wanted Anderson "to serve as our representative" on the Metro board and that she had agreed. ALJ EX 25. While Holmstrom stated that Anderson had served as OCAW's authorized representative, had "taken our direction on issues to pursue" before the board, and had "provided invaluable expertise and advice on health and safety issues," he produced no evidence of what she had been authorized to do or how she was bound to follow the union's direction or to vote according to its wishes. Id.
Anderson may have "closely collaborated" with the union in drafting letters and opposing the Lowry settlement agreement, but these self-directed efforts do not constitute the union's "selection" to represent its member-employees. In fact, the Mayor selected her, not the union, to represent the citizens of Denver, not just union members.
Levin testified that Anderson indicated at her first board meeting that she was appointed by the Mayor's office "to represent the concerns and the welfare of the employees." Levin admitted that Anderson did not specify which employees. TR at 143.
Gallagher testified that he assumed the Mayor had appointed Anderson to the Metro board because of her work in the environmental area and that he had "defended" her appointment when questions arose at her confirmation hearing because he knew from his experience with her that she would look out for environmental health and safety. TR at 70, 74. On cross-examination Gallagher admitted that Anderson was not appointed to represent Metro workers, but to represent Denver and all the people in that district. TR at 77-78.
Laevey testified that she had a contract to coordinate a collective bargaining agreement campaign for OCAW and first met Anderson in mid-1995 when she briefed Laevey on the issues involved. TR at 84. Asked what she knew about Anderson's appointment, Laevey responded that the union was "looking for leverage . . . for friendly sympathetic faces on the Metro board . . ." and understood that Mayor Webb was "also labor friendly." TR at 86. Laevey added that the union was in close contact with Anderson and "obviously authorized" her appointment as a Metro director, but admitted on cross-examination that OCAW had never notified Metro that Anderson was an authorized representative for OCAW. TR at 91, 100.
Following Anderson's second confirmation meeting on June 4, 1996, Laevey wrote a letter to Anderson stating that the union "applaud[ed] the City and County of Denver" for recognizing its problems and addressing them "through the appointment of equitable board members." CX 10. Asked why she wrote this letter, Laevey stated that Anderson was "our representative" on the Metro board and might need that information in the letter about the three lawsuits the union had filed against Metro. TR at 89. Laevey also testified that she and other union workers met with Anderson to plan strategy over their opposition to Metro's treatment of Lowry wastewater. TR at 96.
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The OCAW letter is informative about the union's lawsuits, but does not clothe Anderson with any authority to be the union's "authorized representative." Indeed, it refers to equitable board members, whoever they may be. Laevey's conviction that Anderson was sympathetic to the union's causes and her belief that Anderson was "our representative" on the Metro board are personal to Laevey. Her state of mind does not constitute the union's authorization of Anderson as representative.
As discussed above, the statutes governing Metro provide no authority for individual directors to be designated as a representative for any specific group. Rather, the director represents all the citizens who reside in the particular area from which the director was selected. Further, Laevey had no power to select Anderson as OCAW's "authorized representative." In fact, Laevey stated in her June 4, 1996 letter that she was the representative of the lab workers at Metro. CX 10.
Ferrari, a 20-year veteran laboratory worker with Metro who retired in February 1997, testified that she helped to write Farmer's letter to Mayor Webb submitting Anderson's resume and recommending her as a Metro director. TR at 108. Ferrari noted that she had not attended any of the confirmation hearings, but had attended Metro board meetings at which Anderson had raised worker health and safety issues. TR at 110.
A former union official, Ferrari recalled a previous Metro director who had been sympathetic to the union's concerns about safety issues. She was not reappointed and the union protested to the Mayor, who asked OCAW to submit a recommendation. TR at 103-05. Ferrari testified that she thought Anderson would be "a good representative" on the Metro board and that Anderson was "agreeable" to that. TR at 107.
Ferrari's testimony, like Laevey's, does not establish that OCAW authorized Anderson to be its representative. Nor do similar views expressed by Denver City Councilman Ted Hackworth who called Anderson a "friend of union members and an extremist environmentalist," TR at 88, 101, and James E. Gilman, former chief steward, who stated that Anderson was a labor-friendly voice. TR at 199. And finally, the testimony of two Metro workers, Delwin Lee Andrew and Anthony J. Broncucia, who went to Anderson for help after they were fired, does not make Anderson their authorized representative. TR at 234-43, 816, 841-43; CX 67. In fact, both men belonged to the other, larger Metro union, the International Union of Operating Engineers.
Anderson's own letter to Hackworth on August 16, 1996 explaining her background commended Mayor Webb for providing greater representation of occupational and environmental health sectors on the Metro board "on behalf of Denver's residents and sewage system ratepayers," but did not mention her alleged status as an authorized representative of OCAW. RX 31. Nor did the July 3, 1997 letter to Anderson from the OCAW president, who thanked Anderson for her persistent dedication in looking out for the interests of OCAW and other workers and enclosed a $5,000.00 check to assist her whistleblower litigation. CX 71. Finally, the fact that OCAW presented Anderson with the Brown-Silkwood award in May 1998 for her efforts on behalf of health and safety issues does not make her an authorized representative of the union. TR at 217-19, 267.
However sympathetic toward the union's views Anderson might have been, she had no mandate to speak for OCAW members or Metro employees at Metro meetings. Union members may have thought of Anderson as their "voice" on the Metro board, Holmstrom believed that she was OCAW's authorized representative, Director Levin knew Anderson's views toward labor paralleled his, and Gallagher assumed that Anderson would be sympathetic to the union's concerns. But none of their personal states of mind conferred any authority on Anderson to be OCAW's authorized representative.
The fact that Anderson was not an authorized representative is borne out by the testimony of Kathryn E. Jensen, a teacher and Metro director. She stated that she was on Metro's management team in negotiating contracts for the two unions at Metro, OCAW and the much larger Operating Engineers from 1993 onward. She testified that Anderson had never been involved in any of the negotiations and that OCAW had never indicated that Anderson was the authorized representative. TR at 1362-65. Specifically:
Q. Ms. Jensen, during that entire process, has Adrienne Anderson ever appeared in any of these sessions on behalf of a union?
A. No.
Q. Have you ever heard from any of the union representatives that she is the authorized representative of the employees at Metro?
A. No.
Q. Did you ever understand her to hold that status?
A. No.
Q. You interfaced with numerous people on the union side during these negotiations?
A. Yes.
Q. You never heard that they believed that Ms. Anderson was their authorized representative . . . .
A. No.
Q. . . . at the [Metro] District?
A. No, no.
TR at 1362-63.
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On cross-examination, Jensen indicated that Anderson was not an authorized representative for purposes of bargaining under the National Labor Relations Act or "as Board member at meetings," and did not appear as an authorized bargaining agent at the bargaining table. TR at 1371-72. Even Farmer, who wrote the letter to Mayor Webb on Anderson's behalf and described herself as part of the union team trying to negotiate a new contract, admitted on cross-examination that Anderson had never appeared at any of the negotiating sessions between Metro and OCAW over a new contract. CX 4; TR at 633-36, 639.
Thus, the hearing record is replete with evidence that the OCAW lab workers considered Anderson their advocate and that other concerned people, including Metro directors and managers, as well as the media, were well aware of her long-standing union affiliation, her dedication to health and safety issues, and her dissident status as an opponent of Metro's Lowry landfill policy. There is no dispute that OCAW wanted Anderson on the Metro board. But the union's wishes and public perceptions did not confer "authorized representative" status, any more than one's affinity for political discourse makes one an official representative of a particular point of view or being sympathetic to a particular point of view gives the sympathizer the authority to act as an agent for one similarly inclined.
While extensive, the record does not establish that, from the end of 1995 through July 1998 when Anderson left the Metro board, she was the "authorized representative" of OCAW or Metro employees. There are no letters or other documentary evidence from the union appointing Anderson as an authorized representative. The testimony from witnesses did not prove that Anderson or the Metro board was informed that she was OCAW's authorized representative when she took office as a Metro director on July 16, 1996. As an appointed director, she had no authority to act for OCAW. Nor once a member of the Metro board was she bound to act or vote in accordance with the union's wishes. In fact, her duty was to the public at large.
In sum, the environmental whistleblower statutes did not extend "authorized representative" protection to Anderson, who as a political appointee was required to serve the public interest and all the citizens of the area she represented. While the union sought Anderson's appointment as a Metro director and generally agreed with her views, she failed to prove that it had authorized her to act for OCAW and its Metro employees while she was a Metro director. We, therefore, hold that Anderson failed to meet her burden of proof in establishing an essential element of her environmental whistleblower claim, that she was an authorized representative of employees within the terms of CERCLA, SWDA, or FWPCA.
CONCLUSION
We need not address the other issues raised by the parties on appeal, e.g., whether Anderson's activities in pursuit of her environmental concerns and worker health and safety issues constituted protected activities; whether Metro engaged in adverse actions through the responses of its directors and managers to Anderson's opposition to the Lowry treatment plan; or whether Anderson's second and third supplemental claims were timely. Nor do we reach the issues of damages or Metro's motion on appeal to submit newly discovered evidence.
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Because Anderson did not prove that she was an authorized representative of employees, she was not entitled to the protections afforded by the whistleblower statutes. Accordingly, we deny her complaint.
SO ORDERED.
WAYNE C. BEYER
Administrative Appeals Judge
M. CYNTHIA DOUGLASS
Chief Administrative Appeals Judge
OLIVER M. TRANSUE
Administrative Appeals Judge
[ENDNOTES]
1 The following abbreviations shall be used: Claimant's Exhibit, CX; Respondent's Exhibit, RX; Hearing Transcript, TR; Recommended Decision and Order, R. D. & O; Administrative Law Judge Exhibit, ALJ EX.
2 The ARB asked the ALJ to determine and the parties to brief the issue of whether Anderson was covered by the ERA. See ALJ EX 24, 25. The parties were also asked to address the applicability of general principles of principal-agent law and the legislative history of the environmental whistleblower acts indicating that the employee protection provisions of the ERA are "substantially identical" to those of the CAA and FWPCA and the Secretary of Labor's regulations, which do not distinguish between the ERA and the CERCLA, FWCPA, and SWDA in describing the purpose and scope of the Acts, 29 C.F.R. § 24.1.
3 The initially-assigned ALJ retired, and a successor ALJ was assigned on remand.
4 Section 4(h) of Article IV regarding the disclaimer was added subsequent to Anderson's April 2, 1997 speech at the EPA hearing. The bylaws also state that only the Chairman may speak publicly on behalf of the entire Metro board. Metro Bylaws Art. XV. RX 72.
5 Anderson stated that she had submitted the CORA request on air quality information to Metro. Complainant's Response at 15. However, the letter was addressed to the Colorado Department of Health and Environment (CX 3) and nothing indicates that Metro received a copy.