Furthermore, as Metro recognizes, a union has the right to authorize representatives to perform services on the part of the union. Respondent's Reply to Complainant's Opposition to Respondent's Motion for Summary Decision at 7. Cf.,General Electric Co. v. NLRB, 412 F.2d 512, 516 (2d Cir. 1969)(Section 7 of the National Labor Relations Act, 29 U.S.C. §157, guarantees labor organizations the right to "choose whomever they wish to represent them in formal labor negotiations"). Therefore, an individual selected by a union representing employees covered by the whistleblower protection provisions to speak or act for the union (and by extension the employees) in matters within the purview of the environmental statutes at issue here is also protected by the statutes' prohibitions of retaliation against "authorized representatives."
We acknowledge that some appellate courts have deferred to the Secretary of Labor's interpretation of the term "authorized representative of miners" as embodied in regulations defining the term, rather than initially construing the term based on the traditional tools of statutory interpretation as we have done here. E.g., Thunder Basin Coal Co. v. Federal Mine Safety and Health Review Commission, 56 F.3d 1275, 1278 (10th Cir. 1995); Kerr-McKee Coal Corp. v. Federal Mine Safety and Health Review Commission , 40 F.3d 1257, 1262 (D.C. Cir. 1994); Utah Power & Light v. Secretary of Labor , 897 F.2d 447, 450 (10th Cir. 1990). In those cases, at issue were very precise and specific attributes of authorized representatives of
[Page 7]
miners which the courts concluded the Federal Mine Safety and Health Amendments Act of 1977 (which amended the Federal Coal Mine Health and Safety Act of 1969) did not expressly address, but which the Secretary of Labor did address by regulation. See, e.g., Thunder Basin Coal Co. , 56 F.3d at 1278; Kerr-McKee Coal Corp ., 40 F.3d at 1262; Utah Power & Light, 897 F.2d at 450. However, none of the opinions contain any extended discussion of the courts' inability to construe the statutory term using the traditional tools of statutory interpretation. The courts' analyses instead were focused almost exclusively on whether the Secretary's interpretation was based on a permissible construction of the statute. See, e.g., Thunder Basin Coal Co. , 56 F.3d at 1278-1281; Kerr-McKee Coal Corp ., 40 F.3d at 1261-1265; Utah Power & Light, 897 F.2d at 449-452. In this case, the Secretary has adopted no regulation defining "authorized representative." Therefore, given the broad nature of the issue before us and the relevant legislative history, we are not constrained, by the cases in which the courts deferred to the Secretary's interpretation, from construing the statutory phrase "authorized representative" in this case. Accordingly, Anderson is an "authorized representative" of Metro employees if a Metro employee or group of Metro employees requested her to speak or act for the employee or group of employees in matters within the coverage of the SWDA, CERCLA, or FWPCA, or if a union representing Metro employees (e.g. , OCAW) requested her to speak or act for the union (and by extension the employees) in matters within the purview of these statutes.
We note that one of the statutes at issue here, the ERA, does not specifically extend coverage to "authorized representatives of employees," but does protect an employee whose representative engages in protected behavior on behalf of the employee. The ALJ apparently assumed, without any documented analysis, that because the ERA does not include specific language addressed to the coverage of "authorized representatives," employee representatives do not fall within the ERA's whistleblower protection. Anderson, in her briefs to the ALJ and the ARB, noted the difference between the ERA's statutory language, 42 U.S.C. §5851(a)(1), and that of the SWDA, 42 U.S.C. §6971(a); CERCLA, 42 U.S.C. §9610(a) and the FWPCA, 33 U.S.C. §1367(a). However, she apparently assumed, without discussion, that if she was covered as an "authorized representative" under the CERCLA, FWPCA, and SWDA, she was covered under the ERA as well. Metro also failed to discuss the issue whether the ERA prohibits retaliation against an authorized representative who engages in protected activity.
On remand, the parties are requested to brief, and the ALJ to resolve, the issue whether Anderson falls within the ERA's coverage. In particular, the parties should address the applicability of general principles of principal-agent law, the legislative history of the environmental whistleblower acts indicating that the employee protection provisions of the ERA are "substantially identical" to those of the CAA and FWPCA and the Secretary of Labor's regulations, which do not distinguish between the ERA and the CERCLA, FWCPA, and SWDA in describing the purpose and scope of the Acts, 29 C.F.R. §24.1; the general obligations and prohibited activities under the Acts, 29 C.F.R. §24.2(a) -(c); and those who may file complaints under the Acts, 29 C.F.R. §24.3(a).
[Page 8]
IV. Existence of Genuine Issue of Fact.
Now that we have construed the statutory term "authorized representative," we next determine whether there is a genuine issue of fact relevant to the issue whether Anderson was an ?authorized representative" of Metro employees. We hold that there is and accordingly, for the reasons discussed below, we disagree with the ALJ that this case should be summarily dismissed. We hold that the ALJ applied an incorrect legal standard to evaluate Anderson's burden as the party opposing the motion for summary decision. Viewing the evidence in the light most favorable to Anderson, the nonmoving party, we find that Anderson has shown that there is a genuine issue of material fact whether she was the "authorized representative" of Metro's employees and she is entitled to a trial on the merits of that element of her case.
The ALJ acknowledged that the affidavits of Marilyn Y. Ferrari and Donald S. Holmstrom "would appear to be the strongest arguments to support [Anderson's] contention that she is an authorized representative' under the applicable whistleblower statutes." R. D. & O. at 14. Metro argues that the affidavits are not sufficient to raise a genuine issue of fact because they are not supported by any documentary evidence and therefore lack credibility and because they are "self-serving." Metro Reply brief at 4, 16. However, a judge may not generally consider the credibility of witnesses when considering a motion for summary judgment unless the witness told a different story under oath before the witness recognized the legal significance of the truth or the witness' statement is incontrovertibly contradicted by documentary evidence. Stewart v. RCA Corporation , 790 F.2d 624, 628 (7th Cir. 1986). But see Kennett-Murray Corp. v. Bone , 622 F.2d 887, 893 (5th Cir.1980)(under limited circumstances even a subsequent contradictory affidavit will defeat motion for summary judgment). Ferrari's and Holmstrom's statements are neither controverted by prior testimony nor by documentary evidence. Furthermore, the fact that Anderson relied upon affidavits that were "self-serving" is hardly surprising. As the Ninth Circuit commented in discussing the decision of a district court judge to reject a party's affidavit and grant summary judgment because he found the affidavit to be "self-serving and conclusory:"
Mr. Shumway's affidavit was of course "self-serving," as the district court noted. And properly so, because otherwise there would be no point in his submitting it. That an affidavit is self-serving bears on its credibility, not on its cognizability for purposes of establishing a genuine issue of material fact.
United States v. Shumway , 199 F.3d 1093, 1104 (9th Cir. 1999).
Both Ferrari and Holmstrom swear to a number of material facts based upon personal knowledge. Ferrari states that she was employed by Metro as a Laboratory Technician from 1975 until her retirement in 1997. She served as OCAW Local 2-477's Vice President for several years prior to her retirement and has been the OCAW's representative to the Executive Board of the
[Page 9]
Denver Area Labor Federation from 1995 to the present. Exhibit 2 attached to Anderson's Opposition, paragraphs 1, 2. Ferrari asserts that, because of OCAW's perception that Metro was opposed to OCAW's health and safety concerns and refused to bargain in good faith, she contacted members of the Mayor's staff about the appointment of a director to the Metro Board "who would represent our interests." Id ., paragraph 10. Ferrari's affidavit further states that:
Based on discussions with co-workers and union leaders, including Pat Farmer, chief negotiator for the Metro lab workers, and Donald Holmstrom, President of OCAW Local 2-477, I contacted Adrienne Anderson and asked her if she would be willing to have OCAW Local 2-477 submit her resume to the Mayor of Denver for appointment as our representative on the Metro Board. She agreed, . . . .
Id., paragraph 11. Ferrari's affidavit avers, at paragraph 18, that the OCAW leadership "on many occasions asked and directed [Anderson] to act on our [OCAW] behalf in raising points before the [Metro] Board, which she has done."
Donald Holmstrom, President of Local 2-477 of OCAW, stated in his affidavit:
The leadership of the local acting on behalf of its members who work at the Metro plant, asked Adrienne Anderson to serve as our representative on the Metro Board. She agreed. We then requested that the Mayor of Denver appoint Adrienne Anderson to Metro's Board of Directors as our representative on the Board. I participated in the decisions to make these requests.
Exhibit 3 to Complainant's Opposition, paragraph 2. His affidavit further avers that "Anderson has served as the authorized representative on the Metro Board of members of Local 2-477 . . . . She [has] taken our direction on issues to pursue before the Board . . . ." Id. at paragraph 3.
Anderson also submitted a personal affidavit in support of her response to Metro's motion for summary judgment. In the affidavit Anderson stated that:
In the Fall of 1995, Marilyn Ferrari, Vice President of OCAW 2-477 and a Metro lab employee, contacted me and asked me if I would be willing to have OCAW 2-477 submit my resume to the city of Denver for consideration as their representative to the Metro Board. I agreed that they may do so, and that I would gladly act on their behalf to represent workers' concerns at the sewer plant at the level of the board. In December, 1995, OCAW 2-477 submitted my resume to the city of Denver's staff person for Boards and commissions, Donna Good.
Exhibit 1 attached to Anderson's Opposition, paragraph 9.
[Page 10]
The Ferrari, Holmstrom and Anderson affidavits all include "such facts as would be admissible in evidence"6 before the ALJ upon the affiants' testimony. Moreover, the ALJ must accept them as true for purposes of determining whether there is a genuine issue of fact precluding summary judgment. Shumway, 199 F.3d at 1104. The Ferrari, Holmstrom and Anderson affidavits indisputably constitute affirmative evidence in support of Anderson's contention that she is an "authorized representative" of Metro employees. Nevertheless, the ALJ failed to discuss why the assertions of fact in these affidavits are not sufficient to raise a genuine issue of material fact.
Furthermore, the ALJ did not draw the inferences most favorable to Anderson as the nonmoving party with respect to other evidence in the record. One of the Metro by-laws requires a member of the Metro board to refrain from participation in discussion of, and directs that a member may not vote on, any matter in which the member has a personal or private interest. Affidavits submitted by Metro show that Anderson participated in and voted on two occasions on proposed salary increases for Metro employees. The ALJ drew the inference that these actions by Anderson violated the Metro by-laws and inferred that "[h]ad [Anderson] been, or had she believed herself to be, an authorized representative of the OCAW . . . she should have recused herself from voting on a pay increase that would affect OCAW members, in order to avoid a conflict of interest." R. D. & O. 18-19. A justifiable inference which the ALJ could have drawn from these incidents, and one more favorable to Anderson as the nonmoving party, was that Anderson believed the by-law in question did not apply because she did not have a "personal or private interest" in the matter under discussion.
The ALJ also gave considerable weight to a statement Anderson made at a Metro Operations Committee. The minutes reflect a statement by Anderson that neither at that time, nor at the time she was appointed to the Metro board, did she "work for" OCAW. Exhibit 8 to Complainant's Opposition. Rather than draw a legitimate inference in favor of Anderson, that the statement simply meant she was not an OCAW employee, the ALJ found that this statement "conclusively demonstrated" that Anderson was not the authorized representative of OCAW. R. D. & O. at 19.
Ultimately, the ALJ applied an incorrect legal standard to the evidence, including the affidavits. He held that "the evidence, viewed in the light most favorable to [Anderson], fails to prove that [Anderson] is an authorized representative' of the OCAW . . . ." R. D. & O. at 14. But Anderson's burden in opposing a motion for summary decision was not to prove the facts on which she would bear the ultimate burden at trial. Her burden at this stage was only to show that there was a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc. , 477 U.S. at 249-51. The Ferrari, Holmstrom and Anderson affidavits were sufficient to carry this burden.
Viewing the affidavits submitted by Anderson and the other evidence in the light most favorable to Anderson and drawing all legitimate inferences from them in her favor, as
[Page 11]
we are constrained to do on a motion for summary decision, we find that it would be justifiable for a trier of fact to infer that the OCAW leadership had empowered Anderson to represent the union's interests on the Metro board, i.e. , that Anderson was the authorized representative of OCAW. That this inference may be inconsistent with other evidence discussed above and the inferences the ALJ drew from the evidence simply shows that there is a genuine issue of material fact on this question which cannot be disposed of in summary fashion, but only after a trial on the merits. Of course, in remanding this case for hearing, we emphasize that we have reached no conclusion regarding the merits of Anderson's complaint.
V. Lawyer Witness Concerns.
Finally, we note that since Holmstrom submitted his affidavit in this case, Anderson's former counsel has withdrawn and Anderson has authorized Holmstrom, a licensed attorney in the State of Colorado, to represent her in this action. Rule 3.7(a) of the Colorado Rules of Professional Conduct provides:
A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.
The Comment to the rule explains:
Combining the roles of advocate and witness can involve a conflict of interest between the lawyer and client and can prejudice the opposing party. If a lawyer is both counsel and witness, the lawyer becomes more easily impeachable for interest and thus may be a less effective witness. Conversely, the opposing counsel may be handicapped in challenging the credibility of the lawyer when the lawyer also appears as an advocate in the case. An advocate who becomes a witness is in the unseemly and ineffective position of arguing his or her own credibility.
Accordingly, if Anderson intends to rely upon Holmstrom's testimony upon remand, the ALJ should determine whether it is appropriate to permit Holmstrom to continue to represent Anderson.
[Page 12]
VI. Conclusion.
For the reasons discussed above, we reject the ALJ's recommendation that Metro's motion for summary decision be granted and that this case be dismissed. This case is remanded to the ALJ for further proceedings consistent with this decision.
SO ORDERED.
PAUL GREENBERG
Chair
E. COOPER BROWN
Member
CYNTHIA L. ATTWOOD
Member
[ENDNOTES]
1 See pages 9-11 of the transcript of the September 17, 1997 pre-hearing conference for a description of the nature and scope of Metro's functions and its relationship with the member municipalities and other entities.
2 Although OSHA did not explain why its finding of discrimination was limited to the CERCLA, FWPCA and SWDA, the ALJ nevertheless concluded:
OSHA did not find merit to the complaints under the SDWA, the CAA and the TSCA because those acts do not provide protection for representatives of employees. Furthermore, no merit was found in the ERA claim, since Respondent is not an "Employer" as defined in that act, nor does the act provide protection for representatives of employees.
R. D. & O. at 2. The ALJ does not explain the basis for his conclusion that the SDWA, CAA, TSCA and ERA do not provide protection for employee representatives. Furthermore, since Metro has never disputed that it was an employer and the ALJ points to no record evidence to the contrary, we assume that the ALJ must have meant that Metro was not Anderson's employer, a fact she does not dispute.
3 As we recently stated in Whitaker v. CTI-Alaska, Inc ., ARB Case No. 98-036, ALJ Case No. 98-036, Dec. & Ord. of Rem., May 28, 1999, at 3 n. 4:
Our authority to review summary judgment recommendations de novo comes not only from the Administrative Procedure Act, but also from the nature of summary judgment itself, which goes only to the questions (1) whether the correct legal standard has been applied, and (2) whether the factual allegations are sufficiently specific and uncontroverted, i.e. that no material issues of fact are disputed. Because the analysis on summary judgment is only about whether triable claims have been presented, the special functions and contributions of the presiding judge are not brought into play.
4 The SWDA, 42 U.S.C. §6971(a); the CERCLA, 42 U.S.C. §9610(a) and the FWPCA, 33 U.S.C. §1367(a), each provide:
No person shall fire, or in any other way discriminate against, or cause to be fired or discriminated against, any employee or any authorized representative of employees by reason of the fact that such employee or representative has filed, instituted, or caused to be filed or instituted any proceeding under this chapter . . . ."
Emphasis supplied. The SDWA, 42 U.S.C. §300j(d)(i)(1); the CAA, 42 U.S.C. §7622(a); the TSCA, 15 U.S.C. §2622(a) and the ERA, 42 U.S.C. §5851(a)(1) provide:
No employer may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of the employee) [engaged in protected activities] . . . .
Emphasis supplied.
5 As noted at footnote 4, the ERA does not specifically prohibit discrimination against "authorized representatives." As discussed more fully at page 8, we do not decide here whether the ERA, 42 U.S.C. §5851(a)(1), protects employee representatives from retaliation, but instead request further briefing on the issue upon remand.
6 Fed. R. Civ. Pro. 56(e).