Thad Guyer, Esq.
Alene Anderson, Esq.
Thomas Carpenter, Esq.
Dana Gold, Esq.
For the Complainant
Robert Jordan, Esq.
Morgan Hodgson, Esq.
Kenneth Miller, Esq.
Lawrence Trotter, Esq.
For the Respondent
Alyeska Pipeline Service Company
[Page 2]
Greg Youngmun, Esq.
David Floerchinger, Esq.
For the Respondent
Arctic Slope Inspection Services,
Inc.
Before: THOMAS M. BURKE
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceeding brought under the
employee protection provisions of the Toxic Substances Control
Act, 15 U.S.C. § 2601, the Water Pollution Control Act, 33
U.S.C. § 1367, the Solid Waste Disposal Act, 42 U.S.C.
§ 6971, and the Clean Air Act, 42 U.S.C. § 7622
(referred to collectively as "Acts") and the
regulations promulgated thereunder at 29 C.F.R. Part 24. These
provisions protect employees against discharge or other
discrimination for attempting to carry out the purposes of these
Federal statutory provisions. The Secretary of Labor is
empowered to investigate and determine "whistleblower"
complaints filed by employees who are discharged or otherwise
discriminated against with regard to their terms and conditions
of employment for taking any action relating to the fulfillment
of the purpose of these statutory provisions.
This proceeding involves a complaint filed on
December 6, 1993 by complainant, Richardo Acord, against
Respondent Alyeska Pipeline Service Company ("Alyeska")
alleging that Alyeska discriminated against him in violation of
the Acts by engaging in harassment and intimidation because he
voiced and reported safety and environmental concerns.
The complaint was investigated by the
District Director of the Seattle, Washington regional office of
the Wage and Hour Division of the United States Department of
Labor. The District Director notified Alyeska by letter dated
October 21, 1994 that the complainant was a protected employee
engaging in a protected activity within the scope of the Acts and
that discrimination as defined by the Acts was a factor in the
actions which comprised his complaint.
Alyeska filed an appeal with the Office of
Administrative Law Judges on October 26, 1994. Complainant also
filed an appeal, on the grounds that the remedies afforded him
were inadequate and incomplete, and that the Wage and Hour
Division did not investigate the liability of his contract
employer named in his complaint, respondent Arctic Slope
[Page 3]
Inspection Services ("ASIS"). On June 5, 1995,
pursuant to an order of the undersigned Administrative Law Judge,
complainant filed an amended complaint adding respondent ASIS to
this matter.
A hearing was held in Anchorage, Alaska from
November 6 through November 13, 1995. Post-hearing briefs were
received on February 7, 1996 and reply briefs were received on
February 24, 1996. Alyeska filed a Motion For Leave To File
Surreply Brief On Jurisdiction on March 19, 1993. Alyeska's
motion for leave to file is hereby granted.
MOTION TO STRIKE
Respondent Alyeska filed a Motion To Strike
Non-Record Materials on February 15, 1993. Respondent ASIS
joined in the motion by filing dated February 22, 1996.
Complainant responded to the motion to strike on February 21,
1996.
Alyeska moves to strike two elements from complainant's
brief: 1) portions of the brief that cite or discuss exhibits
that have not been admitted into evidence; and, 2) all references
to an "Addendum" attached by complainant to his post-hearing brief.
Alyeska moves to strike citations and quotes
in complainant's post-hearing brief to exhibits which were never
admitted into evidence. Complainant agrees that three citations
to ASISX 71 referenced by Alyeska's motion should be stricken as
they were a result of oversight in preparing a list of admitted
exhibits, and that complainant's string cite to CX 95; CX 102; CX
119; CX 161 was the result of an unintentional typographical
error. The citation should have referred to Alyeska Exhibits.
Complainant requests that he be allowed to amend the
typographical error at page 40 of his post-hearing brief to
reference Alyeska exhibits instead of complainant's exhibits,
that is, ALYX 95; ALYX 102; ALYX 119; ALYX 161. Complainant's
request to amend page 40 of his post-hearing brief is granted.
Alyeska moves that the "Addendum"
attached to complainant's post-hearing brief be stricken because
it was never offered into evidence during the hearing, and
because it is inadmissible hearsay. The Addendum purports to be
153 pages of a transcript of hearings conducted before the
Subcommittee on Oversight and Investigations of the House
Committee on Energy and Commerce in July and November 1993.
Complainant agrees that he did not offer the document into
evidence during the hearing but argues that it can be considered
nonetheless under 29 C.F.R. § 18.201(d) which provides that
the Administrative Law Judge shall take official notice if
[Page 4]
requested by a party and supplied with he necessary information.
Complainant frames the adjudicative fact he wishes to be noticed
as: "that in July and November 1993, the Congressional
Subcommittee on Oversight and Investigations of the House
Committee on Energy and Commerce held hearings regarding Alyeska
Pipeline Service Company's environmental record and treatment of
quality control inspectors, and that Alyeska management
participated in those hearings." Complainant also responds
that consideration of the document is not precluded by the
hearsay rule because it is not being offered to show the truth of
the matters stated therein. See 29 C.F.R. § 18.801(c).
Alyeska's motion to strike the "Addendum" is
granted for reason that it was never offered into evidence during
the hearing. Its admission into evidence at this time, after the
closing of the record would be contrary to 29 C.F.R. §§
18.54(a) and 24.5(e)(2). Section 18.54(a) provides that no
additional evidence shall be accepted after close of the record
except upon a showing that new and material evidence has become
available which was readily available prior to the closing of the
hearing. Section 24.5(e)(2) provides that all evidence upon
which the Administrative Law Judge relies for decision shall be
contained in the transcript of testimony, either directly or by
appropriate reference.
Complainant's request that judicial notice be
taken under § 18.201(d) of the adjudicative fact for which
the addendum was offered is granted. Judicial notice is taken
that:
In July and November 1993, the Congressional
Subcommittee on Oversight and Investigations of the
House Committee on Energy and Commerce held hearings
regarding Alyeska Pipeline Service Company's
environmental record and treatment of quality control
inspectors, and that Alyeska management participated in
those hearings.
FINDINGS OF FACT
Complainant, Richardo Acord, a Quality
Control Specialist, first began employment with Alyeska through a
job shop contractor named Sonic System in 1991, and was
"rolled over" to contractor Ocean Technologies, Inc. in
June of 1992. When ASIS assumed the inspection contract for
Alyeska in July 1993, complainant was "rolled over" to
work with ASIS. A "rollover" is a direct transfer of
employees from one contractor to another contractor without any
provisions for layoff and rehiring. (Tr. 94-95)
Respondent Alyeska is a corporate entity
whose mission is to design, construct, operate and maintain the
[Page 5]
Trans-Alaska Pipeline System. Alyeska is a joint venture company
owned primarily by BP Pipelines Inc., ARCO Transportation Alaska,
Inc., and Exxon Pipeline Company. The Trans-Alaska Pipeline runs
800 miles from Prudhoe Bay to Valdez, crossing three mountain
ranges, 800 water ways including 34 major rivers and streams.
(Joint Ex. 1 at p. 1)
Respondent ASIS is an inspection contractor
wholly owned by Arctic Slope Consulting Group ("ASCG"),
which in turn is wholly owned by Arctic Slope Regional
Corporation ("ASRC"). (Tr. 1477-79) ASIS began
providing services to Alyeska effective June 14, 1993. During
1994, ASIS' contract for inspection services with Alyeska
constituted at least 95 per cent of ASIS' total business, and
generated five to eight million dollars of revenue. When ASIS
assumed the inspection contract with Alyeska in 1993, ASIS was
working toward achieving alliance contractor status with Alyeska,
which would provide ASIS with a secure expectation of future
contracts and a long term relationship with Alyeska. (Tr. 1496-1497)
Complainant has been in the quality control
inspection profession since 1988. He has certifications as a
welding inspector, for the uniform plumbing code, uniform
building code, uniform mechanical code as well as various
International Conference of Building Officials Codes. He worked
for three years with the engineering test and evaluation
laboratories of McDonald Douglas at Long Beach, California. He
subsequently worked for Inspection Services and Testing in
Fairbanks, Alaska doing inspection and testing. Next,
Complainant worked for Sonic Systems International
("SSI") where he performed inspection testing and
evaluation of welded structures and pipeline.
During 1991 through 1993 complainant worked
as a contract employee to Alyeska on Alyeska pipeline projects
and the marine terminal. The contractors he was employed by
include SSI, Ocean Technology and ASIS. (Tr. 416-19) After
complainant's employment with ASIS on the Alyeska pipeline was
terminated, complainant was hired by Houston Contracting during
the second or third week of February, 1994 to work at Prudhoe
Bay, Alaska. He left Houston Contracting upon the completion of
the job at the end of April, 1994 and started with VECO
International in Prudhoe Bay. He left VECO on June 10, 1994
because of a medical condition. He testified that he was
directed out of Prudhoe Bay by an ARCO Doctor. He subsequently
worked at American Mechanical at Eilson Air Force Base until the
end of April, 1995. Complainant left work with American
Mechanical to prepare for the hearing in this case. Complainant
also worked a short duration with Alaska Trailer. Complainant
was unemployed at the time of the hearing.
[Page 6]
Complainant's employment with Ocean
Technology started in June of 1992. His duties included
inspections on the trans-Alaska Pipeline and the Valdez marine
terminal. (Tr. 418-19) In February of 1993 complainant was
transferred to Anchorage to work in the quality services
department at the Alyeska corporate headquarters. Projects he
worked on included the periodic inspection program and special
programs encompassing a wide range of equipment on the pipeline,
particularly mobile cargo tanks ("MCTs").
Complainant voiced concerns about the safety
of a pipe line crossing to Ocean Technology and Alyeska
representatives in 1992 and again in July of 1993. Complainant
observed vertical movement of a parcel of the trans-Alaska
pipeline as a result of a 60,000 pound rig becoming mired while
crossing the pipeline. (Tr. 546)
Complainant raised concerns about inspectors
receiving adequate training or assistance in the MCT inspection
program in 1992 and 1993. He also had concerns about problems of
corrosion stress cracking on some of the tankers that carried
toxic substances, and that oil spill contingency equipment was
lacking timely inspections. (Tr. 424-28) He expressed his
concerns to Alyeska quality services. Complainant also raised
concerns about the qualifications of inspectors who worked for a
company named Silver's Inspection Services from Texas and that
past inspections performed by Silver inspectors failed to note
numerous problems. (Tr. 429) Complainant also reported to
Alyeska that an inspection report of an oil equipment back truck
showing a need for minor repairs did not reflect the actual
condition of the tanker. (Tr. 430)
Complainant went on sick leave from
August 20, 1993 until October 21, 1993 because of asthma and
serious lung infections. (Tr. 461, 468, 741) He was relieved of
inspection activities but his respiratory difficulties did not
preclude him from doing other work such as completing his
paperwork. He was laid off by ASIS effective October 29, 1993.
Respondents assert that the lay off was because of a seasonal
lack of work. (Tr. 347) The only inspection work available was
inspection of MCTs, and complainant had informed Swink that he no
longer wished to do inspection work that involved going inside
MCTs because of his respiratory problems. (Tr. 467-468, 890)
When ASIS laid off complainant its expectations were that he
would be recalled when work became available. (Tr. 1612-13, 749-51; ASISX 45)
Complainant's employment was terminated by
ASIS on December 10, 1993. Marvin Swink, Vice President and
General Manager of ASIS, was the official responsible for the
firing. (Tr. 765-66) ASIS' reason for terminating complainant's
[Page 7]
employment was that he failed to do his job.
JURISDICTION
Complainant files this complaint under four
federal environmental protection statutes, each of which provides
specified whistleblower protections: the Clean Air Act, the
Federal Water Pollution Control Act, the Solid Waste Disposal Act
and the Toxic Substances Control Act. Alyeska argues that the
allegations of protected activity in complainant's complaint do
not establish jurisdiction under any one of the four statutes.
Alyeska contends that complainant has not shown a nexus between
the activities for which he claims to have suffered illegal
retaliation and the substantive provisions of the statutes on
which he relies.
The protected activity alleged by complainant
consists of internal complaints to Alyeska and ASIS management
about five concerns he had regarding Alyeska's operations, all of
which had the potential of causing environmental degradation.
Those complaints involve:
1) possible harm to the trans-Alaska
pipeline by a 60,000 pound drill rig becoming stranded in the mud
while crossing over the pipeline at an animal crossing site in
the immediate proximity to a stream, and causing actual physical
movement of the pipeline which was carrying oil under pressure;
(ALJX 1)
2) construction debris buried at mile post
113; (ALJX 1)
3) concern that Silver Inspection Services,
a company contracted to do inspections of MCTS for Alyeska was
unqualified, or had not performed well in the past; in particular
that Silver
had overlooked base metal and weld defects during inspections
in the past; (Tr. 429)
4) concerns that a fleet of tankers to be
used in the event of an oil spill or other emergency had not been
inspected for as many as 15 years; (Tr. 425)
5) concern that MCTs which carried Drag
Reducing Agent, thought to be a toxic substance by complainant,
suffered from corrosion stress cracking which could cause
complete failure of the whole tank while it was on the road,
being unloaded or offloaded. (Tr. 424-25)
Alyeska argues that complainant has not
[Page 8]
established jurisdiction because he does not attempt to link his
concerns with the Acts, does not cite to any permit under the
Acts that might be implicated, does not identify any substance
regulated by the Toxic Substance Control Act, or claim a
violation of any rule or regulation under the Acts.
Alyeska places too restrictive an
interpretation on the activities protected by the environmental
statutes. Complainant does not have to quote regulatory sections
violated or permits breached. The Secretary has held that the
employee protection provisions have traditionally been construed
broadly. An activity is protected if it is in furtherance of the
statutory objectives. Jenkins v. U.S. Environmental
Protection Agency, Case No. 92-CAA-6 (Sec'y, May 18, 1994).
The Secretary in Minard v. Nerco DeLamar Co., Case No. 92-SWD-1 (Sec'y, Jan. 25, 1994) held that the actions of the
complainant should be subject to a reasonableness test.
Specifically, the Secretary found that the activity of a
complainant based on a reasonable belief that a substance is
hazardous and subject to EPA regulation is protected by the Solid
Waste Disposal Act. In Monteer v. Casey's General Stores,
Inc., Case No. 88-SWD-1 (Sec'y, Feb. 27, 1991) a
complainant's internal complaints and expressed suspicions about
a gasoline odor and leak was held to constitute protected conduct
within the scope of the SWDA. See also Crosby v. Hughes
Aircraft Company, Case No. 85-TSC-2 (Sec'y, Aug. 17, 1993).
All of complainant's activities concern the
potential violation of the named environmental protection
statutes. Inadequate or improper inspections which do not reveal
weld defects in the MCTs that transport toxic substances can
reasonably be considered a threat to the Nation's waterways and
consequently a violation of the Water Pollution Control Act.
James Kingrea, who is responsible for Alyeska's periodic
inspection programs, testified that the MCTs haul hazardous or
flammable type materials, and that inspections of them are
important to guarantee a certain level of safety to people,
equipment and the environment. (Tr. 1390, 1374-76) Ignoring
damage to the integrity of the trans-Alaska pipeline could
reasonably be considered as endangering Alaskan waters. The
unpermitted burial of construction wastes at mile post 113 could
reasonably be considered a violation of the Solid Waste Disposal
Act. It is true that the primary mechanism under the Water
Pollution Control Act for regulating the discharge of pollutants
is a nationwide permit program. However, the Act does prohibit
the discharge of any pollutant into the waters of the United
States except by permit. 33 U.S.C.A. § 1311.
Accordingly an employee's complaint about an
action or inaction of his employer which he reasonably believes
is violative of the environmental protection statutes because it
[Page 9]
jeopardizes clean water, clean air or solid waste management, is
protected activity. Here, complainant's concerns as a quality
control inspector about the aforesaid actions of Alyeska
constitute protected activity as they could reasonably be
perceived as violations of the environmental protection acts.
The Department of Labor has jurisdiction over his claims.
EMPLOYEE-EMPLOYER RELATIONSHIP
Alyeska argues that it has no responsibility
here because it ceased being an employer of the complainant and
ceased being responsible for any actions taken toward complainant
for a period significantly longer than the thirty day period of
limitations.
Complainant began employment with Alyeska on
the trans-Alaska pipeline as a quality control inspector in 1991.
His employer was SSI, an employment service company that supplied
quality control inspectors to Alyeska. The services of
inspectors including complainant were supplied by SSI to Alyeska
through the "body shop" contract arrangement. In the
body shop arrangement the inspectors worked largely at the
direction of Alyeska supervisors. (Tr. 1116-17) In June of 1992
Complainant continued to be employed with Alyeska but his
employment was rolled over to contractor Ocean Technologies, Inc.
A roll over is a transfer of employees from one contractor to
another without any provisions for rehiring. When ASIS assumed
the inspection contract for Alyeska in July 1993, complainant was
rolled over from Ocean Technologies, Inc. to work with ASIS1. (Tr. 416-419)
6The meeting
with McGrew and complainant's E-mail transmission both took place
on July 20, 1993. The meeting was at 10:30 and the E-mail
transmission was posted at 11:59 a.m.