DATE: April 4, 1994
CASE NO. 87-TSC-2
IN THE MATTER OF
ROBERT L. SIMON,
COMPLAINANT,
v.
SIMMONS INDUSTRIES, INC.,
RESPONDENT.
BEFORE: THE SECRETARY OF LABOR
FINAL DECISION AND ORDER
The principal issue in this case is the scope of protected
activity under four of the environmental whistleblower protection
provisions, the Toxic Substances Control Act, 15 U.S.C. §
2622 (1988); the Water Pollution Control Act, 33 U.S.C. §
1367 (1988); the Solid Waste Disposal Act, 42 U.S.C. § 6971
(1988); and the Clean Air Act, 42 U.S.C. § 7622 (1988) (the
Acts). [1] Respondent fired Complainant, a security guard at
one of its chicken processing plants, for making allegations to a
member of the public that Respondent had fed insecticide
contaminated chicken feed to its chickens, had sold the chickens,
and had burned and buried a substantial quantity of the
contaminated feed on its property. T. (Transcript of hearing)
658.
Complainant asserts this statement, made with a good faith
belief in its truthfulness, is protected under the Acts in and of
itself, and because it was made in the course of his
participation in a government investigation. The ALJ implicitly
held this statement was not protected when he found that
"Respondent discharged [Complainant] for a valid reason --
because he made potentially damaging false statements about his
employer to a member of the general public." Recommended
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Decision and Order (R. D. and O.) at 6. The ALJ concluded that
Complainant would have been discharged for this statement, even
if he had not participated in the government investigation, [2]
and recommended that the complaint be dismissed.
The ALJ reviewed the record in detail in the R. D. and O.
at 1-4. Complainant saw what he believed to be burning chicken
feed on Respondent's property in March 1986, and notified U.S.
Department of Agriculture (USDA) representatives, who asked
Complainant to assist their investigation of this incident by,
among other things, drawing a map of the location of the fire.
R. D. and O. at 2. In order to prepare the map, in
September 1986 Complainant approached Bob Applegarth, a local
scrap dealer who was picking up material at the plant, to ask his estimate
of distances between various landmarks on the property. Id.
at 2-3. There are significant disagreements in the testimony of
Complainant and Mr. Applegarth over what Complainant said to
Mr. Applegarth. For example, Mr. Applegarth testified Complainant
told him there were thousands of tons of heptachlor [3]
contaminated feed buried on Respondent's property, T. 365, and
that Respondent's chickens had been fed contaminated feed and had
been shipped. T. 366. Complainant denies saying anything about
heptachlor to Mr. Applegarth. T. 225.
Several months later, in January 1987, Mr. Applegarth told
Respondent's managers about Complainant's statement, including
Complainant's allegations about heptachlor contaminated chicken
feed. T. 370-71. Respondent conducted its own investigation
into Complainant's statement to Mr. Applegarth, which consisted
primarily of having its attorney, Carl Hall, interview both
Complainant and Mr. Applegarth and make a recommendation to
Respondent's President Mark Simmons, who also interviewed
Mr. Applegarth. T. 486-493; 657-58. Mr. Hall recommended
that Complainant be discharged, T. 493, and Respondent suspended
him on January 8, 1987, and then discharged Complainant on
January 19, 1987, for making "false and malicious statements to a
member of the general public concerning the operations of the
company at its plant in Southwest City, Mo." C-3; T. 658.
The Secretary has consistently held, and several courts of
appeals have agreed, that the whistleblower provisions of the
environmental statutes protect employees who make safety and
health complaints to their own employers as well as to government
agencies. See, e.g., Mackowiak v. University
Nuclear Systems, Inc., Case No. 82-ERA-8, Sec. Dec. Apr. 29,
1983, slip op. at 10, aff'd 735 F.2d 1159, 1163 (9th Cir.
1984); Pogue v. U.S. Department of the Navy, Case No. 87-
ERA-21, Sec. Dec. May 10, 1990, slip op. at 49, and cases cited
therein, rev'd on other grounds, Pogue v. U.S. Dept. of
Labor, 940 F.2d 1267 (9th Cir.
[PAGE 3]
1991). SeealsoPillow v. Bechtel Constr.,
Inc., Case No. 87-ERA-35, Sec'y Dec. Jul. 19, 1993, slip op. at 11
(contacting a union representative is protected). In cases under the
employee protection provision of the Occupational Safety and Health Act,
29 U.S.C. § 660(c) (1988), courts have held that making
safety and health complaints to one's union, to a newspaper
reporter, and to a legal services organization, are protected.
SeeDonovan v. Diplomat Envelope
Corp., 587 F. Supp. 1417, 1424 (E.D.N.Y. 1984), aff'dwithout op 760 F.2d 253 (2d Cir. 1985); R. D. Andersen
Construction Co., Inc., 1982 OSHD [CCH] ¶ 26,273 (D.
Kan. 1982); Dunlop v. Hanover Shoe Farms, Inc., 441 F.
Supp. 385, 388 (M.D. Pa. 1976). Similarly, a request to an
international union to prevent a violation of the overtime
provisions of the Fair Labor Standards Act of 1938, 29 U.S.C.
§ 207(a)(1) (1988), is protected under that act. Legutko
v. Local 816, Int'l Bhd. of Teamsters, 606 F. Supp. 352, 358-
59 (E.D.N.Y. 1985), aff'd 853 F.2d 1046 (2d Cir. 1988).
The rationale for protecting these complaints, which are not
literally covered by the language of the statutes, was well
stated by the court in Diplomat Envelope:
We must look to the purpose of the
statute rather than its language alone. The
purpose of the statute is to encourage
employees to come forward with complaints of
health hazards so that remedial action may be
taken. In the ordinary course of events, an
employee who notices a health hazard will
begin by bringing the matter to the attention
of those with whom he deals directly in his
daily worklife, such as the employer,
supervisors, co-workers, or union officials.
This is simple common sense. These persons
are the ones most likely to be in a position
to obtain information regarding the alleged
hazard and to take appropriate action.
587 F. Supp. at 1424.
Complainant's health and safety complaint was not made to
one of these categories of individuals, and it is hard to see how
making a complaint to a scrap dealer or other member of the
general public achieves the objective of the statute to correct
violations to protect public health and safety. Certainly,
Mr. Applegarth was not someone with whom Complainant dealt
directly in his work, nor was Mr. Applegarth in any position to
gather information about the alleged hazard or to take any action
on it. I reject Complainant's broad position that statements to
the general public are protected because they demonstrate an
[PAGE 4]
employee may be "about to" make a complaint to the government.
Complainant's only actions which may have indicated he had made a
complaint to the government were to show Mr. Hall the USDA
investigator's business card when Complainant refused to answer
Mr. Hall's questions, T. 556-57, and to say the investigator had
been on Respondent's property taking pictures. T. 546-46.
Mr. Hall testified he did not draw a connection from these
actions that Complainant was participating in a government
investigation, T. 546, and I agree Complainant's enigmatic
response to Mr. Hall was not sufficient to invoke the protection
of the Acts. [4] I hold that making health and safety
complaints to the general public, without more demonstrating that
the employee is about to file a complaint or participate or
assist in a proceeding, 15 U.S.C. § 2622(a), is too remote
from the purposes of the Acts to be a protected activity.
Complainant goes to some lengths to show that, if he did
make the allegations about heptachlor contaminated feed, they
were true, and that if the allegations were false they were made
in good faith, so that he is entitled to the protection of the
Acts even if the Secretary rejects Complainant's testimony that
he did not make such allegations to Mr. Applegarth.
Complainant's Brief in Opposition to the Recommended Decision and
Order of the Administrative Law Judge at 3-14. If the statement
were protected, it is true its validity would be immaterial if
made in good faith. Since I hold it is not protected, I find
these questions irrelevant. Complainant's reliance on First
Amendment cases also is misplaced here where he seeks statutory
protection. [5]
Complainant asserts it was his refusal to answer Mr. Hall's
questions about his statement to Mr. Applegarth that was the
reason for his discharge, and because he had been asked by the
USDA investigators not to reveal their investigation to
Respondent, his refusal to respond was a protected activity. As
discussed above, Complainant's ambiguous response to Mr. Hall's
questions was not sufficient to put Mr. Hall on notice that
Complainant was participating in a government investigation. I
agree with the ALJ that Respondent "made a reasonable credibility
assessment when they believed Mr. Applegarth" and not
Complainant, and discharged Complainant "because he made
potentially damaging false statements about [Respondent] to a
member of the general public," R. D. and O. at 6, and not because
Complainant refused to answer Mr. Hall's questions. The ALJ
specifically found Mr. Applegarth to be a "sincere and credible
witness" who withstood determined cross examination, and held
that Respondent acted reasonably when it concluded Mr. Applegarth
was telling the truth about his conversation with Complainant.
Id. Although I am not bound by the credibility
determinations of
[PAGE 5]
the ALJ, these findings must be considered in light of "the
consentency and innerent probability of testimony," Universal
Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951), and are
entitled to weight because the ALJ "'sees the witnesses and hears
them testify . . . .'" Pogue v. U.S. Dept of Labor, 940
F.2d 1287, 1289 (quoting NLRB v. Walter Mfg. Co., 269 U.S.
404, 408 (1962)). Assuming knowledge of Complainant's protected
activity, participation in a government investigation, can be
imputed to Respondent, I agree with the ALJ that Respondent would
have fired Complainant for the statement to Mr. Applegarth, even
if Complainant had not engaged in protected activity.
Accordingly, the complaint in this case is DISMISSED.
SO ORDERED.
ROBERT B. REICH
Secretary of Labor
Washington, D.C.
[ENDNOTES]
[1] The Administrative Law Judge (ALJ) treated this case as
arising under only the Toxic Substances Control Act, but the
notification to Respondent by the Wage and Hour Division of the
results of its investigation stated that Complainant "filed a
complaint with the Secretary of Labor under" the four statutes
listed in the text. C (Complainant's Exhibit)-10.
[2] Neither party has raised the question whether participation
in an investigation by the Department of Agriculture is an action
to carry out the purposes of the environmental laws covered by
the employee protection provisions of those acts, and I do not
reach that issue.
[3] "Heptachlor [is a] chlorinated hydrocarbon insecticide[]
that [is] very fat soluble and . . . tend[s] to accumulate in the
body fat of animals that eat contaminated feeds." C-14,
"Heptachlor Contamination of Livestock and Poultry", by Arthur L.
Craigmill.
[4] There is nothing in the record to support Complainant's
assertion that he "told [Mr.] Hall he could not discuss the issue
[his statement to Mr. Applegarth] without violating [the
investigator's] instructions to maintain his cover."
Complainant's Reply Brief at 4. In particular, the transcript
references cited by Complainant do not confirm this contention.
[5] Complainant suggests in footnote 2 of his brief that
another reason to protect his statement to Mr. Applegarth was
that it was necessary to assist the USDA in its investigation,
"literally an activity to assist in carrying out the purposes of"
the Acts. Complainant does not explain how his gratuitous
comments about Respondent's use of contaminated feed helped him
prepare the map for USDA.
Complainant also lumps together several prior decisions by
the Secretary, characterizing them as protecting "speech to the
public." In the most recent, Nunn v. Duke Power Co., Case
No. 84-ERA-27, Sec. Dec. Jul. 30, 1987, the Secretary held that
contact with a public interest group, such as the Government
Accountability Project, which evidences an intent to testify or
assist in a proceeding is protected under the Energy
Reorganization Act. Slip op. at 12-13. The Deputy Secretary
noted, however, that he was not holding that "mere contact with
[public interest groups] constitutes protected activity."
Id. at 13 n.4 However noble a profession, a scrap dealer
has little in common with a public interest group. Landers v.
Commonwealth-Lord Joint Venture, Case No. 84-ERA-0005, ALJ
Dec. of May 11, 1983 adopted by the Secretary Sep. 9, 1983, held
that an employee who makes internal complaints does not lose the
protection of the ERA because he was outspoken in making those
complaints and also expressed his complaints to fellow employees.
ALJ Dec. at 8-10. There is nothing in the Secretary's decision
in Wedderspoon v. City of Cedar Rapids, Ia. Case No. 80-
WPCA-1, Sec. Dec. Jul. 28, 1980 (cited by Complainant as
Wedderspoon v. Milligan) to indicate the nature of the
protected activity, and the ALJ's decision is no longer
available.
