number 1-56, located at 832 E. Moreland Boulevard, Waukesha, Wisconsin (CX 6; Tr. 29).

Personnel File Documentation

    Between the time that Conaway took over as manager of the Waukesha store and March 14, 1991, the date that he was terminated, a number of incidents occurred which were documented in Complainant's personnel file.

possibly termination (CX 19).

6. January 31, 1991. "Mystery shopper" reported that Conaway's car was parked in one of the two bays in the store in violation of Valvoline policy (RX 11). Another "mystery shopper" reported that Conaway was overly flirtatious and made her feel very uncomfortable (RX 12).

7. February 2, 1991. Based on the January 31 incidents, Lein gave Conaway a written warning for closing down one of the store's bays to work on his own car. The written warning summarized the other dates of warnings and stated that failure to follow Valvoline policy and procedures to the letter would result in suspension and possibly termination (RX 13).

8. February 5, 1991. Another "mystery shopper" reported that Conaway was overly flirtatious and that she saw him turn away business (RX 14).

9. February 22, 1991. Customer filed a written report stating that Conaway refused to serve him because he had "burned" his tires outside the store. The customer also stated that Conaway told him, in a threatening manner, never to return (RX 17). This incident gave rise to an argument between Conaway and a fellow employee who objected to Conaway's treatment of the customer. The employee filed a written protest with Lein. The report stated that Conaway told him to follow orders or that he would "kick his fat ass up and down the street." (RX 18).

10. February 25, 1991. Lein visited the store and found that inventory sheets were a week behind and that other customer invoice sheets were incomplete (CX 25).

11. March 7, 1991. As a result of the incidents in September, October, November, January and February, Lein issued Conaway a Final Written Warning that put him on 60 day probation. Lein stated that any additional violation would result in termination (RX 19- 20).

12. March 12, 1991. "Mystery shopper" reported seeing Conaway smoking before and after oil change on car in violation of Valvoline policy (RX 30; Tr. 384-386).

13. March 13, 1991. Customer filed a written complaint stating that she had to wait 10 minutes outside the store before being greeted and that another vehicle was taken into the store out of turn, ahead of her vehicle, and although placed in the second bay, this other vehicle was not serviced (RX 31).

14. March 14, 1991. Lein notified Conaway that he was being terminated due to his continued violation of Valvoline policies, including 1) smoking in store, 2) running a one bay store and 3) turning away customers (CX 11).

Alleged Safety Violations

    The Complainant submitted copies of "Job Work Orders" dated during October and November of 1990 to show that he had brought certain problems at the Waukesha facility to the attention of Lein. These "Job Work Orders" complained of poor lighting in the lower bay area, no emergency or exit signs in the building, weak garage door springs, an inoperative safety switch on the rear door and stopped up toilet (CX 8). Hall testified that he directed Conaway to exercise his managerial discretion in solving some of the problems such as purchasing supplies and cleaning the light fixtures to remedy the dark conditions in the building (Tr. 445-447; CX 10).

    In January of 1991, new oil storage tanks were installed at the Waukesha store and the old oil drainage tanks were placed outside for removal. Conaway testified that he complained that the old storage tanks that were placed at the rear of the building were leaking oil onto the ground and parking lot. Conaway said that he used kitty litter and wrapped shop rags around a pipe that was protruding from the tanks but to no avail. He said the tanks were removed approximately two weeks later (Tr. 57-66). Lein testified that it was his understanding that the old storage tanks had been removed from the property when the new tank was installed. Once he learned that the tanks were still on the property, Lein called the maintenance supervisor who had them

removed immediately. All that was necessary was to notify the people who did the work and they took care of the removal (Tr. 288).

    I find that any excessive or prolonged oil leaking was due to the failure of Conaway to properly perform his job as manager and notify the maintenance personnel so that the tanks could be removed. His action of using kitty litter and a shop rag to stop the leak demonstrates a lack of initiative, imagination and attention to duty.

    Conaway testified that he complained that the installation of new storage tanks for waste oil and other automotive fluids violated environmental regulations and that this opinion was shared by the local fire marshall who had visited the site. Hall, regional manager of the Valvoline midwestern region, testified that the oil storage tank was UL approved, is similar to other tanks used in the Milwaukee area stores and the use of this tank was permitted by the fire marshall (Tr. 419-420, 428). I find that the evidence does not establish that any environmental regulations were violated.

    Jeffrey Bombinski (Bombinski) worked at the Waukesha store with Conaway and recalled that in early February 1991, Conaway told him that he had a list of OSHA, EPA violations that was his "ace in the hole" and that if Valvoline was going to fire him then he [Conaway] had something to fall back on (Tr. 328-329, 354). Michael Walk (Walk) worked at the Waukesha store with Conaway and recalls that Conaway told him that he had a list of violations that he could use to his advantage if he was ever fired (Tr. 392-393, 405).

    On February 22, 1991, Conaway expressed concern concerning his job and questioned Lein about whether a new management trainee who had recently been hired would replace him. Lein assured Conaway that he would not be terminated if he followed policy and procedure (RX 15). On the same day, Conaway presented Lein with a handwritten list of environmental and safety concerns (CX 9). This is the first time that Conaway mentioned OSHA violations to Lein. Conaway later met with Hall and Lein to discuss the list of safety concerns.

    On March 14, 1991, Lein notified Conaway that he was being terminated because of two additional violations occurring since

March 7, 1991, when he was placed on probation.

Poor Performance of Service Center

    Valvoline has two methods to track performance of a service center, one is a car count report which tracks the number of vehicles being serviced and the other is a profit and loss statement (Tr. 430, 431). The number of vehicles serviced increased dramatically after Conaway was terminated. According to Walk, the number of cars serviced per week increased by 80 to 100 vehicles per week (Tr. 410). According to Hall, the car count increased by as much as thirty percent (Tr. 431). At any rate, the number of cars serviced increased substantially after Conaway was fired and is further evidence of his poor management.

Credibility

    Conaway testified that he never turned away a customer or told a co-worker to turn away a customer without a reason (Tr. 104). However, Walk and Bombinski both testified that Conaway had instructed them, on different occasions, to turn away customers for no particular reason other than Conaway did not feel like working on the cars at that particular time (Tr. 341, 348, 399-400). Conaway testified on direct examination that he never received oral or written warnings on certain particular dates concerning smoking in the store, running a one-bay store and turning away customers (Tr. 91-94). Conaway tended to give the impression that management never informed him of nor discussed any of its dissatisfaction with him concerning his violations of company practices and procedures. However, on cross-examination, Conaway admitted that management discussed with him the fact that his use of the company space to work on his personal car was a violation of company policy, about being overly friendly with female customers, about the slipping sales and performance of the store, failure to follow established practices and procedures, failure to complete inventory sheets, poor attitude and improper dress when servicing vehicles and being overly friendly to female customers (Tr. 118-140). Conaway denied ever making a statement to Walk or Bombinski about having an "ace in the hole" or something to fall back on. Walk and Bombinski were both clear and emphatic about Conaway's statements in this regard. I find Conaway to be an evasive and unreliable witness and when his testimony conflicts with that of another witness, greater weight is given to the testimony of the other witness.

    To establish a prima facie case of discrimination in a whistleblower case, the alleged discriminatee must show that 1) he engaged in protected activity, 2) that the employer took adverse action against the employee and 3) that the adverse action taken was more likely than not the result of the protected conduct. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 245, 253 (1981). In order to rebut the prima facie case, the employer must demonstrate that it discharged the employee for a legitimate reason regardless of the protected activity. The employee may then show that the employer's proffered explanation for the discharge was either not relied upon or was a pretext. Id. at 256.

A. Whether Complainant engaged in conduct protected by SWDA and OSHA.

    Valvoline argues that Conaway cannot establish a prima facie case of discrimination because he failed to make any complaints to government agencies but complained only to his immediate supervisors about possible safety and environmental hazards. Valvoline contends that in order to invoke the jurisdiction of the SWDA or OSHA, Conaway must have complained to a government agency. Section 660 (c) (1) of OSHA provides:

    No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter or has testified or is about to testify in any such proceeding or because of the exercise of such employee on behalf of himself or others of any right afforded by this chapter.

Section 6971(a) of the SWDA provides:

    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 or under any applicable implementation plan, or has testified or is about to testify in any proceeding resulting from the administration or enforcement of the provisions of this chapter or of any applicable inplementation plan.

    The Secretary of Labor has interpreted section 660(c) (1) of OSHA to include internal complaints made to the employer by the employee. 29 C.F.R. section 1977.9 (c), Marshall v. Springville Poultry Farm, Inc., 445 F. Supp. 2, 3 (M.D. Pa. 1977). The Secretary reasoned that the "salutary principles of the Act would be seriously undermined if employees were discouraged from lodging complaints about occupational health and safety matters with their employers." 29 C.F.R. section 1977.9 (c). This same reasoning should apply to complaints made pursuant to section 6971 (a) of the SWDA because of its similarity in language and purpose to section 660 (c) (1) of OSHA. The principles underlying SWDA would also be undermined if the Act did not protect employees against discharge or discrimination caused by complaints to the employer.

    However, reading 29 C.F.R. section 1977.9 (c) in its entirety and applying it to the facts of this case leads to a different result.

(c) Further, the salutary principles of the act would be seriously undermined if employees were discouraged from lodging complaints about occupational safety and health matters with their employers. (Section 2 (1),(2), and(3)). Such complaints to employers, if made in good faith, (emphasis added), therefore would be related to the Act, and an employee would be protected against discharge of discrimination caused by a complaint to the employer.

    If the Complainant presented complaints of possible occupational safety and environmental concerns to his immediate supervisors, in good faith, then he would have engaged in conduct protected by OSHA and the SWDA. However, the first time that Conaway every mentioned OSHA complaints to his employer was on February 22, 1991 when he orally mentioned several alleged "environmental and safety concerns" to Lein. A written list of "concerns" dated February 26, 1991 was later given to Lein. These complaints were made after numerous adverse entries had been made in Conaway's personnel file and after he had been notified of his violations of company practices and procedures; after Conaway had received a written warning and was placed on probation; and after Conaway had become concerned about losing

his job and whether his replacement had been hired. This was also after Conaway told two other Valvoline employees that he had a list of violations and would use them "to fall back on" or as his "ace in the hole" in the event Valvoline was going to fire him. I find that Conaway's actions in notifying management of environmental concerns was not made in good faith but was an attempt to keep his employer from terminating or disciplining him.

    The lack of good faith is further demonstrated by the fact that of these "concerns" most of them were apparently in existence for some time and possibly when Conaway took over management of the Waukesha store in September 1990. However, he did not bring them to management's attention until over five months later when he knew his job was in jeopardy. A review of the list of concerns does not reveal OSHA and environmental violations. Many of them represent no violation at all as the company was in compliance with local or state requirements. Several other of the alleged concerns (e.g., install eyewash station, improve lighting, install padding on support beams, insert 3-prong plug on benchgrinder, order new stepstools), were items that Conaway as manager of the store should have taken care of in the routine course of his duties. His failure to do so is a further example of his ineptitude as manager and further support for his termination.

    I find that the complaints by Conaway were not made in good faith and were therefore, not protected activity.

B. Whether Respondent discharged Complainant in retaliation for complaints made under SWDA or OSHA.

    Assuming arguendo that Complainant had been successful in establishing that his conduct was protected by SWDA and OSHA, he would still not be entitled to relief as he cannot establish that his termination was a result of protected activity.

    Prior to informing management of environmental and OSHA concerns, Conaway had been repeatedly warned and counselled for his deficiencies as a store manager and for his violations of Valvoline practices and procedures. Furthermore, the evidence establishes that Conaway suspected that he would soon be terminated and created a list of environmental and safety concerns as

his "ace in the hole" to prevent Valvoline from taking action. In any event, many of the safety and environmental concerns were complaints which Conaway himself, using his managerial office, should have remedied. Conaway, even after numerous warnings, showed no improvement nor did he even demonstrate any attempt or desire to improve his performance. Valvoline had ample cause for terminating Conaway's employment given his poor track record and performance as manager. Given these facts, Complainant has failed to show that his activity resulted in his discharge.

    Even if Conaway had established a causal link between his termination and the internal complaints, Valvoline had a legitimate, nondiscriminatory reason to fire him. Based on the numerous instances of performance problems documented in Conaway's personnel file, Valvoline had sufficient cause to terminate him even if he had shown that he was engaged in protected activity. Finally, Conaway has failed to show that Valvoline's reason for his discharge was a pretext for retaliation.

    In light of the above facts, the Complainant has failed to establish that he was engaged in protected activity and has failed to establish a prima facie case of retaliatory discharge. Furthermore, assuming that a prima facie case could be established, the Respondent has set forth legitimate, nondiscriminatory reasons to justify Complainant's discharge. Consequently, I find that the complaint is without merit.

    Accordingly, it is ORDERED that the complaint of Keith E. Conaway is hereby DISMISSED.

       ROBERT L. HILLYARD
       Administrative Law Judge