Donovan v. Peter Zimmer America, Inc., Civ. A. No. 78-1010-0.

• Decision Date: 29 June 1982
• Docket Number: Civ. A. No. 78-1010-0.
• Citation: 557 F. Supp. 642
• Court: U.S. District Court — District of South Carolina
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. PETER ZIMMER AMERICA, INC., a Corporation, Defendant.

557 F. Supp. 642

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. PETER ZIMMER AMERICA, INC., a Corporation, Defendant.

Civ. A. No. 78-1010-0.

United States District Court, D. South Carolina, Spartanburg Division.

June 29, 1982.

William H. Berger, U.S. Dept. of Labor, Atlanta, Ga., Andrea C. Casson, U.S. Dept. of Labor, Washington, D.C., for plaintiff.

Donald E. Jonas, Jonas & Jonas, Columbia, S.C., for defendant.

ORDER

MATTHEW J. PERRY, Jr., District Judge.

This action was commenced against the defendant by the Secretary of Labor pursuant to Section 11 of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.). The complaint alleges that the defendant, a corporation doing business within the jurisdiction of this Court, is engaged in a business affecting commerce; that on May 31, 1977, officials of the Division of Occupational Safety and Health of the South Carolina Department of Labor inspected the defendant's premises at Spartanburg, South Carolina pursuant to a complaint filed by an employee of the defendant; that on June 13, 1977, Olan Foster, Jr., an employee of the defendant filed a complaint with the South Carolina Department of Labor in which he alleged that he was being harassed in his employment because of the May 31, 1977 OSHA inspection; that on June 30, 1977 three of the defendant's employees, John Upton, Douglas Walker and Olan Foster, Jr., were discharged from their employment and that the said discharges constitute violations of § 11(c) of the Act. Plaintiff therefore seeks an Order requiring the defendant to reinstate the employees above named with back pay and interest and an Order enjoining the defendant from committing further violations of § 11(c) of the Act.

In its answer the defendant denies any violation of the Act and asserts that Upton, Walker and Foster were discharged because of misconduct on their part including absenteeism. Defendant also asserts that the matters and things complained of in the complaint have been fully considered by the South Carolina Department of Labor and decided adversely to the above named employees and that, hence, the plaintiff is collaterally estopped from proceeding on its complaint in this Court.

The matter was tried before the Court without a jury. Having considered the evidence, the demeanor of the witnesses and the briefs and arguments of counsel, I find as follows:

FINDINGS OF FACT

1. Defendant, Peter Zimmer America, Inc., is a corporation with an office and place of business in Spartanburg, South Carolina.

2. Defendant is engaged in the production of textile machinery, which is generally manufactured in Austria (Tr. 250, 584). The operation in the United States is primarily involved in the production of spare and replacement parts for the machinery (id at 252).

3. On September 13, 1976, John Upton was hired by defendant as a machinist at the rate of $5.40 per hour (Tr. 35). At the time, he had been a machinist for approximately 15 years (id at 37).

4. On September 20, 1976, Douglas Walker was hired by defendant as a machinist apprentice at the rate of $3.75 per hour (Tr. 402, 404).

5. On October 11, 1976, Olan Foster, Jr., was hired by defendant as a machinist at the rate of $5.40 per hour (Tr. 320). He has been a machinist since 1959 (id at 322).

6. At the time each of the three men were hired, no written company rules or personnel policies were supplied (Tr. 38, 166, 323, 407, 490, 511-512). The men were orally told, however, that if they were to be off work, i.e., off the clock, then permission should be obtained (id at 39, 232, 407, 490, 513-514).

7. During their employment, Mr. Upton, Mr. Foster and Mr. Walker were the only employees directly involved in the in-shop manufacturing of the replacement and spare parts for the machinery (Tr. 39, 85-88, 324). Mr. Ralph C. Crocker was the foreman of the parts shop (id at 38, 84, 410, 484), and Mr. Michael Mesardjian was the parts stockperson or storekeeper (id at 231, 461). These five persons worked in the "back" part of defendant's Spartanburg facility. Mr. Ruediger Koch was executive vice-president of defendant and in overall charge of the South Carolina operation (id at 163-164).

8. On May 31, 1977, a health inspection of defendant's premises was conducted by Compliance Officer Gerald A. Reeves of the South Carolina Department of Labor, Division of Occupational Safety and Health (Tr. 42, 305, 412). The inspection was conducted pursuant to a complaint filed with the South Carolina Department of Labor by an employee of defendant (id at 305) and Mr. Koch was so informed (id at 176, 183, 318). A copy of that complaint, with the complainant's name omitted, was left with Mr. Koch (id at 177, 308-309, 318; Defendant's Exhibit 16). Mr. Koch asked Mr. Reeves to identify the complainant, which Mr. Reeves declined to do (id at 180, 314).

9. The complaint alleged that there was improper ventilation of fumes during welding, no ventilation in the restrooms and other unspecified minor violations (Tr. 176, 307, 411; Defendant's Exhibits 16 and 17).

10. The health inspection conducted on May 31, 1977, resulted in the finding of no violations for the following reasons:

(a) there was no welding being performed on that day, thus there was no way to measure fume levels or ventilation of the fumes;

(b) there is no employee health or safety standard relating to ventilation in restrooms; and

(c) there was no way to deal with unspecified minor violations (Defendant's Exhibit 18; Plaintiff's Exhibit 19).

11. During the course of his inspection, Compliance Officer Reeves interviewed Mr. Upton, Mr. Foster and Mr. Walker individually in foreman Crocker's office concerning the complaint and the working conditions (Tr. 43, 309, 313, 326, 412), a fact of which Mr. Koch was aware (id at 177-178). The Compliance Officer did not interview Mr. Mesardjian (id at 463). The only persons who were likely to have been affected by fumes from welding would have been Foster, Upton, Walker and Crocker who worked in the back section (id at 488-489).

12. After the completion of the safety and health inspection, Mr. Koch separately called John Upton, Olan Foster and Mike Mesardjian into his office and asked each of them whether he had filed the OSHA complaint (Tr. 44-45, 181, 203, 327, 463). Upton, Foster and Mesardjian denied making the complaint (it had in fact been made, in writing, by Douglas Walker (id at 410-411)) and refused to tell Koch who had filed the complaint (id at 45, 119, 327-328, 463). Koch told Foster directly that if Foster did not tell Koch who filed the complaint, Koch would fire Foster (id at 327, 368, 493 cf. 181). Mr. Walker was called into Mr. Koch's office the next day because he was also suspected of making the complaint (id at 252), and when asked, denied phoning in a complaint because he mailed it in. Mr. Mesardjian also denied making the complaint and was told that Mr. Koch believed him (id at 463).

13. The day after the OSHA inspection, Mr. Koch called the South Carolina Department of Labor in an effort to find out who had filed the OSHA complaint. When he was told that this information could not be given out, he asked whether it was one of his employees. Koch read off a list of the approximately 13 current employees and was told it was one of the persons on the list (Tr. 185-186).

14. Mr. Koch admitted he went to great lengths to find out who had filed the complaint (Tr. 186), and was clearly displeased, angry and upset over the filing of the complaint (id at 46, 127, 328, 413, 492).

15. Within a few days after the OSHA inspection, Mr. Koch instructed the foreman to inform the workers in the back that they no longer could use the telephone for incoming or outgoing calls because of the OSHA complaint (Tr. 47-48, 190-191, 329, 354-355, 414-415, 495-496).

16. Within one week after the OSHA inspection, the air conditioning in the back section of defendant's facility was turned off and the back loading door was ordered to be left open (Tr. 47-48, 49, 188-189, 206, 329, 414, 495). Mr. Crocker testified that Mr. Koch made it appear that the turning off of the air conditioner was in retaliation for the OSHA complaint (id at 495, 508-509). Because of the heat generated by the running of machinery and welding, with no ventilation, it became very hot and uncomfortable in the back section with temperatures over 100 degrees Fahrenheit (id at 50, 191-192, 193, 334, 415, 496). Mr. Crocker was told he could get an air conditioner for his office at company expense (id at 496).

17. Both before and after the OSHA inspection, Foster, Upton and Walker complained to management about the lack of any ventilation for fumes while welding (Tr. 40, 325, 347-348, 409, 422-423, 487-489). They requested a smoke vent or at least floor fans, but no relief from the fumes was ever provided up to the time they were discharged on June 30, 1977 (id at 325, 448, 469, 489).

18. Subsequent to the OSHA inspection, and particularly after the interrogation of Foster, Upton and Walker, the relationship between the three and Mr. Koch, which was cordial up to that time, cooled off considerably, although no specific incidents occurred and the three men's work did not suffer (Tr. 50, 193, 325, 334-335, 497, 532).

19. By letter dated June 13, 1977, Mr. Foster wrote to the South Carolina Department of Labor alleging harassment on the part of Mr. Koch because of the threats from Mr. Koch, the air conditioning being turned off and the phone privileges being taken away (Tr. 330-331, 367; Plaintiff's Exhibit 12).

20. On June 28, 1977, Mr. Upton requested permission from foreman Crocker to return late from lunch the next day because he wanted to go to a Pizza Hut approximately four miles away (Tr. 52-53, 91). Driving time each way was approximately 10-15 minutes (id at 52-53, 336, 497). On June 29, 1977, Mr. Foster, Mr. Walker and Mr. Mesardjian joined Mr. Upton for lunch (i...