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Germann v. CalMat Company, 1999-STA-15 (ALJ Aug. 6, 1999)
U.S. Department of Labor | Office of Administrative Law Judges 50 Fremont Street, Suite 2100 San Francisco, CA 94105 (415) 744-6577 | ![]() |
Date: August 6, 1999
Case No.: 1999-STA-15
In the Matter of
ROBERT E. GERMANN,
Complainant
v.
CALMAT COMPANY,
Respondent
Appearances:
Robert T. Geile, Esquire
For the Complainant
David A. Radovich, Esquire
For the Respondent
Before: ELLIN M. O'SHEA
Administrative Law Judge
This case arises under Section 405 (employee protection provision) of the Surface Transportation Assistance Act of 1982, "STAA", (codified as amended at 49 U.S.C. § 31105), and its enforcing regulations at 29 CFR 1978.100 et seq. and 29 CFR 18.1 et. seq. This provision prohibits employers from firing or otherwise retaliating against employees who have engaged in certain activities or actions ("protected activities") in furtherance of the Act's enforcement.
The Complainant, Robert E. Germann, is a former employee of CalMat who on 5/1/98 was orally advised of his suspension from his driver job by Benny White Sr., Transportation Manager, pending investigation, because he statedly threatened and harassed an unnamed fellow employee. On 5/22/98 Jeff Dyer, CalMat's Director of Labor Relations, issued a disciplinary suspension following his investigation of allegations against Complainant by "Mr. Contreras and other employees." EX 79. It is this adverse personnel action, the 5/98 suspension without pay, which is the sole issue in this proceeding. The Complainant returned to his CalMat work following this 5/22/98 notice and 22-day work suspension.
On 11/20/98 the Administrator, OSHA, issued Findings which held that although Complainant engaged in protected activity, the evidence supports he went beyond that protection in his approach and criticism of Contreras and it was that action which caused CalMat to place him on suspension pending their investigation of Contreras' complaint. ALJ EX 1.
Then, subsequent to Complainant's return to work and based on different events which occurred months later, in late October, and not involving Contreras, CalMat terminated Germann 11/19/98.1 This termination is the basis for a subsequent §405 retaliation discharge complaint filed by the Complainant, under investigation at the time of this STAA suspension hearing.2
Pre-Hearing Activities
Before formal hearing and following the referral of this matter to this Office for a de novo hearing, there were a numerous procedural filings in connection with discovery and the effect of Malpass v. General Electric Co., 85- ERA-38 (Sec'y 3/1/94). The procedural history at this Office is reflected in ALJ Exhibits 1-34, so marked, identified and admitted February 22, 1999, with all these Exhibits' underlying submissions.
Hearing
A formal hearing was held February 22, 1999 through February 26, 1999 in San Diego, California. At hearing testimony was presented, cited to within by "TR: __", and documentary evidence admitted, as reflected in the transcript. This includes Complainant's Exhibits CX 1, 1A, 7, 20, 23-25, 26. Pgs.1-2; 52, 57, 67, as well as CalMat's Exhibits EX 2, 4, 9, 10-18, 20-54, 56-57, 59-65, 67, 69; referred to as CX or EX respectively. EX 8, a component of EXs 15, 17, 18 and 19, submitted to Dyer/Bruzzi 5/4/98 in White interview is also admitted, as are ALJ Exhibits 1-34 (ALJX). Post hearing brief, proposed findings/conclusions were filed by the parties.
APPLICABLE SURFACE TRANSPORTATION ASSISTANCE ACT LAW
I. PRIMA FACIE CASE
To establish a prima facie case of discrimination under the STAA and shift the burden of production to Respondents, the Complainant must prove three elements: (1) that he engaged in protected activity; (2) that he was subjected to adverse action; and, (3) that a causal link exists between the protected activity and the employer's adverse action. Yellow Freight System, Inc. v. Reich, 27 F.3d 1133, 1138 (6th Cir. 1994). See also Watson v. Smallwood Trucking Company, Inc., 94-STA-3 (Sec'y Oct. 6, 1994). The Complainant must also present evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action. Greathouse v. Greyhound Lines, Inc., 92- STA-18 (Sec'y Dec. 15, 1992). The causal connection component may be established by showing the employer was aware of the protected conduct and that the adverse personnel action followed closely thereafter. Ertel v. Giroux Brothers Transportation, Inc., 88-STA-24 (Sec'y Feb. 16, 1989). Close proximity between the protected activity and the adverse action may raise the inference that the protected activity was the likely reason for the adverse action. Kovas v. orin Transport, Inc., 92-STA-41 (Sec'y Oct. 1, 1993)
II. PRETEXT AND DUAL MOTIVE ANALYSIS
An employer attempting to rebut a prima facie case of discrimination must produce evidence that the adverse action was taken for a legitimate, nondiscriminatory reason. The employer "need not persuade the court that it was actually motivated by the proffered reasons." Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). The evidence, however, must be sufficient to raise a genuine issue of fact as to whether the employer discriminated against the employee. Id. at 255
The Complainant may prevail on his complaint of discriminatory suspension on a showing that the reasons for suspension proffered by the Respondent were a mere pretext for discriminatory animus. A pretext is defined as an "[o]stensible reason or motive assigned or assumed as a color or cover for the real reason or motive; false appearance, pretense." Black's Law Dictionary 1187 (6th .ed 1991). The Supreme Court has recognized the tendency of a proffered reason for adverse actions to camouflage discriminatory animus. Furnco Construction Corp. v. Waters, 438 U.S. 567, 577 (1978). The Second Circuit has held that pretext can be demonstrated by "evidence of inconsistencies or anomalies that could support an inference that the employer did not act for its stated reason." Keller, 105 F.3d at 1523 (quoting Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3rd Cir. 1995) (emphasis in original).
Where evidence of a dual motive exists, i.e., where there are legitimate reasons for a suspension/discharge in addition to the unlawful reasons, the employer bears the burden of establishing by a preponderance of the evidence that it would have taken the adverse employment action in the absence of the employee's protected activity. Cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989). Clean Harbors Environmental Services, Inc., v. Herman, 146 F.3d 12, (1st Cir. 1998). The Secretary noted that "[w]here there is direct evidence that the adverse action is motivated, at least in part, by the protected activity, the respondent may avoid liability only by establishing that it would have taken the adverse action in the absence of the protected activity." Caimano v. Brink's, Incorporated, 95-STA-4, slip op. at 23-24 (Sec'y Jan. 26, 1996) (citation omitted). See Price Waterhouse v. Hopkins, 490 U.S. 228, 250-58 (1989); Wilson v. Bolin Associates, Inc., 91-STA-4 (Sec'y Dec. 30, 1991), slip op. at 4.
FURTHER RULINGS -- Arbitration Proceeding, Decision and Collateral Estoppel
The Respondent's 2/19/99 Request for Judicial Notice, ALJX-31, with this Request's supporting Exhibits A-C, was denied 2/22/99 prior to substantive evidence presentation, TR: 34-41. Also initially presented and denied 2/22/99, was the Respondent's otion in Limine to Determine Facts by Collateral Estoppel of Prior Arbitration Findings, Exclude Additional Evidence Thereon, and to Dismiss. Following a 11/24/98 arbitration hearing under the collective bargaining agreement between Teamsters Union Local 36 and CalMat, a three member panel conference board consisting of a union representative, a corporate Human Resources Manager and a chairman/arbitrator on 2/1/99 found, by 2-1 decision, that CalMat did not violate the collective bargaining agreement when it suspended German 5/1/98, or when it discharged him on 11/3/98.
However later in this 2/22/99-2/26/99 substantive proceeding under the STAA Act, when Respondent again moved to admit Exhibits A-C attached to its Judicial Notice Request, the parties were advised the ALJ would take this opposed request under advisement, to be ruled on in this decision. Tr. 691-99. These Judicial Notice Exhibits A-C are hereby admitted into this record.
Collateral estoppel based on this arbitration proceeding does not determine the outcome and decision here. The issues are significantly different under applicable law and the facts on the STAA suspension issue are substantively far more detailed and more fully evidenced here, with scant coverage in the arbitration proceeding where these factual issues were not adequately dealt with. However credibility weighing is affected by testimony under oath in another forum on fact events, particularly the specifics and details as to the circumstances of the encounters between Germann and Contreras over the four days, Monday 4/27/98 through Thursday 4/30/98, and between Germann, White Sr. and Contreras over these four days prior to the 5/1/98 oral suspension.
Hearsay Evidence The regulations for STAA cases at 29 C.F.R. Part 1978, specifically adopt the rules found at 29 C.F.R. Part 18. Moreover these STAA regulations do not contain the language found in the general whistleblower regulations, applicable to the environmental whistleblower statutes, found at 29 C.F.R.Part 24, 29 C.F.R. §24.5(e), which states that "formal rules of evidence shall not apply..." To the extent the ALJ reflected otherwise on Respondent's objections, including at TR 89, 100, and misperceived the general §24.5(e) whistleblower provision rather than this STAA regulatory provision, unique to these whistleblower administrative proceedings, was applicable this was error. On analysis and evaluation of the objected-to evidence admitted, and evaluation of the record to reach findings and conclusions, the factfinder has been mindful to screen out objected to evidence admitted based on this error and of the necessity to adhere to the formal rules of evidence on hearsay evidence presented.
Background Facts Against Which to View Witnesses' Testimony in STAA Proceeding
CalMat is a firm engaged in the mixing and transporting of cement products in cement mixer trucks over public highways. CalMat has about 55 drivers at its ission Center Road facility in San Diego California, the site of the events giving rise to this complaint. This included, at that time, Germann, a 15 year CalMat driver with a CalMat employment association dating back to 1978, and for two years the elected shop steward. Benny White Sr. is the site Transportation Manager, employed 19 years. Barry Coley is the Vice President for this facility's operations. CalMat has other facilities in several states with several thousand employees. Jack Dyer has been with CalMat in different capacities for 18 years and is Cal Mat's Director of Labor Relations. He works out of CalMat's Los Angeles office and his superior is Mason Dickerson. Mr. Dyer responsibilities in this position are to oversee the negotiation and administration of CalMat's 25 union contracts and deal with grievances and complaints as they come up, overseeeing a small section of the Human Resources Department. He was the chief CalMat spokesperson in the negotiations and execution of the San Diego collective bargaining agreement between CalMat and Teamsters Local #36 which, following a strike, concluded around early 1998. Tr.372. Germann played an active role in these negotiations. At the arbitration proceeding Dyer presented CalMat's case and questioned the witnesses but did not testify.
The prelude to the events of the four days, Monday 4/27/98 through Thursday 4/31/98, prior to Germann's Friday 5/1/98 oral suspension by White, occurred the Friday before. Friday night, 4/24/98, three CalMat employees, at Jack Gunther's request,3 hauled concrete loads in mixer trucks to a job site. As a result of Gunther's request, two of these mixer drivers, Scott and Contreras, exceeded the 15 hours on duty time applicable to intrastate commercial vehicle drivers under the California Vehicle Code and the federal regulations at 49 C.F.R. Part 395, Contreras by several hours over the 15.4 Scott and Contreras at the time of these Gunther requests and April 1998 events, had been employed by CalMat for about a year and a half. Contreras had about 10 years commercial driver's experience elsewhere. Tr. 247.
Testimony of Robert Germann
On Saturday April 25, 1998, Complainant went to work and was informed by another employee, Bill Wimberly, there had been an hours of service violation the day before by three truck drivers, a misdemeanor. TR: 113. Complainant stated he checked the time cards of the three employees, David Scott, Tony Contreras, and Jim Truman, and verified that each had worked over 18 hours on April 24. TR: 114.
Later that day, Complainant spoke to David Scott about the hours violation, asking him why it had happened. TR: 116. Scott stated he was off-the-clock when asked by a salesman [Gunther] to work more hours. Scott responded no since he had already worked almost 15 hours. The salesman then said he couldn't get anyone to take the job but Scott replied he was almost at 15 hours and off-the-clock. Gunther then said failure to deliver his order would cost the company $47,000 and left. Complainant testified Scott stated he then felt responsible for the loss to the company, so he punched back in and delivered the load. TR: 117. Complainant stated he talked to Scott about the importance of the 15 hour law, and that it was a crime to violate it. TR: 119
On the morning of Monday, April 27, on his way to see White, Sr., the Transportation Manager, Complainant saw Tony Contreras, one of the drivers who had violated the 15 hour rule. Complainant testified he "interviewed" Tony Contreras, telling Contreras the same thing he told Scott. Complainant commented he was disappointed in Contreras because he has over 10 years of experience and "should know better." TR: 124. According to Complainant, Contreras responded he was told "the company would be liable, fines and everything," and Germann's impression was his lecture of Contreras on the law was not sinking in. The conversation then became "heated, stern, intense," and Complainant stated he used some cuss words, which Complainant stated is not uncommon for truck drivers. TR: 124,127. Complainant testified he has heard Contreras called "Chihuahua" by another employee [Morgan] as a nickname, but Complainant testified he did not call Contreras "Chihuahua" during their exchange. TR: 128-29.
Complainant, unsuccessful in his 4/27 search for White, Sr., then saw Barry Coley and Paul Hughes in an office, and asked if he could speak with them about the over hours violation. Complainant used profanities about the situation, stating this incident was the first time in "20 years that we knowingly have a manager telling people to break the law ... on purpose." TR: 132. Complainant said Paul Hughes stated this was the first he had ever heard of a 15 hour rule, and also that Germann's profanities weren't used around there. Complainant asked for an investigation and apologized for his language. TR: 133. He said Hughes and Coley replied they would investigate, but Complainant never heard about it again. Tr. 134.
Complainant believes there was confusion within the company as to the "interpretation" of the 15 hour rule. Complainant's previous contacts with CHP led him to believe if a driver had clocked 14 hours, he could not take another load if he knew it would keep him out past the 15 hour mark. He asserts the dispatchers were telling the drivers "as long as you're out of the yard and you get stuck out at a job it's alright. As long as you feel good. You know and volunteer, it's alright to take that load." TR: 1355 .
Next, Complainant spoke to Jim Truman, the third driver, about the over hours violation. Truman told Complainant he didn't know if his hours constituted a violation because some of his hours were spent driving a "sweeper." TR: 137. Complainant told him he didn't know either, but would look into it. TR: 138.
After Complainant went home, he called the CHP, and was referred to Larry Moss. TR: 138. Complainant told Moss he wanted to file an official complaint, but needed a day to get more information. TR: 140.
The following day, Tuesday, April 28, 1998, Complainant went to work and noticed Tony Contreras sleeping in a truck. TR: 142. Complainant testified he shook the truck with his hand on the fender to wake Contreras. When he didn't wake up, Complainant stated he got on the running board and knocked on the window. Contreras rolled down the window, Complainant told him he was still working on the overhours issue and asked him to write down his story about what had happened on the 24th, particularly Gunther's telling Contreras the company would be liable, and Complainant also told him he was going to file an official complaint with CHP and notify White of the safety violation. According to Complainant, Contreras responded by uttering obscenities. Complainant told Contreras he was also considering filing a union complaint about Contreras, as a teamster, not following the law. Complainant asserted he never physically threatened Contreras, and did not call him "Chihuahua." TR: 145.
Also on Tuesday, Complainant left a voicemail message for White Sr. since no one had contacted him. He also recontacted Larry Moss and again told him he wanted to file a complaint. When Moss asked if he wanted it to be anonymous, Complainant said "absolutely not." Complainant asked Moss to come to CalMat as soon as possible, but Moss thought it would take about a week. TR: 148. Complainant also asked Moss to do a presentation for the drivers so they would better understand the law and Complainant and Moss agreed to have the presentation meeting on Monday, May 4, at the Union Hall.
On Wednesday April 29, Complainant saw Benny White Sr., in the yard at work, and asked him if he had received Complainant's messages. TR: 148. White replied he had looked into the situation and found there had been over hours violations. Complainant told White he had filed a CHP complaint, to which White replied, "I wished you wouldn't have done that."6 Complainant said he told White Sr. the drivers had been "coerced, harassed or intimidated into hauling those loads." TR: 149.
On Thursday, April 30, Complainant was approached by Contreras, who complained the other drivers were "giving him a hard time" about the over hours incident and Contreras wanted Complainant's help in setting things right with them. Since eight drivers had been asked 4/24/98 and Germann believed they made the right call that night, Complainant said he advised Contreras to apologize to the men first, he would hear of it and then he would support him. TR: 152.
Complainant testified later that week, Contreras approached him again and apologized about the over hours incident. Complainant stated Contreras told him he had originally turned the load down, but was approached again and felt pressure to take the load. TR: 155. Complainant stated they parted "on good terms." Later that same day White Sr. approached Complainant and said "Sign this and I want to ask you a few questions," referring to a form stating, "Employee placed on suspension pending investigation for ... threats and harassment of a fellow employee." Complainant asked for the name of the employee making the complaint, and White told him he would not give the name. Complainant replied if he wasn't given the name, he could not answer any questions. Complainant testified that White said, "Okay, fine. You're suspended."
While on suspension, Germann was informed by other drivers Contreras wanted to speak to him, felt bad about what had happened, wished it had never happened. A meeting was set up between them on May 11, 1998 at the union hall. The meeting lasted approximately ten minutes and resulted in the letter found at CX 7:15, EX 59. This letter is signed by Complainant, Contreras, and Clarke A. Stillwagen, Union President, and states in pertinent part, "It was determined that there was a misunderstanding and miscommunication between Reg7 and Tony. Any differences were resolved to the satisfaction of all. It was mutually decided that no action of any kind should be taken for or against either person."
Testimony of Antonio A. Contreras
Contreras testified he had worked about 13 or 13 hours on Friday, April 24, 1998, and was finished with his loads. He was approached by a "salesman or supervisor named Jack" and asked to haul an additional load. Contreras replied that he "might" work more than 15 hours if he took the load, and requested Jack (Gunther) find another driver. TR: 248. According to Contreras Jack, after asking two or three drivers, could not find another driver so he again approached Contreras to haul the load. Contreras stated he would have to check with his supervisor, but was told by Jack, "Do your job." TR: 248. Contreras was unable to contact a supervisor because the supervisor's number he requested of the batch man was an answering machine. Then, absent a supervisor's response, Contreras asked the batch man8 to tell him what to do. The batch man told him he thought he should just do his job, if he felt he could do it, so he decided to haul the load. Contreras testified Jack did not harass him and did not state that the company would lose money if Contreras did not take the load. TR: 249.
On Monday, April 27, 1998, Contreras was approached by Germann, whom he described as "very mad...Even his face...turned red." TR: 250. Germann told Contreras, "You son of a bitch, mother fucker, you made a big mistake, if you want to work a lot of hours you should go back to L.A. You shouldn't be here. You have no idea why they call you Chihuahua. Because you don't have the eggs [testicles, courage] to refuse to tell the company no, I'm tired." TR: 250. Contreras stated he apologized and said he would not violate the 15 hour rule again, but Germann continued to swear at him. Tr. 249-250. 277- 283. Contreras, a Mexican-American, born in Mexico testified he interpreted "Chihuahua" as a Mexican dog, being called "Chihuahua" an insult. TR: 253.
Probably on Tuesday, April 28th Contreras stated Germann approached him again while he was in the parking lot, and said, as testified, the same things he had said the previous day, including the obscenities but without the eggs reference of his Tr. 250 testimony. TR: 251. Contreras could not recall if Germann called him "Chihuahua" during this encounter. TR: 254. At some undated point, Contreras went to Dennis Bowman who is like a supervisor, and asked him to talk to Germann. Bowman told Contreras that Germann was "hot" but that he would come around in time. He advised Contreras to ignore Germann and just do his job. TR: 252.
Germann confronted Contreras again probably at 2-3 a.m. on Wednesday, April 29, while Contreras was in his truck. Germann came up to the truck and hit the window so hard Contreras was "surprised he didn't break the window." Germann then repeated some of the same statements he made on Monday and Tuesday, including calling Contreras "son of a bitch, mother fucker." TR: 256. When Germann left he "flipped off" Contreras, a gesture he construed as "fuck you." TR: 257.
Contreras' testimony was that in these encounters Germann was hot and mad at least two times that he could recall and called him "Chihuahua" at these times. Germann may have used the "Chihuahau" word two or three times in all. Tr. 295-98.
Contreras who was presented during respondent's case also testified Germann had complained to him at some point in time about Contreras wearing the company jacket, instead of the Teamsters jacket. TR: 259. Germann told Contreras "not to wear [the jacket] because he was going to tear them off." TR: 260. Contreras' testimony was unclear as to whether this happened during the same time frame as the incidents regarding the 15 hour rule violation and Contreras' testimony on this subject was at times led by CalMat.
Contreras testified on Wednesday he contacted Jack Ward, the union president,9 leaving a message telling Ward to please stop Germann "bothering" him. TR: 258. Ward did not call him back, but when Clarke Stillwagen [Digger] did, on Friday, asking him what was going on, Contreras told him Germann had been " bothering me all these days." While he testified he told Stillwagen what had happened, Contreras' direct testimony did not detail what he told Stillwagen had happened. Contreras did testify he told Stillwagen he was "ready to quit" due to Germann's bothering him. Stillwagen told Contreras he would talk to Germann.
Contreras also testified his family was very upset over what was happening at work. TR: 259, 262-63.
Benny White Sr. talked to Contreras at some point regarding the hours violation. Contreras told him he had not been "pushed" into hauling the last load. TR: 262. On Thursday April 30 or Friday, May 1, Contreras told White he was ready to quit due to Germann's actions. TR: 263. At that point there was an investigation by management. TR: 264.
After Germann's suspension, Contreras met with Germann and Clarke Stillwagen, at which time Contreras signed the letter found at CX 7, Ex 59. Contreras stated he read and signed the document "because I was helping Reggie to get his job back." TR: 287. Contreras felt some pressure from his coworkers to help Germann, because the other men had been "flipping him off" and treating him badly since the April 24 incident. TR: 287-88.
Testimony of Benny White, Sr.
Benny White Sr.'s job duties as CalMat's transportation manager include supervision of drivers, enforcement of company policies and procedures, and responding to safety problems and complaints. TR: 300. White testified he has an open door policy for safety complaints, and employees may file safety concerns in a suggestion box or in the form of a repair order, depending on the nature of the complaint. TR: 300. Employees are encouraged to report safety problems, and are never disciplined for reporting safety violations, White said. TR: 301.
White stated the hours violation of April 24, 1998 was brought to his attention by Germann on Monday, April 27. White checked the timecards of David Scott and Tony Contreras and verified they had worked over 15 hours. TR: 303. White stated the drivers were not disciplined "because they were asked to do that by a company representative. So, I don't feel that the driver should be disciplined because he's doing something that a company representative [Jack Gunther] has asked them to do." TR: 304. On cross White testified he made Gunther's supervisor [Hughes] aware of what he did and made sure Hughes understood it was wrong and Gunther should not have done it. White did not indicate when he contacted Gunther's supervisor about the matter and White did not know if Gunther was ever disciplined. TR: 313-15. Germann told White later in the week the drivers had been "pushed or harassed" into working more hours. White then spoke with Scott and Contreras to "clarify" this point, and both men stated they had worked the shift voluntarily. Tr. 305. At this point, according to White, Contreras also replied, "You want to hear about being harassed," and told White Germann had been harassing him, using racial slurs and vulgar language, and pounding on the window of his truck with his fist. TR: 304.
White advised Contreras there were company policies against this type of behavior, and asked Contreras if he would like to approach the Vice President of Human Resources [Dickerson] to discuss "that" with him. TR: 305. White testified Germann's activities violated Rules 15,16, and 17 of CalMat's work rules.10
On May 1, White orally informed Germann he was being suspended, and tried to have him sign a warning notice. TR: 329. Germann was "probably" not told which employee had made a complaint against him. TR: 330.
Larry Moss of the California Highway Patrol met with White on May 6 regarding the 15 hour rule violations. TR: 304, 310. During his investigation, Moss also found a violation of the rule prohibiting drivers from working more than 80 hours in an 8 day period. TR: 317. White testified he did not tell Moss the company knew that Germann had made the complaint to CHP. TR: 320.
White testified regarding other incidents at CalMat in which confrontations had occurred between employees. He testified he knew about an argument between two employees named Lewis and Green, but he could not recall whether "cussing"was involved in the incident. TR: 324. To White's recollection, he has never recommended suspension for the offense of cussing. White also stated he knew of no other incidents of ethnic or racial epithets being used other than the incident with Germann.
Later, in Dyer's investigation Dyer concluded "Chihuahua" was not a nickname for Contreras. In White's STAA testimony however it was indicated White learned, "just the other day," from an employee, George Morgan, that he jokingly called Contreras "Chihuahua," and Morgan stopped doing so when Contreras told him that he didn't like it. Tr. 311-12.
Testimony of Barry Coley
Barry Coley is CalMat's Regional Vice President for the San Diego area. Tr. 333. He has been with CalMat or its subsidiaries for 13 years, and Vice President for two years. On Monday, April 27, Germann went to Coley's office and asked if Coley knew that there had been an hours violation of April 24. TR: 334. Coley testified he told Germann he would investigate the incident. Coley referred the issue to Benny White for investigation. TR: 335.
On Thursday, April 30, Mason Dickerson, the Vice President of Human Resources, was in Coley's office, and Benny White knocked on the door. White said he had an employee, Contreras, who wanted to speak to Mr. Dickerson. Dickerson and Contreras spoke outside of Coley's office, and Dickerson returned to tell Coley what had transpired. TR: 336. Dickerson told Coley Contreras had been harassed and subjected to ethnic slurs and obscene gestures by Germann, and that he was ready to quit his job as a result. Coley stated that pursuant to policy, he and Dickerson decided to put Germann on suspension pending investigation of these "very serious complaints." TR: 336.
The investigation was carried out by Jeff Dyer, Director of Labor Relations. TR: 338. Dyer sent a memo regarding his conclusions to Coley at the end of his investigation, and recommended a disciplinary suspension. TR: 339-340. Upon reading the recommendations, Coley stated he concurred and "directed Mr. Benny White to go ahead and move forward with that." TR: 340. Coley testified it was his decision to suspend Germann without pay on or about May 22, 1998, and that decision was based solely on facts Dyer found during his investigation.11 TR: 346. Coley could not recall ever having suspended another CalMat employee for cussing, obscene gestures, or for racial slurs, and he did not know if any CalMat employee had been suspended in the time he has been with the firm for cursing or making obscene gestures. Possibly r. Dyer would know. TR: 356-7.
Testimony of Larry Moss
Officer Moss has been employed since 1981 as a motor carrier specialist for the California Highway Patrol, charged with enforcement of CHP commercial standards, conducting site inspections of regulated vehicles and sites. TR: 52. Moss testified that Germann made a complaint in April 1998 regarding hours violations at the CalMat facility at issue. Moss recalled that "it seemed like it was just a few instances," and he did not conduct an investigation of the CalMat facility. TR: 53. A few days later, Germann called and said, "they're at it again," meaning that there were continuing violations, which resulted in Moss' determination to formally investigate. Moss testified he wrote up the complaint on April 30, dating Germann's contact of concern to approximately a week before. TR: 56-7. [This would coincide with the 4/24/98 violation and resulting 4/27/98 internal complaints Germann made to Coley and CalMat management.]
Moss contacted CalMat on site on May 5 and 6, to speak to Benny White, Sr. TR: 54. White indicated to Moss "that he already knew who the Complainant was and that he was expecting me." TR: 58. During the course of Moss' investigation, he found CalMat had violated three different statutes regulating the number of hours drivers may work and drive. One the 15 hour regulation, and by a driver other than those involved in the 4/24/98 events Germann questioned. TR: 59-62.
Moss testified in his discussions with White he clearly advised him of the driver hours' rules. White's subsequent 7/21/98 CX23 Memorandum to All Drivers was admitted over objection. It is White's directions to "All Drivers" on the driver hours' rules including the 15 hours' rule and how it was to be applied by CalMat drivers, the subject of Germann's 4/98 internal and CHP complaints. White's Memorandum advised the drivers this information was based on White's talk with Moss of the CHP. Moss, based on his expertise, testified this Memo contained false statements as to what constituted driving time, a point Moss believed he had made clear to White in his 5/98 explanation of the rules and regulations. White had then promised Moss, verbally and in writing, he would comply with the explained laws. Tr. 61-67, CX 24-25, CX 26:99-100 only.
Moss also testified White in their 5/6/98 talk expressed and confessed some confusion over the driver work laws. And when asked by Cal Mat whether White indicated to Moss he was trying in some way to get more hours out of the drivers than the law permitted, oss responded White told him that due to construction there was a big push in the industry, and also they had been down due to El Nino, had lost a lot, and were trying to get as much going as they could, but they did want to comply. In CalMat's follow up question to this response, oss testified White did not indicate he wanted to get as much out of his drivers as he could "with a wing to the law." Tr. 68-69.
Dyer's later testimony indicated that on 5/17/98 he received advice the CHP was again at the Mission Valley San Diego facility and he surmised the visit had something to do with the 4/24/98 drivers' overhours violations. This CHP visit is not otherwise explained in the record.
Testimony of Jeffery Carter Dyer
Dyer testified he first heard about Germann's alleged attacks on Contreras on May 1, 1998, from Mason Dickerson, Dyer's direct superior. TR: 379, 377. On Monday, ay 4, Dyer and Donald Bruzzi, a Labor Relations Specialist, went to San Diego to investigate. TR: 380. Benny White told Dyer the details of Contreras' complaints about Germann's conduct, and gave them a list of names of individuals who might have information about the confrontations. TR: 410-16. EXs 8,12.14-15, 17-18.
The scope of Dyer's investigation was initially limited to the allegations of threatening behavior and ethnic slurs aimed at Mr. Contreras, and possible sabotage of Contreras' vehicle. Dyer testified he did not investigate the hours violation, because CalMat had already admitted the incident had occurred. TR: 670. The issue of Germann's possible involvement in a work "slowdown" evolved during Dyer's investigation.
On 5/4/98 White told Dyer he first spoke with Germann, who stated Scott and Contreras had been intimidated into working the extra hours on April 24. White told Dyer he then spoke to Scott and Contreras, who stated there had not been any intimidation. TR: 411- 12. Contreras added, according to White's statement to Dyer, "if there was any intimidation it was Reg" and Contreras repeated to White the obscenities and ethnic slur which he alleged Germann said to him. TR: 412.
Dyer met with Contreras in CalMat's Mission Valley office in San Diego on May 4. TR: 444. Dyer testified Contreras related details of the first encounter on April 27, stating that Germann had used obscenities ("son of a bitch, mother fucker") and called him a Chihuhua. TR: 445. Contreras also stated there was an incident when Germann got on the running board of his truck and pounded on the window, and another incident "at the wash rack" when Germann used the same obscenities and called him Chihuahua.12 TR: 445. Dyer stated Contreras started to cry when he related these stories. TR: 446. Dyer testified Contreras also discussed two incidents in which his truck was tampered with, and Contreras claimed Germann said that he had opened the water valve on Contreras truck, "because you [Contreras] are a mother fucker." TR: 446,449. Contreras told Dyer he took offense at Germann's conduct, lost sleep, and thought about quitting his job. TR: 447.
Dyer and Bruzzi then interviewed Germann on May 4, 1998. Germann denied having called Contreras "son of a bitch," "mother fucker," and "Chihuahua." TR: 477-78. Germann stated, however, that "Chihuahua" was a nickname given to Contreras by the night crew. TR: 479.
Germann told Dyer 5/4/98 that during the incident on Monday April 27, Contreras was apologetic about the hours violation. Germann told Dyer he had not been angry with Contreras but he voiced his displeasure with Contreras for breaking the law and he was surprised and angry with the company. TR: 479-81. Germann also denied tampering with Contreras' truck and denied telling Contreras he had done so. TR: 484.
Dyer and Bruzzi interviewed Contreras again on May 5 statedly to clarify some of his May 4 responses. TR: 526. In the course of this reinterview, for the first time, Contreras advised Dyer Germann had told Contreras, when they had spoken the morning of Thursday April 30th, that he was sorry if he had hurt Contreras' feelings.. TR: 560.
On May 11, Dyer received from Clarke Stillwagen, President of Teamsters Local 36, the letter signed by Contreras and Germann stating they had settled their differences. EX 59; TR: 648. Dyer testified this letter "concerned" him because he suspected Contreras may have felt pressured to sign the letter, although he did not contact Contreras about this, or the resolution letter, until 10 days later. TR: 649. Dyer determined CalMat had its "own moral and legal responsibility to investigate" the claim in spite of this letter, and he investigated the circumstances of the meeting which produced this letter. TR: 650.
Of all of the employees interviewed (aside from Germann and Contreras) none witnessed or overheard the confrontations between the two men. One witness, Mr. Castro, saw a parking lot incident in which Germann, loud and animated, stood on the running board of Contreras truck but Castro was unable to hear the words used. Dyer described this Castro statement as a reflection Germann was "in [Contreras'] face." TR: 425-442;724.
Of all of the employees interviewed, Dyer testified three had information related to Germann's alleged participation in a work "slowdown." Dyer identified these employees as Mr. Contreras, Mr. Castro, and Mr. Bowman. TR: 605. Mr. Dyer defined a slow down as "a deliberate effort on the part of one or more employees to slow production," and stated that in his opinion "work to rules" is a euphemism for a slowdown. TR: 608. Dyer testified in fairness to Germann, Germann interpreted "work to rules" or "work rules" as meaning a strict adherence to work rules, such as the CHP 15, 12, and 80 hour rules. TR: 609. There were also reports that Germann's statements to "slow down" had to do with speeding while in the yard and on the freeway. TR: 793. Dyer stated this information he had that Germann was trying to create a slowdown was "very credible." TR: 641.
According to Dyer Bruzzi's notes indicated Al Castro, a truck driver, told Dyer Germann had told Castro not to write up a vehicle repair order, even if there was something wrong with the truck. Germann allegedly told Castro to let the truck break down. TR: 786. Dyer testified on cross examination Castro, in arbitration testimony, "waffled" about some points Dyer covered in Dyer's 5/4/98 interview. Tr.784-93.
Castro's under-oath arbitration testimony at ALJX 31B 65:75 has been reviewed including where Castro either denied, did not recall or made inconsistent statements as to various points, particularly on the truck write-up questions Dyer, in arbitration questioning, posited Dyer had raised with Castro in the 5/4/98 interview. At one point Castro, when questioned on the truck write up area, testified he could not recall saying what Dyer, the arbitration questioner, indicated he had said to Dyer. And Castro, under oath, testified maybe Castro got Dyer's 5/4/98 questions confused or Castro answered Dyer's 5/4/98 question wrong. Castro, in his arbitration testimony, also advised Dyer he thought Dyer in 5/4/98 interview wanted to know about what Castro thought about racial slurs like Chihuahua and Germann; and not about truck write ups and Germann. There are no Dyer "note jottings" on the 5/4/98 Castro interview. Bruzzi's are at Ex 23;22.
Dyer without Bruzzi also interviewed Carolyn Vallese on May 5th, at her request. TR: 630. Dyer's direct examination indicated she stated she had some information about Mr. Contreras, but didn't know if it was relevant to Dyer's investigation. Dyer did not find her information of any particular use in his investigation. Dyer on cross-examination testified Vallese came forward with information Contreras had asked her to go to Mexico with him and to be his girlfriend on the side. Vallese told him "no," and that she was married. TR: 706. Dyer's notes, read on cross-examination, reflected the following: "Carolyn Vallese finally told Ed, who used to work at the company. Ed told Tony Contreras that he could be guilty of sexual harassment. After that, no further incidents. And this occurred about three months ago. She said she is the worst when it comes to joking around about sex, and may have encouraged Tony Contreras. ... Vallese said it is over. She settled it on her own." Meaning that the matter with Tony Contreras being romantically interested in her had been resolved. "[She] did not want Tony Contreras to get in trouble with the company." TR: 706-707. Dyer gave Vallese his card and told her to contact him if the behavior resumed. Dyer did not investigate the matter further, Contreras was not disciplined as a result of Vallese's advice, and Dyer testified he did not believe Valesse's information was at all relevant to his investigation.
Upon concluding his investigation, Dyer issued a recommendation based on his findings. TR: 682; EX 79.
Dyer testified regarding CalMat's policies and procedures for progressive employee discipline. He stated "the normal procedure would be to first have a written warning, and then a written warning plus a day's suspension; then a written warning plus a five day suspension." TR: 774; EX 2. Dyer said in his 18 years with CalMat, there have been other cases in which an employee was disciplined for swearing, but he could not recall any particular case or the context in which the swearing took place. Records on this might exist at CalMat he testified. TR: 778-79; 800-08. He also recalled a case in which an employee was disciplined for using ethnic slurs. All Dyer could recall of the incident was a driver called another employee "a black son of a bitch on one occasion" and he received a written warning. TR: 780. The only two incidents Dyer recalled where employees were immediately suspended pending investigation involved, in one case, an employee who left multiple harassing phone messages on the answering machine of employees who had crossed the picket line. The second, where a male employee told a female employee the bathroom needed cleaning and she needed to do it. It was the female vs. the male's statements, but with corroborating witness. Tr. 837-42.
Regarding company policy on how these matters should be handled, Dyer
stated Germann was not suspended to prevent a physical altercation, but rather the course of
action taken was standard practice for "serious misconduct." TR: 734.
Sequential Analysis/Evaluation from Various Testimony and Documentary Evidence
Events of the Five Days from 4/27/98 to 5/1/98 White Suspension Advice
As of and prior to his work arrival 4/27/98 Germann was separately advised by two employees of the over hours violation. According to Germann he was told Jack Gunther came in looking for drivers Friday night and "got three guys to go out ....pretty sure they worked over the 15 hours ...(y)ou better check it out. " TR: 113-115. Germann testified as shop steward "he's the voice for the men, protects the men ....makes sure the company follows the contract....looks out for the guys in safety situations. ..(h)e's the mouthpiece. If they come to me ....have a complaint ...or problem ....I carry it to management" after looking into its validity. Tr.120.
After talking first to Scott and then to Contreras about the Friday over- hours violations, Germann sought unsuccessfully to report the violations to White Sr. He then asked Coley and Paul Hughes, another management official, if he could talk to them. White Sr.'s later testimony indicated Hughes is Gunther's superior. In this Coley-Hughes conversation Germann testified he advised them "(w)e just had an over hours violation with Jack coming in [saying] that the company would be held liable ....a manager telling people to break the law..." Tr. 130-134. When Coley and Hughes both said they were unaware of the incident, and Hughes during this conversation asked "what's this over hours?" Germann testified he told them they had had violations for the last year, just not this blatant, with Gunther in this incident coming out and saying they didn't care about fines, "(w)e'll take all liability. Just go ahead and ship the mud [cement]." This is Germann's attested version of this conversation where he says he stated he wanted a full report and he wanted the company's position in writing on the 15 hour rule because they were having troubles with its interpretation.
According to Germann after first speaking to Scott and Contreras 4/27/98 about the 4/24/98 over hours violation events, he brewed on it while seeking out management officials and was not in a very pleasant mood, was upset, by the time he got to management's offices. According to Germann, he apologized for the language he used in this discussion, with many vulgar words, including "fuck and "fucking," interspersed in his statements to them on the over-hours violations. Hughes told him in that conversation they didn't use that language around there. While Germann responded in the trucking business "it's a locker room out there," and told them he was "pissed, " after he got his composure he ended with an apology for his language but emphasized the violations were going to be stopped, it was a big time issue, with which they agreed. Coley said they would do an investigation, he would look into the hours violations, but according to Germann neither he nor Hughes got back to him on it. Tr. 130-133. No contrary evidence was presented that this conversation did not happen in this fashion. Germann called Moss of the CHP that day over the violations.13
Coley testifed he was first advised of the 4/24/98 over hours violations in this 4/27/98 Germann conversation when he told Germann he would investigate and find out if in fact a violation occurred. He asked White to look into it, referred the complaint to White who was investigating it when on Thursday 4/30/98, three days later, White came to him and said one of the drivers he had spoken to would like to speak to Dickerson who was then in Coley's office.
The manner and content of White's testimony at TR. 302-332 has been considered with his written 4/30/98 notes supplied to Dyer 5/4/98,EXs 8, 17-18, and how White's testimony and demeanor overall impressed when he related what and how he sought and elicited from Scott and Contreras on his first attested undated contact with them after Germann's 4/27/98 Coley-Hughes conversation; and again on White's second 4/30/98 3:30 p.m. re contacts with them to secure further information after Germann told him the drivers felt Gunther had pushed them back out on the road Friday night to deliver Gunther's customer's loads.
From this evidence it is indicated and found the violations' investigation White earlier pursued this week at Coley's direction did not cover or elicit from these drivers the specific circumstances of Gunther's 4/24/98 request. Before his first contact with the drivers White had checked their time cards and delivery tickets. And on thereby establishing their over- hours violations, White, in his first contact, told them they were wrong and should not have done it but also told Contreras he had done a great job. See also Contreras at Tr. 260-264, 272-274.
Since White then knew the drivers had been requested to do so by a company representative, had White, in his first contact, elicited information from the drivers as to the specific circumstances of Gunther's 4/24/98 individual request of each, which was Germann's specific complaint to Coley and Hughes 4/27/98, White would not have had to again speak to the two drivers to "clarify to see if that was their feelings," i.e., were they were pushed by Gunther. Tr. 304-05. White's recording of this 4/30/98 meeting with Scott and Contreras at reflects no White elicitation of the circumstances of Gunther's request, the Gunther circumstances as attested by Contreras and recorded in Bruzzi's "note jottings" on the Scott interview, but not in Dyer's Scott notes. Exs 45-46. Further, White's 4/30/98 notes reflect he sought from Scott only information about any Germann threats on Scott. White elicited no information from Scott as to Germann's "pushed" complaints, including the circumstances of Gunther's 4/24/98 requests. This was the basis of Germann's complaint to Coley and Hughes, reiterated to White by Germann, and the ostensible basis for White's recontact with Contreras and Scott. While Dyer testified White contacted Scott for this information, the CalMat records reflect he did not. EXs 8, 15, 17-19.
Essentially Germann testified when he spoke with White about the violations matter in the early a.m. Wednesday 4/29/98 he told White the drivers had been pushed to work by Gunther 4/24/98. In this converstaion White told him he had looked into it, Germann was right, there were violations. According to Germann, because he thought White was nonchalant about the incidents, he told White he thought the two drivers were coerced into hauling the loads by Gunther. He then told White he had filed a CHP complaint and, according to Germann, White then told him he wished he had not done that. Tr. 141, 148-l50. Tuesday night 4/28/98 Germann had advised Moss he wanted his name used on the CHP complaint over these incidents, requested Moss investigate CalMat "the sooner the better." And he also requested Moss be present at a union drivers' meeting the following Monday to explain the driver safety rules because Germann felt the drivers did not understand the rules and "when the man with the badge explains to you the law and then they're there to answer questions from the drivers, it's just better." Tr. 147-48.
CHP Officer Moss did arrive at CalMat Wednesday of the following week, 5/6/98 to conduct the 4/24/98 violations' investigation, and he made the CHP drivers' hours of work rules presentation at the Monday 5/4/98 p.m. union meeting. Tr. 150-51. By this week and dates, Germann had been suspended by White. Dyer, three days after the suspension, was at CalMat San Diego conducting his suspension investigation.
Germann's and Contreras' testimony is in agreement that over the four days, Monday 4/27/98 through Thursday 4/30/98, they had at least two encounters initiated by Germann where one-on-one, with no one else hearing or privy to these conversations, they discussed Contreras' exceeding the 15 hours 4/24/98 and, on Contreras' overall testimony, Germann's concerns as to Contreras' violating the law in these activities. The evidence indicates in these contacts Germann indicated he intended to involve or complain to the CHP, the state entity which enforces these hours' requirements, about what had occurred Friday night, as well as complain to the DMV and the union. Both witnesses are in agreement as to the purpose of these Germann-initiated contacts, albeit Contreras reluctantly. Tr. 264. From these witnesses' chronology it is clear one of these two encounters occurred on Monday shortly after Germann was told by other concerned employees of the Gunther 4/24/98 events. In this encounter respondent contends Germann directed derogatory remarks to Contreras including ethnic-slurring and the use of vulgar and obscene language, specifically the Contreras allegation Germann called him a "son of a bitch," a "motherfucker," and a "chihuahua". EX-79. Contreras placed this conversation at the cement plant where the drivers get their loads of cement, by the "color warehouse" or "color shack." Tr. 249.
Contreras testified, as recited above, as to Germann's use of this language in their first encounter Monday 4/27/98.
Contreras' direct testimony as to the circumstances of this incident would indicate Germann approached him voicing this language, telling him he should go back to L.A, his testimony indicating and inferring there were no preliminaries to these vulgarisms by Germann. On cross-examination as to the circumstances of this initial incident, while Contreras agreed Germann in fact approached him about his going over hours 4/24/98, Contreras initially testified, not too persuasively, he could not recall whether Germann in this conversation talked to him about the applicable CHP rules, or safety, and he didn't think Germann talked to him about any such rules or violations. He remembered only that Germann was "very hot ...just started telling me those bad words." But he did know and recall Germann was mad because Contreras worked more than 15 hours and "I helped--maybe I helped--cause really I helped the company" finish the big job. Tr. 264-65, 283-284.
Contreras could not recall Germann telling him words to the effect Contreras just didn't get it. This is the encounter in which Germann testified that, as with his approach to Scott on the 4/24/98 violations at Gunther's request, he told them they were teamsters who live by example and "if we don't do it there ain't nobody fucking else out there that would." Contreras' response was not as Scott's, according to Germann, and Contreras told him Gunther said the company would be liable. Their conversation became "heated, stern and intense," according to Germann, and Germann used curse words although he denied calling Contreras "chihuahua." At one point, according to Germann, he told Contreras, "you don't fucking get it man. This is a safety issue.." and told him the San Diego drivers "fucking don't break the law ...(i)f the fucking drivers up in L.A. do this they might do that up in L.A.. .. (g)o over and work over in fucking Palamar [our non-union other company] ...them mother fuckers over there they're so scared that they wouldn't report anything over there anyway..." Tr. 124-26. According to Germann the curse words he used in this conversation are not uncommon at the CalMat site, it's like a locker room and he was trying to lecture Contreras, to describe the importance of what he was saying because Contreras was nonchalant, with his response to everything "the company said that they were liable," not good enough for Germann.
Contreras was led on direct by CalMat to indicate Germann approached him when he related the circumstances of the "parking lot by the shop incident." Contreras dated this incident to Tuesday, when he stated he was walking to his truck getting ready to start it and Germann was behind him, so Contreras stopped. Contreras direct testimony on the initiation of this event was similar to his direct on the Monday first incident: Germann approached him telling him "son of a bitch, motherfucker, you shouldn't be here, you should go back to L.A, " with no preliminaries. But he could not recall if Germann called him a chihuahua in the parking lot. However Contreras also indicated he stopped to ask Germann something and that's when Germann "started telling me those words." Tr. 251-255. Contreras did not however in his testimony further explain what it was he stopped to ask Germann. Germann in his testimony as to his encounters with Contreras over the four days prior to his suspension does not agree to any such described encounter between them. Of Contreras' Tuesday remembrance or where Germann approached Contreras.
These derogatory remarks a "son of a bitch," a "mother fucker" and "chihuahua" are the basis of "Allegation/Conclusion I" of the 5/22/98 written disciplinary suspension, which Dyer found as a fact to have been made following Dyer's investigation which post-dated the 5/1/98 oral suspension. EX 78, Tr, 682.14 This investigation occurred beginning with Dyer's Monday 5/4/98 arrival from Los Angeles at the work site. As to "Allegation II": "sabotage of Company products and equipment, potentially jeopardizing the
safety of employees," specifically
delineated as arising out of Contreras' allegations that Germann added water to his mixer's drum
and tampered with Contreras' truck's throttle," the investigation was stated to be
inconclusive. Neither Contreras nor White Sr. offered any testimony as to Allegation II or its
basis. As to "Allegation III: (e)ncouraging, intimidating and harassing Mr. Contreras and
other employees to engage in a work slowdown.....actions (which) occurred some months
ago," CalMat found Germann did in fact engage in these acts of telling employees not to
write their vehicles up for repair, not to wash them while on stand-by, telling them to "slow
down" and to have "flipped-off employees for not slowing down."15 Testimony indicates the basis for
"Allegation III" was developed solely as a result of Dyer's post 5/1/98 investigation:
his 5/4/98 and 5/5/98 talks with Contreras, Ex 25-27, 36-37, Tr. 47l, 555, 564; with driver Castro
5/4/98 who saw an undated Germann--Contreras "verbal confrontation that wasn't very
friendly," statedly in the parking lot, but who could not hear what was said, EX 22-24, Tr
424-41; and Dyer's beliefs as to what driver Bowman's response to Dyer's leading questions on
5/4/98 interview meant. Ex 54, 55, Tr. 632.16
The second Germann-Contreras encounter during the four days Monday
through Friday prior to oral suspension where both witness are in agreement Germann
approached Contreras was while Contreras was in his truck in the stand-by area, in the early 2-
3 a.m. hours of their work shift, on a break, awaiting being called to load his truck. There,
according to Contreras, Germann started hitting the driver's side window hard and when he rolled
the window down, Germann "told me the same words...you know the son of a bitch,
motherfucker, you shouldn't be here." By inference from Contreras' testimony, again
there were no preliminaries to these Germann statements, no purpose to his approach but to make
these statements and "flip" him off while walking away. This was the incident
where both agree Germann knocked or banged on Contreras truck's window. According to
Germann to get sleeping Contreras' attention; according to Contreras' statement, so hard he was
surprised the window wasn't broken. Germann's testified the subject of this Germann approach
and discussion was Germann's effort to secure something in writing from Contreras as to his
4/24/98 violation of the 15 hours rule at Gunther's request. For Germann's use in filing a
complaint with CHP, DMV and based on Contreras' responses, with the union.
Both Contreras' testimony and the Dyer investigation recordings of the
Contreras interviews at Ex 25-26,36-37, are limited as to and scant of the circumstances, subject
and words of his various encounters with Germann over these four days, even generally, other
than Contreras recitation of the vulgar words of Allegation I, so as to impart the context and total
thrust of their various conversations. Other than when Contreras described their initial encounter
over his hours violation, at the plant or "color shack," and when he described their
last not unfriendly "pen gift" encounter, by the manner of Contreras' direct
presentation, he indicated every other intervening encounter sketchily described was initiated by
Germann, who started out cursing him with the same two vulgar words, the "son of a bitch
motherfucker you shouldn't be here..." language, for no other purpose but to make these
statements to Contreras, 'flipping him off," as he left him after the "window
knocking--almost breaking" incident.
However it is clear, not from Contreras' at times reluctant testimony on this
point, but respondent's post-oral suspension recordings that Contreras was told by Germann
somewhere in these encounters that Germann's concern and purpose was to file CHP, DMV and
union complaints over the hours violations. And it is clear from the documentation that at some
point in the second of these two agreed encounters, the early a.m. window-banging encounter of
disputed intensity, Germann told Contreras his approach was to seek Contreras' statement for
this purpose. It must be assumed Germann's stated concerns resulted from the 4/24/98 violations.
Germann had, as of this second agreed approach and encounter, complained to CalMat
management, Coley and Hughes, as well as to CHP Officer Moss of the 15 hour violation in
which Contreras was involved.
The testimony of Germann and Contreras differs as to the number of any
additional encounters between them over the days Monday through Thursday 4/27/98-4/30/98,
and who initiated these other contacts, before their last contact prior to Germann's 5/1/98
suspension. Their last contact occurred either Thursday 4/30/98, according to Contreras by EXs
36-37 (but not dated in his testimony), or on Friday, by Germann's testimony, prior to his
punching in and before White Sr. advised him of his suspension. Both Contreras and Germann
agree Germann, in this last encounter was not unfriendly to Contreras. Contreras told Dyer
5/5/98, but not in his 5/4/98 Dyer interview, that in this encounter, where Germann gave him a
pen, Germann told Contreras "I'm sorry if I hurt your feelings but you know you made a
mistake." EXs 36-37. According to Germann's testimony it was in their not unfriendly
exchange in this encounter that Contreras gave him fuller and further information as to the
circumstances in which he acceded to Gunther's 4/24/98 requests, e.g., Gunther came back twice
and after Contreras had initially turned him down; other requested drivers would not haul the
loads at Gunther's request; Contreras knew he was going to be over hours if he took Gunther's
load and tried unsuccessfully 4/24/98 to get White Sr. or a supervisor because of his concerns
about taking an over-hours load at Gunther's request. Tr. 154-55. Germann's testimony as to
what Contreras told him as to the circumstances of how Contreras took the Gunther load and
went out 4/24/98 is not unlike the 4/24/98 CalMat circumstances Contreras' testimony related in
this proceeding. Tr. l54-55, 247-249. See also Contreras testimony at Tr. 289-294, including
about his current confusion as to how the 12 and 15 hours laws apply to his job and how he will
now seek advice as to their applicability from senior drivers who have been with the company
longer than he has.
Germann testified he did not approach Contreras, Contreras approached
him on the other controverted contacts between them, and there were two such contacts before
their last "parted on good terms" encounter. Germann testified that due to
Contreras' statements to him in the two contacts it is agreed Germann initiated over the 4/24/98
hours violations, and Contreras' response to his efforts to prevent 15 hour violations and to get
Contreras' statement for use in pursuit of his violations' complaint, he did not thereafter
approach Contreras Tr. 143. According to Germann in the "knock on truck
window" incident, Contreras used the "fuck" language to respond to
Germann's requests including "(a)w, fuck these guys," which Germann took to mean
the drivers Germann represented. And Contreras indicated he did not want to cooperate in
Germann's efforts to document the circumstances of the violations. Germann stated he then told
Contreras he was considering bringing him before the union because he was not following the
law. Tr. l4l-143.
According to Germann, Contreras approached him on Thursday while out
on a job site. Germann was getting ready to leave and Contreras had unloaded behind him.
Contreras asked his help, as his union steward, because Contreras said the men were giving him
a hard time and Germann had to tell them, for Contreras, he was sorry and wouldn't do it again.
According to Germann, in response to Contreras seeking him out in his fashion in this encounter,
he told Contreras, in his opinion, the way for Contreras to approach the situation was to
apologize to the men who were with him 4/24/98. He told Contreras a total of eight had been
asked [4/24/98], they made the right call, and Contreras broke the law. If Contreras apologized
to the men first, Germann told him he'd hear back about it and then he would support Contreras.
Contreras on direct was led to testify as to an incident at the "wash
rack." Tr. 255-258. But he did not testify as to the circumstances of this incident. This
occurred, he believed, on Wednesday the same day he unsuccessfully tried to call the union
president, speaking first to employee driver Ellwood. Thursday was the day Germann testified
Contreras came to him telling him his fellow drivers were blaming Contreras for his actions in
acceding to Gunther's requests. Then Contreras could not in testimony recall the time, or what
happened at the "Frick job site." This was another vulgar and obscene language
incident of Mr. Dyer's testimony although none of the sites or circumstances of the various
incidents which formed the basis of the suspension notice were specifically delineated in the
suspension notice. Further, only the circumstances of the two agreed encounters: the first on
4/27/98, and the early a.m. standby "window pounding" encounter were set out in
Conteras' testimony. Contreras' testimony detailed little as to the circumstances of the other
encounters he stated took place, with a lack of clarity or full clarity as to site. Contreras was led
to testify there was an incident at the Frick job sit. But, "I don't recall that time but he
might--he might [have] told me those words but I mean it happened there once too but he might
tell me the same words." Tr. 259-260. Contreras' direct testimony as to what occurred
between himself and Germann in these four attested incidents the week of 4/27/98 prior to their
"pen gift" encounter which both agreed was not hostile, not unfriendly, an encounter
just before White suspended Germann 5/1/98, would indicate Germann approached him in each
with his "mf-sob" words and for no other purpose but to voice these words to him,
as in the sketchily described "wash rack" and "Frick job site" incidents.
Contreras' arbitration testimony on the pre-5/1/98 events is as unspecific as to surrounding
circumstances and details.
According to Contreras' testimony he had apologized to Germann, and he
was so affected by Germann's complaints he had worked over 15 hours that his wife and
children were affected. They were crying and sad, he was ready to quit and "(t)hat's when
I went to talk to Benny White. However, notwithstanding Contreras' direct testimony at Tr. 258-
264 which would indicate he initiated the contact with White Sr., which EX 8 indicates occurred
Thursday afternoon 4/30/98 prior to White's recontact of Scott over the 4/24/98 overhours
violation, the fact is established by this
document and White's testimony that White initiated this contact, not Contreras. And it was
initiated because of Germann's continuing complaints to CalMat as to the circumstances of the
4/24/98 violations and CalMat's management's response to it. White Sr. recorded 4/30/98:
Contreras' testimony as to this talk with White Sr. was that when he said
he was ready to quit, White first told him he didn't have to quit, White would go ahead and talk
to Germann. They then went to White's office and Contreras went "upstairs" to talk
to someone else, whose name he did not recall, where he told "them" what happened,
about his problems with Germann, that Germann was "bothering" him. Contreras'
testimony relates no information as to how his conversation with White went from White telling
him he would talk to Germann, to Contreras going to "upstairs" management. As
elicited, it related nothing from which it can be found or inferred he was asked by White if he
wished to go to upper CalMat management. White's testimony at Tr 305-306, 309-310 makes
no mention of any initial advice to Contreras he would talk to Germann about what White has
characterized as Contreras' "let me tell you about harassment" response to
Germann's complaint Gunther pushed the drivers into the over hours violations. This pushing
complaint was the subject of White's second
investigative contact 4/30/98, his 4/30/98 recording and the precipitating event for White's talks
with Contreras and White bringing Contreras to talks with "upstairs" management,
Coley and Dickerson. Then, White's manner on the stand, and his in-person impression of
measured careful response at Tr. 305-06 as to how and why he put the suggestion to Contreras of
going to higher level CalMat management, was noted. To be further evaluated against the record
in its entirety on sorting out the sequence, context and content of the events as related by the
various witnesses.17
Contreras testified he then spoke with someone else, assumably Dyer, in
connection with an investigation, where he told him the happenings as he related in his STAA
testimony. Contreras' testimony does not relate what specifically he was asked by the
"upstairs" CalMat manager, or what he told this manager. His led direct testimony
also does not reflect what he told White about the specifics of the various Germann encounters
over the four days including Thursday 4/28/98. But Contreras testified White told him he did a
great job 4/24/98; he told White that Gunther and nobody pushed him to do the overhours job,
he did it because he knew the job wasn't complete and he knew he was okay to drive. At the
arbitration proceeding White testified Contreras told White he would work overhours again, if
the customer needed his help. ALJX 31B 5:17
Regional Vice President Coley testified he assigned the investigation of
Germann's overhours complaint to White. White was investigating Germann's complaint when
White told him and Dickerson, who was in Coley's office, that one of the drivers he had spoken
to in connection with this ordered investigation wanted to speak with Dickerson. Contreras and
Dickerson talked outside Coley's office. On Dickerson's return, Dickerson informed Coley
Contreras told him "he had been harassed, ...there were some racial slurs, obscene gestures.
I believe that at that point that Mr. Dickerson implied that Mr. Contreras was even ready to quit.
He felt very uncomfortable." Tr. 336. There is no indication from the wording of Coley's
testimony that Coley ever talked to Contreras but he testified he and Dickerson then discussed
the situation and Coley decided to place Germann on suspension until they had a chance to
investigate Contreras' very serious complaints under CalMat's work ethics rules and EEO policy.
Coley testified he played no role in the investigation which he directed
Dyer to conduct, and he testified he does not get involved in investigations or day-to-day
operations. When Coley received Dyer's 5/22/98 conclusions and recommendations, EX 79, he
spoke to Dyer about them and decided a disciplinary suspension without pay should be
effectuated. Coley testified his knowledge of the facts as to the Germann-Contreras
confrontations is contained solely within EX 79. He also testified he did not know who Dyer
interviewed or what they said . However he did indicate he knew Contreras accused Germann
of having cursed, used obscene gestures and a racial slur "over and over again for four
days." Tr.368-69.
However Dyer's testimony and recordings reflect Coley was not as
personally removed as is represented, particularly on the day of the 5/4/98 driver interviews,
from Dyer's investigation activities prior to Dyer's 5/22/98 report and their discussion. Coley
also testified Germann's CHP overhours violation complaint played no part in his 5/22/98
decision which was based on the facts found in Dyer's investigation.
White Sr., assumably early on 5/1/98, effectuated Coley's and Dickerson's
4/30/98 decision and orally suspended Germann, advising Dyer. White offered no testimony in
contradiction of Germann's testimony as to how White handled this notice of suspension for
threats and harassment of a fellow employee, that White would not tell Germann who the
involved employee was or what the threats and harassment he was accused of were. Tr. 155-
156. While White's testimony was silent as to his involvement in the following week's
investigative activities by Dyer, Dyer's testimony and the Dyer/Bruzzi notes indicate White was
a participant, advising which employees should be interviewed, making contacts with employees
who might supply information about what happened.
Since it is nowhere indicated in testimony or recordings what, if any,
specifics and particulars as to the generalized 4/27/98 and 4/28/98 incidents White elicited from
Contreras in his 4/30/98 3:30 p.m talk, or Dickerson/Coley elicited, there is a void in the
evidence as to how White determined who he would talk to before Dyer's 5/4/98 arrival. Or how
he approached them, what he said to them, the basis on which he advised they would be
interviewed. Short of his comparison of time cards and job trip tickets to see who worked when
Contreras and Germann worked during the four days until 5/1/98, the record is otherwise silent.
Tr. 413-15. Exs 19. 14-15. None of the selected interviewed employees, aside from Castro, were
percipient witnesses to any of the controverted encounters between Germann and Contreras and
the statements of most reflect what was said to them by others, imprecisely dated, including by
Germann and Contreras. From EX 15, White had 5/1/98 conversations with some of the drivers
the total contents of which is unknown. It can be inferred Germann's suspension three days
before and Contreras' involvement in it were, by 5/4/98 and as a result, significantly discussed
by employees at the job site, a topic of conversation at the Monday 5/1/98 union meeting
previously scheduled to inform as to the STAA hours rules.
On 5/1/98 Dyer spoke in person with Dickerson who told him Contreras
complained personally to Dickerson that Germann called him a "son of a bitch,
motherfucker, chihuahau ....in a pattern of harassment over a period of about a week." Tr.
379. These second-hand statements related to Dyer by one of the management officials
responsible for the decision to then immediately suspend Germann on Contreras' accusations, in
testimony in this proceeding and in Dyer's recordings, do not indicate or contain anymore
specifics or details offered by or elicited from Contreras by management 4/30/98 as to the
circumstances or context in which these Contreras allegations occurred over the four days and
early a.m. 5/1/98 prior to suspension. They are as generalized as White's 4/30/98 recordings on
the specifics of the circumstances in which these words allegedly were used, including
approximate place and time, on which an investigation could be based. Dickerson indicated only
that the events occurred on Monday and Tuesday. White, in accord as to days and dates,
indicated two incidients on 4/27/98 and 4/28/98. They are as generalized as White's 5/4/98
statements to Dyer on these occurrences, at EX 17-18. Dickerson on 5/1/98 in the conversation
where he discussed with Dyer the charges he wished Dyer to investigate, also related Contreras
told him Germann tampered with his truck's water valve and throttle and Germann admitted to
Contreras he did both. Other than the Monday and Tuesday notations in Dyer's notes as to the
Dickerson conversation there are, as to these events, no further details or specifics reflected as
conveyed by Contreras and recited to Dyer by Dickerson. EX11.
Events of Second Week, 5/4/98 -5/11/98: Events Following Suspension
Conduct of Interviews -- Methods Used -- 5/4/98 INTERVIEWS and
EVENTS
Dyer's testimony as to what was said and told to him in his various
employee interviews was based on his recollection, and his and Bruzzi's notes. In evaluating the
various witnesses' STAA testimony and Dyer's attested recollections, the Dyer-Bruzzi raw note
jottings have been reviewed against Dyer's reading of these notes, his handwriting and
abbreviations not always clear; against Dyer's testimony as to what these jotted notes meant as
recollected months later, given the manner in which Dyer and Bruzzi elected to memoralize the
contents of the interviews; and reviewed against the factfinder's review of what these note
jottings and statements actually reflect or infer, or do not infer or do not necessarily infer, in the
context and content of the interview circumstances and the manner of questioning portrayed.
What struck at times in Dyer's testimony was that what was recorded in these notes was not
always reflective of the import of the witnesses testimony, e.g., as when on review of the earliest
interviews, while in EX 16 Dyer represents Coley on 5/4/98 stated to Dyer he heard Contreras on
4/30/98 tell Dickerson the Germann events and words, Coley's testimony does not indicate this.
Rather it would indicate Coley did not hear what Contreras said when taken out of the room by
Dickerson. Coley relied on what Dickerson told him Contreras said and the entire contents of
Coley's testimony does not indicate Coley talked to Contreras when White brought him to upper
management's office the afternoon of 4/30/98. Tr. 400-407, EX16. See Tr. 405-06:15-20.
Since CalMat, beginning with White's 4/30/98 recording was
documenting, but in generalized and non-specific fashion as to the specifics of Contreras'
allegations, and since Coley heard only what Dickerson told him, also generalized, the manner of
recording takes on some significance in evaluating the factual basis for representations the
expletives and "chihuahua" of Contreras' allegations were repeatedly voiced by
Germann. Particularly since the only participants in these stated encounters gave conflicting
testimony as to the voicing of these words, and how they were voiced; and gave conflicting,
confusing and imprecise testimony as to when, where and how any encounters occurred, and
Contreras' STAA testimony is, as to other than the two agreed encounters and the last "pen
gift "encounter, so generalized. Contreras' and White's arbitration testimony as to these
events is similarly so generalized. These observations all go into the evaluation of Contreras'
reliableness where the repeatedness of the alleged words is a factor in employer's argument as to
why, in the circumstances, both the oral and written suspension actions were taken.
5/4/98 Interviews and Events
Dyer at one point testified Blackman's statements provided a basis for his
"slowdown," truck washing charges of Allegation III, 5/22/98 written suspension
notice. Along with Contreras' allegations and Bowman's EX 54 statements the next day, these
constituted the basis for CalMat's charges Germann encouraged, intimidated and harassed a work
slowdown. Cross-examination of Dyer's basis for recollecting such statements by Blackman,
Bowman and Castro, based on what the jotted notes reflect, and for reaching such conclusions
based on what the jotted notes reflect is at Tr. 785-90, 842-853.
The Bruzzi note jottings do not reflect Castro identified Germann, in
response to some nebulous, ambiguous and suggestive remark or question by the interviewer, as
the individual who didn't want the employees to do a good job, a phrase itself poorly defined as
to meaning or as a question. If that was the question asked, which is also not indicated by the
"note jottings." Bruzzi's jottings do not reflect Castro said Germann was one of the
people in the yard who had a problem with Contreras putting in a lot of hours, when Castro
stated "everyone knows " about the hours Contreras worked or wanted to work. The
"note jottings" also reflect Castro told Dyer Germann said "basically you can't
talk to me like that," in response to whatever Contreras said to Germann. Tr. 433-435.
Dyer advised Germann at the end of the 5/4/98 interview he continued on
suspension pending further investigation. Dyer testified in interview he found Contreras a very
credible person and he adjudged him very affected by what he related, Dyer remembering
Contreras was close to tears, with tears in his eyes when he told him about the affect on his
family. Dyer testified he adjudged Germann evasive in his interview. EX30.
Dyer and Bruzzi then had discussions with Coley, and White spoke with
them by telephone to Coley's office. According to Dyer's note jottings, in this conversation
Coley told them they would probably get little to no information regarding the slowdown now as
the union knows employees raised the issue. Coley's testimony did not reflect this conversation
or that a slowdown was a component of his directions as to Dyer's investigation. It must be
assumed the basis of this Coley slowdown topic and slowdown focus arose solely from what
Contreras stated 5/4/98 and what was stated or elicited in the employee interviews that
afternoon. (Blackman, Castro, Smith.) In testimony as to his post 5/4/98 contacts, Dyer related
he first advised the union president of slowdown allegations on 5/6/98, and these were based on
what he viewed as the highly credible statements of Contreras and Castro. Coley suggested Dyer
interview Al Clark, Bill Brothers and Paul Ellwood for any knowledge of the issues, Coley
stating he regarded them as trustworthy employees who would tell the truth whatever it was.
The night of 5/4/98 the union meeting took place at which Germann
testified he had arranged for a presentation on the CHP trucker work hour rules, including those
violated 4/24/98 by Contreras and Scott.
5/5/98 INTERVIEWS and EVENTS
The next day, 5/5/98, Dyer first reinterviewed Contreras, he testified to
clarify some issues and to get responses to issues that came up in the prior day's investigation.
EXs 36-37, Tr. 526,555,564. Then drivers Brothers, EXs 38-39, TR 563-69; Bowman, Exs
53-54, Tr. 632-39; Ellwood, Exs 40-4l, Tr. 570; Edwards, Ex 42, Tr. 587 and Scott, Exs 44-45,
Tr.608 were called for interviews. Blackman was reinterviewed because he was a member of the
night crew and, according to Dyer, Germann told them 5/4/98 "the whole night crew
referred to Mr. Contreras as chihuahua." Germann in testimony denied he said the whole
night crew; rather he indicated Contreras had been referred to as chihuahua on the job and
explained why, as he did at EX 30. See also Bruzzi at EX 31. Since it appears the Dyer
methodology 5/4/98 was not to first interview both principals to secure their varying and specific
statements on events and facts before determining what facts known to others were pertinent to
their investigation, this Blackman recontact took place.
Dyer originally indicated Contreras told him Contreras had talked to
Bowman about all Germann had done to him, all the incidents. But Dyer recorded no note
jottings on his Bowman interview. Dyer had little recollection as to what statements Bowman
advised 5/5/98 Contreras related, other than that they were about some Germann
"abuse." However what the Bruzzi notes reflect Bowman said when questioned, and
what questions were asked of Bowman, give more balance to the picture Contreras gave to
Bowman as to what had actually happened between Contreras and Germann than Dyer's hazy
and generalized recollections reflect; and further insight as to how the charges of 5/22/98
Allegation III evolved and its factual foundation.
While Contreras' undated Ex 54 contact with Bowman does reflect
Contreras told Bowman Germann "cussed at me and that pissed me off, " followed
by Contreras' remark some other driver had said he was a company man, Ex 54 also reflects
Dyer asked Bowman ''what changed?, (w)e had been doing this before Reg ever said he's [
Contreras'] done it! " Bowman apparently replied to this Dyer question by saying that
Contreras may be sympathetic to the company. And elsewhere Bowman indicated Contreras was
a new man who wanted to do good for the company. Dyer was advised by Bowman Scott had
apologized, but Contreras got abrasive back, and Bowman is noted at another point as saying he
was surprised that he [Contreras] blew up at Reggie.
These Bruzzi Bowman notes at points appear to the factfinder in character
and methodology unlike some of the other Dyer-Bruzzi notes which generally appear to be more
in the nature of raw "note jottings," which at times resulted in ambiguous and cryptic
information, not necessarily dated as to events. Absent a fuller write-up from such raw notes, or
the interviewee's signed statement, the context, content and meaning of what the interviewee
intended in response to what and how it was asked, is not always clear and many times not
necessarily in accord with Dyer's testified recollection and/or interpretations. Bruzzi's notes did
attempt at points to reflect questions asked and answered. They indicated Dyer asked leading
questions as to whether Germann told employees not to clean their trucks and "work as
hard as they should," to which Bowman in response gave ambiguous replies. Then when
Dyer's testimony on these notes, used to refresh his own memories as to the Bowman interview
are viewed against the notes themselves, it would appear Dyer's testimonial reference to the
undated "Tony said Reg got in his face and Tony was defending himself" does not
give the full picture of what Bowman reported to Dyer on the 4/27/98-4/30/98 Germann-
Contreras events. Since this indented quote cited to by Dyer in testimony follows under Bruzzi's
"weekend" conversation reference, and since Contreras testified he talked to
Bowman after one of his Germann encounters, the entire presentation indicates a date-unspecific
hodge-podge of interview questions on the 4/27/98 to 5/1/98 Germann-Contreras
encounters/statements Dyer was to seek under his initial 5/4/98 EX 16-17 directions from
Coley. Tr. 631-39.
Then 5/5/98 interviews of La Belle Exs 48-49; followed by Corriea Exs
50-51, Tr. 629 took place. Dyer testified La Belle was interviewed because he was a member of
the night crew but the Dyer-Bruzzi note jottings indicated he was also questioned as to any
pressure not to clean his truck or keep it clean. According to Dyer, Corriea was contacted
because Contreras told White he had told Corriea of his contact with Germann during the week
of the events. Tr. 628-30. Since White's testimony and the records on White's statements as to
specifically what Contreras told him pre- suspension are so limited, statements such as these add
strength to the impression White, in the 4/30/98 discussion with Contreras, in unknown fashion
covered more than his testimony or recording reflects; and/or that White, subsequent to oral
suspension 5/1/98-5/5/98 and in connection with his reflected conversations with higher CalMat
management, elicited further information from Contreras and/or other drivers, which White did
not reveal in testimony, which played a part in Dyer's investigative actions.
Corriea told Dyer he spoke to both Contreras and Germann, and neither
said either was angry at the other or used cuss words. Bruzzi's notes on the Corriea interview,
but apparently not Dyer's, reflect the conversation between Germann and Contreras was over the
15 hours violation. Corriea, in Bruzzi's notes, is reflected as stating "I think it's got blown
out of proportion." Dyer's testimony's interpolated "incident" into his
recollection from this Bruzzi jotting, with Dyer testifying Corriea said he thought the overhours
violation incident developing into a grievance and suspension with all attendant activities was
blown out of proportion. However given how Bruzzi recorded his jottings, here and elsewhere,
just what the "blown out of proportion" language in the Corriea statement meant,
including as to the overhours violation, and what Corriea stated he told Contreras, noted in
Bruzzi's notes but not Dyer's, leaves an impression of ambiguousness and lack of clarity. While
the Dyer-Bruzzi note jottings on the Corriea interview are short compared to the other
interviews, and contain limited topic items, they demonstrate the problems the Dyer-Bruzzi
manner of memoralizations create in evaluating just what the employee said, to just what was
asked, in what manner of questioning. Elsewhere in the record it is indicated that Corriea, like
Castro, and Contreras, is Mexican-American.
Following their last arranged employee interviews 5/5/98, Dyer in White's
presence spoke with Ms. Vallese, a woman cement mix driver, at her request. Dyer's direct
testimony on this interview was he really didn't find anything she had to say relevant to his
investigation. According to Dyer's testimony, she told him at a union meeting the night before
the altercation between Germann and Contreras was discussed and some employees were
advocating the employees should tell the truth in the company's investigation and others were
saying to keep your mouth shut. So she came forward. Dyer's direct testimony enlightened no
further as to the substance of what Vallese told him 5/5/98. So why he determined what she told
him 5/5/98 was not relevant to his investigation could not, at that point in his presentation be
determined. Tr. 630-31, EX 52. Dyer's testimony on cross-examination, recited within, reflected
his reading of his handwritten notes on the Vallese interview. Vallese later testified as claimant's
rebuttal witness and CalMat's post hearing brief questions whether she was a "plant."
5/5/98 and 5/6/98 CHP SITE VISITS
Dyer maintained the overhours violations and the CHP visits were not
relevant to his investigation because he wasn't investigating the overhours violations, that was
left to White and White had already determined a violations occurred before Dyer arrived 5/4/98.
The record indicates Dyer's investigation of Germann arose out of Germann's complaint of
overhours violations and White's investigation. As evaluated below, Dyer's investigation was
inextricably intertwined with the overhours events Germann complained of and would not have
occurred but for Germann's pursuit of an investigation of the causes of the overhours events not
just the fact of the overhours violations, and the resulting 4/30/98 White-Contreras interview.
Dyer's Further Actions After 5/4/98- 5/6/98 Interviews
Dyer telephoned Stillwagen the president of Local 36 on 5/6/89 to keep
him posted on the status of his investigation. He left a message employees had said Germann
told them not to do work and to slow down. Dyer testified these employees were Contreras and
Castro, although he did not indicate he gave Stillwagen these employees' names. According to
Dyer's testimony, he had very credible information from these two employees that Germann was
trying to get people to slow down and reduce productivity. Dyer's notes also reflect his
telephone message to Stillwagen advised the specific incidents stopped after the first day, and it
was hard to get specific information. Dyer's testimony on the stand this recorded statement
meant anything other than what it said as to the dates of any of the events he was investigating,
including the Contreras-Germann encounters, did not strike as plausible. Dyer's telephone
message also told Stillwagen there was no indication, at that time, that Local 36 was involved,
and nothing to indicate Germann's actions were anything but his own doing.
When Stillwagen called him back on receipt of this telephone message
and, at Dyer's invitation, told Dyer he didn't know of any other employees he should talk to, or
of any incidents, Dyer then advised Stillwagen employees would talk more truthfully in a
deposition, Dyer suggesting that maybe what Dyer was doing wasn't the right forum. Dyer then
indicated to Stillwagen CalMat was contemplating filing a lawsuit against Local 36 for
Germann's actions. EX 56. Tr. 640-644.
On 5/7/98 Dyer, for the first time, tried unsuccessfully to contact Fedoc,
the batch plant operator and a member of a different local, to find out if Contreras, pre 5/1/98 and
during the first week's events at issue, had a wet load of cement which needed adjustment,
information bearing on Contreras' sabotage of equipment/materials accusation.
THIRD WEEK'S EVENTS-- 5/11/98--5/15/98
CalMat's response to advice from Contreras and Germann they had resolved the matter
The next day and by May 12, l998 Dyer received the letter signed by
Stillwagen, Germann and Contreras which indicated there had been a 5/11/98 meeting at the
union office between Contreras and Germann where it was determined there was a
misunderstanding and miscommunication between them, any differences were resolved to the
satisfaction of all, and it was mutually decided no action of any kind should be taken for or
against either one and toward that end they requested Germann be returned to work with no
disciplinary action taken. EXs 58-60. Stillwagen called Dyer the morning of 5/12/98 about
this 5/11/98 letter of resolution.
Dyer told Stillwagen he had been going to call Stillwagen that day to let
him know CalMat would try to wrap up their investigation but Dyer didn't know how the letter of
resolution would affect this. CalMat had it own obligation to investigate, he advised. According
to Dyer's notes Stillwagen in this telephone call said Contreras "isn't saying it didn't
happen. Reggie's admitted to everything that Tony said. It was Reggie' s idea to pressure
solidarity against the company." EX61. The "it" and "that" of EX
61 are not set forth in it, and while Dyer testified as to what his understanding of this Stillwagen
conversation was, he did not specify what "allegations" he or Stillwagen may have
been referring to.
Dyer testified he told Stillwagen he was going to respond to the 5/11/98
resolution letter by requesting information as to the 5/11/98 Germann-Contreras meeting at the
union office. Dyer later testified he did not contact Contreras at that time to find out from him
the circumstances of, and what happened at the 5/11/98 meeting resulting in the resolution letter.
Dyer had no contact with Contreras until after the 5/22/98 decision was made to impose a
disciplinary suspension on Germann, to then find out if Contreras would be willing and able to
work with Germann. Contreras' testimony establishes he entered the 5/11/98 resolution
agreement voluntarily.
Dyer, that afternoon 5/12/98, responded in writing to this notification of
resolution between Germann and Contreras by stating CalMat, despite any personal resolution by
these employees, would continue to investigate the serious Contreras-Germann matter and would
not abdicate its responsibility to do so. Dyer then requested Stillwagen "submit copies of
any and all notes, minutes, transcript, correspondence, reports, memoranda, bulletins, flyers, E-
ail , or other documents which Local 36 possesses or can obtain which can relate to"
four types of specifically detailed and described communications involving Germann and
Contreras, and any such detailed communications between any other persons about them; as
well as between any persons regarding a work slowdown. Dyer further requested a
"detailed explanation of the 'misunderstanding and miscommunication' which you purport
to have occurred between Mr. Germann and Mr. Contreras and detailed account of the meeeting
held in Local 36's offices today," setting forth specific questions to which, at a minimum,
responses must be provided including whether Germann was admitting which allegation, and
was Contreras retracting his allegations against Germann and admitting he made false allegations
against Germann, and specifically which allegation was Contreras retracting. EX 60. Dyer did
not set forth what the specific Germann, or Contreras, allegations were that he was referring to in
this letter.
Dyer testified he wrote this letter because Contreras informed him
Germann threatened him with union discipline and Dyer was concerned Stillwagen's letter might
be a union attempt to sweep "this" under the rug and to put additional pressure on
Contreras to drop anything.19 Dyer
testified he wanted, by his 5/12/98 letter, to find out whether the 5/11/98 Germann-Contreras
meeting was on the level and whether the union applied pressure to Contreras. Dyer further
testified he did not drop the investigation on advice Contreras and Germann had settled the
matter because "(w)e have our own moral and legal responsibility to investigate claims of
the pattern of harassment." Tr. 648-651. Stillwagen by fax acknowledged Dyer's request
stating he would try to answer Dyer's questions the best he could but indicated due to his
schedule he would be unable to complete it until the following week. Dyer attested the
Stillwagen response he received was the information Dyer sought did not, to large extent, exist.
Stillwagen's EX 63 5/15/98 written response did not reflect any of the
statements Dyer testified Stillwagen made in their 5/12/98 telephone conversation, including the
unclear "it" and "that" statements. The Stillwagen 5/15/98 written
response did, in content, attempt to address some of Dyer's 5/12/98 EX 60 requests. Stillwagen,
who had attended Dyer's 5/4/98 interview of Germann, where Dyer adjudged Germann evasive,
stated he was not aware of the specific charges against Germann. Rather, according to Stillwagen, Germann on 5/4/98 denied threatening or
harassing Contreras, and Germann and Contreras had asked if they could meet at the union hall
to discuss a resolution. Stillwagen stated it was his understanding CalMat made no attempt to
allow for dispute resolution between the parties. As to Dyer's work slowdown request, and
Dyer's 5/12/98 reference to a Local 36 "work to rules" campaign, Stillwagen advised
Dyer the union does not engage in such a campaign, and he assumed CalMat wanted all its
employees to observe the employer's work rules as well as safe work practices. Stillwagen
advised he was unaware of any deliberate act by Germann or any person to perform his duties
inefficiently or contrary to rules, procedures or practice, or of any act by Germann or any other
to encourage or intimidate another employee to so perform. EX 63.
Dyer testified he interpreted these Stillwagen EX 63 responses as an
indication that since CalMat under the recently negotiated contract wasn't paying as much in
wages and benefits, Cal Mat should expect less productivity from their employees and if the
union was not actively participating in "our work slowdown, they were condoning it by
inaction." Tr. 661. If Dyer had a specific basis for this stated belief as to a work
slowdown other than what is reflected in the employee interviews evidenced in this STAA
proceeding, Dyer did not enlighten further. Stillwagen further indicated in his 5/15/98 EX63
response it appeared CalMat was "dragging its feet in conducting an ongoing and never
ending investigation in the hopes that, just maybe, it will find something," denying
Germann the ability to provide for his family.
Fourth Week -- 5/18/98--5/22/98
Dyer's 5/18/98 letter to Stillwagen
One week following Stillwagen's 5/15/98 response letter, CalMat made the
decision a disciplinary suspension would be imposed, and Germann could return to work the
following Tuesday, 5/26/98, and so advised Stillwagen by voicemail. In the meantime, on
5/18/98 Dyer replied to Stillwagen's 5/15/98 letter setting forth the exact language of what was
later incorporated into Allegations I-III of CalMat's 5/22/98 notice to Germann, initially stating
5/15/98 Dyer failed to see how Stillwagen could claim he was ignorant of the allegations against
Germann as Stillwagen attended the 5/11/98 meeting with Germann and Contreras, and Dyer's
5/4/98 interview of Germann. Dyer, on 5/15/98, further stated since Stillwagen had failed to
answer CalMat's important 5/12/98 questions about the union meeting, unless this requested
information was immediately provided, Dyer would assume Contreras had not retracted nor
Germann admitted any of Contreras' allegations.
Dyer in this 5/18/98 letter also stated Contreras told them he attempted to
resolve his differences with Germann and merely received further such treatment from Germann
as described in Allegations I-III. In fact, as found within, unless the specific basis of such a
broadly stated 5/18/98 Dyer conclusion is set forth, based on the specifics of, and the details of
the Germann--Contreras STAA testimony on their encounters 4/27/98-4/30/98 prior to oral
suspension, and with their agreed testimony as to their last "pen gift" encounter,
Dyer's 5/18/98 conclusory statement and representations here are not in accord with their
representations.
Dyer's 5/18/98 letter also took issue with Stillwagen's 5/15/98 no
"work to rules" campaign representations, referring to frequent flyers of unstated
content turning up at CalMat, and Dyer wrote that since both Stillwagen and Germann had
expressed the opinion the wages and benefits under the new current contract were unfair, CalMat
could only conclude Local 36 had acted in accordance with this principal and instituted its own
beliefs as to a fair measure of (employee) efficiency by encouraging a work slowdown.
Dyer further advised Stillwagen 5/18/98 if the allegations against Germann were
true, the union had exposed itself to potential liability and CalMat had an interest in the matter
due to legal, financial and ethical issues and would not let the matter be swept under the rug as
Stillwagen was proposing. Tr 648-668.
5/18/98 Stillwagen Reply to Dyer's 5/18/98 Letter.
5/19/98 Dyer Meets with Dickerson to Discuss Dyer's
Recommendations on Investigation. Essentially those set forth in 5/22/98 notice.
5/19/98 -- CHP Revisits Site--Dyer Testified Visit Played No Part
in Investigation. Tr. 569-70.
Dyer's 5/21/98 or 5/22/98 Meeting with Contreras.
This is where Contreras told Dyer that at his 5/11/98 15-20 minute
meeting with Germann, Germann told Contreras "I'm sorry, Tony, I hurt your feelings. I
didn't know you that well," a meeting Dyer held with Contreras because he wanted to find
out if any pressure was applied to Contreras in connection with the 5/11/98 resolution letter and
the Contreras-Germann 5/11/98 meeting, ten days before. Dyer recorded Contreras as saying
"(e)verything he told me is true--not retracting anything."Tr.673. Dyer initially
recorded 5/22/98 Contreras couldn't recall
what happened with the "wet" cement load he had earlier accused Germann of
causing, which reflects Dyer was on 5/22/98 continuing to seek fuller information on this
Contreras allegation than he, or Dickerson, elicited in the Contreras interviews two weeks before.
Dyer recorded that in this 5/22/98 meeting Contreras told him other drivers believed he was at
fault in Germann's suspension and he told of a recent incident of another driver (Brothers)
telling Contreras he made a mistake: if he wanted to work a lot of hours he should go to work
somewhere else and he would be in legal trouble. Contreras said he told Brothers he was going to
sue Germann and he told Dyer he was crying in this conversation with Brothers. According to
Dyer, while Contreras told him he could still work with Germann, he also told Dyer to tell
Germann not to make fun of him and harass him for wearing the company's jacket. Contreras
further told Dyer 5/22/98 he knew Germann had crossed his name off the Saturday overtime list.
As of this interview date and further accusation, Germann had been suspended and assumably
off the CalMat site since 5/1/98.
5/22/98 Notice
This notice warned Germann any further violations of CalMat policy or the
collective bargaining agreement would result in his discharge. And while his actions constituted
grounds for discharge, CalMat advised it would give him another chance to save his job
because: the "slowdown," Allegations III, occurred some months ago and evidence
as to the specific allegation incidents reported indicated the employees did not actually slow
down, fail to complete repair orders or wash their trucks. Further, Contreras had said he would
work with him provided he didn't "commit such acts against him in the future, including
harassing him for wearing his CalMat jacket"; and lastly, another chance was afforded
because of Germann's length of service with CalMat. None of the described written Allegations
referred to any CalMat jacket allegations by Contreras. Until the Dyer 5/4/98 interview, there is
no indication Contreras complained to White, Dickerson, or Coley about Germann and CalMat
jackets, and the Bruzzi notes reflect how this Contreras "rip off jacket" allegation
was elicited. However the record reflects a past history of site union-management acrimony and
differences of opinion among employees as to taking up CalMat's offer of free jackets with the
company's logo or wearing a jacket with the union insignia, and past discussions between White
and Germann over CalMat jackets.
This notice further advised Germann that because of the listed history of
three written warnings in the past year, under CalMat's Work Rules Policy, indicated elsewhere
as a progressive discipline policy, he was subject to discharge for any subsequent violation of
this policy. Testimony establishes the listed prior disciplinary actions are in error. Three prior
written warnings in this period were not issued. Further, Germann at hearing took issue with the
listed 4/14/98 prior written warning of this suspension notice arising out of what, he testified,
were White's misleading statements at the time as to what would be done given the underlying
events.
Dyer, CalMat's witness, on redirect testimony on 2/26/98 testified Jack
Gunther, the supervisor who asked the drivers to work overtime, had been disciplined with a
letter to his personnel file. Tr 817-818.
Summary of Testimony Complainant Presented on Disparate Treatment
Testimony of Darrell Lewis
Darrell Lewis is a former employee of CalMat, currently employed as a
teacher and highschool basketball and football coach. TR: 75. While working at CalMat in 1997
as a dispatcher, Lewis was involved in two confrontations with another employee, Tom Green.
Lewis testified that Green, a bigger, very big guy, often "bad talked" him over the
radio while other drivers could hear, leading up to their confrontation where White Sr. had to
intervene. Green approached Lewis in Lewis' offiice, where Green had no business being, and
stood closely over him, commenting to Lewis in a manner Lewis regarded as intimidating.
Lewis and Green had heated face-to-face words. Lewis and Green then "went to another
room with Benny White and had a heated discussion," containing swear words. Lewis did
not recall any racial slurs being used. TR: 77-81. At one point the confrontation started to
become physical, forcing White to separate the two men. TR: 78. Lewis' supervisor and a sales
manager talked to him about his actions, but he was not disciplined after this incident. TR: 80.
Lewis also testified about a verbal face-to-face confrontation with an
employee named Bob Sengle. Lewis stated the two had an argument over Lewis' advice as to
assigned work and Sengle and some of the employees who witnessed this confrontation went
directly to management afterwards. Lewis testified he was told to watch his temper, and Sengle
was told to use proper procedures to register a complaint. Neither man was disciplined. TR: 83-
84.
Testimony of Allen Buckley, Jr.
Buckley has been employed as a truck driver for CalMat for 15 years. He
testified regarding a confrontation with a supervisor, Curt Hartwell. Buckley had been placed in
Hartwell's production department as a result of a layoff. Buckley, who is black, stated Hartwell
said to him, "I'm tired of your shit, nigger, and I'm going to give you a pink slip."
[discipline slip] TR: 87. Buckley told the shop steward, who in turn reported the incident to the
union. TR: 88. Buckley stated he also told "Digger" Stillwagen, a union official,
who told Jack Ward, a sales manager. Buckley stated Ward contacted "the racial relations
officer or somebody in LA. I never seen him. We had a conversation over the phone."
TR: 89. Buckley testified CalMat "took back the pink slip" that Hartwell had given
him, and that to his knowledge Hartwell was not disciplined.20 Hartwell has since been promoted.TR:
90, 87.
Testimony of Robert Sengle
Robert Sengle has been employed as a concrete mixer driver with CalMat
since July of 1996. TR: 95. Sengle testified he was involved in a confrontation with Darrell
Lewis, a supervisor and dispatcher, in March or April of 1997. Sengle stated Lewis approached
him and said Sengle would have to work the next day, which was a Saturday. Sengle asked
whether Lewis would have to work, too, which set off a heated argument between the two men.
Sengle testified Lewis called him a "white bald-headed m.f.21 " and threatened to take him
outside and "kick his ... butt." Another employee told Lewis he was out of line, to
which Lewis replied, "I'll take you outside and kick your M.F. butt outside, too."
Lewis then stormed out of the room, slamming the door. TR: 97.
Sengle testified he and the other witnesses went directly to Barry Coley's
office about the incident. TR: 98. Paul Hughes, a sales manager, took Lewis aside to talk to
him, and then brought Lewis to Coley's office. Sengle said Lewis apologized to everyone but
him. Sengle was not disciplined. Coley told Sengle that Lewis was disciplined, but would not
say in what manner. TR: 101.
Testimony of Jeffrey Winkler
Jeffrey Winkler has been employed by CalMat as a truck driver for about
two years. Winkler testified about events he witnessed during a safety meeting in 1998. He
stated that an employee named Mr. Shannon asked a supervisor, Dennis Bowman, if he had
heard anything about Germann's suspension. TR: 106. Bowman replied, "they're going to
get rid of all the troublemakers." TR: 107. Bowman also stated that German had
"brought it on himself." TR: 108.
None of Winkler's testimony is given any weight in evaluating the issue as
to the pre 5/1/98 oral supension and the events prior to written 5/22/98 suspension. Analysis and
evaluation of the STAA testimony of the individuals involved in and with the pre 5/22/98
events, and the written pre 5/22/98 documentation form the basis for the findings reached on
what transpired pre-5/22/98, the sole STAA issue here.
Testimony of Carolyn Vallese
Ms. Vallese, a mixer driver, was employed by Cal Mat in 1997. When
Dyer came to San Diego to speak to other employees about the Germann-Contreras matter she
asked to speak to him. She had had a problem with Contreras, where he harassed her, right after
she started with CalMat. He kept asking her if she wanted to go to Tiajuana, did she need a
boyfriend, he needed a girlfriend. Almost every time she saw him, whether in the driver's room,
out in the yard, or on the jobsite for the first
two or three months she was employed, he approached her with these statements, and several
others heard Contreras talking to her in this manner. She told Contreras she was married, she
was not interested, and she was not going to Tiajuana with him. She testified she did not
encourage Contreras to talk to her this way. She testified she is not a prude, she was a new
employee, and it is her policy in the male-dominated environment in which she works to try to
get along and not be regarded as a woman who makes trouble, who takes issue with or complains
about the talk in such an environment. She tries to handle such a situation, and tried to handle
this situation herself. But it started to bother her. Her "no" responses to Contreras
were not getting through to him. Tr. 878. Several times she discussed her inability to get through
to Contreras with one of her co-workers, Ed Sigler, who had heard what Contreras was saying to
her on numerous occasions and who was friendly with Contreras. Sigler said he would talk to
Contreras. When Sigler explained to Contreras he could get in trouble for his harassing Vallese
in this manner, she testified that pretty much put a stop to Contreras' advances which were every
time she saw him, although he did not entirely drop it. Tr. 877.
Vallese testified these occurrences so upset her she was crying when she
related her experiences with Contreras in the 5/5/98 Dyer-White interview, although they had
stopped a good while before the Dyer interview. She testified the only reason she brought these
occurrences to Dyer and CalMat's attention was because of what was then going on: CalMat's
investigation based on Contreras' harassment statements. Contreras claimed he was harassed,
but Contreras harassed her to the point of tears and she believed CalMat should know that. She
told Dyer she wasn't there to cause trouble or get anyone fired, the matter had been resolved. But
she felt Dyer and CalMat should know her experiences with Contreras and how he had harassed
her, what she had taken from Contreras, how Contreras acted in responding to her no replies and
what she had to do to get through to him.
Vallese testified there was no way, from her conversation with Dyer, that
Dyer could have concluded it was only a couple or three times Contreras approached her in this
manner and refused to take no for an answer. She explained to Dyer it went on daily, for
months; it was constant and persistent although she had responded to Contreras by indicating no,
leave her alone, go about his business. She testified she did not and would not in the Dyer
interview have said or given Dyer the impression, by what she did say and explain to him about
the Contreras' harassment facts she had to deal with, that she is the worst when it comes to
flirting around about sex and that she may have encouraged Contreras. And she explained just
how she conducts herself as a woman driver in the type of environment where teasing and joking
occur. Tr. 865-879. She testified no one at the 5/4/98 union meeting said not to tell the truth.
Edward Sigler's Testimony
Sigler, a CalMat mixer driver at the time of the incidents Vallese related,
attested he observed that on the job every time Vallese was around Contreras would go right
there, making suggestive remarks. It wasn't just Vallese, Sigler testified. He observed Contreras
tried to pick up all the women he could. Contreras' remarks to Vallese, similar to what Vallese
attested to, and including about sex, observed by Sigler, were constant notwithstanding Sigle
observed Vallese was telling Contreras she
didn't like it and she wanted Contreras to quit. Contreras wasn't getting her response, he wasn't
taking her polite no. Sigel testified he had taken Contreras under his wing so to speak, tried to
help him out when he started with CalMat, and on occasion had a beer with him after work.
When after a couple of months he found Vallese crying one day because Contreras was not
getting her stop messages, because Contreras was really bothering her and stressing her out with
his talk and she did not want to go to management to create a problem, Sigel put his foot down.
He testified he told Contreras he was out of line, Vallese didn't want Contreras talking to her at
all, and Contreras got the message. Tr.880-85.
Further Evaluation
It is agreed Complainant engaged in protected activities known to
employer when he was first orally suspended, followed by a disciplinary suspension on
investigation, both adverse personnel actions. Employer contends Complainant has not
established his prima facie case as there was no causal connection between his protected
activities and these adverse actions, no protected activity retaliation or animus in these actions
and competent evidence does not establish his protected activity was the likely reason for the
adverse actions. Employer contends only where there is direct evidence employer's adverse
actions were motivated by protected activity, only then does the burden shift to the employer to
demonstrate it would have suspended the employee even if he had not engaged in the protected
activity.
To establish his prima facie case on the causal connection between
protected activity and the adverse actions, Complainant must present evidence sufficient to raise
the inference the protected activity was the likely reason for the adverse actions. However the
motives for adverse actions against employees are necessarily subjective and for this reason it is
rare there is direct evidence of any connection between an employee's protected activities and
adverse action against an employee. But it is well established such a connection can be proven
by circumstantial evidence. Ellis Fischel State Cancer Hospital v. Marshall, 629 F.2d
563 (8th Cir. 1980); Mackowiak v. University Nuclear Systems, Inc., 735 F.2d. 1159
(9th Cir. 1864). The presence or absence of a retaliatory motive is a legal conclusion and is
provable by circumstantial evidence even if there is testimony to the contrary bv witnesses who
perceived lack of an improper motive. As Ertel and Kovas indicate, it has
been held the proximate timing of the protected conduct and the adverse actions can be sufficient
to raise the inference of causation.
CalMat contends they promptly, by White's actions, investigated
Germann's protected activity complaints and it was only when Contreras, during White's
investigation, volunteered his harassment and distress feelings to White that Cal Mat by White's
and Dyer's actions, handled Contreras' complaint. This was what motivated CalMat adverse
personnel actions, not Germann's protected activities which played no part in the 4/30/98
suspension decision. Contreras' 4/30/98 complaint of repeated harassment, defined by CalMat as
Germann's repeated references to Contreras over the four days 4/27/98-4/30/98 as a "m-f,
sob, chihuahua" alone resulted in the suspension actions. By these actions Complainant
crossed the line of decency in violating its
EEO policies, its Work Rules, Code of Ethics and his own union rules. He is a bully, a hothead
and a racist, and on Contreras' complaint CalMat suspended him. It is argued Germann was not
concerned with "safety," he is a racist who engaged in a continual pattern of
harassment of a Mexican-American who would not bow and scrap to his union authority, who
was not as pro-union as Germann was. CalMat's lack of protected activity retaliation is, it is
argued, reflected in its "model handling of Contreras' harassment complaint."
What does the record show in connection with Complainant's
prima facie case?
First, the timing of Germann's suspension, on his reporting to work 5/1/98,
four days after his protected activities overhours complaint to Coley and Hughes, and two days
after his continued pursuit with White of the management circumstances resulting in the
overhours violations, on no further advice as to the CalMat investigation promised by Coley
three days before. In its temporal relationship, these are strong circumstantial factors inferring
protected activities causation, that the 4/27/98 protected activities and their continued pursuit
4/29/98 played a part in the 4/30/98 decision to immediately suspend.
Then the presentation of what occurred 4/30/98 and 5/1/98, evidenced by
CalMat's recordings and the testimony of Coley, White and Dyer as well as Contreras,
constitutes circumstantial evidence on the causal nexus of Germann's 4/27/98 and 4/29/98
protected activities' complaints as a factor in the adverse action taken 4/30/98.
First, while Contreras testified he went to White 4/30/98 to complain about
Germann, in fact this is not true. What this presentation indicates happened is White had to
recontact Contreras and Scott because of Germann's continued pursuit of the overhours
violations with CalMat management, including pursuit of the management circumstances giving
rise to them 4/24/98 voiced to Coley 4/27/98, by Germann's uncontested testimony. Because
shop steward Germann continued to pursue Coley's promised investigation of the 4/24/98
management circumstances causing the safety rules violations, not alone the bare facts of the
violations but Gunther's refusal to take no for an answer from drivers who would violate the
CHP trucker safety rules if they did what Gunther requested. This is a fact which by Germann's
uncontested testimony was brought to his attention by, and known to other CalMat employees
including drivers who refused to violate the safety rules as Contreras and Scott did 4/24/98. As
to the circumstances of the 4/24/98 violations, these Gunther actions are facts of record in this
STAA proceeding, from Contreras' and Scott's statements and reasonable inferences from the
specifics their statements supplied as to what occurred 4/24/98, supportive of Germann's
testimony.
Then by what White recorded on his 4/30/98 Contreras conversation,
White did not elicit or solicit any information from Contreras about the circumstances causing
and surrounding Contreras' 4/24/98 violations of the driver safety overhours rules, the subject of
Germann's protected activities complaint to CalMat management voiced both on 4/27/89 and
4/29/98. Rather, White instead solicited Contreras' advice he was not tired and he felt safe to
help the company 4/24/98 and this was the
reason he violated the safety rules. White then went on to record two reported Germann
"mf sob" name calling incidents. First on 4/27/98, and then in the 4/28/98
"window" event, the only two "mf-sob"name calling incidents Contreras
then reported, with Contreras reporting he was also called "chihuahua"in the first.
The information White did record, as to Germann telling Contreras he was going to report the
safety violation wrong he did to the CHP and the union, reflect Germann, in these two incidents
and known to CalMat, was expressing to Contreras and CalMat protected activites concerns and
pursuit. Not dissimilar to what Germann testified occurred, but for the derogatory terms, in these
two encounters, which Contreras in reluctant manner confirmed occurred at STAA hearing.
Then there is the fact White at the time of his 4/30/98 recontact with
Contreras and Scott was the CalMat manager unavailable to drivers who on 4/24/98 had concerns
about Gunther's requests which would violate the driver safety rules, concerns about Gunther's
refusal to take no for an answer in such circumstances. White was also the manager in charge of
supervisors unavailable when sought by a driver concerned about a manager's 4/24/98 overhours
request. This information, presented at STAA complaint hearing, would assumably be part of
what would be reportable to White's upper level managers if the circumstances Germann was
pursing were fully developed.
Then, while White testified he notified Gunther's superior of the overhours
violations, the inference from his limited presentation on this fact is he related only that the
violations occurred. He reported only that the drivers hours exceeded the 15 hours and was a
rules violation, ascertained from White's time card review and his first contact with Scott and
Contreras where the detailed circumstances of what occurred the night of 4/24/98, the focus of
Germann's protected activities complaint to upper CalMat management, were not
secured/elicited by White.
Then there is White's contemporaneous 4/30/98 recording which indicates
White invited Contreras to talk to Dickerson. And there is Contreras' testimony White's initial
response to him in their 4/30/98 conversation was he would speak to Germann about what
Contreras related, which White did not do even at 5/1/98 oral suspension. And there is the void
in Contreras' and White's testimony as to how White's advice he would speak to Germann
evolved instead into White's taking him to a visit with "upstairs" higher
management.
Then there is the indication Contreras spoke to Dickerson alone. Coley,
the recipient and knowledgeable as to Germann's protected activities complaint and its focus,
which were the context in which what Contreras related to White had occurred, was not part of
this conversation. What Contreras said to Dickerson in this conversation is unknown from the
presentation but inferentially Contreras related no more than recorded 4/30/98 as to incidents
where he was called derogatory names: two incidents. There is no indication Dickerson knew or
elicited from Contreras the surrounding circumstances of whatever Contreras told him about the
two "m-f, sob" incidents which included the "window breaking" and also
the "C" incidents. The context Dyer agreed must be known to adjudge the eriousness and significance of such verbiage's usage.
Or what, if anything, Dickerson was advised by Coley or White as to Germann's 4/27/98 and
4/29/98 protected activities complaint to management, the foundation of White's 4/30/98
recontact with Contreras. But by CalMat's 5/1/98 recordings, Dickerson told Dyer the incidents
of his talk with Contreras occurred on two days, which is just what White's reflected 4/30/98,
two morning incidents. Only these could be the basis of CalMat's representation of
"repeated" derogatory epithets as of 4/30/98 and 5/1/98.22
Then in testimony and later post 5/1/98 recordings, the occurrences of such
incidents were expanded by Contreras and CalMat into two more incidents. The timing and
circumstances of these belatedly recalled additional occurrences bear on Germann's prima
facie presentation of a causal connection between his protected activities complaints and the
adverse suspension actions.
And while employer urged it was not Dyer's responsibility to investigate
Germann's protected activities complaints, that was White's to do and he did take care of that,
what this record reflects White did does not indicate he solicited or conveyed the information as
to Gunther's actions which this STAA proceeding, by Contereas' and Germann's testimony, and
Scott's statements the next week to Dyer/Buzzi, indicate occurred 4/24/98. The presentation
indicates any information White secured and conveyed was based soley on the timecard/job
tickets facts and not on how the requesting management official secured the drivers' violations.
One hour after White initiated his 4/30/98 recontact with Conteras, having in the meantime
brought Contreras to visit higher level management officials, by White's recordings he did not
then seek any information from Scott as to the Gunther 4/24/98 violations circumstances, the
focus of Germann's protected activities complaint. This was the ostensible purpose of White's
4/30/98 recontact with the involved drivers, on Germann's continued complaint pursuit. Rather
White then questioned Scott as to whether Germann threatened him. What White told Dyer he
did on this Scott recontact, note jottings at EXs 17,18, is contrary to what White's 4/30/98
recordings reflect he did in talking to Scott that afternoon. This infers White's 4/30/98 purpose
was not to investigate Germann's complaint Gunther pushed or pressured the drivers into the
4/24/98 violations but to investigate Germann, another temporal relationship factor supporting
Complainant's prima facie case.
Then there is Moss' testimony which contradicted White's that he did not
indicate to Moss he knew Germann was the CHP complainant. And there is Moss' testimony
White indicated he and the employer were under some pressure to make up work. Moss, a
witness totally uninvolved in the CalMat history and the employer-employee disputes reflected
and alluded to in this record, had no reason to misstate under oath what White told him. Or to
testify White did not, even after Moss' explanation, correctly advise the drivers as to how the
CHP rules, the subject of Germann's protected activities complaints, applied to the CalMat's
drivers' work-driving circumstances.
While employer argues White investigated the overhours violations and
Dyer investigated Contreras' complaint about Germann's derogatory language/harassment, and
these were two different subjects and investigations, the record reflects and infers that in
determining the total context of the contested words/actions, they were inextricably intertwined.
In this connection there's White's testimony he, as the transportation manager charged with the
overhours investigation and advice to drivers on the safety rules, did not know if Gunther had
been disciplined for his 4/24/98 actions. Followed by Dyer's testimony, elicited in the manner
noted, that Gunther had received a written reprimand. This bifurcation representation/attempt has
some weight in prima facie consideration as circumstantial evidence of protected activities'
causation Knowledge of such a discipline fact would appear to be of some significance to a
transportation manager supervising drivers subject to such managers' overhours violations'
request. Dyer was statedly not involved in the overhours investigation which was White's
charge from Coley, and Dyer had no operational effect on dirivers who might be subject to such
importuning to violate the driver safety rules. Yet White, responsible for drivers' operations and
supervision, by his testimony was left in the dark as to outcome of the drivers' overhours
investigation. CalMat's presenting this information in this manner left the impression this
Gunther discipline occurred after White's testimony.
Then with only two derogatory language incidents related by Contreras
4/30/98, there is the different manner in which White did not engage Human Relations or upper
CalMat management, the different manner in which he handled the vulgar derogatory language
and physical altercation incident he witnessed between Lewis and Green, with a known history
of public derogatory remarks between these employees. And the indication Lewis' cursing,
racial slur and physical threats did not result in any discipline and the indication Buckley's
formal union complaint about Hartwell's racial slur did not result in discipline of supervisor
Hartwell.
Then there is the fact this employer 5/1/98 immediately and summarily
suspended a 15 year employee with no prior history of any such activities, actions or such
derogatory language directed to any employee which Contreras, a relatively new employee,
voiced 4/30/98. Germann, an elected shop steward, had a long history of working with an
assumably multicultural diverse San Diego work force, with no similar such derogatory
language/sabotage complaints. This immediate suspension taken based on accusations voiced in
the circumstances this record reflects occurred in the 4/30/98 meetings: first between White and
Contreras, then Contreras and Dickerson followed by Coley's and Dickerson's discussion, and
with no Contreras indication anyone heard what Contreras alleged Germann said to him, with a
lack of the corroborative-type evidence Dyer testified CalMat had in the very few instances he
could recall of immediate suspension pending investigation, with the cryptic manner in which
White advised Germann of his suspension, all serve as circumstantial indications from which to
infer a causal relationship to Complainant's protected activities complaints to Coley and White
on 4/27/98 and 4/29/98.
Then there is the fact Dyer waited more than eleven days to secure possible
corroboration of Contreras' truck sabotage accusation made to White and Dyer. This accusation
would, by its seriousness, appear to necessitate the company's quickest possible investigation
while records/memories from possible corroborative sources, such as from the batch plant as to
water in the drum, were fresh.
Then there is the general void this record reflects as to the substance of
White's preliminary contacts with the various employees selected for Dyer's interview in the post
5/1/98 period. Further, contrary to Coley's testimony, there is the recording Coley was actively
involved in directing employee interviews, another circumstantial factor.
Then there are the various facts Dyer's testimony and post 5/1/98
recordings indicate occurred in the course of his investigation the next week 5/4/98 through
5/8/98, by his readings of the investigative "jottings" and remembrance
interpolations, not necessarily in accord with the jottings themselves or the only interpretation of
the, at times, ambiguous statements reflected as elicited in a generally leading and sometimes
suggestive fashion. In several regards, the model post-oral suspension investigation gives pause
as to its reliableness, thoroughness and focus. When all these facts are viewed with the very close
temporal relationship of the 5/1/98 suspension to the protected activities and the fact the
suspension arose out of and was intimately intertwined with employer's investigation of
Germann's protected activities complaints, and when viewed with what occurred during the
investigation further elaborated on below, in the factfinder' s opinion sufficient evidence has been
presented from which to infer a strong connection between Complainant's protected activities and
the 5/1/98 and 5/22/98 adverse actions.
It is found and concluded Germann has established his prima facie
case. It is found and concluded he engaged in activities protected by the STAA; CalMat was
aware of these protected activities; he suffered adverse employment actions and there is
sufficient evidence presented to raise the inference Germann's protected activities were the likely
reason for his 5/1/98 oral suspension and 5/22/98 disciplinary suspension after investigation.
It is further found and concluded CalMat has presented evidence Germann
was suspended for legitimate nondiscriminatory reasons. The record reflects employer had
written EEO policies, Work Rules and a Code of Ethics, known to all employees, warning of
disciplinary action in the event of their use of the language, the obscenities and ethnic slur
Contreras stated Germann directed at him in his encounters with Germann in the four days
4/27/98 through 4/30/98. Employer has made a showing sufficient to meet its burden or
producing evidence of lawful motive for the adverse actions taken.
Pretext and Dual Motive Analysis
Analysis and evaluation of the record, above and below, reflect as follows:
The ethnic slur/obscenities Allegation I basis for both suspension actions is, like the sabotage
Allegation II, essentially Contreras' word against Germann's. The employer's position is the
adverse suspension actions at issue were based on the Contreras harassment of Allegation I; the
"slowdown" contentions of Allegation III while they played a part and made a
difference in the action taken, they were not central to the suspension.23 Since however both Allegations II and
III were set out in the suspension notice, and Allegation II was an integral part of Contreras'
4/30/98 statements and those of the CalMat officials White and Dickerson, conveyed to Dyer and
investigated by Dyer during the period prior to 5/22/98, under applicable case law criteria
consideration of Contreras' harassment allegations necessitates all the allegations voiced at that
time and all the Allegations set forth in the notice be evaluated as all of these events and
accusations were part and parcel of the events which resulted in the suspensions. And all ensued
from Germann's protected activities, and from information secured in this very limited, less than
one month period 4/27/89-5/22/98. This is the only period in which events transpired which
affected the suspension decisions CalMat made 5/1/98 and 5/22/98, and this is the only time
period which has a bearing on what occurred on the sole issue here, suspensions in violation of
the STAA.
The Allegation II sabotage accusations of the suspension notice,
assumably the threats of White's cryptic 5/1/98 advice to Germann, on which CalMat found the
evidence to be inconclusive were based solely on Contreras' accusations. Sabotage was not
mentioned in testimony. The fact Contreras would make such accusations which could not be
corroborated, which CalMat made no attempt to immediately investigate, with delay in securing
any batch plant information until 5/11/98, is noted in evaluating Contreras' testimony and the
motivation for employer's actions. It is also noteworthy Contreras would again, on 5/22/98 and
without support accuse Germann, suspended from the work site at that time, of crossing his
name off the overtime list. This was at a time when Contreras was reporting negative feedback
from other drivers as a result of the events this record reflects ensued followed the 4/24/98
overhours violations, and historical differences among the several drivers' factions predating the
4/24/98 events.
Then, as to the "slowdown" acts of Allegation III, analysis of
the record and particularly review of the employee statements against Dyer's readings, his
recollections and interpolations, reflect these are essentially Contreras' allegations. Review of the
statements and testimony of the other employees Dyer attested he relied on, Castro and
particularly Blackman and Bowman does not reflect, either in the manner these employees were
questioned or necessarily in the statements and recorded jottings as elicited, that this is what
they said Germann did, or that they were accusing Germann of these Allegation III acts. From
such ambiguousness Dyer, having initiated, raised and developed this area on his own, or as
directed given Coley's input post 5/1/98, interpolated his conclusions. Conclusions which on
consideration of Dyer's testimony are adjudged not reliable
Vallese's testimony, corroborated by Sigler, establishes Dyer's notes and
recollections do not correctly or necessarily reflect what the interviewed employee said.
Vallese's testimony, that of a credited in-person genuine witness who had nothing to gain and
much to lose in coming forward,24
reflects on the reliableness and credibility of the post 5/1/98 investigative methodology, as well
as on the trustworthiness of the purported statements and represented conclusions from this
methodology. Vallese by demeanor and substance was no "plant" and her purpose in
coming forward was not to hurt Contreras but to tell the truth, based on her and Sigler's personal
experience with Contreras. Vallese's testimony on the details of what she told Dyer Contreras
had done and what he was like to deal with, reflected adversely on the reliableness of the post
5/1/98 investigation methodology/representations/interpretations/interpolations and conclusions.
Vallese's and Sigler's testimony indicates, as well, that Contreras was an individual difficult to
get through to, who has his own ideas as to what he will continue to do. Not unlike what
Germann represented occurred in his Contreras encounters where his stated purpose was to
"counsel" Contreras on why he should not violate driver safety rules when requested
by a manager in the circumstances Germann had been given reason to believe occurred.25
At times throughout this proceeding when the Dyer/Bruzzi "note
jottings" are compared to Dyer's testimony on these interview statements and his attested
recollections, the fact finder's impression is Dyer read into these interviews what wasn't stated,
or unambiguously stated. As he read into Vallese's that she said she flirted with Contreras.
And/or that Dyer interpolated conclusions from ambiguous, or cryptic or deflected statements or
responses to his leading and/or suggestive questions in the areas he attested formed the basis for
his Allegation III "slowdown" conclusion, including repair write-up, vehicle washing
and unspecific "flip offs."
After Dyer led Contreras in the 5/4/98 interview by stating he was a guy
who didn't have a big ax to grind with the company and had Germann asked him not to do
anything for the company, and further led him by first telling Contreras Germann didn't want the
employees to work hard, EXs 25, 26, Contreras then related the "slowdown"
information Dyer adjudged very credible. Yet during this interview Contreras never related to
Dyer the 4/30/98 apology he had received from Germann. The apology was not related until
the next day when, it appears, Contreras first related in one of their encounters Germann did
advise Contreras, as Germann testified occurred, that Germann wanted Contreras' cooperation in
a write-up of the 4/24/98 violations' events for his complaints about Gunther's actions. EX37.
One of Contreras' co-workers in interview jottings described Contreras as an employee who
wanted to work as many hours as he could, and Contreras described himself to an interviewed
co-worker as a company man.
On the controversy as to whether "chihuahua" is an ethnic slur,
any word with even the slightest reference to, or implication of one's ethnic or racial origin, said
in anger and/or directed at any individual in derogatory or demeaning manner can be an
ethnic/racial slur. The context and content, the attendant words and the circumstances in which
such words are uttered, how they are uttered, are factors for consideration
And as to the "m-f sob" profanities, there is a difference when
these words are uttered generally by a vulgar mouth in the course of speaking, as compared to
when these words are directed at an individual such as is reflected in the conclusion without
specifics of the Allegation I charge; in the specifics of the Buckley-Hartwell and Sengle incidents
and the specifics of the Lewis-Green incident which White broke up. And as Bowman told Dyer
when interviewed, the trucking industry is a course one. Bowman advised he doesn't listen to
some of the name calling and employees have to vent without getting physical.
So in the face of these stated and offered legitimate business reasons, in
adjudging the evidence on the issue of claimant's burden to establish the protected activities were
more likely than not the reason for the adverse suspension actions, the context and total content
of the circumstances in which all these words were uttered have to be known and considered. As
on a dual motive analysis such must be known and considered to determine if the employer's
burden of persuasion is met, if it would have taken the same actions even in the absence of the
protected activities.
Since the derogatory profanities-ethnic slur of Allegation I are essentially
Contreras' word against Germann's, with no one else privy to their conversations, the result is no
one can know or adjudge with any certainty or on a more likely than not basis, whether and when
the three words of Allegation I were directed at Contreras in derogatory manner. Only Contreras
and Germann know. However CalMat elected to immediately suspend based on Contreras' word
alone and then after more than three weeks on suspension to finalize a more than 22-day without
pay suspension based on Contreras word and Dyer's opinion following investigation Contreras
was very credible.
CalMat points out English is Contreras' second language. However,
notwithstanding this fact Contreras, in person, by how he expressed himself on the stand, by
what and how he said it, conveyed the impression he is a man who does not lack the ability to
express himself, and to do and to say what he wants or what will achieve his own interests in
any circumstances in which he finds himself. He impressed as well able to judge the situations
this record reflects he played a part in and was placed, and to act to serve and express himself as
he wants to.
Contreras' in-person impression of a man well able to handle and represent
himself to serve his purpose, a man who does what he wants to do was reinforced by review of
what Contreras said in the several post-5/1/98 interviews. It was reinforced by review of what
the CalMat records reflect his co-workers said he said to them through 5/5/98 about the
Germann--Contreras encounters which served as the basis for Germann's immediate suspension,
although generally not date specific as to when said over the relatively short 4/27/98-4/30/98
time period so recent to the interviews. This impression was reinforced also by Vallese's and
Sengle's testimony.
Contreras did not come to White to complain about Germann as he
testified and in his 4/30/98 statements to White and to Dickerson on the Germann encounters in
which these words were used, Contreras related only two encounters, with
"chihuahua" used in one. It was only after Germann had been suspended, after
Contreras had had his visit with upper level management and after the Dyer investigation was set
in motion that Contreras days later related two other such encounters, neglecting to advise
CalMat of the Germann apology until second interview. By the CalMat recordings and
arbitration testimony, these additional incidents were related in as general a fashion as his STAA
testimony. These unexplained facts do not well serve Contreras' credibility.
The lack of details as to the context, circumstances and content of most of
his several Germann encounters in the four days before White spoke to him 4/30/98, and
particularly Contreras' post-5/1/98 addition of two more such incidents, with his testimonial
verbalization of only "all this stuff" may be a function of how the questions on these
events had been asked by Dickerson and Dyer. While in no manner should this evaluation be
viewed as holding a witness or speaker to full or complete details or information as to events or
statements, nevertheless some information other than generalizations should be disclosed to
convey an appreciation for the context and circumstances in which the charged statement were
voiced. Contreras' testimony did not overall impress as fully reflecting the context in which the
controverted profanities and "chihuahua" were expressed, and his testimonial
representation Germann approached him with no preliminaries, for no reason and solely to direct
these words at him is not credited. His own testimony as to one such occasion would reflect
Contreras preliminarily approached Germann for some unstated purpose.
The various employee interviews indicate Contreras, in relating to his
coworkers his four day experiences with Germann did not consistently report that they were
acrimonious, with Germann swearing at him and calling him "chihuahua." But to
some he did report acrimony and cursing, to few did he report the "chihuahua" and
some of Contreras reportings to fellow employees occurred after Germann had been suspended
and before Dyer's interviews. Tr. 428-29. Contreras was selective in who he reported to and
what he reported. To only Ellwood did he state Contreras flipped on his water valve and flipped
his throttle. Ellwood did not reflect this under oath at arbitration. And to one interviewed
employee Contreras gave the impression Contreras blew up at at Germann, which may also be
the implication of the abovenoted Germann remark in the Castro interview.
Moreover Contreras failed to tell employer until 5/5/98 that in their last
not unfriendly encounter prior to Germann's suspension, Germann had told Contreras he was
sorry he had hurt Contreras' feeling, a fact of no significance to CalMat when they decided to
continue Dyer's investigation and Germann's suspension until 5/22/98. This Germann pre
5/1/98 apology to Contreras, like their 5/11/98 letter of resolution, made no difference to
employer's pursuit of evidence to support the suspension, or to the level of severity of the
disciplinary suspension ultimately imposed 5/22/98, more severe than imposed in the Lewis-
Sengle or Buckley-Hartwell incidents, or on Gunther.
Contreras' testimony and the post 5/1/98 manner of securing and recording
Contreras' statements to Dyer on the additional Germann-initiated incidents beyond the initial
encounter of 4/27/98 and the early a.m. standby knock on the window incident, including any of
the other encounters where Contreras testified Germann directed the derogatory words of
Allegation I at him do not persuade that in fact Germann initiated these encounters or directed
any of these words at Contreras in any derogatory or "in your face" manner as
described by Dyer.
In this regard Contreras testified Germann told him he had no
"huevos." But White's 4/30/98 statement contains no indication Contreras told White
Germann said this; nor does Dickerson's 5/1/98 advice to Dyer. This word, and its reference, is
not one to be left out of a derogatory language recitation four days after its utterance, if actually
stated as testified. But the "note jottings," by content and inference, reflect these
words evolved during Dyer's questioning, four days after Germann's removal from the work site
based on Contreras' visit to "upstairs" CalMat managers, when Contreras knew he
had their support. While Contreras may believe this was the import of Germann's statements as
to how Contreras handled Gunther's request, the word attributed in testimony to Germann
evolved in and from Dyer's manner of interview.
Then there is White's testimony, led on direct in employer's presentation,
that an employee, Morgan, approached him just the day before White's STAA testimony, to
volunteer he had "some time ago" referred jokingly to Contreras as
"Chihuahua." For this he apologized to Contreras when Contreras "seemed to
take offense to that. Tr. 311-12, 327-28. The timing of White's securing this information and this
organ approach, as represented at hearing and on overall evaluation, struck as odd and
disquieting given the information sought on this word's work usage in Dyer's investigation.
White's testimony as to his belated acquiring of this information did not serve to enhance his
credibility. It is a circumstantial factor bearing on employer's investigative motive. And it is
noted it was only after Germann on 5/4/98 advised Dyer Contreras had been called
"Chihuahua" at work, a fact not mentioned by Contreras the day before or its work
usage then questioned by Dyer, that Contreras on 5/5/98 reinterview advised he had been called
"Chihuahua" at work. By Morgan, a couple of times and jokingly. Contreras did not
on 5/5/98 indicate any Morgan apology, or in his testimony any stop request of Morgan. Tr.
254-55.
These are among some of the reasons Contreras' testimony, these CalMat
recordings and Dyer's testimony give pause to an evaluator in determining reliableness and
trustworthiness.
White's presentation and the evidence in its entirety reflect it was White's
recontact with Contreras, which immediately preceded Germann's suspension, White's necessity
to follow up on Germann's continued pursuit of the management actions which caused the
overhours violations, which resulted in the information White secured from Contreras, the basis
of Germann's immediate suspension and Allegations I. Based on only two occasions, on
successive days, plus the sabotage accusations.
However as of this White interview White knew, from Germann himself
and from Contreras, that Germann intended to pursue not only the internal complaints he had
made to CalMat management, but complaints to the CHP, DMV over the safety rules violations
and management's handling of his complaints, and that he would engage the union on these
overhours violations by union members at management's request, all arising out of and founded
in protected activities under the STAA, the trucker driver safety rules.
White had previously told Contreras he did a good job for the company
when he violated the driver safety rules under the circumstances of Gunther's requests, albeit he
told Contreras it was wrong. And his 4/30/98 questions of Contreras could leave the impression,
including with Contreras, the importuned driver's judgment as to fatigue and the importuned
driver's determination it is safe to do so determines whether he should accede to a manager's
request, or direction he should do his job, having turned management's initial request down
because safety overhours violations would result. White in this conversation, and by what he
said to Contreras in his initial contact, was sending mixed messages to Contreras. Pushed is a
word which tells little and is a conclusion unless details are elicited as to what actually happened
in the 4/24/98 Gunther requests and events. And by what is presented in this record White's
investigation of the overhours violations was superficial.
White did not handle Contreras' accusations of derogatory profanities in
two incidents on two successive days including the ethnic slur accusation the way he and
CalMat management had handled not so dissimilar employee exchanges, nothwithstanding EX2
and Human Relations' function. Tr.309:19-310. Exchanges where there was direct corroborating
evidence, as in the Lewis-Sengle incidents presented.
Against these factors, the factfinder is persuaded as follows given the
timing and circumstances of the oral suspension and both White's and Contreras' manner and
impression on testifying: It was at Transportation Manager White's behest and suggestion, and
not on any Contreras complaint or request that White took Contreras to upper management
4/30/98. This occurred in a conversation with Contreras ostensibly about Gunther's having
pushed the safety rules violations, but which elicited no information on which any judgment as to
this fact could be determined. A conversation which drew Contreras out on Germann, but
without any attempt to secure any or full details as to how the violations occurred or the
circumstances in which the derogatory words/slur and sabotage occurred. In a conversation
where White knew such accusations were part and parcel of events which Germann had advised
both White and Contreras he was pursuing to outside authorities as safety violations in which
Contreras was a percipient player. Employer's presentation does not persuade that Contreras'
"complaint" about Germann, the basis on which they represent their suspension
actions had to be taken, was an unsolicited and uninvited action by Contreras.
CalMat argues Contreras complained to his union as evidence of the
Germann harassment for which the suspensions were imposed. Contreras testified he sought
Ward because Germann was "bothering" him. He testified this occurred before
Germann's first apology. Contreras did not delineate how he described Germann's
"bothering" to Stillwagen. He left unclear whether this contact, because of
Germann's "bothering," was due to Germann's cursing him, or because Germann
told Contreras he was taking him to the union because of his overhours violations and whatever
were Contreras responses to Germann when they discussed the driver safety rules during which
Germann made the statement about
Contreras working elsewhere if Contreras did not want to follow the safety rules as the
Teamsters did. Contreras' quitting references, which assume significance in employer's
arguments, arose out of the Germann-Contreras driver safety rules and violations discussions and
how to handle a manager's request to violate the rules. To the extent Contreras' testimony tied
his quitting reference to his crying wife and children so affected by his advice to them of
Germann's complaints about the violations, this struck as embroidering by Contreras, an
impression enhanced by the Vallese-Sigler presentation..
White elected not to resolve the matter between Germann and Contreras in
the manner he had at first told Contreras he would, and had done in a prior employee swearing
at/slur utterance situation. White, the investigator of the safety rules overhours violations took
Contreras to higher management officials having conducted no investigation on the focus of
Germann's protected activities complaint and without securing the "pushing"
specifics and circumstances disclosed in Dyer's investigation and STAA presentation. With
Coley's involvement in the subsequent Dyer investigation, contrary to his testimony, Coley who
well-knew the basis of Germann's protected activities complaints which involved Contreras, and
given the way Coley testimonially reflected his discussions with Dickerson and what transpired
at "upper management" on White's arrival with Contreras, three days later, the
record in its entirety does not persuade on a more likely than not basis and by the preponderance
of the evidence that Germann's protected activities complaints, notwithstanding Coley's
disclaimer, did not play a part in the decision to both immediately suspend and later impose the
disciplinary suspension.
The fact finder's reservations as to the manner in which Dyer conducted,
recorded and recalled the employee questioning, and on the investigation, an investigation in
which White. on a basis unattested to by White, advised Dyer/Bruzzi pre-interview which
employees to question, and contacted and talked to these and other employees, have been set out
above. Then in evaluation Dyer's actions in response to the 5/11/98 letter of resolution and his
statements to Stillwagen are also weighed to determine both Complainant's burden of
persuasion as well as whether employer, in the absence of Germann's protected activities, would
have taken the adverse suspension actions
At hearing when Dyer was questioned as to his "work to
rules"references he indicated he did not include in this term the safety rules which are the
subject of STAA protection and at issue in Germann's protected activities complaint. However
Dyer's testimony at times left the uneasy impression this witness was melding his view of his
"work to rules" expressions, which he described as a slavish adherence to work rules
so as to slow the company's operations, with the driver safety rules which gave rise to the
4/24/98 violations, ensuing events and this proceeding.
It was on detailed review of how Dyer conducted the employee interviews
of his investigation and when his testimony on these interviews and the information he testified
he secured was measured against this documentation, including on the "slowdown"
factors of Allegation III; and when how he responded to the 5/11/98 resolution letter and to
Stillwagen's inquiries and responses thereafter, was compared to how he recorded and viewed
Vallese's detailed statements to him on the specifics of Contreras' conduct, that Dyer's manner
and purpose of in his investigation gave even greater pause.
Dyer's Stillwagen correspondence, part of his suspension investigation,
reflects Dyer injected into this investigation his and/or CalMat's beliefs from the recent past
history between the union and company in contract negotiations. Stillwagen's response to what
Dyer stated transpired 5/4/98 when Dyer questioned Germann in his presence, by Bruzzi's note
jottings, impresses as a fair statement as to how Dyer conducted this interview. Dyer's reactions
to the 5/11/98 resolution letter with his EX 60 discovery-type requests, have an adversary flavor,
with Dyer's letter injecting past contract history and current union-management difficulties into
this investigation. It echos the impression from Dyer's suggestive interview questions on which
the "slowdown" charges were based, and his pursuit of the CalMat jacket topic with
Contreras, pre and post 5/11/98 resolution letter, the jackets a past contentious union-
management issue.
Dyer did not come to the Germann investigation as an outsider or
disinterested party. He knew and had been involved with Germann in the recent past, on union-
management negotiations. Evaluation of Dyer's manner of recording the investigation does not
hold him to a verbatim recording of the employees' statements. However given how his
testimony on his interview recollections against the jottings impresses, the grave reservations it
at times raises, it would appear a longstanding Human Relations investigator would memorialize
statements made in a fashion better reflective of what the interviewee said, with more precision,
either at interview or in relative contemporaneous write-up from raw note jottings. And while
Dyer testified his standard procedure is to advise the employee at interview's outset that his
statements will not be the basis for action against him, the recordings do not so indicate. As
complainant pointed out, at the time of the interviews and questions about the use of
"chihuahua" it was known at the site that Germann had been summarily suspended
because of an accusation such had been used.
A disciplinary suspension notice after investigation which in effect
reflects only conclusions as to the use of stated derogatory words, like conclusional statements
as to ''slowdown'' events, gives the appearance of a lack of documentation and specifics. At the
least it impresses as a poorly drawn reflection of an investigator's work, where specifics as to the
particular events and interview statements on which the charges are based is a reflection of
support and thoroughness. While interview statements were made, they were not used with
specificity in the notice. And as reflected within, they are in many instances found not to be
necessarily or in fact supportive of the notice's conclusions. When the notice's statements as to
why CalMat, notwithstanding their "slowdown" conclusion, was giving Germann
another chance are viewed against the employees' statements on which this conclusion is
represented to be based, Germann acts alleged to have occurred some months before and
employee acts which did not take place, these employees' statements, a mystery in the notice, do
not necessarily or in fact state Germann did what CalMat in this notice accuses him of doing.
Also of significance in dual motive weighting is the fact of the more than
22 day length of the suspension imposed, severe beyond the criteria of the firm's progressive
discipline standard. The length of time Germann was continued on suspension, including
because of Dyer's responses to Stillwagen is of significance. Then that this important Human
Relations notice, drawn up on ostensibly careful review of the firm's records by its Human
Relations office, would err in its listing and consideration of prior disciplinary actions which
significantly affect the action taken also does not reflect well on the integrity of the process.
To the extent it is represented there was physical aggression, or a threat in
the "window knocking" encounter, the record including how Contreras described
what happened and how he was reclining in his truck, on a more likely than not basis does not
indicate that what occurred in Germann's approach was a physical threat or that physical
aggression occurred. Contreras in 4/30/98 interviews did not relate anything about the jacket
"rip jacket off" statement as perceived physical aggression, interviews in which he
was reporting perceived throttle and water tank threats. Only when Dyer drew Contreras out at
subsequent interview about an alleged three months prior Germann statement did it evolve into a
stated physical aggression threat.
Nor was Contreras' testimony his family life and emotions were affected,
he lost sleep because of the Germann events particularly convincing, including when the
Vallese-Sengle testimony on his conduct was heard. Then when record review indicated these
events occurred over but four days ending with Germann's apology; there was no reflection of
any such affects in his statements to fellow employees or in the Dyer/ Bruzzi Contreras
interview notes, but there is a note Contreras, in describing his experiences with Germann,
referred to his wife by indicating Germann was a worse nag than his wife, the persuasiveness of
these Contreras representations was not enhanced. There is a pretext aura to these
representations. The fact he would so represent, in juxtaposition to the Vallese testimony as to
how he conducts himself only served to add discount weight to Contreras' representations
overall.
The ostracism contentions, and the argued Germann responsibility for
such are not very convincing given the evidence, evidence which shows drivers' dissension and
differences of opinion pre-existing the 4/24/98 events and thereafter, including references to
"union man" and "company man" and interview indications Contreras
referred to himself to fellow drivers as a "company man." There is no factual basis
for belief, despite Dyer's opinion to the contrary and Cal/Mat's argument, that Germann in his
pursuit of his protected activities complaints was not genuinely concerned with the safety rules'
application at CalMat, or that he did not strongly believe the drivers who violated the law at
Gunther's request, or in similar circumstances were wrong under the driver safety laws and the
violators were responsible to their fellow drivers. So it is not too persuasive when CalMat argues
that what followed among the drivers, that any adverse reactions Contreras experienced among
his fellow drivers, and Germann's advice to Contreras he should apologize to his fellow drivers
who did not violate the law that night, is somehow supportive of their Contreras harassment
legitimate business reasons and reflects adversely on Germann's safety concerns credibility.
These events and reactions were the result of Germann's pursuit of and his vocalizations to the
drivers on the violations, and his suspension. As with employer's argument Germann revealed
himself a liar in his certified return receipts actions and testimony, these arguments carry little
weight when the entire circumstances and facts are considered.
It seems inconsistent that Dyer was "suspicious" of Contreras'
statement he had settled the Germann matter because Dyer thought Contreras might have felt
pressured, yet it didn't occur to Dyer that Vallese might have felt "pressured" to
resolve the matter because the other men might have held any complaint against her. See
TR: 856. In the face of the 5/11/98 resolution letter between the employees and with
knowledge of Germann's pre 5/1/98 apology to Contreras for hurting his feelings, CalMat
elected to pursue both suspension actions here.
Dyer's explanation of why he did not investigate Vallese's claim is
inconsistent with his handling of the Germann/Contreras matter. Dyer testified that Vallese
"was satisfied with the way things were, and because the behavior had stopped and I didn't
see any reason for the company to do anything else." TR: 708. In the Germann matter,
however, Dyer stated he had a "moral" obligation to follow up, even though
Contreras voluntarily signed the letter stating the two men had worked things out. Further, Dyer
stated he did not investigate Vallese's claim because, "there was not cause to in my
mind... she did not come and bring this information to me in the form of a complaint." TR:
709. Contreras did not file a complaint in the Germann matter, either. It wasn't until Contreras
during the protected activities investigation was talked to by White, in the manner described and
evaluated within, that the incidents with Germann were mentioned and Contreras, canny to the
situation as he was in the Vallese-Sigler events, was engaged by CalMat management.
Also, Dyer's notes and recollection of the Vallese matter seem inadequate
compared to those taken in connection with the Germann matter and as indicated within are not
correct reflections of what he was told by Vallese. He stated he did not know how many times
the offending behavior occurred, or over what period of time. He incorrected stated that
"she never said that she objected to it or [was] offended by it," yet he knew she asked
another employee to ask Conteras to stop, and she found the behavior offensive enough to bring
it to Dyer's attention. It is also curious Dyer did not think Contreras' behavior was
"sexual harassment," (TR: 714) especially considering he found in another unrelated
incident that the comment "the bathroom needs cleaning. You need to go do that"
had a "sexual element." TR: 839. It is also inconsistent that Dyer had "a
moral and ethical duty" to follow up on the Germann matter because an ethnic slur is a
violation of company policy, yet it "did not occur to [him]" that Contreras' alleged
behavior toward Vallese could be a violation of CalMat's sexual harassment policy. TR: 715-
716. That Dyer would remember Contreras was tearful but would not remember that Vallese
was crying when she talked to him about Contreras' actions, made one wonder about Dyer's
investigative technique.
For all these reasons, the preponderance of the persuasive evidence
indicates Complainant's protected activities were the more likely reason for both adverse
suspension actions. It is so found and concluded. It is also found and concluded on a weighing
under the dual motive analysis criteria that CalMat has not persuaded by a preponderance of the
credible evidence that absent Germann's
protected activities the adverse suspension actions taken, on 5/1/98 and 5/22/98, would have
occurred. The presentation persuades by the more credible evidence that but for Germann's
protected activities the adverse actions of 5/1/98 and 5/22/98 would not have been taken by
White, Coley, Dickerson and Dyer, by the deciding Cal Mat managers and officials.
.
This decision is based solely on these two 5/98 adverse personnel actions
and on the evidence as to the events and facts in 4/98 and until 5/22/98, fully developed at this
proceeding. All evidence of record has been considered on these events and facts.
Attorney Fees
Since the STAA provides a successfully Complainant receive all of his
reasonable attorney fees and costs, the Complainant is entitled to such. However such expenses
are not recoverable unless and until the Secretary's order is issued in Complainant's favor. Thus
this issue and the resolution of any dispute over attorney fees and costs will be deferred until
after the Secretary of Labor's order.
Based on the above specific findings of fact and recommended conclusions
of law the following RECOMMENDED ORDER is issued:
ELLIN M.O'SHEA
San Francisco, California
1At the time of the STAA hearing he
was employed elsewhere as a water truck driver. Tr. 112.
2To date, there is no indication the
OSHA Administrator has issued findings on the termination complaint.
3Described as a sales agent, Tr. 10
4By California Highway Patrol
regulation, intrastate motor carriers shall not permit or require any driver to drive more than 12
hours following 8 consecutive hours off duty, or for any period after having been on duty 15
hours following 8 consecutive hours off duty.
5 There was a specific hearsay
objection regarding what the dispatchers were telling drivers. This is not included to prove the
truth of the matter asserted, but rather to show Complainant's state of mind in reacting as he did
to information about hours violations.
6 Hearsay statements by CalMat
officials are admissible as a statement of a party opponent. TR: 134.
7 Complainant's nickname is Reg
or Reggie.
8Apparently the batch man
controls the cement flow which, according to Germann at Tr. 116, Gunther wanted poured that
night to avoid having to tear up earlier poured cement if not delivered by the overhours
violations. The batch man is not evidenced as a driver's supervisor. See Germann at Tr. 143-33.
.
9By letterhead, principal
executive officer/secretary treasurer.
10 "Rule 17,
"Engaging in Illicit Gossip, Threats, or Derogatory Remarks Directed Toward an
Employee or the Company." Rule 16 "Violation of Any company Policy Including
but not Limited to the Attendance Policy, EEO Affirmative Action Policy, etc." and Rule
15 is "Offensive or Immoral Acts Which Adversely Effect the Interest or Reputation of the
Company or Its Employees." Tr.307, Ex 2.CalMat's Work Rules.
11 Coley stated that Germann's
conduct violated provisions of CalMat's Code of Ethics, found at CX 20. These sections were
read into the record at Tr.363-366.
12 The attested Dyer details of
these events, which Contreras told Dyer 5/4/98, reflected in Dyer's testimony when he was
requested to be specific, are not unlike Contreras' testimony on these events at this STAA trial,
commented on within and below on evaluation. Tr. 444-53.
13See EX 11 Dickerson to Dyer
5/1/98 re Germann cursing in Coley meeting with no indication of violations context.
14This written EX 79
suspension notice states, in relevant part, after preliminarily stating "the allegations [were]
made against you by Mr. Contreras and other employees:"
EX 79 (Italics in original).
15In testimony indicated as the
sign for "fuck you."
16Transcript cite may be to the
beginning of Dyer's testimony reading his, or his associate Bruzzi's, handwritten recordings or,
for reference, to the approximate point in the transcript where he testified as to what occurred
with each interviewed employee for which these business records were introduced. CalMat
posited these recordings reflect the methodology and thoroughness of CalMat's investigation
post 5/1/98 oral suspension.
17White's limited-in-detail
STAA testimony on the events which impacted the deciding suspension issues here has been
considered and weighed in fact finding and credibility. Along with his arbitration testimony
which reflected scant details on the facts and circumstances of the Contreras-Germann
encounters, and how on 4/30/98 he took Contreras to talk to Dickerson. ALJ 31B 15-30 of
arbitration proceeding.
18Brussi was a labor relations
specialist working for Dyer who sat in on most of the interviews with no indication Bruzzi asked
any questions. Bruzzi did not testify. Bruzzi's notes on these interviews are evidenced, as are
the notes Dyer separately recorded on most of the interviews, but not on the 5/4/98 Contreras and
Castro interviews, 5/5/98 Bowman interview. None of the Dyer-Bruzzi notes were evidenced or
discussed at the arbitration proceeding. EXs 22-26. Dyer termed these notes "note
jottings."
19The record establishes
Germann's statement as to taking Contreras to the union arose out of Germann's 4/24/98 hours
violations complaint.
20 On cross, CalMat's
attorney asked whether "the current management was in place" at the time of this
incident. Buckley stated it was not. It is not clear what is meant, however, by "the current
management." CalMat did not elicit information as to whether there are different
individuals currently in management, the management structure itself changed, or if there are
different management guidelines currently in use.
21 Mother fucker.
22It is noted that while White
recorded 4/30/98 Contreras said he was thinking about quitting, by Coley's testimony Contreras'
"thinking about quitting," a factor employer emphasizes as to Contreras' state of
mind was only implied to and by Dickerson. Tr. 336.
23Tr.25-28, employer's pre trial
brief.
24Including peace in the work
environment this record reflects.
25While it is indicated
Contreras in the first Germann-Contreras encounter was apologetic for his 4/24/98 actions, part
of the evolving discussion between them at the time involved how drivers' should respond to
management's requests to violate the driver safety rules. About this they differed, Contreras
indicating the company's request and need determined what the driver would do.
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Administrative Law Judge