Office of Administrative Law Judges Heritage Plaza Bldg. - Suite 530 111
Veterans Memorial Blvd Metairie, LA 70005
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Issue date: 15May2002
CASE NO.: 2001-CAA-17
IN THE MATTER OF:
TIM SMITH
Complainant
V.
WESTERN SALES & TESTING
Respondent
APPEARANCES:
TIM SMITH, PROSE Complainant
JIM PROZZI, ESQ.
For the Respondent
Before: LEE J. ROMERO, JR.
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This case arises under the employee protection provision of the Clean Air Act. 42 U.S.C. § 7622, etseq., (herein the CAA or Act) and the regulations promulgated thereunder at 29 C.F.R. Part 24.
On or about August 10, 2001, Tim Smith (herein Complainant or Smith) filed an administrative complaint against Western Sales & Testing (herein Respondent) with the U.S. Department of Labor (DOL) complaining of various violations of the CAA and Occupational Safety and Health Act administered by the Occupational Safety and Health Administration (OSHA), including his alleged July 31, 2001, termination by Respondent. (ALJX-1). On September 19, 2001, DOL advised Complainant that his complaint was being dismissed because Respondent attempted to enter into an early reconciliation with a financial settlement of the charges which Smith rejected, preferring reinstatement. Both parties decided to discontinue the investigation, opting to take the matter into another forum for resolution.
Mr. Aderholt is Respondent's Vice President of Sales and Production, a position he has held for 15 years. (Tr. 95). He was Complainant's direct supervisor and hired Smith as an employee of Respondent. (Tr. 96).
He testified Respondent is a re-test facility for compressed gas transport to truckers. Respondent provides five-year re-certification on cylinder tube trailers, reconditions chassis, puts them back in like-new condition and ships them out. (Tr. 231). The facility consists of an office, a main shop where "all fabrication and most of the work" is performed with a paint shop approximately 300 yards from the main office and a separate grit blast shop. (Tr. 231-232).
Complainant was hired as a quality control technician with job duties to run sampling for cleaning of cylinders, leak- checking trailers and making decals. (Tr. 232).
At the end of 2000, Complainant approached Mr. Aderholt and requested a raise in wages. (Tr. 232). Complainant informed Mr. Aderholt that he felt "too bogged down in making decals to be able to really perform his other functions or add to those functions." Afterwards, Respondent hired two part-time decal persons, a college student and a high school student. (Tr. 233). Mr. Aderholt testified Complainant did not receive a raise in wages. (Tr. 234).
In early January or February 2001, Mr. Aderholt informed Mr. Piehl that quality control would have to change because he did feel they "were progressing in that area as they should." He did not "feel like all inspections were being made, didn't know about leak-checks being made." Mr. Smith initiated "a QC notation" on the bottom of bills of lading indicating that quality control had inspected the item before leaving Respondent's facility. However, Complainant was having difficulty keeping up with the inspections and annotations. (Tr. 235).
In February 2001, Complainant again approached Mr. Aderholt about a wage increase. He "tried to impress upon Smith that I didn't feel like the quality control program was going where I thought it needed to be." (Tr. 236). He stated it "basically seemed like all I got was excuses." He testified the meeting deteriorated with Complainant announcing he was "not working any more Saturdays or after five o'clock until I get a raise." He stated Complainant became hostile toward him when he commented "there's a few things that I didn't like, and I'd like to see improved" in the quality control program. (Tr. 237).
Mr. Aderholt affirmed he did not require Smith to work on Saturdays or after 5:00 p.m. subsequent to his announcement that he would not do so. Id. However, he expressed concern to Mr. Piehl because of Respondent's workload and the need to "leak test"/inspect trailers with Complainant not present on Saturdays. (Tr. 104, 238). Mr. Aderholt did not place any notations in Smith's personnel file, reduce his pay or take any other action against him for not working Saturdays or after 5:00 p.m. during the weekdays. (Tr. 238).
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On or about April 24, 2001, Mr. Aderholt testified Complainant told him painting was being conducted with the doors open. He drove to the paint shop and verified painting was being conducted with the front door open, which he then closed and informed workers that they had to keep the paint doors shut. (Tr. 96, 239). Mr. Aderholt confirmed Complainant only reported painting being conducted with the doors open on one occasion. (Tr. 99). He testified Complainant did not report damage to his vehicle or having difficulty breathing toxic fumes. (Tr. 96). Mr. Aderholt did not inform Complainant that overspray was part of working at the company. (Tr. 97, 105). He did not inform Complainant that the summer was coming and therefore the doors would be open even more. (Tr. 98).
Mr. Aderholt denied informing OSHA that Respondent was not using the paint shop or telling TNRCC that the company does not release gases as part of their process. (Tr. 99-100). He acknowledged Respondent bleeds off excessive gas from cylinders. (Tr. 100). Mr. Aderholt further testified he did not inform OSHA that painting does not occur in the loading area between 8:00 a.m. and 5:00 p.m. (Tr. 101).
He recalls on occasion Complainant refused to sign off on a trailer after inspecting the trailer, but he was not angry with Complainant for having done so. (Tr. 104). He never recalls telling Complainant to "pencil whip" any paperwork. (Tr. 105). He stated no other employees complained to him about any overspray from the painting being conducted in the paint shop. (Tr. 105-106). Mr. Aderholt denied telling Complainant that he should have put his foot down a long time ago and he would not have signed off on the trailer inspections either. (Tr. 110-111).
Mr. Aderholt testified that in about 1994 or 1995 Respondent received complaints from "someone across the railroad tracks" about paint fumes in the air. (Tr. 106). After TNRCC visited the facility with a complaint of paint odor emanating from the plant, Mr. Aderholt corresponded with TNRCC on September 8, 1997, acknowledging the rear door of the paint shop was open and that filters were missing in our exhaust fan." (Tr. 107-108; CX-8). As a result of the inspection, it was determined the paint shop policies would be "stiffen" to include practices of changing filters on a regular basis with no painting being performed until and unless all filters were in place and the paint bay door would remain closed until all paint fumes had been filtered through the exhaust system. (CX-8).
Mr. Aderholt affirmed that many years ago, Respondent had open-flame heaters, but could not recall having such heaters in the last two to three years or specifically during 2001. (Tr. 109).
Mr. Aderholt acknowledged Respondent was cited on May 2, 2001 because filters were not in place during the inspection by TNRCC. (Tr. 114). He did not recall informing Complainant the exhaust fan and lighting were inadequate in the paint shop which was the reason the doors remained open during painting. (Tr. 115-116).
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Mr. Aderholt acknowledged that on May 3, 2001, Complainant was given a "cooling off period," however he was paid by check, which was mailed to his home. Tr. 240). He testified the cooling off period lasted three months because he, Mr. Piehl and Mr. Griffin were not available to discuss Complainant's return to work in view of their schedules and travel commitments. (Tr. 240-241). To his knowledge, Smith was not given a date to return to work after being sent home for the cooling off period. (Tr. 103-104).
During the July 31, 2001 meeting at which Complainant's return was discussed, Mr. Aderholt acknowledged Complainant did not state he was going to quit his employment with Respondent. (Tr. 104). He recalls leading a discussion about Smith's job duties which "was basically going to be doing exactly the same thing as before the leave, with the exception of one thing, and that was he didn't have any responsibility for decals." (Tr. 242). A decision had been made that the decal men did not require supervision because they had a good handle on their work and therefore Complainant would not be required to supervise their activities and have more time for quality control duties. (Tr. 241-242).
Mr. Aderholt testified Complainant's attitude deteriorated during the meeting. Smith first began "griping at Bill [Piehl] about where he had to park." Complainant informed Mr. Piehl and Mr. Aderholt that he had a hard time believing they wanted him to return to work. (Tr. 244). Smith stated he felt "blacklisted" and "discriminated against." Smith mentioned an organizational chart which no longer had his name on it, that after TNRCC inspected the facility his desk was ransacked and Mr. Piehl had informed him "if he worked hard he'd get to go on glamour trips," but had complained about where Smith took his breaks. He also raised a luncheon with quality control customers from which he was excluded. (Tr. 245-247).
At the meeting, Complainant stated he did not trust anyone at Respondent and wanted "things like rate of pay, job title, position, and so forth . . . in writing in a written guarantee." Complainant stated if he did not get these demands, "I'm going to tell all I know." (Tr. 247). Mark Griffin asked Complainant "what do you mean? . . . are you coming back to work or not?" Complainant responded "I want all these things written down and I want a written guarantee before I'll come back to work." Smith stated he would give the written guarantee to his lawyer to review. Mr. Aderholt testified they did not give Complainant anything in writing because it is not company policy to have any kind of written guarantees. (Tr. 248-249). Mr. Aderholt does not have a written work guarantee nor does anyone he knows with Respondent. (Tr. 249).
On cross-examination, Mr. Aderholt acknowledged the change in supervision and responsibility for the decal activities occurred on July 31, 2001, which was after Complainant's complaint to TNRCC. (Tr. 250). He also acknowledged Complainant would sometimes become angry in his attitude and raised his voice in discussions, but Complainant had never been issued a reprimand about his conduct or work. (Tr. 253-254). Mr. Aderholt did not feel Complainant was meeting all quality control standards required. (Tr. 254).
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Mark Griffin
Mr. Griffin is vice-president of Respondent, a position he has held for one year. He was hired in April 1998. (Tr. 256). He attended meetings with Mr. Piehl and Mr. Aderholt in January 2001 where quality control was discussed as well as the July 31, 2001 meeting concerning Complainant's return to employment. He was present at the hearing as Respondent's representative and heard the testimony of Mr. Piehl and Mr. Aderholt to which he expressed agreement. (Tr. 257).
On cross-examination, Mr. Griffin testified Smith told him about overspray on his truck and that Smith had informed Mr. Aderholt about the overspray. (Tr. 259).
The Contentions of the Parties
Complainant contends he engaged in protected activity under the employee protective provision of the CAA because he voiced concerns to Respondent about paint fumes and overspray caused by painting with plant doors opened and filed external complaints with TNRCC and OSHA about those concerns.
In his complaint filed with the undersigned, Smith alleges on July 30, 2001, Respondent blacklisted him when Mr. Piehl inform Tom Nystel, an OSHA representative, that Smith was a disgruntled employee. He claims he was intimidated at the July 31, 2001 meeting because Mr. Piehl maintained a rifle behind his desk about which Smith alleged he was bothered and had complained in the past. He further contends he was restrained from performing his job duties on July 31, 2001, because he was informed he would no longer manage the two decal employees and further restrained because Respondent never gave him a date on which to return to work. He also claims Respondent informed him on July 31, 2001, that he would be subjected to performing illegal acts because he would maintain the same job description as before his cooling off period and thereby forced to falsify government documents.
Lastly, Smith contends Respondent violated "federal statutes" on August 8, 2001, by discharging him for participating in protected activity of refusing to perform an illegal act, reporting violations "occurring in the paint facility" to TNRCC and informing OSHA of violations which were "clear and present danger[s]" to him and his co-workers. (ALJX-3).
Respondent contends that Complainant's actions do not conform to activities protected by the CAA. Moreover, Respondent argues Smith's concerns do not come within the parameters of the CAA because the concerns expressed were personal in nature and wholly unrelated to the public health and welfare of which the CAA was designed to protect.
Respondent argues Complainant failed to prove he engaged in protected activity under the CAA. Initially, Respondent notes that since the "illegal act" relied upon by Smith as a basis of his discharge in paragraph 1 of his complaint was dismissed as untimely, no admissible evidence was presented at the hearing relating to the alleged refusal to perform an illegal act. Respondent further avers Smith's second basis for his discharge, i.e., complaints to TNRCC about violations "inthe paint facility," do not fall within the purview of the CAA and Smith cannot show he reasonably sought to enforce any requirement imposed by the CAA. Finally, Respondent argues that reports to OSHA do not constitute protected activity under the CAA and, moreover, Respondent had no knowledge of Complainant's complaints to OSHA before July 31, 2001.
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Respondent advances an argument that it articulated a legitimate, nondiscriminatory reason for its action since Smith made demands for his return to work which included a written guarantee about his rate of pay and job description that was not in conformity with company policy. Respondent considered Smith to have abandoned his job because he stated he would not return to work unless his demands were agreed upon in writing. Respondent avers Complainant proffered no evidence to rebut or to show that its legitimate business reason of considering Smith as having abandoned his job was a pretext.
Lastly, Respondent argues, if it is determined that Respondent violated the CAA, reinstatement should be denied as inappropriate because of "discord and antagonism between the parties" and the demonstration of an "impossibility of a productive and amicable working relationship."
IV. DISCUSSION
Prefatory to a full discussion of the issues presented for resolution, it must be noted that I have thoughtfully considered and evaluated the rationality and consistency of the testimony of all witnesses and the manner in which the testimony supports or detracts from the other record evidence. In doing so, I have taken into account all relevant, probative and available evidence and attempted to analyze and assess its cumulative impact on the record contentions. SeeFrady v. Tennessee Valley Authority, Case No. 1992-ERA-19 @ 4 (Sec'y Oct. 23, 1995).
Credibility of witnesses is "that quality in a witness which renders his evidence worthy of belief." Indiana Metal Products v. NLRB, 442 F.2d 46, 51 (7th Cir. 1971). As the Court further observed:
Evidence, to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself, by which is meant that it shall be so natural, reasonable and probable in view of the transaction which it describes or to which it relates, as to make it easy to believe . . . Credible testimony is that which meets the test of plausibility.
442 F. 2d at 52.
It is well-settled that an administrative law judge is not bound to believe or disbelieve the entirety of a witness's testimony, but may choose to believe only certain portions of the testimony. Altemose Construction Company v. NLRB, 514 F.2d 8, 16 and n. 5 (3d Cir. 1975).
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Moreover, based on the unique advantage of having heard the testimony firsthand, I have observed the behavior, bearing, manner and appearance of witnesses from which impressions were garnered of the demeanor of those testifying which also forms part of the record evidence. In short, to the extent credibility determinations must be weighed for the resolution of issues, I have based my credibility findings on a review of the entire testimonial record and exhibits with due regard to the logic of probability and the demeanor of witnesses.
A. The Applicability of the Clean Air Act
Although commonly known as the Clean Air Act, the statute was passed by Congress as the Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (1970), amending the 1967 Air Quality Act, Pub. L. No. 90-148, 81 Stat. 485 (1967). The 1970 legislation was later amended in 1977 and 1990.
The CAA only gives the Environmental Protection Agency (EPA) authority to regulate "air pollutants," and defines "air pollutant" as "any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air."See 42 U.S.C. § 7602(g)(emphasis added). SeeJohnson v. Old Dominion Security, Case No. 1986-CAA-3 @ 8, n. 8 (Sec'y May 21, 1991)(complaints about contamination of workplace air, contained within a building, structure, facility or installation which is not emitted into the external atmosphere, would not be covered under the CAA).
The CAA establishes National Ambient Air Quality Standards (NAAQSs) applicable on a nationwide basis. 42 U.S.C. § 7602(u). These standards are referred to as "harm-based" because the mandated quality levels are set by reference to ambient levels of pollutants that would limit harm to human health and the environment to acceptable levels.5
1 References to the record are as follows: Transcript: Tr. ; Complainant's Exhibits: CX-; and Administrative Law Judge Exhibits: ALJX-.
2 The following aspects of Complainant's brief are hereby stricken as not constituting part of the official record: his reference to hearsay evidence regarding an alleged conversation between Mr. Piehl and Tom Nystel, an OSHA representative (page 2 of brief); the specifics of his search for interim employment not otherwise contained in the record (p. 4 of brief); and factual assertions made in brief that were not presented at formal hearing relating to Complainant's request for damages for mental anguish (p. 5 of brief).
3 Mr. Piehl's name is misspelled in the transcript as "Piehle."
4 Mr. Aderholt's name is misspelled in the transcript as "Adrholt."
5 Zygmunt J.B. Plater, etal., Environmental Law and Policy: Nature, Law and Society, at page 441 (2d Ed. 1998). Therein, the authors validate the Clean Air Act does not address indoor air quality. Id., n. 1.
6 The federal government currently has no standards for ventilation, and it is therefore regulated by local building codes which may address concerns other than indoor air quality. See Office of Air and Radiation, U. S. Environmental Protection Agency, Fact Sheet: Ventilation and Air Quality in Offices. (April 2, 1997).
7 Arnold W. Reitze, Jr. and Sheryl-Lynn Carof, The Legal Control of Indoor Air Pollution, 25 B.C. Envtl. Aff. L. Rev. 247, at 249-250, 254, 258 (1998).
8 Laurence S. Kirsch, The Status of Indoor Air Pollution Litigation, C432 A.L.I.-A.B.A. 317, 358-359 (1989).
9 Steve Kelly, Indoor Air Pollution: An Impetus for Environmental Regulation Indoors?, 6 BYU J. Pub. L. 295 (1992).
10See Grace C. Guiffrida, The Proposed Indoor Air Quality Acts of 1993: The Comprehensive Solution to a Far-Reaching Problem?, 11 Pace Envtl. L. Rev. 311 (1993).
11 Although the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675 (1994), provides minimal control over indoor air, it is concerned primarily with the control of releases into the environment which includes the ambient air. However, the term "release" excludes "any release which results in exposure to persons solely within the workplace . . . ."
12 Respondent must clearly set forth, through the introduction of admissible evidence, the reasons for the adverse employment action. The explanation provided must be legally sufficient to justify a judgment for Respondent. Texas Department of Community Affairs v. Burdine, supra, at 253, 256-257. However, Respondent does not carry the burden of persuading the court that it had convincing, objective reasons for the adverse employment action. Id.