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| October 3, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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USDOL/OALJ Reporter
Office of Administrative Law Judges Suite 1750, Keystone Building 99 High Street, Boston, MA 02110 Case Number: 81-SWDA-1 In the Matter of:
RONALD J. HANEY, v.
NORTH AMERICAN CAR CORPORATION, Appearances:
William S. Friedlander
Robert J. Mignin, Mark A. Lies,
Before: ROBERT M. GLENNON This is a proceeding initiated in accordance with the provisions of the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq. (1976) (hereinafter the "Act"), and the regulations issued by the Secretary of Labor, at 29 C.F.R. § 24 (1980), implementing the employee protection provisions of the Act, 42 U.S.C. § 6971 (a). On January 27, Ronald J. Haney, of Waverly, New York, filed a complaint against North American Car Corporation, Respondent ("Employer" or the "Company"), alleging that he had been discharged in retaliation for activity protected by the Act. After an investigation of his complaint, a regional office of the Department of Labor found that Haney was a "protected employee" engaged in a "protected activity" within the [Page 2] scope of the Act, and that he had been discharged because of the activity in violation of § 7001 (a) of the Act, 42 U.S.C. § 6971 (a). The Company appealed that decision and a formal hearing was conducted on this matter before the undersigned Administrative Law Judge at Elmira, New York, on April 21, 1981. Haney was discharged from his employment with the North American Car Corporation on January 9, 1981. Haney contends that his status as an employee and the specific activity for which he was fired were protected by Section 7001 (a), a so-called "whistle-blower" protection law; that he was discharged in violation of that law; and that he is entitled to reinstatement, compensatory damages, and his legal expenses. The Respondent contends that the Federal government lacks statutory jurisdiction to adjudicate Haney's complaint; that Haney's pertinent activities - - those for which he was discharged - - are not the type of activities that lie within the scope of the statutory protection he relies upon; and that Haney was discharged for valid, legitimate reasons, not in retaliation for any protected "whistle-blower" activities. I. The General Factual Background. Ronald J. Haney is a 30-year old resident of Waverly, New York, who was hired by the North American Car Corporation on December 12, 1977, as a carman at its Sayre, Pennsylvania car repair plant. The basic function of a carman is to assist in the repairing of railroad cars. After working initially as a carman and crane operator, Haney later moved on to the position of painter, which is the position he held at all times relevant to this case. A painter's primary job function is painting railroad cars after they have been repaired. This job is performed at the paint shop. North American Car's facility at Sayre is designed solely for the repair and maintenance of railroad cars. The Sayre plant employs approximately 100 employees. The facility itself consists of a number of separate buildings: a paint shop; a store house with the steam rack (the instrument used to clean railroad cars); an office building; an assembly hall; and the steelyard in which there are a number of railroad tracks. The paint shop is a new facility designed specifically for the Sayre plant. Constructed at a cost of about $2.5 million, [Page 3] the facility consists of a large building which can house a number of railroad cars. At one end of the building is the area used for removing paint and rust from the cars. At the other end of the building is the area where the actual painting is performed. These two areas can be completely separated through the use of large partitions. Since the operation requires the use of highly combustible solvents and paints, the facility includes a filter and ventilation system. Furthermore, the building is equipped with a "grit-blasting" system, a mechanism used to remove paint and rust from railroad cars prior to painting. The entire paint shop has been classified as Division 1 under the standards established by the National Fire Code and adopted by the Occupational Safety and Health Administration. This classification means that the shop is always susceptible to an explosive atmosphere. In such an environment all electrical devices must be certified as "explosion proof" and approved by mangement. The Company is subject to OSHA sanctions if it fails to insure that no equipment creating a explosion hazard is brought into the area. The possible sanctions include substantial fines and possible criminal prosecution of management personnel. Because of these difficulties and the Company's statutory obligation to provide a safe work place, the Company has promulgated a number of safety rules. The Company has pointed out to employees that "employee willingness to work in a safe manner and to adhere to the . . . [safety and work rules] is considered a condition of employment." With regard to the paint shop, the Company prohibits any electrical device in the area unless that device is certified as being explosion proof. This means that the device must be totally incapable of producing an electric spark. For this reason, supervisors are required to turn off their battery-operated walkie-talkies before entering the area. The entire shop is posted as a non-smoking area. The primary potential explosive combustion hazard arises from the use of solvents. The solvents are used to help spread the paint uniformly over a surface, evaporating and drying very quickly. When there is a large area drying out at any given time, such as when the interior of a tank car has been painted, an explosive atmosphere has been created inside the car. Once the paint lining inside the car has been cured, that [Page 4] is, when the drying process is over, the combustion hazard no longer exists. At such,a time, therefore, the use of "pinhole detectors" inside the car is not a hazard. Pinhole detectors are used to detect defects in the interior paint lining of the car. Such devices are about the same size as the concealed tape recording device used by Mr. Haney on December 12, 1980, as discussed below, and they too are powered by, and connected by wires leading from, beltpack batteries carried by the employee. The difficulties of the job of painting cars are further Compounded by the physical requirements of the job. For example, painting the interior of some cars requires the utilization of narrow scaffoldings assembled inside the car. Also, for access to the car, employees are required to enter through extremely small openings or "man-ways" in the car. The apertures in some of the cars are barely wide enough for an average size man. Employees are required to assemble the scaffoldings and then climb the scaffolding in order to paint all interior parts of the car. The paint shop uses highly confidential proprietary information. The criteria for painting specific cars are found in written manuals developed by the Company. These manuals are developed with input from the Company's customers, from testing and consultation with outside companies as well as from information developed by Company chemists. These manuals dictate the precise manner in which a specific car should be painted, using the data gained by the Company, what the customer's specifications are, and how those specifications should be met. The manuals developed by the Company are considered confidential. Accordingly, access to the manuals is tightly restricted. The information in the manuals is communicated orally by the foreman to the employees who are working on a specific job, since the employees are not allowed to see the manuals themselves. II. Haney's Activities in Issue. In late October or early November 1980, Haney was approached by representatives of the Toxic Waste Investigation and Prosecution Unit of the Office of Attorney General of the Commonwealth of Pennsylvania. He was questioned about what kinds of commodities were used at the Sayre plant and how they were disposed of. Haney had suspected there was illegal dumping taking place, and he told the [Page 5] Pennsylvania investigators what he had observed and what he had "heard" about the Company's disposal practices. Some weeks later, in late November, a representative of Pennsylvania's Bureau of Criminal Investigations and a representative of the Pennsylvania Department of Environmental Resources contacted Haney, and asked him if he would carry a concealed recording device to work as a part of their investigation into North American Car Corporation's disposal practices. Haney agreed to do so. Early on the morning of Friday, December 12, 1980, Haney met the State officials in a K-Mart parking lot in Sayre. They outfitted him with a concealed device known as a "Nagra" tape recorder. The device consisted of a small battery-operated tape recorder strapped to Haney's back, and two microphones which were taped to his chest. The recording device was approximately three inches wide, four inches high, and three quarters of an inch thick. Haney then reported to work at the Sayre plant wearing the concealed device. Haney began his working day at 7 a.m. in the staging area at the north end of the paint shop building, copying certain car identification numbers by making an impression of the stencil marks on the car. This work was done prior to sand blasting of the old paint before the new paint would be applied. It developed at about 7:30 that some additional car information was needed, and Haney was instructed by the paint shop foreman to go to the steelyard for it. The part of the steelyard where Haney would get the information is located close to the main office building, some three hundred yards or so from the paint shop. Approximately an hour and 15 minutes elapsed before Haney returned to the paint shop with the additional car information. On his way to the steelyard, Haney stopped at the steam rack where he engaged in a 15 or 20 minute discussion with its foreman. Haney secretly recorded that conversation. Haney then proceeded to the office building where he saw the Company's plant superintendent, Mr. Hagerty (and two other employees accompanying Hagerty on that occasion), and secretly tape recorded that conversation. Haney then returned to the paint shop where he performed some switching of cars and some miscellaneous painting jobs prior to his lunch break at noon.
[Page 6] During his lunch break, and at various times during his afternoon assignments, Haney periodically recorded brief conversations with other employees. For example, on the way to a car switching assignment just after lunch, a utility man, or general laborer, asked Haney for some parts for a scaffold, and Haney in turn asked him if he had "buried anything in the coal fields." Also, at various times several carman probably four in all, came by where Haney was working in the afternoon, and he questioned each of them briefly about whether they had done any dumping. He tried to tape record these conversations also. Between about 12:40 p.m. and 1:30 p.m., Haney performed a car switching assignment. Then until about 2:20 p.m., he performed miscellaneous work related to painting. From Haney's recollection at the hearing, and from the Company records available at the hearing, it is not certain what that miscellaneous work consisted of. It could have been touch-up painting inside a car, or it could have been checking for "pinholes" in the interior surface of the car with a "pinhole detector", or "beeper", a function that takes place after the car interior painting has been completed. Haney did not do any taping of conversations inside the car. Haney's time card shows the standard code designation for an internal meeting for the period between 2:20 p.m. and 3:00 p.m., the end of his workday at the plant. Haney does not recall whether any meeting actually took place at that time. Pressed on cross-examination, he stated: "I don't recall. I really don't. That is what I was trying to explain. A lot of times we fill in times." At some point during the afternoon the tape recording device malfunctioned or was turned off. Although the device had a three-hour recording capacity, only 45 minutes of conversation were recorded, of which some 30 to 40 minutes were the early morning conversation with Mr. Hagerty and the foreman of the steam rack. Haney believes he snagged the recording device on something, possibly when he was climbing into a car from underneath, hitting a button that turned it off. The two longer conversations Haney had with Hagerty and the steam rack foreman were specifically directed toward [Page 7] whether there was a need for respirators for those employees required to handle certain chemical materials in the steam rack area. Some employees there had stated their concerns to Haney about a barrel of what he called an "unknown commodity" that they were required to use in mixing substances. This commodity was "aromatic", and it seemed to cause these employees some discomfort. Haney's conversation with the steam rack foreman and Hagerty, the plant superintendent concerned the need for respirators to protect against this unknown commodity. The plant superintendent told Haney that he "would see what could be done." Haney was a member of the Company's "Safety Committee", an elected group of employees with some limited responsibility to report to management safety problems in their particular departmets. Haney represented the paint shop on the Committee, but he did not represent the steam rack area. Respondent points out that Committee members are not authorized to roam the plant searching for hazards, but rather should be concerned primarily with safety problems in their own departments. Of course, if the Committee members observe hazards in another department during their normal work activities, they are expected to report them. In the event a Committee member does discover a safety problem in his own department, his obligation is to report it to his own foreman. At the end of his working day on December 12, Haney met again with the State investigators at a predetermined site where he turned over the recording device and the tape to them. III. The Company's Decision to Fire Haney. Haney's December 12 undercover activities did not come to the attention of Respondent until almost a month later. By then Haney had already appeared as a witness before the grand jury, sometime during the week before Christmas, and he had given the Company a copy of the subpoena which had directed him to appear. By early January the Company was also aware that other employees had been subpoenaed by the grand jury. Mr. Dennis Tam, the Plant Manager, knew for example that a Company lawyer was meeting with the subpoenaed employees to help them understand the process and to alert them to the dangers of perjury.
[Page 8] On January 5, a Company lawyer conducted a meeting in the paint shop for painters and steam rack personnel, to discuss the grand jury investigation. Haney attended that meeting. The lawyer asked to speak individually with those who had already testified, stating this was optional with the employees. Haney did meet with the lawyer, and brought up his owm concern that, as Haney described it, "there could be a conflict of interest" between himself and other employees, since he had secretly taped recorded some of their conversations. On the following day, January 6, on reporting to work, Haney was told to report to a meeting with the same lawyer and a second person, an investigator representing the Company. They asked Haney directly whether he had carried the secret recording device. He said he had, and he told them the details of his activity on December 12. The next two days, Wednesday and Thursday, passed without incident for Haney. On Friday, January 9, however, on reporting to work his time card had been pulled and Haney was told to report to the office of the Plant Manager, Mr. Tam. Mr. Tam's account of the January 9 meeting is consistent with the account of the others at the meeting, Haney and Plant Superintendent Hagerty. Tam recalls:
[Page 9]
Haney then was accompanied by Hagerty to the paint shop where all Company-issued materials were retrieved. Hagerty recalls asking Haney whether he thought the taped conversations would be detrimental to the Company, or "get" other employees. Haney said, "No," and, as Hagerty recalls,". . . and then, we were almost in, and I believe he mentioned something about somebody has got to do something, start something somewhere." Before discharging Haney, Tam had discussed the situation on Wednesday with legal counsel at the Company's headquarters in Chicago by telephone, and had been advised that, with the evidence available to him, if he wanted to make the decision to fire Haney, he could do so. At that time Mr. Tam was aware that Haney had been subpoenaed and had testified in the State's grand jury investigation, and that the State investigation had related to allegations concerning disposal of wastes generated at the Sayre plant facility. At the time he fired Haney, Mr. Tam testified, he did not know specifically that Haney had acted on December 12 at the request of the Pennsylvania Attorney General's Office in performing his undercover recording. He stated: ". . . I did not really concern myself who he carried it for. The only fact I considered, he had carried it, and I thought it was a violation". Haney had been considered a good employee by Mr. Hagerty, the Plant Superintendent, whose duties were to supervise the maintenance department, the paint shop, and the steam rack. He considered Haney to be an employee concerned with his own safety and the safety of others. Before the firing of Haney, Hagerty's own boss, Mr. Tam did not consult with him about Haney's December 12 activities, and Haney's firing on January 9 came as a surprise to him. He did not know whether the type of tape recorder carried by Haney on December 12 was explosion proof. IV. The Investigation in Which Haney Participated. It is undisputed that at no time was the investigation of the [Page 10] Company's disposal practices carried out by Federal officials. The investigation was carried out by State officials as part of a State grand jury investigation of a variety of activities which were alleged to constitute criminal conduct under the State law. Haney argues that jurisdiction is appropriate under the Federal Act because' the State investigation was a proceeding under, or the result of enforcement of, an "implementation plan." 42 U.S.C. § 6971(a)(1976). A "Memorandum of Understanding" executed on November 19, 1980, between the Commonwealth of Pennsylvania and the U.S. Environmental Protection Agency is asserted by Haney to be a qualifying "implementation plan". The State grand jury investigation, in which Haney testified and assisted, was authorized by order of the Pennsylvania Supreme Court in July 1979, in accordance with Pennsylvania statutory authority. "The Pennsylvania court's authorization order granted the application of the Attorney General which, in pertinent part, contains the following allegations in support of that application:
[Page 11]
On November 19, 1980, the United States Environmental Protection Agency (EPA) and the Commonwealth of Pennsylvania entered into a Memorandum of Understanding (MOU) which, according to its preamble was:
V. The Employee Protections in Issue. Section 7001(a) of the Solid Waste Disposal Act provides, in pertinent part:
[Page 12]
In pertinent part, the regulatory procedures established by the Secretary of Labor, provide as follows, 29 C.F.R. § 24.2(b):
VI. Discussion and Conclusions A. Jurisdiction. The first question presented is whether the investigation or the enforcement activity of the Pennsylvania Attorney General's office, in which Haney was participating, was a type of activity protected by Federal law. Stated otherwise, was the Pennsylvania grand jury investigation, in the language of § 7001(a) of RCWA, "a proceeding resulting from the administration or enforcement of the provisions of this act or of any applicable implementation plan?" [Page 13] In essence, Respondent would construe the statute narrowly, arguing that this was a State investigation exclusively, not Federal administration or enforcement activity; that the MOU of November 19, 1980, was not an "implementation plan" within the scope of the statute; and that, in any event, protective coverage of the statute extends only to a "proceeding," or investigation, initiated after the "implementation plan" becomes effective, not to a grand jury investigation initiated many months prior to execution of that "implementation plan." Respondent's construction is too narrow to be persuasive of Congressional intent in enacting the statutory provision in issue. RCRA was a broadly conceived remedial statutory scheme in an area which traditionally had been considered the sphere of local responsibility. The purpose of the legislatation was to assist cities, counties, and State in solving the nation's discarded materials problem, and to provide nationwide protections against the danger of improper hazardous waste disposal. It would, among other things, enlist State administrative and enforcement involvement in a national effort to regulate activities causing a wide range of problems, including the treatment, storage, transfer, and disposal of hazardous wastes. There is available no statutory definition of the term "implementation plan" as used in 42 U.S.C. § 6971, but it is fully consistent with the legislative history of RCRA to conclude that the November 19, 1980, MOU falls within the scope of that phrase. Nor does the language of the statute or its legislative history give support to Respondent's argument that coverage of the statute does not run to acts in furtherance of an on-going program or course of State activity, if it had been started or authorized prior to the MOU. In fact, a fair reading of the terms of the Pennslyvania memorandum of Understanding with the Federal authorities shows unequivocally that after the date of the MOU's signing State administrative and enforcement activities embraced by the MOU become activities in furtherance of the Federal statute, the Solid Waste Disposal Act, as well as of the relevant State regulation. See MOU, Paragraph II, for example, which states that the Commonwealth's participation in this MOU "is intended to maximize the expeditious and efficient implementation of RCRA"; and Paragraph III which provides that Federal authorities [Page 14] "shall oversee and evaluate the Commonwealth's performance of functions described in this MOU and all applicable requirements embodied in current Federal policies, regulation and laws." The next problem of jurisdiction presented is whether the type of activities engaged in by Haney, upon which his discharge was based--operating a concealed electronic device within the plant--falls within the scope of activities protected by the Act. Respondent argues essentially that to qualify as "protected," that activity must relate to either (1) the filing of, or causing to be filed, some type of proceeding under the Act, or (2) the giving of testimony in any such proceeding. Respondent points out that Haney did not file or institute the State investigation proceeding; and it contends that the fact that he testified, or even may have been about to testify, before the grand jury played no part in the Company decision. In this connection, it points out that Haney's use of the recording device was not discovered until early January 1981, weeks after Haney had testified before the grand jury. Respondent here, too, presents a too narrow construction of the statute. Haney did not initiate the investigation but there indeed was one in process in December 1980 and January 1981, And the Company was very much aware of it. Respondent came to learn of Haney's December 12 actions as the direct result of the Company's intensive efforts to prepare for anticipated appearances of Company officials and employees before the grand jury. It is not clear whether, when Haney was fired, the Company knew the exact scope of his December 20, 1980 testimony before the grand jury--that is, whether he discussed his tape recording efforts and the recorded comments he obtained. But the Company surely then did know that Haney was still available to be recalled before the grand jury by the State to discuss any aspect Of these events, including corroboration or contradiction of testimony by Company officials, or other employees. His testimony could have special impact, being backed up by his secret tape recordings. Authenticity of the tapes could have become an issue. For all practical purposes, then, Haney's tape recording activities were an incidential aspect of his preparation for testimony in the investigation, both for his December appearance before the grand jury and for any subsequent testimony in the on-going grand jury proceedings. [Page 15]
Since on the facts of this case, Haney's relevant activity
was that of any employee who "has testified or is about to
testify in any proceeding resulting from the administration or
enforcement of the provisions of this Act or any applicable
implementation plan," it is not necessary to decide whether, as
Respondent argues, the Secretary's procedural regulations at 29
C.F.R. § 24 exceed the scope of statutory authority.1
B. Whether the Discharge was Retaliatory. Question also
is raised whether, both as a matter of fact and as a matter of
law, Haney was discharged for a protected activity. On brief,
Respondent contends that Haney was not discharged because of
his assistance to the State authorities but "only because he
carried a concealed electronic device causing a serious safety
risk and preventing him from engaging in productive work."
Stated simply, the factual question is: Was Haney fired in
retaliation for his cooperation with the government
investigators?
In the process of evaluating factual evidence in employee
retaliation cases arising under Title VII of the Civil Rights
Act of 1964, codified at 42 U.S.C. § 2000(e), many courts have
used an adaptation of the 3-sided test stated by the Supreme
court in a Title VII discrimination case, McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). In Hochstadt v. Worcester
Foundation, 545 F.2d 222 (1st Cir. 1976), for example, the
Court summarized an acceptable pattern of evidentiary analysis
as follows:
See also Loeb v. Textron, Inc., 600 F.2d 1003 (1st Cir. 1979),
where the court concluded that an adaptation of the McDonnell
Douglas formula was appropriate in an age discrimination case
brought under the Age Discrimination in Employment Act of 1967,
29 U.S.C. § 621. The Loeb decision also provides an extensive
discussion of the practical justifications for the McDonnell
Douglas test, as well as the proper placement of actual
evidentiary burdens as between the parties.
Here, I conclude that Haney has made a prima facie showing
of retaliation. He was a good, able employee performing useful
work in the paint shop, work basic to the functioning of
Respondent's plant at Sayre. For all Haney knew, or was told, at
the time of his discharge by Mr. Tam, he was fired because he
had cooperated with government investigators by secretly tape
recording conversations inside the plant. He was told by Tam
that his actions had been disloyal and that he was being fired
as a result of them.
The Company, in turn, has articulated a legitimate, non-
discriminatory, or nonretaliatory, reason for firing Haney. It
asserts that, in fact, he caused a safety risk; that he spent
Company time "investigating," rather than doing productive
work; and that he raised the risk of disclosure of competitive
commercial proprietary information.
The factual inquiry thus becomes whether the Company's
explanation was the real reason for firing Haney, or, rather, a
pretext for retaliation. The burden of producing evidence for
this analysis, or at least, the burden Of nonpersuasion, falls
to the complaining party, Haney, although that party is permitted
to proceed with indirect or circumstantial evidence,
Compare Loeb, supra.
I am persuaded by a preponderance of the evidence, and I
find as a matter of fact, that the several specific justifications
given by the Company for firing Haney constitute a post
hoc rationalization; and that Haney would not have been fired
but for his assisting the government by his secret tape recording
of conversations concerning alleged illegal dumping
practices. Stated another way, in terms of the analytical
process suggested by McDonnell Douglas, the reasons assigned by
the Company were pretexts.
The testimony of Haney; his immediate supervisor, Mr.
Hagerty; and of the plant manager, Mr. Tam, make it very clear,
that Haney was fired for 'disloyalty" in a very specific situation:
the company's anticipated, potentially serious
confrontation with government regulators, or prosecutors, in a
grand jury investigation. Tam stated that when he fired Haney,
he "did not know or concern himself" about who Haney had done
this for but that really is not a credible statement. The
fact of Haney's actions came to Tam's attention from the Company's
lawyers and investigators who were working on the dumping
investigation and the grand jury testimony. They had been
talking to, counseling and interviewing a number of the
company's employees including Haney, who had been subpoenaed by
the grand jury when they learned about Haney's tape recording
activity. Within two or three days, Haney was fired. When the
Company's investigators told Tam that Haney had tape recorded
supervisors and employees, Tam consulted a Company lawyer in
Chicago by telephone and was given a legal clearance to fire
Haney.
Before firing Haney, Tam did not discuss or consult on
this matter with Hagerty, the plant superintendant, who was the
direct supervisor of Haney's foreman, and who had direct
responsibility for the operations of the paint shop, steam rack,
and maintenance department. The firing was a surprise to
Hagerty, and his immediately expressed concern, in escorting
the fired Haney from the plant at Tam's order, was how much
legal jeopardy Haney's tapes would cause the Company and its
employees.
That Tam in firing Haney was motivated in any relevant
degree by a concern for preserving the commercial integrity of
the Company's proprietary information, or by the principle that
such commercially valuable information should be protected from
being tape recorded by Haney, is just not credible, considering
the circumstances and the testimony of the witnesses. This was
plainly an afterthought justification. Nor is it really
believable that Haney's being away from his assigned duties on
December 12 constituted a significant motivating factor in his
firing. Haney was a good worker, as Hagerty testified. In
deciding to fire Haney, Tam did not consult with Hagerty, Haney's
supervisor, to evaluate his productivity, or his attention to
the limits of his job assignments on December 12, or any other
day.
Haney, on the other hand, testified that December 12 was a
"very normal work day," except for his carrying and using the
tape recorder. Haney's discussion of respirators with the
supervisor of the steam rack, and with the plant superintendant
on December 12, conveyed legitimate, actual concerns on his
part. It was a subject area beyond the technical scope of his
own position on the Company's Safety Committee, but apparently
not so far beyond that it seemed inappropriate or remarkable at
the time. The supervisor of the steam rack participated in
that conversation with Haney for 15 or so minutes. And so did
the plant superintendant, who even said that he would "look
into it." Haney's productivity on December 12, or his or other
employee productivity in general, I find, was not a genuine
concern of Tam when he fired Haney.
Haney's carrying a "non-explosion-proof" battery
operated
tape recorder into the paint shop area, including the interior.
of a tank car, was a "serious" safety violation. But I do not
believe its being a serious safety violation materially contributed
to the motivation of the Company to fire Haney. The
company's safety manager stated on cross examination that
Haney's carrying a battery-operated recording device was the
"same" quality of violation as smoking in a prohibited area.
The Company's safety rules for this plant specify smoking in a
prohibited area, such as the paint shop, as a "serious" safety
violation for which a usual disciplinary punishment for a first
offense would be a five day suspension without pay. No
notation of his having committed a safety violation when
discovered, was placed in Haney's file, which was the way the
Company's procedures were supposed to work. It is undisputed
that when he fired Haney, Tam specifically attributed the cause
to factors sounding only in "disloyalty" and "conduct
unbecoming a employee." That, simply, is unlikely language of
criticism to be directed at a safety violation. I believe that
Tam's language reflected the Company's true motivation, and
that the safety factor, if it was actually considered at all by
Tam at that time, contributed only in an insignificant degree.
In this context, it must be emphasized, the question is
not whether the Company may legitimately, and peremptorily,
discharge an employee for a safety violation of this type. The
issue here is motivation, as discoverable under all the factual
circumstances revealed by the record. Had safety actually been
an important motivating force in Tam's decision to fire Haney,
some plausible indicia of that concern--on or before January 9-
would have surfaced in the routine record keeping of the
Company or the testimony of witnesses at the hearing. The
weight of the circumstantial evidence is to the contrary.
On a review of the evidence of record, I find that the
decision to fire Haney was based on the perceived disloyalty to
the Company by his carrying a hidden recording device in aid of
the government investigators and prosecutors, and that the
reasons attributed by the Company are merely after-the-fact
justifications.
C. The Disruptive Nature of Haney's Behavior. Respondent
also generally contends that, as a matter of law, the whistle-
blower statutes, such as that involved in this case, were not
designed to protect the type of behavior engaged in by Haney;
that his behavior "was so egregious that it cannot be
protected" by the statute. Two questions arise: (1) Whether
Haney's actions constituted sufficiently disruptive behavior,
as between an employee and an employer, as to fall outside the
scope of intended protections of the statute; or (2) whether
they constituted illegal activity not protected by the
statute.
In this context, the term disruptive employee behavior is
meant broadly to refer to actions by an employee to protest,
oppose, report, or complain about employer actions or policies
in a form outside the normal or prescribed lines of communication
between an employee and employer, such as an internal
grievance procedure.
There is a substantial body of case law dealing with
employee disruptive behavior as "protected" activity, particularly
under Title VII and under the National Labor Relations
Act, 29 U.S.C. § 152 et seq. It seems clear that the reprisal
protection statutes will not protect disruptive employee conduct
that "runs afoul of the law," such as an illegal "stallin"
protest intended to tie up traffic at an employer's plant
at rush hour, as in Green v. McDonnell Douglas Corp., 463 F.2d
337 (8th Cir. 1972), rev'd on other grounds, 411 U.S. 792
(1973); or the physical blocking of employees entering and
leaving a plant during a strike, and throwing rocks and bottles,
as in W.T. Rusco Company v. National labor Relations
Board, 406 F.2d 725 (6th Cir. 1969).
It is not at all clear, however, from an examination of
the cases, what types of disruptive behavior, short of illegal
behavior, will fail to qualify for protection against employer
retaliation. See generally Schlei and Grossman, Employment
Discrimination Law, Bureau of National Affairs, Washington,
D.C., 1976, and particularly their caveat footnoted to a simple
"afoul of the law" test:
Schlei and Grossman, p. 432.
Upon a review of the case law, I conclude that pertinent
statutory employee protection against employer retaliation will
not extend to otherwise protected disruptive behavior if that
conduct is violent, or physically intimidating to other
employees, customers, or the like, or more than insignificantly
damaging commercially. Conduct which does not fall into those
categories of activities must be judged on the merits of each
individual situation, balancing the interests of the employee,
the employer, and the public interest. In the present situation,
Haney's behavior on December 12, although secret and
intrusive, was peaceful in nature, with no suggestion of
intimidation or physical interference with the normal functioning
of the workplace.
The Company's contention that Haney's acts "constituted a
dangerous, potentially catastrophic situation' is mere hyperbole,
not a reasoned evaluation based on actual facts or
circumstances. There was shown no significant interference
with the work of other employees, nor any realistic threat of
disclosure of proprietary confidential data.
As is made more clear below, I conclude that on balance
the disruptive quality of Haney's behavior was not so
destructive of the Company's interests as to warrant exclusion of
statutory protection.
D. Violation of Constitutional Rights. The Company also
argues that haney's activities were not only commercially
disruptive, but fundamentally illegal and unlawful as well. It
argues that his actions violated Fourth and Sixth Amendment
rights, and consequently cannot be "protected activity" under
the statute.
Respondent correctly points out that there is no evidence
that the State obtained any type of search warrant, or prior
judicial authorization to engage in this type of surveillance
activity, and that neither the Company not its employees were
aware of, or consented to, this activity. It is also true that
Haney's actions came only after the Company and the employees
were targets of the investigation and had obtained legal
representation.
Respondent is correct in its contentions that business
premises are entitled to Fourth Amendment protection. The
Supreme Court in Marshall v. Barlow's Inc., 436 U.S. 307
(1978), held that the "expectation of privacy" analysis of Katz
v. United States, 389 U.S. 347 (1976), applies to both
residential and business premises.
However, the only Supreme Court case dealing with a
government agent wearing a surveillance device on a business
premise without a warrant is Lee v. United States, 343 U.S. 747
(1952). The Court there found that the Fourth Amendment had
not been violated, reasoning that no trespass or "unauthorized
physical encroachment" had occurred. Applying Lee to the
present case, the government's actions through Haney, would not
constitute a search or seizure because there was no unauthorized
physical encroachment. Haney was on the premises
legally. But the analysis of Fourth Amendment cases has
shifted, as in Marshall and Katz, from a concern for physical
encroachments to a concern for privacy. Thus, the status of
the Lee rationale is unclear. It has not been expressly over-
ruled, but it is subject to being distinguished on the ground
that no privacy was invaded in Lee.
Respondent presents a compelling argument that, since
employers should expect loyalty from their employees, they should
have a reasonable expectation of privacy in their conversations
with the employees. Thus, since they have this reasonable
expectation of privacy, the government should not be allowed to
intrude without a warrant. On the other hand, while this
argument has considerable appeal, it does not deal sufficiently
with a range of other considerations concerning employees'
freedom, perhaps in some cases a moral responsibility, to
report conversations with their employers to public officials
administering complex remedial legislation of the type involved
here.
The Supreme Court in Marshall, supra, stated, "an
employee
is free to report and government is free to use any evidence of
noncompliance with OSHA that the employee observes. . . . " By
implication, then, without violating the Fourth Amendment, the
government should be able to request an employee to report
conversations concerning this type of wrongdoing. The move from
reporting these conversations to tape recording them, insuring
the accuracy of the report, is a comparatively short one.
Also, since the employees are free to report conversations to
public officials, the employer's expectations that the employee
will not report the wrongdoing may not be reasonable. Compare
Hoffa v. United States, 385 U.S. 293 (1966) (no Fourth Amendment
protection for a defendant who had a "misplaced
confidence" that his confidante--an undercover agent--would not
reveal the defendant's wrongdoing). In other words, the
employer's expectation of privacy may not be reasonable when he
knows of the employee's duty to report conversations concerning
wrongdoing. The fundamental privacy expectation is not, as
Respondent suggests, the expectation that no one will record a
conversation, but that no one will record the conversation
without the assent of at least one of the parties to the
conversation.
The arguments on both sides of this issue are compelling.
But having reviewed the record in the light of the case analyses,
I believe that a conclusive finding on the Fourth
Amendment issue is not necessary to the proper resolution of
this case. If there has been an illegal search and seizure, it
has been illegal governmental conduct, for which measured,
appropriate, and effective sanctions are available in direct
litigation between the Company and the government. Haney is a
public spirited citizen concerned about environmental hazards,
who responded to a request for help from responsible public
officials.
The prospect of allowing the government to recruit
employees, arm them with hidden tape recorders, and send them off
to monitor conversations, secretly, at random, in the workplace
is an alarming, distasteful, Orwellian prospect, as the North
American Car Corporation persuasively argues here. But the law
and public policy are yet developmental and uncharted in this
fundamental area of conflicting public and private rights, and
it would be disproportionately burdensome to an individual
caught up in this conflict, to imply a knowing violation by
Haney of the rights of the Company or other employees. Even if
it may later be concluded, on any trial or evidence suppression
hearing, for example, that this surveillance violated
Constitutional rights, it will have been for illegal governmental
conduct. I do not find that Haney's participation was
willful or otherwise so egregious social activity as to strip
him of otherwise available "whistle-blower" protection under
the Act.
As for the Sixth Amendment protections asserted by Respondent
here, the issue is more clear-cut, and I find that Haney's
activity was not a violation of Company or co-employee rights
under the Sixth Amendment. In Messiah v. United States, 377
U.S. 201 (1964), the Court held that a conversation with a
defendant after indictment violated the defendant's Sixth
Amendment right to an attorney. The essence of the holding is
that governmental officials and their agents cannot interrogate,
however subtly, a defendant after the constitutional
"right to counsel" attaches; and that "right to counsel"
attaches at indictment or the commencement of formal proceedings.
Note that the mere fact the Company has retained counsel
is irrelevant. The question is whether it had a defendant's
right to counsel at the time of the incriminating
conversations.
Clearly, the present case is distinguishable from
Massiah. The Company here had not been indicted at the time of
the conversations with Haney. Although an investigation was
under way, no formal adversary criminal proceedings had begun,
and there is no plausible basis to argue that the employer had
a defendant's right to counsel at this stage. Also, obviously,
to extend the Massiah rule to the period of investigation could
unduly hamper a prosecutor's ability to obtain information to
present for a grand jury's consideration.
The recent case of United States v. Henry, 447 U.S. 264
(1980), cited by Respondent, reiterates the distinction between
what is permissible before indictment and what is permissible
after indictment. It is worth noting that Justice Rehnquist,
in a strong, persuasive dissent, argues that the Sixth Amendment
was never mean to cover anything but the privacy of
conversations with the attorney, and the defendant's right to
an attorney's assistance in legal proceedings. This is not a
situation in which the constitutional right to counsel should
be read as expansively as Respondent requests.
VIII. Affirmative Relief. The employee protective provisions
of the Solid Waste Disposal Act authorize issuance of an
order to a respondent, if a violation is found, "to abate the
violation as the Secretary of Labor deems appropriate
including, but not limited to, the rehiring or reinstatement of
the employee . . . to his former position with compensation."
42 U.S.C. § 6971 (a). The Secretary's implementing regulations
provide for affirmative actions, "including reinstatement of
the complainant to that person's former or substantially equivalent
position, if desired, together with the compensation
(including back pay), terms, conditions, and privileges of that
employment. The regulation also provides that "where deemed
appropriate" compensatory damages may be provided to the
complainant. 29 C.F.R. § 24.6.
The statutory provision is a standard "make whole"
employee
protective mechanism, one drawn upon the statutory model
of the National labor Relations Act, 29 U.S.C. § 160 (c), and a
long history of construction at agency level and in the
Courts. See Albermarle Paper Co. v. Moody, 422 U.S. 405 (1975).
On brief here, Haney contends that an order reinstating
him to his former position will not fully compensate him for
his injury, and he requests compensatory damages in the amount
of $75,000. No explanation is provided for his assessment of
that precise dollar figure. He also requests costs and expenses,
including attorney's fees, in the amount of $15,000, but
here too no explanation is given how that precise amount was
calculated. A reasoned explanation of Haney's requests for
relief will be necessary before specific affirmative relief will
be ordered.
Accordingly, Petitioner is directed to file a supplementary
statement to this Office clarifying the scope of his
request for relief. I make the following findings to guide
Petitioner's preparation of his statement:
The parties should review their positions in the light of
the findings and conclusions provided herein to determine
whether the interests of all concerned would be better served
by agreement or payment of a liquidated amount to Haney in lieu
of reinstatement, and in settlement of all matters in issue.
See Loeb v. Textron and Ginsburg v. Burlington, supra, and
Blim v. Western Electric Co., 496 F. Supp. 818 (1980).
In view of the foregoing, Petitioner is ORDERED to submit,
on or before August 24, 1981, a supplementary statement in support
of the affirmative relief requested, as described above.
Respondent shall submit its response to Petitioner's statement
on or before September 7, 1981.
ROBERT M.
GLENNON
Dated: AUG 10 1981
RMG:pmy
1 These regulations purport to
include as protected the
activity of an employee who has "assisted or participated" in any
manner in any action to carry out the purposes of the statute.
Specific statutory language protecting that latter broad
category of activity is contained in the "standard" "whistle-
blower" law, such as that provided in the Energy Reorganization
Act of 1974, at 42 U.S.C. § 5851. It is immaterial here that
the specific "assist or participate" language is not contained
in the "whistle-blower" provisions in the Solid Waste Disposal
Act, 42 U.S.C. § 6971. The Congressional intent is unclear, but
it is not necessary here to decide whether the omission was
intentional or meaningful.
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