|Hearings Unit: Final Order
Case Number 55-95
In the Matter of
INDUSTRIAL CARBIDE TOOLING, INC.
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
Complainant was not terminated because of his opposition to health or safety hazards or because of his complaint to OR-OSHA where the employer made the decision to terminate Complainant in advance of any knowledge that such a complaint had been filed. ORS 654.005, 654.062; OAR 839-06-005, 839-06-020, 839-06-025.
The above-entitled contested case came on regularly for hearing before Judith A. Bracanovich, designated as Administrative Law Judge by Jack Roberts, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on September 18, 1995 and December 20-21, 1995, in the Conference Room of Suite 220, State Office Building, 365 E. 7th, Eugene, Oregon; on January 2, 1996, by telephone; and on January 12, 1996, in the Conference Room of the Bureau of Labor and Industries Office at 3865 Wolverine St., Bldg. E-1, Salem, Oregon.
The Bureau of Labor and Industries (Agency) was represented by Linda Lohr, an employee of the Agency. Terence Glass (Complainant) was present throughout the September and December portions of the hearing, and was not represented by counsel.
Industrial Carbide Tooling, Inc. (Respondent) was represented by E. Jay Perry, Attorney at Law, on September 18, 1995. Due to a conflict of interest, Mr. Perry withdrew as counsel of record on that date. Janice Goldberg, Attorney at Law, represented Respondent at all subsequent proceedings. George Benson was present throughout the September and December portions of the hearing as Respondent´s representative.
The Agency called the following witnesses (in alphabetical order): George Benson, president and sole shareholder of Respondent; Gillian Glass, wife of Complainant; Terence Glass, Complainant; and Bernadette Yap-Sam, Senior Investigator, Civil Rights Division, Bureau of Labor and Industries.
Respondent called the following witnesses (in alphabetical order): Aaron Benson, employee of Respondent and son of George Benson; Benjamin Benson, employee of Respondent and son of George Benson; George Benson, president and sole shareholder of Respondent; Lynn Marcus, legal assistant to E. Jay Perry; Carl Miller, employee of Respondent; E. Jay Perry, initial attorney for Respondent in this proceeding; and James White, employee of Respondent.
Having fully considered the entire record in this matter, I, Jack Roberts, Commissioner of the Bureau of Labor and Industries, hereby make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
FINDINGS OF FACT - PROCEDURAL
1) On July 14, 1994, Complainant filed a verified complaint with the Agency, alleging that he was the victim of the unlawful employment practice of Respondent. He claimed that Respondent discriminated against him because of Complainant´s opposition to health and safety hazards in the workplace, in that, on July 7, 1994, Respondent terminated him. (Testimony of Complainant; Stipulation of the Agency and Respondent; Exhibit A-1)
2) The Agency found substantial evidence of the alleged unlawful employment practice of Respondent in violation of ORS 654.062(5)(a). (Stipulation of the Agency and Respondent; Exhibit A-2)
3) On June 15, 1995, the Agency prepared and duly served on Respondent Specific Charges, alleging that Respondent had committed an unlawful employment practice in that Respondent terminated Complainant´s employment because of Complainant´s opposition to health and safety hazards in the workplace. The Agency alleged that Respondent´s action violated ORS 654.062(5)(a). (Exhibit X-2)
4) With the Specific Charges, the Agency served on Respondent the following: a) a Notice of Hearing setting forth the time and place of the hearing in this matter; b) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; c) a complete copy of the Agency´s administrative rules regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. (Exhibit X-2)
5) On June 22, 1995, Respondent´s attorney requested a postponement of the hearing. On July 6, 1995, the forum granted the request pursuant to OAR 839-50-150(5)(c). The Administrative Law Judge issued an amended Notice of Hearing setting the hearing for September 19, 1995. (Exhibits X-3, X-4)
6) On July 6, 1995, Respondent timely filed its Answer. (Exhibit X-5)
7) On August 22, 1995, the Administrative Law Judge notified the participants that, due to docketing constraints, it was necessary to reschedule the hearing to commence on September 18, 1995, one day earlier than scheduled, and to change the Administrative Law Judge assigned to hear the case. The Agency and Respondent agreed to commence the hearing on September 18, 1995, and on August 24, 1995, the Administrative Law Judge issued an amended Notice of Hearing and Notice of Change of Administrative Law Judge to the participants. (Exhibit X-6; Statement of Administrative Law Judge)
8) Pursuant to OAR 839-50-210 and the order of the Administrative Law Judge, the Agency and Respondent each timely filed a Summary of the Case. (Exhibits X-7, X-8, X-9)
9) A pre-hearing conference was held on September 18, 1995, at which time the Agency and Respondent stipulated to facts which were admitted by the pleadings, as identified in the Agency´s Case Summary. Those facts were admitted into the record by the Administrative Law Judge at the beginning of the hearing. (Statement of the Administrative Law Judge)
10) At the start of the hearing, the attorney for Respondent stated that he had read the Notice of Contested Case Rights and Procedures and had no questions about it. (Statement of E. Jay Perry)
11) Pursuant to ORS 183.415(7), the Agency and Respondent were orally advised by the Administrative Law Judge of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the Administrative Law Judge)
12) Following the noon recess of the hearing on September 18, 1995, Perry informed the forum and the Agency he had determined during the morning´s proceeding that his testimony would be necessary in this matter, and requested leave to withdraw as counsel of record. The request was granted and the hearing recessed in order for Respondent to obtain a new attorney. (Statement of the Administrative Law Judge)
13) On October 2, 1995, Janice Goldberg, Attorney at Law, notified the forum that she had been retained to represent Respondent in this matter. During a conference call on the same date, the forum and participants agreed to reconvene the hearing on December 20, 1995. (Statement of the Administrative Law Judge)
14) On October 3, 1995, the forum issued a Notice of Continuation of Hearing, and ordered that a copy of the tape recording of the proceedings on September 18, 1995, be provided to Ms. Goldberg, and that a transcription of the tape recording be prepared and provided to both participants. (Exhibit X-10)
15) A copy of the tape recording of proceedings on September 18, 1995, was provided to Ms. Goldberg, and a transcription of that tape recording was provided to both participants prior to the resumption of the hearing on December 20, 1995. (Exhibit X-11; Statement of the Administrative Law Judge)
16) The hearing was reconvened on December 20, 1995. At the end of the day on December 21, 1995, rebuttal witnesses were unavailable. By agreement, the hearing was continued until January 2, 1996. (Statement of the Administrative Law Judge)
17) On January 2, 1996, the hearing was reconvened by telephone to take the testimony of two rebuttal witnesses. By agreement, the hearing was continued until January 12, 1996. On January 3, 1996, the forum issued a Notice of Continuation of Hearing until that date. (Exhibit X-12; Statement of the Administrative Law Judge)
18) On January 12, 1996, the hearing was reconvened and concluded. (Statement of the Administrative Law Judge)
19) The Proposed Order, which included an Exceptions Notice, was issued on February 12, 1996. On February 16, 1996, the Agency requested an extension of time to March 13, 1996, within which to file exceptions. The request was granted on February 22, 1996. Exceptions were required to be filed by March 13, 1996. On March 13, 1996, the Agency notified the forum that no exceptions would be filed. No Exceptions were received by the Hearings Unit.
FINDINGS OF FACT - THE MERITS
1) At all times material herein, Respondent Industrial Carbide Tooling, Inc., an Oregon corporation, operated a machine tooling facility in Eugene, Oregon, utilizing the personal services of one or more employees. (Exhibits X-2, X-5; Stipulation of Participants)
2) At all times material, George Benson was the president and sole shareholder of Respondent. (Exhibits X-2, X-5; Stipulation of Participants)
3) Aaron Benson and Benjamin Benson, sons of George Benson, were employed at Respondent. (Testimony of A. Benson, B. Benson, G. Benson)
4) Absent exigent circumstances, George Benson was the only person at Respondent with the authority to hire and fire. (Testimony of B. Benson, G. Benson)
5) Complainant was employed by Respondent as a machinist between May 1990 and July 7, 1994. (Exhibits X-2, X-5; Stipulation of Participants)
6) Complainant was expected to work 40 hours per week. His scheduled hours were from 7:00 a.m. to 3:30 p.m., with 30 minutes for lunch. (Testimony of G. Benson)
7) Six employees, including Complainant, were paid on an hourly basis. These employees were required to punch in and out on a time clock. They were paid from the hours recorded on the time cards. After 1990, the time cards were collected by George Benson every two weeks. The employees were paid every two weeks. (Testimony of G. Benson)
8) During times material, Respondent used the payroll services of Advanced Data Processing (ADP). (Testimony of G. Benson)
9) Pursuant to Respondent´s policy, employees were required to inform George Benson (or, in his absence, Ron Kloida) ahead of time for known absences, to call in if an unexpected absence or tardiness, and to inform Benson before leaving work early. (Testimony of G. Benson)
10) Under the impression the information would be conveyed to George Benson, employees often informed Ron Kloida or one of George Benson´s sons of their comings and goings if George Benson was unavailable. (Testimony of A. Benson, Complainant)
11) George Benson monitored absences biweekly when he reviewed the time cards. He matched the information he or Ron Kloida had been told by the employees with their time cards. (Testimony of G. Benson)
12) When an employee failed to clock in or out, Benson would ask him when he came or left; Benson would accept the time given him by the employee. If an employee failed to call in or came late, Benson would sometimes say something to the employee, sometimes not. Benson would not write up the employee, but would sometimes make a note of the incident and drop it in the employee´s file. Benson did not review the notes with the subject employee. (Testimony of G. Benson)
13) George Benson is perceived by his employees as a fair employer, with an easy going manner and a lenient management style. (Testimony of A. Benson, Miller)
14) George Benson finds it difficult to talk with employees about personality issues, to discipline employees, or to terminate employees, and will avoid doing so if he can. His approach with unsatisfactory employees is generally to wait for them to leave employment voluntarily. (Testimony of G. Benson)
15) Complainant sustained a cut to his finger on or about July 6, 1992. (Exhibits R-3, R-7)
16) The finger injury did not heal properly. Complainant was given a prescription for a sulfa compound, Septra, in connection with his injury. (Exhibit R-9; Testimony of Complainant)
17) Between September and December 1992, Complainant experienced an outbreak of a rash over his entire body. (Testimony of Complainant)
18) On January 26, 1993, the workers´ compensation claim filed by Complainant in relation to the cut finger was denied due to the untimely filing of the claim and Complainant´s failure to seek medical treatment on a timely basis. (Exhibit R-3)
19) The rash outbreak seemed to be related to an allergic reaction to the sulfa medication prescribed for the cut finger, which medication was curtailed in February 1993. (Exhibits R-4, R-6, R-7, R-9, R-10; Testimony of Complainant)
20) After the curtailment of the medication, the rash continued. In April 1993, Complainant was referred to the Contact Dermatitis Clinic at the Oregon Health Sciences University (OHSU) for a thorough evaluation of his rash. Complainant was accepted for evaluation in May 1993. (Exhibit A-3; Testimony of Complainant)
21) In April or May of 1993, Complainant told George Benson of his concern that his rash might be caused by something in the workplace and of the possible evaluation at OHSU. Complainant showed George Benson the letter he received from OHSU concerning his acceptance for evaluation. Complainant was given permission to gather substances in the workplace to be used in the evaluation and was provided with the MSDS sheets for the chemicals. (Testimony of Complainant; Entire Record)
22) Complainant was off work between June 29, 1993, and July 29, 1993, in connection with the OHSU testing and evaluation. (Exhibit A-4)
23) The testing performed at OHSU included patch tests of substances Complainant worked with at Respondent. These tests were negative. (Testimony of Complainant)
24) In July 1993, Complainant filed a workers´ compensation claim based upon the skin rash. On July 27, 1993, the claim was denied as not work-related or as the consequential condition of the claim previously denied. (Exhibits R-6, R-7)
25) On July 30, 1993, at Complainant´s request, Gillian Glass called the Oregon Occupational Safety and Health Division (OR-OSHA) to obtain information on testing procedures available for air quality in connection with carbide dust. Following her call, Gillian Glass informed Complainant that she had been told that there were two sides to OR-OSHA -- the consultant side for employers and the complaint side for employees -- and that in order for an OR-OSHA consultant to be dispatched to an employer´s premises to check the air quality, the employer would have to make the request. (Exhibit A-7; Testimony of Complainant)
26) In early August 1993, Complainant approached George Benson with the information obtained from OR-OSHA, and requested that Benson call OR-OSHA to request that a consultant be sent to Respondent. Benson said he would have someone from his insurance company or SAIF come in. On August 6, 1993, Complainant called the consultant side of OR-OSHA and informed them that his employer was reluctant to take this approach. (Exhibit A-7; Testimony of Complainant)
27) In September 1993, Complainant again filed a workers´ compensation claim based upon the rash. On September 27, 1993, the claim was denied as not work-related or as the consequential condition of the finger claim previously denied. (Exhibits R-10, R-11, R-12; Testimony of Complainant)
28) In 1993, Complainant missed a substantial amount of work due to his rash. In the summer of 1993, Complainant experienced an extremely serious flare-up of the rash and was unable to work for a period of time. Carl Miller was hired in September 1993 to help fill in for Complainant´s absences. (Exhibit A-16; Testimony of G. Benson, Complainant)
29) Complainant worked in the machine shop. He worked alone in that shop until Carl Miller, also a machinist, came to work for Respondent in September 1993. The machine shop was located in the rear of the business, separated from the adjacent saw and cutter department by a wall with a door for ingress and egress. The machine shop had no windows and was approximately 40 feet by 20 feet in dimension. There was an extractor fan in the shop. There was a door to the outside in the rear wall of the machine shop. This door was sometimes left open and sometimes remained closed. (Testimony of G. Benson, Complainant)
30) The saw and cutter department was located between the office and the machine shop. Most employees worked in the saw and cutter department. (Testimony of A. Benson)
31) Complainant complained about his rash to George Benson and his co-workers from late 1992 through his termination in mid-1994. (Testimony of Complainant)
32) Complainant was viewed by his co-workers as a constant complainer with a negative attitude. In addition to complaints about his rash, Complainant regularly complained to co-workers about jobs in general, the machinery in the shop, the way things were done at Respondent, George Benson, Complainant´s personal life, his doctors, and the inadequate social system in the United States. The deterioration in Complainant´s attitude toward work and the rise in the number and type of complaints occurred somewhere between six months and one year before his termination. The negativity, in part, seemed to be linked to the persistence and severity of the rash and his frustration with the inability to find its cause. (Testimony of A. Benson, B. Benson, G. Benson, Miller, White)
33) Co-workers were alienated from Complainant due to his negative attitude and constant complaining. (Testimony of A. Benson, B. Benson, G. Benson, Miller)
34) Complainant threatened to quit on more than one occasion. On these occasions, Complainant would pack up his tools and leave the workplace. He would return a day or two later. (Testimony of A. Benson, Miller)
35) George Benson received frequent requests from his sons to terminate Complainant. These requests became a daily matter of discussion over the last two to four weeks of Complainant´s employment. (Testimony of A. Benson, B. Benson, G. Benson)
36) On June 22, 1994, Complainant filed a health and safety complaint with OR-OSHA by telephone. He complained of poor ventilation and the presence of carbide dust throughout the shop, the absence of a wheel dresser on the knife grinder, unguarded bench grinders, tripping hazards, as well as the presence of extension cords on the floor and hanging from the ceiling. Complainant requested that an inspection be performed. (Exhibit R-20; Testimony of Complainant)
37) Complainant did not tell anyone at the workplace that he had called OR-OSHA to request an inspection. (Testimony of Complainant)
38) On June 22, 1994, George Benson reproved Complainant for telling an employee at a neighboring shop where he could and could not park. Furious, Complainant clocked out at 9:30 a.m. and left for the day without informing anyone. (Exhibits A-6, A-15, R-15; Testimony of G. Benson, Complainant)
39) On June 24, 1994, Complainant clocked out at 1:00 p.m. and left for the day without advising anyone. (Exhibits A-6, A-15, R-15)
40) On June 27, 1994, Complainant´s wife received a threat in connection with the testimony she was to provide in a fraud case the following day. Complainant informed Ron Kloida and left for the day at 1:57 p.m. (Testimony of Complainant, G. Glass)
41) Complainant accompanied his wife to the fraud trial on June 28, 1994. He did not go to work on that date. Complainant had informed Ron Kloida earlier of his impending absence on this date. (Testimony of Complainant, G. Glass)
42) George Benson made his decision to fire Complainant on June 28, 1994. He pulled Complainant´s time card and copied it. To get advice on the correct procedures for termination, Complainant first called his attorney, E. Jay Perry. Complainant learned that Perry was on vacation until after the July 4 holiday weekend. Lynn Marcus, Perry´s legal assistant, took the following message at 2:05 p.m. on June 28: "Employee punched out & left early yesterday - no word to anyone, didn´t show up today - happened last week also - needs to know where he stands - since Jay not here - he will try BOLI & if no help - will call tomorrow." George Benson next made two calls to the United States Department of Labor for information on termination procedures. He did not receive the information he needed. At 2:14 p.m. and again at 3:46 p.m., Benson called the Technical Assistance Unit of the Bureau of Labor and Industries. At 2:30 p.m., Benson called ADP. Not satisfied with the responses he received, Benson decided to wait until Perry´s return for advice before terminating Complainant. (Exhibits A-23, R-18, R-19; Testimony of G. Benson, Marcus, Perry)
43) On June 30, 1994, Complainant was one-half hour late for work. (Exhibits A-6, A-15, R-15)
44) July 4, 1994, fell on a Monday. (Official Notice)
45) On July 5, 1994, OR-OSHA inspected Respondent´s premises. Benson was informed that the inspection was the result of an employee complaint. Complainant, George Benson, Aaron Benson, B. Benson, Carl Miller, and James White were all present at the worksite on this date. (Testimony of A. Benson, G. Benson, Complainant, Miller, White)
46) As the result of the inspection, Respondent was cited by OR-OSHA for violations totaling $180 in fines. Of Complainant´s health or safety complaints, one was substantiated (unguarded bench grinder). (Exhibits A-5, R-20)
47) Everyone at the workplace assumed that it was Complainant who was responsible for the OR-OSHA complaint and inspection. (Testimony of A. Benson, B. Benson, G. Benson, Complainant, Miller)
48) Aaron Benson made two comments late on July 5, 1994, which convinced Complainant that Aaron Benson believed Complainant was responsible for the OR-OSHA inspection and that Aaron Benson was upset about it. (Testimony of Complainant)
49) On July 6, 1994, employees were upset with Complainant for having filed a complaint with OR-OSHA. With few exceptions, the employees gave Complainant the cold shoulder. Silence pervaded the business on July 6, 1994. (Testimony of A. Benson, B. Benson, G. Benson, Complainant, Miller)
50) George Benson was concerned about the work atmosphere on July 6, 1994. (Testimony of G. Benson)
51) Complainant came to work two and one-half hours late on July 7, 1994. He did not call in to say he would be late. Complainant called the Bureau of Labor and Industries before coming to work on July 7, 1994. (Exhibits A-6, A-16, R-15; Testimony of G. Benson, Complainant)
52) George Benson called his attorney on July 7, 1994, and recounted his longstanding difficulties with Complainant´s attendance, the problems with Complainant´s constant complaining about Benson and the company, and the impact of Complainant´s attitude on other employees. Benson advised that he wanted to terminate Complainant immediately. Perry advised Benson to write a letter of termination for Perry´s review. (Exhibits R-21; Testimony of G. Benson, Perry)
53) Benson prepared the termination letter and faxed it to Perry´s office. At 2:45 p.m., Perry reviewed the letter and then called George Benson with suggested corrections. (Exhibit R-21; Testimony of G. Benson, Complainant)
54) Benson made the suggested corrections and retyped the letter. Benson next called ADP in order to obtain the correct amount for Complainant´s final paycheck. (Exhibit R-18; Testimony of G. Benson)
55) The final termination letter contained the following text:
"The following is a recap of your attendance for approxamately [sic] the last two weeks. 6-22-94
Clock in at 6:59 AM
Clock out at 9:33 AM
Left premises without advising anyone that you were leaving.
Clock in at 6:49 AM
Clock out at 3:30 PM
No indication of why you left early previous day.
Clock in at 6:56 AM
Clock out at 1:00 PM
Did not advise anyone your [sic] leaving early
Clock in at 6:52 AM
Clock out at 1:57 PM
Did not advise anyone you were leaving early
Did not report for work or call in
Clock in at 6:49 AM
Clock out at 3:36 PM
No explanation for previous days [sic] absence
Entered time by hand at 7:30 AM
Clock out at 3:30 AM
Clock in at 6:58 AM
Clock out at 3:29 PM
Clock in at 6:53 AM
Clock out at 3:26 PM
Clock in at 6:54 AM
Clock out at 3:29 PM
Reportedly sat on stool from 2:45 until you locked your tool box and clocked out
Clock in at 9:35 AM
Your negative & Disruptive [sic] attitude and abcences [sic] leaves me no alternative but to _________ [sic] you as of this date. 7-7-94" (Exhibit A-6)
56) At the end of his shift on July 7, 1994, when Complainant went to the time clock to punch out, his time card was not there. Complainant went to find George Benson to see if he had it. Benson then gave Complainant the termination letter. While reviewing the letter, Complainant reminded Benson that Complainant had told Ron Kloida about the absence for the court case. That error did not change Benson´s mind about terminating Complainant. (Testimony of G. Benson, Complainant)
57) George Benson terminated Complainant on July 7, 1994, due to Complainant´s attendance and negative and disruptive attitude. (Exhibits A-6, A-12, A-14)
58) In 1994, Complainant was out of the workplace due to surgery from February 22 until March 21, 1994. In the remaining weeks between January 17, 1994, and July 2, 1994, Complainant worked 40 or more hours in a week during 9 weeks and fewer than 40 hours during 10 weeks. Excluding the last partial week worked by Complainant before his termination, during his final 10 full weeks of employment at Respondent, Complainant worked fewer than 40 hours during 8 weeks. (Exhibit A-15)
59) In the 10 weeks in 1994 during which Complainant worked fewer than 40 hours, the only written notations on the time cards (besides "no lunch", which was regularly written on Complainant´s time cards) are for April 4 - 5. The written entries on both April 4, 1994, and April 5, 1994, read "Abcent [sic] No Call". (Exhibit A-15)
60) Prior to his termination, George Benson never discussed Complainant´s attendance or attitude problem with him. (Testimony of Complainant, G. Benson)
61) George Benson was generally credible. Despite his obvious memory lapses with dates and sequences and his susceptibility to confusion, his demeanor impressed the Administrative Law Judge that he was believable. In addition, Benson´s testimony was corroborated by E. Jay Perry and Lynn Marcus, witnesses found to be credible by the Administrative Law Judge. For the reasons given in the Opinion section of this Order, which are incorporated herein by this reference, Respondent´s version of the facts and his reasons for terminating Complainant were credible.
Benson´s testimony that he did not form an opinion as to which employee complained to OR-OSHA, however, was not credible. Because of the nature of the complaint to OR-OSHA, Complainant´s steady complaints of the same nature to George Benson, Complainant´s earlier request that Benson obtain an air quality inspection from OR-OSHA, and Benson´s testimony that none of the other employees was suspected by him of having filed the complaint, the forum finds that Benson´s testimony on this point was not credible. Similarly, Benson´s testimony that the atmosphere was significantly different on July 6, 1994, was contradicted by Benjamin Benson and Aaron Benson, witnesses found by the forum to be credible, and his testimony was found not to be credible on this point.
62) Complainant was generally credible. For the most part the Administrative Law Judge was impressed by his demeanor that his testimony was believable. However, on some important points his testimony was inconsistent with that of witnesses found to be credible by the forum. For example, on the issue of his relationships with his co-workers, Complainant testified that he thought his relationships were all right until the day following the OR-OSHA inspection. Credible evidence from Aaron Benson, Ben Benson, George Benson, and Carl Miller revealed that the co-workers wanted little to do with Complainant long before the OR-OSHA inspection. Similarly, testimony that the atmosphere was significantly different on July 6, 1994, was contradicted by Benjamin Benson and Aaron Benson, witnesses found by the forum to be credible, and Complainant´s testimony was found not to be credible on this point. In another instance, Complainant testified that he did not work on personal projects while he was on the clock. Yet Aaron Benson and Carl Miller, witnesses found to be credible on this point, testified to their direct observations of Complainant´s work on a helicopter and bicycles during working hours. Finally, Complainant testified that during his job search he made it to the interview stage at 50 different locations. The forum finds this testimony inherently incredible, given the time frame of the job search and the status of the timber industry at the time.
63) Carl Miller´s testimony was not found to be totally credible due to inconsistencies that existed between his testimony and statements he made to the Agency during its investigation of this case. Thus his testimony was given less weight when it conflicted with other credible evidence on the record.
64) James White´s testimony was given little weight because his memory was weak and much of his testimony was directly controverted by credible evidence.
65) The rebuttal testimony of Gillian Glass -- that she had overheard E. Jay Perry tell Ben Benson to testify that he could not recall if he was not comfortable telling a lie; and that she had overheard Lynn Marcus tell Ben Benson that her testimony was short because she was a small player in this scheme -- was directly contradicted by E. Jay Perry, Benjamin Benson, and Lynn Marcus, who the forum finds were credible witnesses. Because of her relationship to Complainant, the forum concludes that Gillian Glass misinterpreted the comments made in her presence. Accordingly, the Forum finds that the testimony of Gillian Glass was not credible on these points.
66) The testimony of the other witnesses was credible. The Administrative Law Judge observed the demeanor of each witness and found each to be believable.
ULTIMATE FINDINGS OF FACT
1) At all times material, Respondent was an Oregon corporation operating a machine tooling business in Oregon, engaging or utilizing the personal services of one or more employees within the state of Oregon. George Benson was Respondent´s president and sole shareholder.
2) Complainant was employed by Respondent as a machinist between May 1990 and July 7, 1994.
3) In or around April or May 1993, and on occasions thereafter, Complainant notified George Benson of potential workplace safety and health hazards which Complainant feared might be the cause of his rash; in late July or early August 1993, Complainant requested that Respondent arrange to have the air quality tested for toxins.
4) In opposing health and safety hazards in the workplace, Complainant exercised rights afforded by the Oregon Safe Employment Act.
5) Between late 1992 and his termination, Complainant regularly complained to co-workers about his rash, George Benson, how things were done at Respondent, and the lack of an adequate social care system in the United States. Co-workers were alienated by Complainant´s constant complaints.
6) On June 22, 1994, Complainant called OR-OSHA and reported potential safety and health hazards at Respondent´s business premises, and requested that OR-OSHA conduct an inspection. Complainant told no one at Respondent that he had made this call.
7) In filing a complaint with OR-OSHA, Complainant exercised rights afforded by the Oregon Safe Employment Act.
8) On June 28, 1994, George Benson made the decision to terminate Complainant.
9) On July 5, 1994, as the result of Complainant´s phone call, OR-OSHA inspected Respondent´s premises and cited Respondent for health and safety violations unrelated to air quality.
10) George Benson, along with Complainant´s co-workers, assumed that Complainant was responsible for the OR-OSHA inspection.
11) On July 7, 1994, George Benson terminated Complainant, citing absenteeism and a negative and disruptive attitude.
12) Respondent did not terminate Complainant because of his opposition to health and safety hazards in the workplace or because of his complaint to OR-OSHA.
CONCLUSIONS OF LAW
1) ORS 654.005 provides, in pertinent part:
"As used in this chapter, unless the context requires otherwise:
" * * *
"(5) ´Employer´ means any person who has one or more employees ***
" * * *
"(7) ´Person´ means one or more * * * corporations * * *"
At all times material, Respondent was an employer subject to the provisions of ORS 659.010 to 659.110, and ORS 659.400 to 659.435. 2) ORS 654.062(5)(b) provides, in pertinent part:
* * * who believes that the employee has been barred or discharged from employment
* * * by any person in violation of this subsection may, within 30 days after the employee has reasonable cause to believe that such a violation has occurred, file a complaint with the Commissioner of the Bureau of Labor and Industries alleging such discrimination under the provisions of ORS 659.040. Upon receipt of such complaint the commissioner shall process the complaint and case under the procedures, policies and remedies established by ORS 659.010 to 659.110 and 659.505 to 659.545 and the policies established by ORS 654.001 to 654.295 and 654.750 to 654.780 in the same way and to the same extent that the complaint would be processed by the commissioner if the complaint involved allegations of unlawful employment practices based upon race, religion, color, national origin, sex or age under ORS 659.030(1)(f). * * *" ORS 659.030(1) provides, in pertinent part:
"For the purposes of ORS 659.010 to 659.110,* * * it is an unlawful employment practice:
" * * *
"(f) For any employer, * * * to discharge, * * * any person because the person has opposed any practices forbidden by this section, * * *"
The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and of the subject matter herein. 3) OAR 839-06-005 provides, in pertinent part:
"(1) ORS 654.062(5) of the Oregon Safe Employment Act (OSEA) generally provides that no person can * * * discharge an employee, * * * because that employee * * *:
"(a) Opposed any practice forbidden by the OSEA;
"(b) Made any complaint under or related to the OSEA;
" * * *
"(e) Exercised * * * any right afforded by the OSEA."
OAR 839-06-020 provides, in pertinent part:
"(1) ORS 654.062(5) prohibits discrimination against an employee because he/she ´opposed´ health and safety hazards in the workplace. OSEA encourages but does not require an employee to report health and safety hazards to the employer. * * * " * * *