I have served Snohomish County as a Fire Dept. employee for over thirteen years with a flawless record and have been promoted several times. I have consistently investigated and reported similar hazarous incidents since 1982 (documented), in which, the reports have been disregarded by my employer continuously. (Appendix K)

   As a result of his investigation the Area Director, Employment Standards Administration, wage and Hour Division, U.S. Department of Labor, by letter of March 19, 1987, found that complainant was "a protected employee engaging in a protected activity", and that "discrimination as defined and prohibited by the statute was a factor in the actions which comprise (the) complaint."

   In arriving at that determination the Area Director found the following disclosures to be persuasive:

1. On December 31, 1986, 10 barrels of alleged toxic substances were buried on Snohomish County Airport property by employees of the Maintenance Department.

2. The burial was observed by Chief Ron Pooler. Mr. Pooler did not participate in the burial.

3. Subsequent to viewing the burial, Mr. Pooler advised several county employees of the Act including the management of the airport.

4. The incident soon became public knowledge.

5. Chief Pooler was subsequently suspended without pay for five days and as of March 13, 1987, was on suspension with pay.

6. Current information is that Mr. Pooler has been returned to duty as a fireman, a demotion from Chief, during the week of March 16, 1987.

   Accordingly, he notified respondent that the following actions were required to abate the violation and provide appropriate relief:

1. Mr. Pooler should be restored to his former position with no loss in pay or benefits and any pay loss sustained by

him subsequent to the December 31, 1986 dumping incident should be repaid to him.

2. Mr. Pooler's record should be purged of any information which suggests he was less than correct and timely in bringing the December 31, 1986 dumping incident to the attention of airport management and/or which suggests he participated in the dumping in any manner.

   Respondent, of course, appealed, as a result of which the matter was tried in Everett Washington on May 5, 6, 7 and 8, and June 8, 9 and 10, 1987. Having waived all time requirements for action by the undersigned the parties then entered into a protracted attempt to amicably resolve their dispute. It having been determined that said effort had failed the parties then exhaustively briefed the factual and legal issues. On January 28, 1988, upon receipt of respondent's "Reply to Complainant's Memorandum of Authorities and Proposed Findings of Fact and Conclusions of Law", the matter became ripe for decision.

   The Area Director's determination, at least on its face, appears to take into consideration a very limited number facts (essentially, Complainant's prima facie case); none of which is favorable to respondents. Obviously, a great deal more factual information is now available as a result of the extensive record established in this proceeding; additionally, there is the benefit of sworn testimony, and the opportunity to observe the demeanor of witnesses while testifying under oath and subject to cross-examination.

   In consideration of the entire record I make the findings, reach the conclusions and recommend to the Secretary of Labor the order set forth hereinbelow.

Capsule Overview

   At all relevant times Snohomish County Airport was owned and operated by Snohomish County; and, the chain of command, in descending order was:

1. Willis Tucker (County Executive)

2. Richard Fowler (County Director of Community and Educational Services)

3. Ronald Bakken (Airport Manager)

4. Douglas Jones (Airport Deputy Administrator)

(a) William Dolan (Aviation Supervisor)

(b) Robert Humphreys (Maintenance Supervisor)
Brad Francel Assistant to the Maintenance Supervisor
(Don Fitzhum)
(Verne Green) Maintenance Workers
(Reider Tennesen)

(c) Mike Jackets (Office Manager)

(d) Ronald Pooler (Airport Public Safety Supervisor, formerly
officially known as Fire Chief and
designated Safety Officer)
(Gary Anderson)
(Mary Epstein ) Firefighters
(Bill Rueter )

   The airport, is located on some 1300 acres, and has a large number of industrial and aeronautical tenants, including a Boeing production facility. It is, in short, a major operation.

   On December 31, 1986, members of the airport maintenance crew, acting under the authority of maintenance supervisor Robert Humphreys: dug an approximately 12 x 8 x 6 foot hole on airport premises; removed from their prior location in a secured bunker ten 55 gallon drums/barrels of unknown but suspected toxic waste substances (which on subsequent analysis proved to be of low toxic level); dumped them in the hole, causing spillage in the process; refilled the hole so as to conceal the burial. The entire operation was in violation of the Act.

   Having been tipped off on December 29/30 by Reider Tennesen, a member of the maintenance crew, that the illegal operation had been

NOTE: Dolan, Humphreys, Jackets, and Pooler were of equal supervisory rank, with different areas of responsibility.

planned, that a plan to carry out the operation on December 26 had

been aborted for the reason set forth hereinbelow, where the actual dumping would likely take place, and that Tenneson would keep him informed and advise when it would occur, complainant Pooler put in place a "stakeout". From a hidden vantage point, selected by him the previous day, he watched the digging of the hole and dumping. He also, inter alia, had posted one of his subordinates at the airport control tower for purposes of observation and instructed him to obtain the names of other control tower witnesses; and, by prearrangement, an off duty firefighter who had some skill in photography was summoned while the operation was in progress. He entertained no intention of directly preventing the dumping himself (he contends he had no authority to do so, although he was the Airport Public Safety Supervisor), and he made no indirect effort whatsoever to prevent it by informing higher level management or any other appropriate authority (he contends that he really wasn't convinced that there was going to be a dumping until it was too late to do anything to prevent it even if he wanted to).

   Initially the county suspended Humphreys for 10 days without pay for conducting the operation, and Pooler for 5 days without pay for having failed to stop the operation.

   That suspension was based on the county's then understanding that Pooler first learned of the operation only a few hours before the dumping.

   When the county subsequently learned the full scope of Pooler's advance knowledge of the operation and his activities in connection therewith, and his deliberate concealment of same during its investigation, it removed him from the position of Airport Public Safety Supervisor and demoted him to the position of airport firefighter. The county then also demoted Humphreys to a position off the airport.

The Situation In Greater Detail

   Pooler had been employed by respondent as a firefighter since 1973. He was promoted to the position of Assistant Fire Chief in 1980 and to the position of chief on December 1, 1981, as such he was also the designated Airport Safety Officer. In late 1985 or early 1986 his title was changed to Airport Public Safety Supervisor; his actual job duties remained essentially the same (TR. 107-119).

   There is no doubt that hazardous (including toxic or potentially toxic) waste materials located on airport premises were within his

general jurisdiction (TR. 135-137, 146). As early as December 1982 higher level management was aware, without objection, that Pooler was investigating and taking measures, in cooperation with the Department of Ecology and the County Fire Marshall, to deal with disposal of hazardous materials belonging to an airport tenant (TR. 147-9; Pooler Ex. B-40).

   Airport Manager Donald L. Bakken testified that on matters of public safety, including hazardous waste issues, complainant Pooler was the airport's principal representative, and that Pooler was primarily responsible for coordinating such matters with county Safety Specialist Winters. (TR. 664, 665)

   County Safety Specialist Winters testified that Pooler was his primary contact at the airport with respect to safety matters including those having to do with hazardous substances. (TR. 617) He had specifically discussed with Pooler in about June 1986 possible ways of disposing of the subject barrels. (TR. 621)

   On January 5, 1987 Winters was advised by Fowler of the illegal dumping, and it was requested that he "take charge of the coordination of the incident and to coordinate with the state and federal authorities and to expedite the proper removal of these barrels", and it was then determined that Fowler would act as spokesperson for the county and all information would be funelled through him. (TR. 623, 624) When the contents of the subject barrels were ultimately analyzed it was determined that they contained materials which, while not hazardous to humans, were hazardous to the ecology; therefore, the barrels should have been disposed of in accordance with Department of Ecology and Environmental Protection Agency Regulations, i.e., the dumping was indeed illegal and was violative of the Act. (TR. 630) To the best of Winters recollection, when Pooler discussed the matter with him on January 5 he did not disclose any of the pre December 31 events. (TR. 635-638)

   According to Winters, "I had asked him why he didn't -- why he permitted the dumping to take place when he was in a position that he possibly could have told them to stop or made it known to them that he was there and he indicated that if he had to do it over again, he might have done it differently." (TR. 636)

   Quite significantly, if Pooler had wanted to do so, he would have had ample time, even if he had only learned of the planned operation several hours before the actual dumping, to have contacted

Winters. Specifically, Pooler had his 'beeper" number, his radio number, and his home telephone number; and, he had previously been contacted by Pooler by beeper. (TR. 637) Clearly Pooler was aware that Winters was concerned about the subject barrels as early as June 10, 1986. (TR. 55; Pooler Ex. B-28) Given the additional testimony that Pooler had worked with Winters in the past in connection with hazardous materials the conclusion is inescapable that all else failing Pooler should have contacted Winters in the instant situation.

   Pooler first became aware of the subject barrels in May 1986, when he was requested by an airport tenant to have them removed from or near the leased area, on the assertion that said barrels belonged to the airport, not to the tenant. Thereupon he contacted Airport Manager Bakken, who "indicated that he wanted me to look into it." (TR. 158, 159). Being unable to determine the ownership of the barrels he so advised Bakken who "said that we should know what was in them . . . He was interested in looking into testing . . . He was adamant about wanting them tested, the contents" (TR. 160-162)

   However, their ownership still being in dispute, rather than being tested the barrels were securely stored on airport premises in a leftover World War II bunker, in the fall (September or October) of 1986, as Pooler was aware.

   Thus, it was evident to Pooler, as a result of the information conveyed to him by Tennesen on December 29/30, that the barrels to be buried were those in the bunker, over the contents of which Bakken had been greatly concerned. Nevertheless, although he could have done so on December 29 or December 30, he did not disclose to Bakken or anyone else in higher authority what Tennesen had told him or what he had already done and planned to do as a result thereof.

   Nor did he do so when he had clear opportunity and opening to do so in the course of conversation, on the morning of December 31, with Airport Deputy Administrator Jones, who reports directly to Bakken, and who is Pooler's and Humphreys' immediate supervisor. On that morning, in anticipation of a protracted vacation which began later on that day and was to continue through January 20, 1987, Jones advised Pooler that he wanted the relationship between the Maintenance and Fire Departments, which to say the least had not been good, to improve. It is his specific testimony that he asked Pooler to make every effort to see that problems did not arise and Pooler responded, in essence, that he should not worry about it and there would be no problem. Although Pooler denies that this conversation

occurred, I credit Jones' account.

   Irrespective of which individual of higher authority may actually have been conveniently available to him at any relevant time, i.e., December 29, 1986, December 30, 1986, December 31, 1986, it was Pooler's intention not to disclose (even couched as an unsubstantiated report from a source clearly in a position to know) anything about the potential illegal operation. That, I am convinced, is because he wanted to give Humphreys (whom he disliked) every opportunity to carry out the operation and suffer the consequences of his illegal activity, to stew in his own juices, so to speak, toxic though they might be.

   According to Pooler's trial testimony, on the morning of December 29, 1986 "Mr. Tennesen came into my office and said that some people in the Maintenance Department were planning on burying some barrels" (TR. 163); specifically, the barrels were identified as being the ones "in the bunker" (TR. 163). Tennesen, chose Pooler to tell, so he is indicated to have said, "because I don't trust anybody else." (TR. 165). Before he left Pooler told him to "keep me informed." (TR. 165).

   Pooler professes not to have believed Tennesen because he considered him to be a disgruntled employee (which he was), because he didn't have any respect for him professionally, and because he thought anyone would be "nuts for thinking such a thing" (as carrying out the subject operation). He testifies that he related what Tenneson had said to some of his firefighters, indicating to them that he thought it wasn't a valid complaint, nevertheless, his elaborate activities in response to the tip-off suggest otherwise.

   Pooler's contemporaneous notes reveal that at about 12:15 P.M., on December 29, 1986, Tennesen informed him that several days earlier Humphreys had instructed maintenance crew member Green to dig a hole on airport premises at a location then unknown to Tennesen, with a device known as a "backhoe", for the purpose of burying drums which Pooler obviously recognized to be some of those previously referred to hereinabove, as well as several other drums which might have contained hazardous PCBS. The mission, he was informed, had not taken place because the backhoe had broken down. And, later on December 29, at about 2:10 P.M., Tennesen informed him that Humphreys had said that he needed the backhoe repaired quickly because he had a "special mission" for it. At that point Tennesen ventured the opinion that the operation would be conducted on January 2, 1987.

Pooler's concluding note states "I will monitor the situation and attempt to photograph the operation if it takes place." (Appendix M)

   The following day (December 30) Tennesen again made contact, and reiterated what he had related on the 29th; additionally, he advised Pooler that the timing of the dumping was dependent on when repairs on the backhoe would be completed (TR. 172, 173). Also, Tennesen advised him that the site of the dumping would probably be "at the dump" (TR. 175), a site which had been closed down at least a year earlier by the Health Department (TR. 176), i.e., it was no longer a legal dumping ground for any purpose (except, evidently, clean fill) let alone potentially toxic waste materials.

   On December 30 Pooler arranged with firefighter Anderson, who is a "shutter bug", to be available to report to the airport with his camera on December 31 (his day off) if called. (TR. 182)

   Pooler's December 30 notes reveal that at or before 12:30 P.m., on that day Tennesen informed him that the actual number of drums (then located in the bunker) to be buried was ten; that Green had told Tennesen the operation was to be carried out later that day; that Green described the exact location at which the burial was to take place and the method to be used, i.e., the hole was to be dug with the backhoe and the barrels were to be transported on a county flatbed truck; and, that Humphreys had told Green that "he would probably have to smash the barrels down into the hole." (Appendix N)

   As a result of that information Pooler, on December 30 scouted out and located a vantage point from which he could, without himself being observed, watch the illegal dumping operation unfold. He left that surveillance point upon being informed by radio by firefighter Epstein (who had been so informed by Tenneson) that the operation "had been called off for today due to trouble with the backhoe." (Appendix N) Also, he personally placed identifying marks on the barrels suspected to contain PCBs and instructed members of his crew to place markings on certain maintenance department equipment for monitoring purposes.

   As aforesaid (in testimony which I do not credit), Pooler denies that he spoke to Jones on December 31, although he admits that before leaving the airport for his home, around noon, he had spoken to a secretary in the airport office who informed him that "Mr. Jones was going to be gone" (TR. 173, 174).

   At about noon he instructed firefighter Rueter, who relieved him at that time, to call him in the event the dumping took place that day. (TR. 176) At about 1:40 P.M., Rueter having been so informed by Tennesen, advised Pooler by phone that the dumping was going to take place (TR. 129); however, Pooler declined to return to the airport until Rueter further advised him that something was actually happening (TR. 179). When, at about 2:05 P.M., Rueter so advised him, Pooler left for the airport to the vantage point which he had pre-selected the day before for the purpose of observing the dumping, from which point he could have reached the dumping site in five to six minutes, if he had been so inclined, (TR. 181); he also advised Rueter of his hiding place (TR. 180). In transit to the airport he was advised by radio communication from Rueter that maintenance had started to dig a hole (TR. 181-2). Having arrived at his observation point Pooler, during the course of his forty five minute observation of the excavation of the approximately 12x18x6 foot hole (by the maintenance crew using the backhoe), instructed Rueter by radio to take up a position of observation on the airport control tower (TR. 183).

   As to whether at that point he suspected that the dumping was in fact going to occur Pooler, testified "I had more of a reason to believe that it might." (TR. 183)

   Either during the excavation or shortly after its completion Anderson arrived by truck and drove by the dump site twice (TR. 185), to his embarrassment and to Pooler's apparent displeasure (since he didn't want anything to alarm the maintenance crew and interfere with the dumping).

   Pooler, who was viewing the operation through a telephoto lens used as a telescope, then observed the arrival of the maintenance truck loaded with the subject barrels (TR. 185. 186). It appears to be his rather incredible contention that only then was he (as in the exercise, of reasonably prudent judgment he long since should have been) sufficiently convinced that the operation would take place as to have perceived a real danger. The truck arrived at 3:04 P.M., and dumped the barrels into the hole at 3:06 P.M. (TR. 187). Thus, since it would have taken about six minutes for him to get from his hiding place to the site of the dumping, Pooler would argue that he had insufficient time to stop the dumping once he was convinced it would occur. However, the evidence is clear that had he wanted to do so he could at that point have brought the illegal operation to a halt by radio communication.

   Although he denies it, Pooler probably took some photographs before he left his vantage point; he then proceeded to the dump site (TR. 188). There he instructed Rueter, who had also arrived, to cordon off the area, and because of a suspicion that the unknown possibly hazardous contents of the barrels had spilled during the dumping, Pooler instructed truck drivers, who apparently were about to legally dump clean fill, not to do so (TR. 189, 191).

   The maintenance crew, which had departed after the dumping, then returned. Humphreys feigned innocence but was confronted by Pooler: "I said, come on. You know all about it. I said, I was standing out in the bushes watching you, taking some pictures. I said, you're mug is all over these pictures . . . . " (TR. 193). That conversation took place at about 3:15 P.M.

   Thereafter Pooler contacted Jackets and Dolan, both of whom were on a supervisory level parallel to that of Pooler and Humphreys, and neither of whom wanted to be involved. Dolan supplied him with the telephone number of Bakken's neighbor near his summer home, through whom he made contact with Bakken at about 6:00 P.M. (TR. 196), for the purpose of advising him of the dumping, and to solicit some assistance (TR. 200). Bakken's main concern was "the leaching possibility and (according to Pooler) we generally discussed that containment and excavation." (TR. 200)

   Against Pooler's advice Bakken then instructed Humphreys to excavate the dumped material, which Humphreys did not do properly (TR. 200-202).

   It became apparent on January 1, 1987, during the excavation, that some of the barrels had broken open during the original dumping, and others were broken during the containment process. (TR. 202); Bakken then was informed by Pooler of the situation, and came came in from his summer home to personally supervise the containment process (TR. 202)

   On January 2, 1987 Pooler issued a report to Bakken on the "Unauthorized Dumping of Hazardous Waste Materials on Airport Property" (Appendix A).

   In that report, in which Pooler stated "the purpose of this report is to give you . . . easy reference to the chronological order of events surrounding the recent hazardous waste dumping incident . . ." the first such chronological events listed are

that "Mr. Tennesen reported to on duty firefighter Rueter December 31, 1986 at 1300 hours the maintenance plan to bury ten (10) drums of waste at the dump located west of the main runway. I was paged through county dispatch by firefighter Rueter to respond and upon arrival was apprised of the situation." Deceptively, no mention whatsoever is made of Tennesen's contacts with Pooler on December 29 and on December 30, and of Pooler's stakeout activities and his instructions to his subordinates as a consequence thereof.

   Thereafter (on January 5 or 6) when interviewed by Fowler, who was charged with the task of investigating the illegal operation, Pooler maintained that he had first learned of it on December 31.

   Shortly after the incident and concerning it, Pooler met (with the apparent knowledge and consent of higher level airport and county management), with Mr. Baker, Mr. Lawrence and Mr. Ashley of the Department of Ecology and Mr. Hanada of the Department of Health, (TR.210, 211). He also provided all of them with copies of Rueter's reports of December 31, 1986 and January 1, 1987 (Pooler Ex. A 29,30) and his report of January 2, 1987 (Pooler Ex. A-27). A week or two after the incident (i.e., by January 14, 1987) he also met with Mr. Fitzpatrick of the Environmental Protection Agency (TR. 236).

   It seems clear that higher level management was vitally interested in resolving the problem created by the dumping, cooperated with other appropriate agencies and authorities, and did not intend to cover it up (TR. 294-296, 676-684)

   By January 21 the news media had been in contact with various airport and county personnel, and Fowler was concerned that information was being furnished piecemeal and might be taken out of context, and specifically with regard to Pooler's report of January 2 that. it was premature and in some respects went beyond the scope of his authority. As is indicated in his January 21, 1987 memo to Bakken, Pooler had been contacted on two occasions by reporter Jim Muhlstein (Co. Ex. 18); he probably had revealed to him the existence of his said report, and in any event I think that Fowler believed he had.

   It is evident that as of January 21 Fowler was irritated and agitated about the fact that the illegal dumping operation had taken place (TR. 687) and that "held been getting . . . phone calls (from the media) at all hours of the night and day . . . " (TR. 687). He was in general, displeased because "he felt this was a situation

that should never have developed . . .", i.e., the illegal burying of the barrels and the sequelae thereof, including all of the media attention. (TR. 686-691) Jones issued a directive on that day that "as of this date, any inquiry from the news media concerning the alleged burying of toxic wastes will be referred directly to Dick Fowler for response. Under no circumstances will any employee contact the news media on their own." (Appendix C).

   Such a "gag" order is, in general, inimical to the subject "whistleblower" provision of the Act, the broad remedial purpose of which mandates that an employee's communications with the news media regarding illegal activities such as this be protected, [cf. Donovan v. R.D. Anderson Const. Co., Inc., 552 F. Supp. 249 (1982)]. And, balancing the interest of the county, a public employer, in controlling the timing and content of the information released to the news media, against the right of its employees to comment upon matter of public concern such as the subject incident I find that the "gag" order was improper [See also - Pickering v. Board of Education, 88 S. Ct. 1731 (1968); Wilson v. City of Littleton, 732 F.2d 765 (10th Cir. 1984); Zurn Industries v. N.L.R.B., 686 F.2d 683 (9th Cir. 1982); Givhan Western Line Consolidated School District, 99 S.Ct. 693 (1979); Brocknell v. Norton, 732 F.2d 588 (1984); Key v. Rutherford, 645 F.2d 880 (10th Cir. 1981)

   In any event, it certainly is inferable that Pooler's contact with the news media may have factored into the determination to suspend him for 5 days, although I am convinced that he would have been so suspended for his then known part in the affair even absent that contact.

   By official written notice dated January 27, 1987, signed by Fowler, Pooler was suspended for a period of five days without pay for the following legitimate reasons:

As Airport Public Safety Supervisor, you have a responsibility to supervise all phases of Airport Public Safety work including hazard control. On December 31, 1986, you had prior knowledge of and witnessed the improper disposition of unknown waste material in direct violation of environmental guidelines. In this instance, you failed to take appropriate action to notify Airport management as soon as you

knew that such improper disposition was in progress and you failed to take any action to stop the activity. The above is in direct violation of your assigned responsibility as the Airport Public Safety Supervisor. (County Exhibit 19)

   Oral notice of the suspension was given to Pooler the day before, i.e, January 26, by Fowler, who, based on the information furnished him in the course of his investigation of the circumstances surrounding the illegal dumping incident, determined, with the concurrence of County Executive Tucker, that such sanction was appropriate under the circumstances as he (then) knew them, and the incident was considered closed.

   It was determined that Humphreys be suspended without pay for a period of ten days. His notice of suspension stated:

On December 31, 1986, you authorized maintenance crew members to remove ten (10) barrels of unknown waste material to the west side of Paine Field to be buried in an abandoned military sanitary landfill site. This act was in direct violation of environmental guidelines. The total consequence of this action is still unknown and will result in significant costs with regard to not only the ultimate disposal of the barrels of waste material but also the potential of severe penalties imposed on Sonohomish County by the Department of Ecology. (County Exhibit 20)

5 day suspension without pay. Thus, even assuming a dual motive, the county's 5 day suspension of Pooler is not violative of the Act.

reopening of the investigation.

   On January 29, 1987 (TR. 735, et seq.; 776, et seq.,) he telephoned Anderson, who was then on duty at the airport; and, from what Pooler said, Anderson believed, as he said to Epstein, who was also present at the time of the call, that "the Chief (Pooler) wants us to lie for him." It seems evident that Pooler (who concedes that Anderson could well have so construed what he said) was prompted to make the call because:

(1) interviews were then being published and/or aired, in which he represented that he had had no knowledge of the illegal dumping prior to the day it actually occurred,

(2) he knew that said interviews would be seen/read by the firefighters,

(3) he knew that the firefighters were well aware that said representations were untrue,

(4) he wanted to assure that the firefighters would not contradict said representations.

   The following day (January 30, 1987) Anderson and Epstein voluntered an oral statement to Bakken and Jones in which they detailed the events leading up to the dumping, which contradicted the position that Pooler had maintained up to that time, and as well reflected their impression that he wanted them to lie for him in regard to his (and their) pre December 31, 1987 involvement. Their oral statement was reduced to writing and was executed on February 3, 1987. (Appendix D)

   Whether Anderson and Epstein would eventually have come foreward absent Pooler's telephone call I do not know. I do believe, however, that they came foreward at the time they did out of resentment that Pooler (as they interpreted his call) had asked them to lie for him, and out of concern for their positions in the event the truth otherwise came out and it was discovered that they had cooperated in concealing it.

   On February 3, 1988 (Appendix E) Jones and Bakken personally verified that the date of December 30, 1986 had been scratched into certain barrels (other than the ones actually dumped) by Pooler who

had some reason to suspect that those barrels (those suspected of containing PCBS) also would be part of the illegal dumping, of which markings they first learned from the Anderson/Epstein oral statement of January 30, 1987.

   By letter dated February 3, 1987 Pooler was advised by Fowler that in view of the newly adduced evidence, which indicated that his "prior knowledge and involvement in the incident was greater than originally determined" (as indeed it was to a significant degree), he was suspended with pay for nine days beginning February 5, during which he was afforded the right to "submit any facts or other information bearing on the charges, in writing . . .", pending a "predetermination hearing", the purpose of which was to allow Pooler "to present information which would assist me (Fowler) in making a final determination in this matter". Pooler was cautioned that if said "evidence is upheld, there is reason to believe that you should be discharged for cause." (Appendix F). He submitted no further information prior to said hearing.

   During that time frame (the early part of February 1987) management was made aware that Pooler had elected to file a grievance as to the 5 days suspension. I find no support for the proposition that that played any part in the subsequent determination to demote him. (TR. 573-577)

   At the predetermination hearing (February 11) the only records of which are the notes taken by Fowler and Jones (Appendix G, H) although Pooler was given the opportunity to have it recorded and was repesented by counsel, Pooler for the first time acknowledged that there were any pre December 31 events related to the dumping. And, he admitted that in the telephone call to Anderson "I did tell him I might receive some discipline and to say nothing of anything prior to December 31 with anyone."

   Thereafter Pooler requested, purportedly for the purpose of adducing further evidence in his own defense, and was given (February 20 and February 27), extensions of time prior to issuance of Fowler's decision. However, no further evidence was presented.

   By letter of February 19 Bakken was advised by the Area Director that Pooler, on February 13, had filed the complaint in this proceeding. (Appendix K) Complainant contends, and I summarily reject as being without any foundation, that said filing factored into the determination to demote him.

   By letter of March 16 (Appendix L) Fowler advised Pooler of his final determination, under which Pooler was demoted from the position of Airport Public Safety Supervisor to the position of Firefighter for: