DOL Home > OALJ > Whistleblower > Heffley v. NGK Metals Corp., 89-SDW-2 (ALJ Sept. 28, 1989) |
DATE: September 28, 1989
CASE No. 89-SDW-00002
IN THE MATTER OF
WILLIAM L. HEFFLEY
Complainant
v.
NGK METALS CORPORATION
Respondent
BEFORE: AINSWORTH H. BROWN
Administrative Law Judge
This matter arises from a complaint filed with the Department of Labor on or about April 20, 1989 under the provision of the Safe Drinking Water and Pollution Control Acts. The investigation by the Department yielded a finding that no discrimination had occurred. The Complainant filed a timely request for hearing by telegram on July 17, 1989 pursuant to the notice of July 11 from the Department. The request was received on my docket on July 25, 1989, and a notice of hearing was issued on July 27, 1989.
The hearing took place on August 15, 1989 in Camden, New Jersey. The Claimant appeared and testified on his own behalf. He waived his right to legal representation. The Respondent was represented and presented one witness, Kenneth Sturtz, Director of Human Resources and Regulatory Affairs, NGK Metals Corporation. The Complainant moved for the admission of CX 1-13; however, CX 2 and 4 were not admitted. No documents were offered by the Respondent.
The facts that emerged at bearing from the testimony and documentary exhibits may be briefly summarized in the following fashion.
In about November 1988 Mr. Heffley became aware that certain "numbers" were being falsified for reports being made to the State Environmental Agency concerning the content in waste water discharged in a stream coursing through his employer's property. The actual level of the offending materials was well above permissible limits. The falsification was done to avoid having the State "close down" the company's waste treatment facility. According to Mr. Heffley two coworkers admitted to the falsifications. Mr. Heffley reported this information in the process of becoming a whistleblower as well as other circumstances to the Commonwealth of Pennsylvania's Department of Energy Resources ("DER"). The actual physical reporting took place on or about December 27, 1988, during a Christmas break at the plant.
Upon resumption of work on January 3, 1989, Mr. Heffley met with high ranking officials of his employer to apprise them of his action and to advise that DER would be visiting the plant to investigate the situation. The Respondent does not contest and inferentially concedes that Mr. Heffley became a whistleblower and had engaged in protected activity as that term is used in the context of this proceeding.
At the January 3 meeting there is a minor conflict as to how the parties understood Mr. Heffley's remark referring to his contact with an attorney. The officials understood him to have retained private counsel while Mr. Heffley explained in his closing statement that he had merely spoken with an attorney in a phone conversation dealing with other family legal matters and in passing had questioned about what action to take respecting the false reportings.
Next, on January 13, 1989, Mr. Heffley was given a memorandum and advised that he was being placed on a paid leave of absence. According to the memorandum the action was in accordance with advice of the "... company counsel based on the circumstances surrounding an article which appeared in the daily issues of the local Reading area papers on Friday, January 13, 1989. ..." The last sentence referred to "your counsel" and provided a telephone number to call for information.
The Company, through its attorneys, interviewed the Complainant on three occasions, the last occasion taking place on April 13, 1989 and was done under oath. Mr. Heffley and his attorney characterized the questioning as a deposition and the Respondent counters that it was an
"interview" because there was no litigation in progress. The transcript is in the record as CX 1. A fair reading of this document leads one to agree that despite the nicety offered by Respondent "if it walks like a duck and talks like a duck ... it must be a deposition." The questioning is clearly adversarial in the nature and is like a discovery deposition. Mr. Heffley's assertion at hearing that he was concerned that the company was attempting to see if there was a basis to fire him has merit as to the inquires as to notice to the company about newspaper contacts and whether he called AMP's legal department or caused an anonymous note to be sent to AMP, the Respondent's biggest customer.
Prior to the first interview with Mr. Heffley in early February 1989, the Company had posted on sixteen bulletin boards in the plant a notice giving employees the opportunity to ask questions of the attorneys hired for the State Environmental investigation (CX 11). The law firm could represent employees in connection with the investigation "during any interview requested by an investigator assuming that they (company's firm) determined that there is no conflict of interest." The fifth paragraph of the notice encouraged attorney consultation before talking to state investigators due to the "broad scope of the allegations".
The notice was dated January 24, 1989, 11 days after the Complainant had been ushered off the premises, but interestingly, the day of the DER search or "raid" (see newspaper clipping and hearing testimony). Mr. Heffley was cross-examined on this point and admitted only that he was aware of the company's offer on the day of the third interview. He was under the impression that only the two "targets" had their own counsel whose fees were paid for by the company. However, the DOL one page "narrative" report states that five "subjects" had their attorney fees "indemnified" (CX 12).
The terms "target" and "subject" were not used in the offer extended to the employees on January 24. Mr. Herb, Mr. Heffley's attorney wrote to the company on January 17, 1989 announcing his representation. Mr. Herb represented the Claimant in all three interviews (CX 9, and hearing testimony).
The Respondent draws a distinction between the purpose for which r. Herb was hired, i.e., the subject of company benefits for Mr. Heffley; and being a subject or target of the State inquiry. Clearly, the fact is that Mr. Heffley was the target of the Respondent's inquiry. Irrespective of the genuine misapprehension entertained by
r. Sturtz and other company officials as to whether Mr. Heffley had retained legal counsel, the subject matter of the company sponsored interviews of him paralleled that of the State conducted interviews. While there was nothing improper about conducting the interviews to ascertain the nature and substance of what Mr. Heffley knew or understood about the allegations of improprieties, the Complainant was in a similar situation as the State "target' and "subjects", but from a different perspective - his employer's. The company's attorneys inquires as manifested by the questions reflected in the transcript showed not only what was the purpose to delineate the substance of the information about which he "blew the whistle", but whether he notified the company as to his contacts with the press and whether he had attempted to injure the company. The company's interest in having its attorneys present when the State interviewed its employees was identical to its inquiry of Mr. Heffley as to what he told whom about the environmental problems at the plant. The fact that he had hired r. Herb after being placed on paid leave because of his quotations in the local press does not distinguish his situation as to the need for counsel other than Morgan, Lewis & Bockius, whose duty was to advise and protect the corporation. Just as the "subjects" would need to have representation without conflict it follows that Mr. Heffley as an employee deeply involved in the investigation also would have to have counsel other than Morgan, Lewis. This is patent because Morgan, Lewis was putting him "on the griddle". The Respondent did not persuade me that Mr. Heffley was in a different status than the five "subjects" who had company paid counsel. Contending that he could have requested Morgan, Lewis or other counsel in accordance with the January 24 notice is at the very least disengenous, and, at the worst cynical. Put another way, offering idemnification for five employees who ostensibly were not whistleblowers and not to the one who brought the allegation to DER's attention constitutes discrimatory treatment.
The tenor of the record, particularly the notice of paid leave from Mr. Sotan as to the circumstances upon which it was based, the need for three interviews with the final one being in the nature of a deposition, and the form and direction of the April 13 interview took, all demonstrate a concatenate effect that the whistleblower was the object of a searching inquiry within a less than amicable environment. In fact, animus is evident as to the position the Respondent was placed in by Mr. Heffley. The contention that multiple inquires were required due to the conflicting nature of the alleged problems was not proved by the Respondent. While it was apparent that r. Heffley did not listen to some questions carefully, volunteered non-responsive and extraneous information, varied his answers
depending on the form of the question my reading of the interview transcript, the newspaper clippings, and the testimony provided before me discloses that he maintained the same story concerning the falsified numbers and the concerns over the toxic contents of the 55 gallon drums. If the Respondent still perceived material inconsistencies in his several statements it had the burden of pointing to them specifically.
Outside of the cost of the transcript and Mr. Herb's fees, the Complainant made vague references to other perceived harassments somewhat in the nature of injunctive relief. Here, I find that his references are sufficiently vague so as to prevent me from recommending any further relief except that he should be allowed reasonable access to the credit union office and should be allowed to return to work with the assurance that prudent measures will be taken to protect him from threats and physical violence. I will; however, construe his request as implying reimbursement for costs incident to preparation for and travel to the hearing as well as any additional costs that may be required to have my recommendation implimented in the event of further litigation.
It is RECOMMENDED that the Secretary of Labor ORDER NGK etals Corporation to:
Ainsworth H. Brown
Administrative Law Judge