U.S. Department of Labor Office of Administrative Law Judges
800 K Street. N.W.
Washington. D.C 20001-8002
Date Issued: January 29, 1993
Case No.: 92-TSC-2
In the Matter of
ROBERT K. SCOTT,
Complainant
v.
ALYESKA PIPELINE SERVICE COMPANY,
Respondent
Counsel for the Complainant:
Douglas B. Baily, Esq.
A. William Saupe, Esq.
Sharon A. Sturges, Esq.
Anchorage,
Alaska
Billie Pirner Garde, Esq.
Houston, TX
Counsel for the Respondent:
Robert E. Jordan, III, Esq.
Morgan D. Hodgson, Esq.
Mary Woodson Poag, Esq.
Stephania Daliani, Esq.
Washington,
D.C.
Lawrence R. Trotter, Esq.
Anchorage, Alaska
Before: JEFFREY TURECK
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a case for compensatory and exemplary
damages arising under the whistleblower protection provisions of
the following statutes: the Toxic Substances Control Act
("TSCA"), 15 U.S.C. 52622; the Clean Air Act
("CAA"), 42 U.S.C. §7622; the Solid Waste Disposal
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Act ("SWDA"), 42 U.S.C. §6971; and the Water
ollution Control Act ("WPCA"), 33 U.S.C. §1367.
Regulationsgoverning such proceedings are contained in 29
C.F.R. Part 24. A formal hearing was held from May 19 through
June 4, 1992 in Anchorage, Alaska. On August 4, 1992, complainant
filed a motion to reopen the evidentiary record for the admission
of several documents into evidence. That motion was granted, and
four additional exhibits were admitted into evidence. A
subsequent motion to reopen the record was filed on November 19,
1992, about 1 1/2 months after the final briefs were filed. That
motion was denied on December 21, 1992.
The complainant, Robert Scott, is a 65 year old
native of Monroe, Louisiana. His wife, to whom he has been
married for 14 years, is originally from the Philippines.
Following service in the Navy during World War II, Scott began a
career of operating mechanical equipment in various types of
plants including chemical and petrochemical plants, electric
generating plants, refineries and pipelines (TR 1440-41), located
primarily in the South and Southwest United States (TR 1442-43).
He worked for many different employers (TR 1444-45). Scott
admitted he was fired from several jobs over the years, for
reasons such as refusing to comply with a dress code (TR 1722-23), a disagreement over travel expenses (TR 1724-25), medical
problems (TR 1726), and refusing to perform work (TR 1726-27). He
also resigned from several others due to what can best be
described as personality clashes with supervisors or perceived
problems with the employer's treatment of him (see TR
1728-47).
Alyeska Pipleline Service Company is a
consortium of companies -- BP Oil, Exxon, ARCO, Mobil, Amerada
Hess, Phillips Petroleum, and Union Oil -- which runs the Trans-Alaska Pipeline (TR 70, 74). BP is the major owner of Alyeska,
owning more than 50 percent. Exxon and Arco are also substantial
owners. The other four companies together own only a small
percent of Alyeska (e.g., TR 74). The pipeline transports
North Slope crude oil 800 miles to its terminal in Valdez,
Alaska, from where it is then shipped by tanker primarily to the
lower 48 states (TR 70-71).
Alyeska currently has about 1400 employees,
of whom 350-400 workat the Valdez Terminal (TR 73).
Company headquarters are in Anchorage.
Alyeska is managed by an Owners Committee,
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which functionsmuch as a Board of Directors of a
traditional company (TR 2067). Each of the owner companies has
a representative on the Owners Committee. Since January, 1991,
the chairman of the Owners Committee has been William Rusnack,
the ARCO representative on the Committee (TR 2067). Mr.
Rusnack has been a member of the Owners Committee since
September, 1990 (id.).
1Citations to
the record of this proceeding will be abbreviated as follows:
CX -- Complainant's Exhibit; RX Respondent's Exhibit; JX --
Joint Exhibit; TR -Hearing Transcript.
2Technicians
at the Valdez Terminal are paid on a scale of 1 to 6. One is
the lowest pay grade; six is the highest.
3This
enigmatic incident was not explained further in the record.
4Scott has
not contended that the "break room incident"
(seeinfra) involved any of the Nationalist
Movement's publications. See TR 1916.
5Alyeska
produced a considerable amount of testimony regarding a new
personnel policy allegedly introduced at the behest of
Hermiller through which the company would impose tougher
discipline on its employees, as a way of explaining why Scott
was terminated in 1990 but not previously. However, this
testimony was extremely self-serving, and I give it little
weight. Besides, I cannot conceive of any personnel policy, no
matter how lenient, that could explain why Scott was not
terminated prior to 1990; nor would it have been necessary to
come up with a harsher policy to justify terminating him
following the incidents which occurred in the summer of 1990
(see infra).
6Michael
Thiel's testimony was confined to a discussion of the parking
lot incident (see infra). He offered no opinion
regarding Scott's desirability as a co-worker.
7Michael
Thiel, a maintenance technician at the terminal, testified
that he viewed the incident from 30-40 yards away and saw
Zecevic strike Scott rather than the other way around (TR
1192). Since this version of the incident is contradicted by
all the participants, including Scott, it is rejected.
8There is no
allegation that Scott was ever disciplined by Alyeska in
regard to these complaints.
There is much evidence in the record
(e.g., TR 2313-15, 2337, 2461, 2467, 2666, 2760-63)
that Scott has no concern whatsoever for safety and the
environment. However, whether Scott's activities relevant to
this case are protected under the whistleblower protection
provisions of the environmental statutes at issue here does
not turn on his motivation. Accordingly, this issue will not
be addressed further in this decision.
9Senator
Gravel is erroneously referred to in the transcript as Senator
"Ravell".
10He has
filed other suits against Exxon, however.
11Hamel
confirmed that these documents, which he characterized as
engineering drawings, were furnished by him to EPA (TR 1132).
12I found
Hermiller's testimony at the hearing to be less than candid.
He was a contentious witness, and his testimony often gave the
impression that he was holding back or not giving complete
answers to questions. Frequently, his testimony appeared self-serving. As the person who authorized the Wackenhut
investigation, which was roundly criticized by the members of
the Owners Committee (see infra), he has a personal as
well as a corporate interest in this hearing. I have weighed
his testimony accordingly.
13P>Darrell
Warner, Exxon's representative on Alyeska's Owners Committee, was inadvertently informed
of the investigation by Dietrich on August 9, 1990 (CX 162, at 3-4). Dietrich apparently
assumed that the members of the Owners Committee knew about it.
14The
timing of this contact is confirmed by an entry in an
attachment to a memo prepared by Wayne Black. See CX
47, Exhibit List, Item 1.
15The back
of the envelope in which the brochure was sent was marked:
"4-9-90 427 [Wackenhut's case number for the Alyeska
investigation (TR 1260)] WBB [initials of Wayne B. Black]
Rec'd at C. Hamel residence Washington, D.C.
[sic]". It appears to be Black's usual way of
marking documents (see CX 35, at p. 3 ) . Hamel
testified that he did not give this document to
"Jenkins" or throw it away (TR 1098). Black
indicated it was discarded by Hamel (see CX 47, Exhibit
List - Item 3 ) . Black did not testify at the hearing.
16O.A.A.
is an abbreviation for Decisions of the Office of
Administrative Law Judges and Office of Administrative
Appeals, U.S. Department of Labor. It will be used in
citing to DOL decisions.
17Scott
testified that he visited Hellen's office prior to moving to
Anchorage, and he moved to Anchorage in early July, 1991 (TR
1438, 1926-27).
18Another
former Wackenhut employee, Gus Castillo, also gave a statement
to the Committee that day (TR 1344).
19There is
conflicting testimony regarding whether he left for West
Virginia on August 4th or August 5th. It serves no purpose to
try to resolve this conflcit, although it is more likely that
he left on the 5th. In this regard, see TR 1992.
20The
Anchorage Times went out of business during the course
of the trial in this case.
21Rusnack
had succeeded Garibaldi as the Chairman of the Owners
Committee at the time of the hearing (TR 2066-67).
22The
Bilgore notes -- CX 48 -- as well as CX 162-65 (infra),
are documents which are subject to the attorney -client
privilege and, in the normal course of events, would never
have become public. They were obtained from Alyeska pursuant
to subpoena by the U.S. House of Representatives Committee on
Interior and Insular Affairs which, over Alyeska's objections,
released them to the public.
23See my
Post-Hearinq Order in this case dated August 28, 1992
regarding the authorship of this document.
24The
statement in Burns' notes that, on September 25th, Scott was
on suspension for fighting, is incorrect. The parking lot
incident had occurred at that time (on September l9th), but he
was not suspended until October 8, 1990 (see CX 11).
Therefore, although the Committee could correctly have been
informed at the September 25th meeting that Scott was involved
in a fighting incident, in regard to Scott's current work
status either the Committee was misinformed or it
misunderstood the information conveyed. Scott contends it was
the former-that either Hermiller, Wellington or Trotter told
the Committee Scott has been suspended -- and that this
somehow is proof of Alyeska's illegal motive in disciplining
Scott (see Complainant's Reply Brief at 17-18).
But it is difficult to see any such connection.
25There is
confusion among all the participants regarding whether cetain
things occurred at the September 25th meeting or at the full
Owners Committee meeting held on October 3rd. However, none of
the participants have indicated that contradictory actions
were taken in the two meetings. Rather, the confusion extends
only to whether specific things, such as the order to Alyeska
not to fire Scott for whistleblowing, occurred at the first or
second meeting. Since both meetings occurred before any
disciplinary action against Scott was taken, it is not of
great importance whether the order not to fire Scott for
whistleblowing was given on September 25th or October 3rd.
26It
should be noted that the evidence fails to support Scott's
contention that Alyeska's Management Committee has never made
personnel decisions. Rather, Hermiller testified that the
Management Committee had not made personnel decisions while he
was President of Alyeska (TR 224-25), a relatively short
period.
27The
record fails to indicate how the Management Committee decides
an issue, i.e., does each member have one vote, or does
the President have the final say regardless of the opinions of
the other members?
28Due to
these findings, there is no reason to address the question of
whether Scott engaged in protected activity.