Appeal of Osram Sylvania, Inc.

• Court: New Hampshire Supreme Court
• Writing for the Court: JOHNSON
• Citation: Appeal of Osram Sylvania, Inc., 706 A.2d 172, 142 N.H. 612 (N.H. 1998)
• Decision Date: 27 February 1998
• Docket Number: No. 96-194,96-194
• Parties: , 13 IER Cases 1404, 1998 O.S.H.D. (CCH) P 31,527 APPEAL OF OSRAM SYLVANIA, INC. (New Hampshire Department of Labor).

Page 172

706 A.2d 172

142 N.H. 612, 13 IER Cases 1404, 1998 O.S.H.D. (CCH) P 31,527

APPEAL OF OSRAM SYLVANIA, INC. (New Hampshire Department of Labor).

No. 96-194.

Supreme Court of New Hampshire.

Feb. 27, 1998.

Ransmeier & Spellman P.C., Concord (Steven E. Hengen, on the brief and orally, and R. Matthew Cairns, on the brief), for petitioner.

Kenneth A. Silverstein, Haverhill, MA, by brief and orally, for respondent.

JOHNSON, Justice.

The petitioner, Osram Sylvania, Inc., appeals a decision of the New Hampshire Department of Labor (NHDOL) that it violated the New Hampshire Whistleblowers' Protection Act (Whistleblowers' Act), see RSA ch. 275-E (Supp.1997), when it discharged the respondent, L. Cletus Kijek, in July 1995 for filing a complaint with the United States Occupational Safety and Health Administration (OSHA). We affirm in part, vacate in part, and remand.

The following facts were adduced at the NHDOL hearing. In the summer of 1995, Kijek was employed at Osram's production plant in Exeter. On more than one occasion, Kijek complained to his supervisor that the temperatures where he worked were excessive and reaching dangerous levels. On July 15, 1995, after management failed to remedy the heat problem to his satisfaction, Kijek informed his supervisor that he intended to file a claim with OSHA alleging a violation of 29 U.S.C. § 654 (1994) (OSHA Act). On July 17, 1995, Kijek filed a claim with OSHA's Concord office. He was terminated on July 26, 1995. While Kijek's termination letter states only that it was "apparent" that his employment at Osram was "not acceptable to either party," Osram asserted at the hearing that Kijek was terminated for filing a fraudulent workers' compensation claim and that the decision to terminate him had actually been made in 1994. The NHDOL found Osram's assertions not credible. Kijek filed a complaint pursuant to the Whistleblowers' Act with the NHDOL on August 2, 1995, alleging that he had been terminated in retaliation for filing the safety complaint with OSHA. He filed a similar complaint with the United States Department of Labor (USDOL) pursuant to section 11(c) of the OSHA Act. See 29 U.S.C. § 660(c) (1994). After a hearing on the merits, the NHDOL ordered Osram to pay Kijek back wages and reinstate him to his former position. This appeal followed.

On appeal, Osram argues that: (1) the NHDOL should have deferred to the USDOL's jurisdiction; (2) Kijek failed to satisfy the statutory elements of RSA 275-E:2; (3) Kijek failed to follow the grievance procedures mandated by the Whistleblowers' Act; and (4) the NHDOL erred in ordering Kijek's reinstatement.

I. Primary Jurisdiction

Osram argues that under the doctrine of primary jurisdiction, the NHDOL erred in refusing to defer its ruling pending a decision by the USDOL on Kijek's whistleblower complaint filed under section 11(c) of the OSHA Act. "[W]e have long recognized the doctrine of primary jurisdiction; namely, that a court will refrain from exercising its concurrent jurisdiction to decide a question until it has first been decided by a specialized agency that also has jurisdiction to decide it." N.H. Div. of Human Services v. Allard, 138 N.H. 604, 607, 644 A.2d 70, 72 (1994) (quotations omitted).

Assuming, without deciding, that the doctrine of primary jurisdiction is applicable in cases where two administrative agencies possess concurrent jurisdiction, we find no error. Primary jurisdiction did not vest with the USDOL because its own administrative rules allow for postponement of proceedings by the USDOL and deference to other forums, see 29 C.F.R. § 1977.18(a) (1997), where the claim asserted and factual issues underlying the claim are substantially the same, and "the forum hearing the matter ... [has] the power to determine the ultimate issue of discrimination," id. § 1977.18(b) (1997); cf. Bd. of Trustees v. Keene State Coll. Educ. Assoc., 126 N.H. 339, 342, 493 A.2d 1121, 1124 (1985) (court must defer where statute conferred primary jurisdiction to the PELRB). Here, both the Whistleblowers' Act and section 11(c) claims and the underlying facts are virtually identical. Furthermore, RSA 275-E:4 empowers the NHDOL to render judgment and order the appropriate remedy should it find a violation of the Whistleblowers' Act. Accordingly, by the terms of the USDOL's own regulations, it was appropriate for the NHDOL to proceed with its hearing.

II. Elements

Osram next argues that Kijek failed to establish a prima facie case under the Whistleblowers' Act. RSA 275-E:2 provides in pertinent part:

I. No employer shall discharge, threaten, or otherwise discriminate against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment because:

(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States....

(Emphasis added.) Osram argues that the "record contains no credible, objective evidence that Kijek acted in good faith or had reasonable cause to believe that [Osram] was violating any law when he filed his OSHA complaint."

As a preliminary matter, we agree with Osram that in a Whistleblowers' Act hearing before the NHDOL, the employee bears the burden of establishing discrimination. Cf. Appeal of Briand, 138 N.H. 555, 557, 644 A.2d 47, 48 (1994) (in workers' compensation cases, claimant has burden of proving compensable accidental injury and extent of disability). On appeal, our review is governed by RSA 541:13 (1997). See RSA 275-E:4, II; Appeal of N.H. Dept. of Employment Security, 140 N.H. 703, 708, 672 A.2d 697, 701 (1996). Accordingly, the party challenging the NHDOL's decision must show, by a preponderance of the evidence, that the ruling was clearly unreasonable or unlawful. The NHDOL's factual findings are presumed to be prima facie lawful and reasonable and will not be overturned absent a showing that the record does not contain sufficient evidence to support them. See Appeal of Campaign for Ratepayers Rights, 133 N.H. 480, 483, 577 A.2d 1230, 1232 (1990). Questions of law will be resolved in a way which best effectuates the manifest purposes of the act, see Appeal of Bio Energy, 135 N.H. 517, 519, 607 A.2d 606, 608 (1992); namely, "to encourage employees to come forward and report violations without fear of losing their jobs and to ensure that as many alleged violations as possible are resolved informally within the workplace." Id. at 521, 607 A.2d 606.

Osram first argues that the NHDOL failed to find, and the record does not support, that Kijek acted in good faith in making his complaint to OSHA. We disagree. While the NHDOL order did not explicitly state that Kijek acted in good faith, it did state that Kijek's report of the alleged OSHA violation was "in compliance with RSA 275-E:2 I(a)." While the term "good faith" is not defined in the statute, "[w]e give a statutory term that is not defined its plain and ordinary meaning." Board of Water Comm'rs, Laconia Water Works v. Mooney, 139 N.H. 621, 626, 660 A.2d 1121, 1125 (1995). In the context of the Whistleblowers' Act, we define "good faith" as "absence of malice" and "honesty of intention." See Black's Law Dictionary 693 (6th ed.1990); cf. Texas Dept. of Crim. Justice v. Terrell, 925 S.W.2d 44, 60 (Tex.App.--Tyler 1995).

Ample evidence supports a finding that Kijek reported the alleged violation to OSHA in good faith. There was testimony that Kijek had reported the alleged violation to his supervisor on more than one occasion, and filed the complaint with OSHA because he believed that "the company just didn't seem like they were going to do anything." Furthermore, Kijek had made complaints to OSHA in the past, some of which resulted in remedial action by Osram. While Osram argues that Kijek's act was simply another complaint filed in the course of an acrimonious employment relationship, we defer to the NHDOL's conclusion if it is supported by the record. Cf. Appeal of Campaign for Ratepayers Rights, 133 N.H. at 483, 577 A.2d at 1232. Whether or not we would have reached a different conclusion, based upon the weight of the evidence, is of no consequence since we will not substitute our judgment for that of the NHDOL. See id.

Osram next argues that no evidence supports a finding that Kijek had reasonable cause to believe that Osram was acting unlawfully when he filed the OSHA complaint. Whether an employee had "reasonable cause to believe" is an objective question; namely, whether "a reasonable person might have believed that the employer was acting unlawfully." Bard v. Bath Iron Works Corp., 590 A.2d 152, 155 (Me.1991). Osram argues that the NHDOL's findings were based on "Kijek's personal, subjective beliefs and perceptions, and are insufficient to meet the [Whistleblowers' Act's] requirement of objective basis." While a November 1995 investigation of Osram's plant failed to find a violation of OSHA's safety standards, the Whistleblowers' Act does not require an actual violation, but only that the employee's belief that the law was violated was objectively reasonable. Cf. Appeal of N.H. Dept. of Employment Security, 140 N.H. at 711-12, 672 A.2d at 703. We conclude that the record supports a finding that Kijek's belief that the heat at the plant was dangerously excessive in violation of OSHA standards was objectively reasonable. Specifically, OSHA stated in a letter to Osram that "some conditions were observed which, although not violative of the standards, are considered significant enough to be brought to your attention with the intent of encouraging your efforts to reduce exposure." Midday temperature...