Donovan v. Freeway Const. Co.

• Citation: 551 F. Supp. 869
• Decision Date: 17 November 1982
• Docket Number: Civ. A. No. 79-0350.
• Parties: Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. FREEWAY CONSTRUCTION COMPANY.
• Court: U.S. District Court — District of Rhode Island

551 F. Supp. 869

Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor v. FREEWAY CONSTRUCTION COMPANY.

Civ. A. No. 79-0350.

United States District Court, D. Rhode Island.

November 17, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David L. Baskin, Boston, Mass., for plaintiff.

Michael Horan, Pawtucket, R.I., for defendant.

OPINION

SELYA, District Judge.

This is a suit brought by the Secretary of Labor¹ on behalf of William Kuusela, Paul Robinson, Roger Pussinen, and Leonard Pussinen, all of whom were employed by the defendant Freeway Construction Company ("Freeway"). The keystone of the complaint is that the four named employees (hereinafter collectively referred to as "complainants") were discharged as a retaliatory measure for complaints lodged by them in respect to safety and health conditions at a job site in violation of the Occupational Safety and Health Act, 29 U.S.C. § 660(c)(1) ("Act"). The Act prohibits an employer from discharging or discriminating against an employee who files a complaint about health or safety hazards with the employer or with the Occupational Safety and Health Administration ("OSHA"). Jurisdiction is based on 29 U.S.C. § 660(c)(2). Plaintiff seeks injunctive, monetary and other related relief.

The case was tried to the Court on October 26, 27, 28, 1982.

The evidence adduced at the trial makes this litigation, regrettably, a perfect role model justifying the enactment of protective statutes such as 29 U.S.C. § 660(c)(1). When the economic leverage of an employer can be brought to bear to jeopardize the legitimate quest for adherence to minimum on-the-job safety and health standards, the will of the Congress and the salutary objectives of progressive legislation are equally threatened.

Findings of Fact

On September 30, 1977, the Department of the Navy awarded to Freeway a contract² for the performance of certain carpentry and painting work at the Nautilus Park housing complex located at the Naval Submarine Base, New London-Groton, Connecticut. The work required carpentry crews to reverse the existing siding on 500 housing units, whereupon painters were to complete the contract work by refinishing the reversed siding. Both the carpentry and painting effort were within the scope of Freeway's contract.

Charles Clear, the vice-president of Freeway, hired complainant William Kuusela, who was known by Clear to be an experienced carpenter. At Clear's suggestion, Kuusela elicited the interest of the remaining three complainants, all of whom were hired subsequently by Clear to perform carpentry work. When work commenced on or about April 3, 1978, Kuusela was paid $9.00 an hour³ and the other three complainants were paid at a rate of $8.00 an hour. During April of 1978, the hourly wages of complainants Paul Robinson, Leonard Pussinen and Roger Pussinen were raised to equal that received by Kuusela. The Court finds that the pay raises indicate that the three complainants affected thereby were performing their job tasks in an acceptable manner. In addition, the Court finds no credible evidence to rebut the plaintiff's contention that the complainants were competent and efficient carpenters.⁴

Safety conditions on the job are a matter of considerable controversy between the parties. It was the testimony of the complainants, supported by the depositions of two fellow carpenters, that safety concerns were honored considerably more in the breach than in the observance. The evidence adduced by the government demonstrated that a myriad of unsafe conditions existed at the job site, including, but not limited to, the absence of appropriate sanitary facilities, the employment and use of old, unsafe ladders and inadequate staging, the utilization of ungrounded extension cords supplied by Freeway, and the inordinate risks inherent in requiring carpenters to remove energized cable. Although the defendant sought to rebut the existence of these hazards, the Court finds that the complainants' testimony, supported by a detailed citation from an OSHA inspector,⁵ is far more credible than the evidence proffered by defendant's witnesses. The Court, therefore, finds that numerous safety and health violations existed at the job site during April and May of 1978, making the job site demonstrably unsafe. Having had an opportunity to observe all of the witnesses, the Court concludes that Freeway conducted its contract work with what can best be characterized as a callous disregard for the health and safety of its crews.⁶

The complainants, especially Kuusela, regularly expressed grievances over job safety to Freeway's project superintendent at the job site, one Richard Imondi. In some instances, Kuusela, acting as spokesman for the complainants, expostulated on this same subject with Clear.⁷ This course of conduct proved unavailing, and the complainants, as a last resort, decided to contact OSHA in Hartford, Connecticut.

The complainants, with little time to themselves during working hours, asked Paul Robinson's mother (Marge Robinson) to call OSHA on their behalf, explain the situation, and register the complaint. She did so on Thursday, May 4, 1978.⁸ Coincidentally, at the close of work on May 4th, the complainants were instructed to take time off to permit painting crews to reduce their backlog of unfinished units. All parties agreed that the carpenters had out-paced the painters and that a catch-up period was required. The parties disagree, however, as to when the complainants were told to return to work. Imondi testified that he told the complainants not to report to work until Monday, May 15. The complainants testified that Imondi told them to resume work on Tuesday, May 9. The deponent, Hughes, agreed with the latter version. The Court, as trier of fact, finds that the complainants were indeed instructed to return to work on May 9th.

Robinson, freed from his regular work schedule on Friday, May 5th, then called OSHA to reaffirm the complaint lodged by his mother the previous day. This call was made on behalf of all of the complainants, as was the earlier call. Responding to this stimulus, an OSHA inspector, one Romas Bassone, appeared at the job site on Monday, May 8, and conducted a complete safety inspection. Bassone observed numerous safety deficiencies, including some specifically cited by the complainants.⁹ Bassone testified that he advised Clear and Imondi that the inspection resulted from a complaint lodged with OSHA, without revealing the origin of the complaint. Clear then remarked to Bassone: "We know where the complaint came from." Clear and Imondi, predictably, denied Bassone's testimony regarding the etiology of the inspection and the statement allegedly made by Clear. Such self-exculpation rings false to the Court, especially since Bassone was a credible witness. Although there is no "smoking gun", per se, logical inferences are permissible; the Court finds that Clear was either surreptitiously informed or accurately guessed that the grievance originated with the complainants.

On the following day, the men reported to work but left because of inclement weather. The complainants returned to the job site at the usual time on Wednesday, May 10. The testimony conflicts as to what then transpired. Imondi testified that the complainants, incensed at their temporary layoff, decided to quit, and demanded their checks and pink slips (whereupon Imondi notified Clear, who proceeded to the Base to deliver same). Clear supports Imondi's testimony both in this regard and as to the suggestion that the complainants were not scheduled to return to work until May 15th. Clear and Imondi both aver that they offered the complainants the opportunity to resume work on the last-mentioned date, but that the men refused and voluntarily terminated the employment relationship.

The complainants' testimony is diametrically opposed to this evidence. They state, in substance, that they reported to work on May 10, were told by Imondi that they were through, demanded pink slips and paychecks, and thereafter received the same from Clear. At least two of the complainants also testified that there was a heated discussion between Clear and Kuusela, in which Clear (according to Kuusela and Roger Pussinen) allegedly told Kuusela:

"I do not have to take this shit from you assholes"

(a comment which makes up, to some extent, in anatomical symmetry for what it lacks in sophistication of vocabulary). Clear vehemently denied making the statement, and further denied that the OSHA investigation had anything to do with the complainants' severance. The Court accepts the complainant's version of the events of May 10th, and rejects the contrary version offered by Freeway. The Court specifically finds that the excremental reference quoted above was made by Clear, and that it referred to the instigation of the OSHA inquiry.

Clear and Imondi would have the Court believe that the complainants voluntarily quit after temporarily being laid off. Freeway attempted, however, at various points in the trial, to prove that the complainants told younger carpenters to slow down so they could "milk the job." If the complainants sought to milk a job because of exceptionally high wages and proximity to their homes, it is difficult to believe that these men, acting rationally, would let a one week layoff cut short such a desirable sinecure. Further, the pink slips received by the complainants from Clear on May 10th¹⁰ were dated May 8th. This evidence contradicts Clear's assertion that the slips were not prepared until Imondi told Clear on May 10th that the complainants had resigned.¹¹ While Clear's daughter testified that she had made a quadruple clerical error in typing all four of the slips, the Court concludes that filial loyalty motivated her testimony rather than a search for the truth. The Court finds that the pink slips were in fact prepared on May 8th, prompted by Clear's fury at the invasion of his...