LI-87-005-GB
1-1900-1370-2
DLI File No. 225
STATE OF MINNESOTA
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE MINNESOTA DEPARTMENT OF LABOR AND INDUSTRY
Ray Bohn, Commissioner,
Department of Labor and Industry,
State of Minnesota,
Complainant, FINDINGS OF FACT
CONCLUSIONS OF LAW,
V. AND ORDER
Cedarbrook Engineering Company,
Respondent.
The above-entitled matter came on for hearing before Administrative Law
Judge George A. Beck at 9:00 A.M. on July 28, 1987, in Courtroom 12, Third
Floor, Summit Bank Building, in the City of Minneapolis, Minnesota. The
hearing was continued to art completed on the following day. The record
closed on November 12, 1987, the date Of receipt by the Administrative Law
Judge of the final post-hearing memorandum.
Kathleen L. Winters, Special Assistant Attorney General, Suite 200, 520
Lafayette Road, St. Paul, Minnesota 55155, appeared on behalf of the
Complainant. Eric it Forsberg, Esquire, of the firm of Greene and Forsberg,
P.A., 701 Fourth Avenue South, Suite 620, Minneapolis, Minnesota 55415,
appeared on behalf of the Respondent.
NOTICE
Under Minn. Stat. sec. 182.669 this Order is the final agency decision in
this case. Any person aggrieved by this decision may seek judicial review
pursuant to Minn. Stat. SS 14.63 through 14.69.
STATEMENT OF ISSUES
The issue to be determined in this contested case proceeding is whether or
not employee David J. Berthiaume was discharged by the Respondent because he
exercised any right authorized under Minn. Stat. SS 182.65 through 182.674 and
if so, what damages or other relief should be awarded under Minn. Stat.
182.669.
Based upon all of the proceedings herein, 'the Administrative Law Judge
makes the following:
FINDINGS OF FACT
1. Cedarbrook Engineering Company ("Cedarbrook" or "Respondent") is a
foundry which makes small aluminum parts or castings. It is located at 8290
N.E. Main Street in Fridley, Minnesota. Its plant is a building which is
divided into three separate areas, namely an office, a production area, and
the die-cast area. The die-cast area is the largest room and is approximately
50' x 100'. (Tr. 340). There are six diecast machines located in the
die-cast room. Four of them are along one side of the room. On the opposite
side of the room there is a remelt furnace located in the center. To one side
of the furnace are two die-cast machines and on the other side are the trim
presses. A conveyor runs from the area adjacent to the trim presses to the
remelt furnace. (Ex. C).
2. The parts manufactured by Cedarbrook are mode by the injection of
molten aluminum into a die under high pressure. (Tr. 336). After this is
done, the die-cast machine comes apart and the entire piece produced, which is
called the shot, is removed This is -a U-shaped piece of aluminum with the
actual usable parts being attached to the surfaces of the U (Ex. B). The
entire shot weighs approximately three-quarters of a pound and is one-quarter
inch thick It contains 24 parts . (Tr. 337). Approximately 57 aluminum
parts weigh one pound. (Tr. 337 ) . The U-shaped portion of the shot is called
a runner or a gate. (Tr. 16; Tr. 303). After the parts are removed from the
runner at the trim press area, the runners are then remelted and the aluminum
is used again. (Tr. 342).
3. Two types of scrap are created in the process of die-casting. "Flash"
is the excess aluminum material which runs out of the die as it is filled with
aluminum. This flash is trimmed from the shot and then Collected from the
floor and can be remelted and reused in the die-casting process. Because the
trim machine is lubricated, the flash has some lubricant on it which produces
smoke when it's remelted. (Tr. 338). Additionally, "oily scrap' is created
in the process. this is material which collects under the pour hole of the
die-cast machine as aluminum metal is ladled into the machine. (Tr. 343).
Because the die-cast machine is lubricated with a heavy paraffin-based grease
this scrap becomes quite dirty or oily. (Tr. 344). Nonetheless, it can be
remelted and reused in the manufacturing process.
4. Cedarbrook buys raw aluminum ingots for use in its manufacturing
process. However, the final product can contain from 25% 'Lo 50% of remelted
aluminum in addition to the new aluminum. (Tr. 347). Approximately 90% of
the material remelted in the plant consists of the runners, which produce very
little smoke when they are remelted. (Tr. 302; Tr. 348). However, when the
flash or the oily scrap is burned in the remelting furnace, a great deal of
smoke is produced which then fills the die-casting room. In the case of the
oily scrap, the smoke is black. In the case of the flash, the smoke is a
lighter color. (Tr. 18; Tr. 305). The smoke created is dense enough so that
the trim press operators and the die-cast machine operators are unable to see
their machines clearly. The smoke also pours over through a door into the
production area adjacent to the die-cast area and also through another door
into the office. (Tr. 346).
5. David V Berthiaume ('Berthiaume"), the charging party in this case
was first employed by Cedarbrook on May 29, 1984. (Ex. 5). Mr. Berthiaume is
presently 24 years old. He completed the tent$ grade in high school and
received a GED certificate in 1980. Following school, he was first employed
at a car wash for 2-112 years where he became the assistant manager.
Subsequent to that, he was a maintenance man at a Target store. (Tr. 10). He
then worked as a production worker and as a meat trimmer in a meat packing
plant for two years at $7.15 per hour. Following that he moved to Houston in
order to do construction %work. fie worked as a carpenter for two years at
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$6.00 per hour. (Tr. 12; Tr. 86). He then returned to Minnesota in April of
1984 and applied to Cedarbrook for employment.
6. Mr. Berthiaume was hired by Cedarbrook as a trimmer at $4.00 per hour
and he performed that job for five months. (Tr. 14). The job of the trimmer
is to trim the parts from the shot created by the die-casting machine. The
trimmer also puts the runners, or gates, onto the conveyor to be transferred
to the remelt furnace. Mr. Berthiaume then became the remelter at a wage of
$5.25 per hour. He later received a wage increase to $6.75 per hour and
eventually to $8.00 per hour. (Tr. 15). The remelter's job is to melt down
the runners or gates and the scrap aluminum created in the die-casting process
and distribute it to the die-casters. (Tr. 14).
7. During 1986, Mr. Berthiaume was working the second shift at Cedarbrook
beginning at 4:00 P.M. and ending at 2:00 A.M. Prior to March of 1986, Mr.
Berthiaume would put scrap metal into the remelter approximately four to six
times during his shift, which amounted to approximately three barrels of
scrap. (Tr. 20-21; Tr. 154). He would do this in order to ensure that there
was sufficient metal for the die-casters to keep working. (Tr. 21). If there
was not sufficient remelted metal, a die-casting machine might have to shut
down. (Tr. 25). Because the die-casting room would fill with smoke when the
scrap was burned, the die-cast machine operators and the trimmers often
complained to him when this occurred. (Tr. 22). Once at the end of 1985, Mr.
Berthiaume had stopped burning scrap during a shift because of the smoke
problem. His supervisor told him that if he didn't burn the scrap he knew
where the door was. (Tr. 34; Tr. 364). Another remelter was also encouraged
to burn more flash prior to March of 1986. (Tr. 142; Tr. 360; Ex. 9).
8. On March 20, 1986, Cedarbrook conducted a meeting for all employees at
its plant to discuss the Minnesota Worker's Right to Know Act. The meeting
was conducted by a consultant hired by Cedarbrook, Vija Kelly. At this
meeting, a number of employees, including Mr. Berthiaume, expressed their
concern to the consultant that the smoke created by the remelting furnace was
hazardous Iwo their health. (Tr. 27; Tr. 131). The employees were concerned
that the smoke might be toxic, and were also concerned about the irritation it
caused and the visibility problem it created. (Tr. 92). The consultant
expressed an opinion that the smoke was not toxic. Several employees were
angry about the smoke, however, and stated that it could not be good for them
to breathe it. (Tr. 28).
9. Ms. Kelly sent a letter to Jim Bloomquist, the President of Cedarbrook
Engineering Company, on March 24, 1986. She suggested that Mr. Bloomquist
address the employees' concern about the smoke. She suggested that Cedarbrook
could conduct air quality tests, add ventilation, perform the remelt operation
when the least number of people would be affected, or farm out that
operation. (Ex. 0).
10. John Witschen was the second-shift foreman and Mr. Berthiaume's
supervisor during 1986. He was present for a portion of the March 20, 1986
meeting. After hearing the complaints about the smoke created in the plant,
he talked to the first-shift foreman about the problem and they decided to
talk to Don Bloomquist, one of the owners of the business, about changing the
policy on burning scrap. (Tr. 305). The foreman met with Don Bloomquist, at
a regular supervisors' meeting at 3:30 P.M. on a Monday. (Tr. 306). After
consultation with Jim Bloomquist and Roger Griep (the other two owners), it
was decided that the procedure would be changed so that scrap would be burned
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only after hours or on weekends. (Tr. 278; Tr. 306; Tr. 351).
11. A day or two after the Monday meeting, Mr. Witschen called Mr.
Berthiaume into a conference room at the plant. (Tr. 309). Mr. Witschen told
Mr. Berthiaume that he wanted him to start burning the scrap only at the end
of the second shift or on Friday or Saturday when the plant was not
operating. (Tr . 29; Tr. 116; Tr. 309) . Mr. Berthiaume expressed his approval
of the change in policy to Mr. Witschen and said he would try to comply. (Tr.
29). This change in policy was never reduced to writing or posted nor was Mr.
Berthiaume advised that he would be subject to disciplinary action if he
violated the policy. (Tr. 30-31; Tr. 329). The first shift remelter was
given the same instructions. (Tr. 136).
12. Subsequent to this meeting, Mr. Berthiaume attempted to avoid burning
the scrap during his shift and less scrap was, in fact, burned during the
shift. (Tr. 126). However, he sometimes burned the scrap during his shift
because he ran out of aluminum for the die-casters. This resulted in smoke
filling the die-casting room. (Tr. 1 27 ; Tr. 1 62) . Mr. Witschen observed Mr.
Berthiaume burning scrap during his shift. (Tr. 32; Tr. 362) The first or
day shift remelter also continued to burn scrap occasionally during the
shift. (Tr. 134). He also came in before his shift started, to burn scrap,
however. (Tr. 139). The first shift remelter tried to burn the scrap in
smaller quantities but found that smoke was still created. (Tr. 132). No
supervisor ever spoke to either remelter about violating the policy.
13. Mr. Witschen regarded Mr. Berthiaume as an excellent hard-working
employee, although he found him to be "hot-headed" occasionally. (Tr. 35; Tr.
186; Tr. 317). He was suspended for one day in February A 1985 because he
swore at Mr. Witschen. (Ex. A; Tr. 1 07 ; Tr. 321 ) . Other employees also
regarded Mr. Berthiaume as a very good worker. (Tr. 125; Tr. 157; Tr. 164).
During 1986, Mr. Berthiaume, in addition to performing the remelting job, also
relieved the die-casters when they took breaks. (Tr. 32). Roger Griep
described Pi" Berthiaume as an extremely good employee and a 'working fool'.
(Tr. 181).
14. On May 7, 1986, Mr. Berthiaume reported to work at approximately 4:00
P.M. , the beginning of the second shift. The first thing he did was to check
the metal suuply at the die-casters, and he observed that the remelter was
'pretty full". (Tr. 37). A co-worker advised him that there would be an OSHA
inspector in the plant during his shift. Mr. Berthiaume then observed Terry
osterbauer, who he assumed was the OSHA inspector. Mr. Osterbauer was
conducting an inspection due to -a complaint which had been filed about the
smoke from the remelt furnace. (Tr. 244; Ex. 11). He asked Mr. Osterbauer if
he needed a place to set up his equipment and got him a table on which he
could place his equipment. (Tr. 37). A couple of the die--casters asked Mr.
Berthiaume if he was going to put scrap in the remelter while the OSHA
inspector was there (Tr. 38; Tr. 1 22) . Berthiaume told them he would do
SO. He then proceeded to empty a barrel of oily scrap into the remelter and
poked it down. (Tr. 39; Tr. 81 ) . As a result, a large cloud of dark smoke
filled the room. Mr. Osterbauer proceeded to put on a mask and collected
smoke samples to analyze. (Tr. 40). He had intended to and did later sample
the smoke at the end of the second shift also. (Tr. 312). Mr. Berthiaume
could have waited until later to burn the scrap for production purposes since
there was an adequate supply of metal at 4:00 P.M. (Tr. 41). Shortly before
the OSHA inspector's visit the first shift remelter was told not to burn any
scrap while the inspector was present. (Tr. 133).
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1 5. When Mr. Berthiaume put scrap into the remelter, both Mr. Witschen
and Glen Crandall, the first-shift foreman, were in the die-casting room.
Roger Griep entered the die-casting area and asked Mr. Witschen why scrap was
being burned at that time. fir. Witschen replied that he (lid not know. Mr.
Griep asked Mr. Witschen if he had informed Mr. Berthiaume, of the change in
policy and Mr. Witschen said that he had. Mr. Griep then proceeded to go over
to Mr. Berthiaume and asked him why he was burning scrap. Mr. Berthiaume then
smiled at Mr. Griep and asked him, "Don't you guys want this burned?' Mr.
Griep then told Mr. Berthiaume that he was f i red and said 'Now you won't have
to breathe this fucking shit." (Tr. 43; Tr. 280).
16. Mr. Berthiaume then punched out and called for a ride. Mr. Witschen
asked him why he had burned the scrap and Mr. Berthiaume told him the
die-casters wanted him to show the OSHA inspector what the smoke was like in
the plant. (Tr. 314). fir. Witschen told Mr. Berthiaume he thought he had
used poor judgment but said he would talk to Mr. Griep about getting his job
back. (Tr. 45) . Mr. Berthiaume's father picked him up at the plant. Mr.
Berthiaume told his father what had happened and his father told him to return
to the plant to advise the OSHA inspector. fir. Berthiaume did so. Mr.
osterbauer asked him some questions and gave Mr. Berthiaume a telephone number
to call at the Department of Labor and Industry. (Tr. 47; Tr. 254). Mr.
Berthiaume had not filed a written or verbal complaint With the Department
prior to May 7, 1986. (Tr. 94). When Mr. Osterbauer removed an air sampling
device from an employee at about 5:50 P.M., the employee asked him if he would
be fired, also. (Tr. 254).
17. Mr. Berthiaume subsequently called the Department and the Department
mailed him a discrimination complaint which he filled out and returned to the
Department. (Tr. 43; Ex. 1). Mr. Berthiaume stated in the complaint that he
was discriminated against because he was fired "for performing my job duties
in front of OSHA." (Ex. 1). Mr. Berthiaume later met with an investigator
for the Department and filled out a questionnaire form concerning the
incident. (Ex. 2). In the narrative -attached to the questionnaire, fir.
Berthiaume stated that no one ever told him not to remelt scrap and stated
that he was only doing what he normally did when the OSHA inspector was
present. (Tr. 109; Ex. 2).
18. Mr. Witschen called Mr. Berthiaume on the evening of May 7 and asked
him to come in to discuss possible re-employment. Mr. Witschen believed that
Mr. Berthiaume was an excellent employee who had made a mistake in judgment
for altruistic reasons. He thought that the firing was too severe an action.
Mr . Berthiaume made an appointment for Friday, but failed to appear- at this
meeting with Mr. Witschen. (Tr. 315). A meeting %as then rescheduled for
Saturday at which Mr. Berthiaume appeared. (Tr. 281; Tr. 316).
19. At the meeting on Saturday, Mr. Berthiaume advised Mr. Witschen that
he was filing charges with the Department. Mr. Berthiaume told Mr. Witschen
that if he was to take his job back he wanted the two-days back pay as well as
a statement from Mr. Griep that he would not be harassed in the future. (Tr.
54). He also asked for a pay increase. (Tr. 113; Tr. 282; Tr. 317). Mr.
Witschen told Mr. Berthiaume that Mr. Griep would not agree to those terms but
suggested That if Mr. Berthiaume would accept a suspension without pay for a
few days he could then be rehired. Mr. Berthiaume thought the suspension was
unfair and expressed this to Mr. Witschen. (Tr. 54). At this point, both Mr.
Witschen and Mr. Berthiaume became angry and the meeting was terminated. (Tr.
55; Tr. 317).
20. On May 11 , 1986, Mr. Berthiaume filed for unemployment benefits. The
request %was opposed by Cedarbrook. A hearing on the claim was scheduled;
however, Mr. Berthiaume failed to appear at the hearing. (Tr. 56). Mr
Berthiaume's claim was then denied by the Unemployment Insurance Division on
the grounds that he had refused an offer of re-employment. (Ex. 3).
21. Virginia Casey, a senior safety investigator with the Department,
investigated this case. She met with Mr. Griep on June 26, 1986. He
acknowledged that he had fired Mr. Berthiaume because he had put scrap in the
furnace on May 7th. He told Ms. Casey that Mr. Berthiaume knew better than to
burn scrap when the OSHA inspector 2s there because there was a policy to
burn the scrap only at 2:00 A.M. at the end of the second shift, or on
weekends. (Tr. 180; Ex. 10). He stated that smoke was a major complaint of
the employees. (Tr. 181).
22. Subsequent to the June 26th meeting and after completing her
investigation, Ms. Casey called Pi" Griep on the telephone and advised him
that there appeared to be a violation. She stated that Mr. Berthiaume would
be willing to take his job back without back pay but Mr. Griep declined to
accept this offer. He told Ms. Casey that "All you people with OSHA are sick"
and told her that he would rehire Mr. Berthiaume if' she and her co-workers
would stand in front of the remelt furnace when scrap was dumped. (Tr. 204;
Tr. 284). Mr. Griep's offer was discussed seriously at the Department. (Tr
205). Subsequently, Ms. Casey's supervisor called Mr. Griep and declined his
invitation and advised Mr. Griep that the Department would litigate the matter
if he was unwilling to take Mr. Berthiaume back as an employee. Mr. Griep
told the supervisor that "You listen to everyone's bullshit and tell a man how
to run his goddamn business.' (Tr. 270). Mr. Griep indicated he preferred to
litigate the matter.
23. Mr. Berthiaume started attending truck driving school full time on
April 1, 1987. From the date of his discharge in May of 1986, through April
1, 1987, Mr. Berthiaume continued to look for full-time employment except for
a period of four weeks during November and December of 1986 when he was out of
town. (Tr. 77; Tr. 80). He applied for work at approximately 25 firms in the
northwest metropolitan area. (Tr. 75-76; Ex. 7). He also registered with the
State Job Service but did not apply for any of the jobs listed since they were
offered at a minimum wage. (Tr. 78). He was looking for a job in the Anoka
area that paid at least $6.00 per hour. (Tr. 88).
24. Had Mr. Berthiaume been employed at. Cedarbrook from May 7, 1986
through March 31 , 1987, at the rate of pay of $8.00 per hour (except for the
four-week period he was out of town), he would have earned $13,696 in regular
pay and, based on the number of hours worked in prior years, would also have
earned $143.71 in overtime. (Tr. 65; Ex. 4; Ex. 5) Had Mr. Berthiaume
continued his employment with Cedarbrook, he would have been eligible for 80
hours of vacation at $8.00 per hour. (Tr. 66; Ex. 4). As a result of his
unemployment, Mr. Berthiaume also incurred late charges in the amount of $9.42
on his gas bill and two magazine bills because he did not have the money to
pay them promptly. (Tr. 67; Ex. 6).
25. Mr. Berthiaume did earn income of $1,228.00 doing part-time work
while he was unemployed. He earned $768 by working for Randy Colbert doing
cement work. He worked six weeks at 16 hours per week for $8.00 per hour.
(Tr. 71). He also performed repair work, painting and lawn mowing services
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for both his mother and his grandmother. They paid him a total of $460. (Tr.
74; Ex. 4).
Based upon the foregoing Findings of Fact, the Administrative Law Judge
makes the following:
CONCLUSIONS OF LAW
1. That the Administrative Law Judge has jurisdiction in this matter
pursuant to Minn. Stat. SS 14.50 and 182.669.
2. That the notice of the hearing in this matter was proper.
3. That the Department has fulfilled all relevant substantive and
procedural requirements of law or rule.
4. Minn. Stat. sec. 182.669, subd. I provides in part that:
,Any employee believed to have been discharged or otherwise
discriminated against by any person because such employee
has exercised any right authorized under the provisions of
sections 182.65 to 182.674, may, within 30 days after such
alleged discrimination occurs, file a complaint with the
commissioner alleging the discriminatory act. Upon receipt
of such complaint, the commissioner shall cause such
investigation to be made as the commissioner deems
appropriate. If upon such investigation -the commissioner
determines that a discriminatory act was committed against
an employee the commissioner shall refer the matter to the
office of administrative hearings for a hearing before an
administrative law judge pursuant to the provisions of
chapter 14. . . .
5. Minn. Stat. 182.654, subd. 9 states as follows:
No employee shall be discharged or in any way discriminated
against because such employee has filed any complaint or
instituted or- caused to be instituted any, proceeding or
inspection under or related to this chapter or has
testified or is about to testify in any such proceeding or
because of the exercise by such employee on behalf of the
employee or- others of any right afforded by this chapter.
Discriminatory acts are subject 'to the sanctions contained
in section 182.669.
6. That the conduct engaged in by David Berthiaume at -the Respondent's
plant on May 7, 1986, was a "complaint . . . related to this chapter' within
the meaning of Minn. Stat. sec. 182.654, sub. 9 and is therefore "protected
activity." See also Order of the Administrative Law Judge dated July 16,
1987.
7. Minn. Rule 5210.0300 provides that:
If participation in an activity protected by the act was a
substantial reason for discharge or other adverse action by
an employer, the employee's rights under the act have been
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violated. Whether a discharge or other adverse action was
because of protected activity will be determined on the
facts in each particular case.
8. That the Complainant has shown that the 'protected activity" of May 7,
1986 was a substantial factor in and a substantial reason for the Respondent's
decision to discharge Mr. Berthiaume.
9. That the-Complainant has shown that Mr. Berthiaume would not have been
discharged but for the "protected activity."
10. Minn. Rule 5210.0290 provides:
That certain of an employee's activities are protected by
the act does not protect an employee from discipline or
discharge for other legitimate reasons.
11. That the Respondent has failed to show by a preponderance of the
evidence that it would have discharged David Berthiaume even in the absence of
the protected activity on May 7, 1986 or that the protected activity was not
the cause of the dismissal.
12. That the Complainant has proved by a preponderance of the evidence
that the Respondent violated Minn. Stat. sec. 182.669 by discharging David
Berthiaume on May 7, 1986, because he exercised his rights under Minn. Stat.
182.65 to 182.674.
13. Minn. Stat. sec. 182.669, subd. 1 provides in part, that:
. . . The administrative law judge may order rehiring of
the employee, reinstatement of the employee's former
position, fringe benefits, seniority rights,. back pay,
recovery of compensatory damages, and reasonable attorney
fees, or other appropriate relief.
14. That the Complainant's motion to amend the complaint to allege higher
damages is granted.
15. That David Berthiaume's failure to accept the Respondent's offer of
re-employment after a suspension without pay did nct terminate the
Respondent's liability for back pay.
16. That David Berthiaume is entitled to back pay in the amount of
$14,251.71.
17. That David Berthiaume is entitled to interest on the back pay award
in the amount of $597.40.
18. That David Berthiaume is entitled to compensatory damages in the
amount of $9.42.
19. That the reasons for the above Conclusions of Law are set out in the
memorandum which follows and which is incorporated into these Conclusions of
Law by reference.
20. That any Finding of Fact which is more properly classified as a
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Conclusion of law is hereby adopted as such.
Pursuant to the foregoing Conclusions of Law, the Administrative Law Judge
makes the following:
ORDER
IT IS HEREBY ORDERED THAT:
1. Cedarbrook Engineering Company shall cease and desist from
discriminating against any employee due to the exercise of Hghts
under Chapter 182 of Minnesota Statutes.
2. Cedarbrook Engineering Company shall pay to David J. Berthiaume
damages and interest in the amount of $14,858.53.
3. Cedarbrook Engineering Company shall remove any record of the
discharge from David J. Berthiaume's personnel record and shall
refrain from any actions which would hinder David J. Berl.hiaLlme from
obtaining future employment.
4. Cedarbrook Engineering Company shall post the following Notice,
printed in large type on 8-1 12 " by 11 " paper, for a period of 60 days
at three prominent locations in its plant:
NOTICE TO ALL EMPLOYEES
1. An employer cannot fire, harass or reduce the
wages of any worker who complains to the
employer or to OSHA about health or safety
hazards.
2. On May 7, 1986, [)avid J Berthiaume was fired
by Cedarbrook Engineering Co. for demonstrating
to an OSHA inspector the nature of a possible
health hazard - the smoke created by the
remelter.
3. Cedarbrook Engineering has been ordered to pay
David J. Berthiaume $14,858.53 for lost wages
and other damages.
4. Cedarbrook Engineering has also been ordered
not to discriminate against any employee who
complains about health or safety conditions.
Dated: December 11 1987 .
GEORGE A. BECK
Administrative Law Judge
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Reported: Court Reported - Transcript Prepared by Allyson K. Knip, Southwest
Court Reporters, 1-800-622-5058.
MEMORANDUM
This is i proceeding brought under Minn. Stat. sec. 182.669 which prohibits
discrimination by employers against employees due to the employee's exercise
of rights granted under the occupational safety and health laws of the State
of Minnesota. In this case the Commissioner of Labor and Industry is alleging
that employee David Berthiaume was fired by Cedarbrook Engineering Company
because he made a complaint to an Occupational Safety and Health inspector on
May 7, 1987. The complaint consisted of demonstrating a suspected smoke
hazard to the inspector while he was present at Cedarbrook's plant.
Burden_of Proof.
The appropriate burden of proof in this case must first be determined.
The general rule for all administrative contested cases is set out in Minn.
Rule 1400.7300, subp. 5 which provides, in part that:
The party proposing that certain action be taken must prove
the facts at issue by Et preponderance of the evidence,
unless the substantive law provides a different burden or
standard. A party asserting an affirmative defense shall
have the burden of proving the existence of the defense by
a preponderance of the evidence. . . .
In the case the Complainant is proposing that certain action be taken and the
Respondent would be in the position of asserting an affirmative defense.
However, the substantive law does provide further illumination about the
burden of proof. The Department's rule (Conclusion No. 7, states that the
employee's rights have been violated where his participation in a protected
activity was a substantial reason for discharge. Additionally, Et number of
federal cases have considered the burden of proof under a federal OSHA
discrimination statute which is substantially the same as the Minnesota
statute. (29 U.S.C. sec. 660(c)). There is no case law in Minnesota similar to
the federal case law. However, in the case of Minnesota Chapter 363 Human
Rights discrimination cases the Minnesota Supreme Court has found federal case
law construing federal Title VII to be precedential. Danz v Jones, 263
N. W. .2d 395 (Minn. 1978). It would appear likely that similar consideration
would be given to federal case law in OSHA discrimination cases.
In Donovan v. Freeway Construction Co., 551 F.Supp. 869, 878 (D.R.I.
1982), the court stated that the government must show that the activities of
the complainant are protected and that the employer must then show by a
preponderance of the evidence that it would have dismissed the complainant in
the absence of the protected conduct. In Marshall v. Commonwealth Aquarium,
469 F.Supp. 690, 692 (D.Mass. 1 9 7 9 ) , it was held that once the plaintiff
established that the activity was protected and that the protected activity
was a substantial factor in the employer's decision, then the burden shifted
to the employer to establish by a preponderance of the evidence that it would
have reached the same decision even in the absence of the protected conduct.
See also, Secretary v. Louis Zimmer, 632 F.Supp. 635, 638 (E.D.Pa. 1986).
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The parties are not in substantial disagreement on the burden of proof .
In its post-hearing brief the Respondent argued that the initial burden of
establishing a "protected activity" is on the complainant. The Respondent
stated that it accepted the burden of going forward with the evidence relating
to its explanation of why the employee was terminated, but stated that the
ultimate burden of persuasion as to the motivation of the parties is upon the
Complainant. (Respondent's Trial Brief , p. 4). An examination of the case
law discussed above, as well as the state rule, seems to require the
Complainant in this case to assume the burden of showing that the activity
engaged in was protected, that is, that it was a complaint under the statute
and that the protected activity was a substantial factor in the firing. If
the Complainant shows this, the Respondent must then establish by a
preponderance of the evidence that it would have fired Mr. Berthiaume even in
the absence of the protected conduct. Although it is concluded that this is
the appropriate analysis for discrimination cases of this type, a conclusion
is also made assuming that the burden of proof is fully upon the Complainant
(Conclusion No. 12) since based upon the facts of this case there is no
difference in the result.
Protected_Actiyity.
The Complainant must first show that the conduct engaged in by David
Berthiaume is protected under OSHA law. The argument in this regard revolves
around the description of protected activity set forth in Minn. Stat.
sec. 182.654, subd. 9) (Conclusion No. 5) which states that no employee shall be
discharged because he has "filed any complaint" related to OSHA law. On May
7, 1986, Mr. Berthiaume emptied a barrel of oily scrap into the remelter at
Cedarbrook's plant which resulted in a large cloud of dark smoke filling the
room. An OSHA inspector was present at the time and sampled the smoke, which
Mr. Berthiaume believed to be a possible hazard to the employees. Mr
Berthiaume had made no written complaint to OSHA about the smoke and did not
verbally complain to the inspector about it.
The Respondent argues that the statute should be interpreted to mean that
the complaint must be in writing. It points out that the statute relating to
requests for inspections specifically provides for written notice to the
Commissioner of Labor and Industry of violations. The Respondent also argues
that it is not possible to 'file' a verbal complaint let alone a demonstration
such as that performed by Mr. Berthiaume. Respondent believes that its
argument is supported by the case of Davis v. Boise Cascade Corporation, 288
N.W.2d 680 (Minn. 1979) where the court found that Minn. Stat. sec. 182.669 did
not afford an employee a private cause of action for wrongful discharge
because he "never discussed nor filed charges with the Department of Labor and
Industry;". 288 N.W.2d at 684. The employer also cites Brevik v. Kite
, 404 N.W.2d 367 (Minn.App. 1987). In Brevik two employees made an
(apparently oral) complaint to the Department about ventilation problems which
resulted in an inspection at their place of employment. Both were fired on
the day of the inspection. The court held that the employees were entitled to
bring a private cause of action despite the holding in Davis because they had
filed their complaint with the Department of Labor and Industry. 404 N.W.2d
at 370.
The Complainant argues that a complaint may be written, oral, or as in
this case, -a demonstration of an unsafe condition. It points out that Minn.
Stat. sec. 182.659, subd. 5 which relates to complaints made prior to or during
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any inspection states that an employee 'may notify the Commissioner in
writing, of any violation . . . " (emphasis added) and does not preclude an
oral complaint during an inspection. In fact, Minn. Rule 5210.0490, provides
that "During the course of an inspection, any employee shall be afforded an
opportunity Ito bring any violation of the act which he has reason to believe
exists in the work place to the attention of the OSHI." The language does not
limit complaints to those which are written and does not preclude a
demonstration. To that extent it interprets the statutory "complaint'
language. The Complainant also points out that the language of Minn. Stat.
sec. 182.654, subd. 9 is nearly identical to sec 11(c) of the federal Act. Federal
case law interpreting the federal Act has construed the filing of a complaint
more broadly than is urged by the Respondent as is discussed below.
The question of whether or not Mr. Berthiaume had filed a complaint under
the statute was also argued prior to the hearing based upon a written motion
filed by the Respondent asking that the complaint be dismissed for failure to
state a cause of action. In an Order dated July 16, 1987, the motion was
denied. The facts described by the parties and assumed to be true for the
purposes of that motion are not materially different from the facts which were
proved up in this case. However, the post-hearing argument of the parties and
the full factual record have been considered in reviewing the appropriateness
of the decision contained in the Prehearing Order.
it is again concluded that an employee demonstration of a health hazard to
an OSHA inspector in the course of his inspection is a "complaint" and a
protected activity under the OSHA discrimination law. The Davis and Brevik
cases do not support the Respondent's argument. In Davis the employee had no
contact of any kind with the Department of Labor and Industry nor was there
any inspection by the OSH Division. That is clearly not the situation in the
case at bar where the employee demonstrated a hazard to the Department's
inspector. In Brevik, the court noted an important policy factor is that the
statute should be interpreted to promote the enforcement role of the
Department of Labor and Industry by requiring it to be notified of
violations. In that case two employees had in fact made a complaint to the
Department and a private cause of action was allowed. The interpretation of
what constitutes a "complaint" in this case serves to promote the enforcement
role of the Department. Other statutory sections within Chapter 182 do not
mandate the filing of written complaints as the Respondent suggests. Minn.
Stat. sec. 182.659,subd. 4 specifically refers to requests for an inspection and
as noted above, subdivision 5 uses the permissive word 'may' in talking about
written complaints.
The Judge is, persuaded by the federal case law interpreting the similar
federal statute that an expansive reading of the phrase 'filed any complaint'
is appropriate. In Marshall v. Springville Poultry Farm, 445 F.Supp. 2
(M.D.Penn. 1977), the court concluded that a safety complaint filed with the
employer rather than the Secretary of Labor stated a claim under the federal
statute. The court relied upon the language in the federal statute which
requires only that the complaint be "under or related to this chapter'' as
supporting an expansive reading. The same language exists in the state
statute at sec. 182.659. subd. 9. In Power City__Electric, 1979 OSHD (CCH),
paragraph 23,947, the United States District Court for the Eastern District of
Washington determined that an oral complaint to an employer is a protected
activity under 29 U.S.C. sec 660(c)(1). the court noted that the language of
the statute itself suggested that -a broad construction is appropriate and
noted that "any right afforded by this chapter" is protected. The same
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language quoted appears in the state statute. In Donovan v. R.D. Andersen
construction Co. , 552 F . Supp. 249 (E.D. Kan. 1982), an employee's
communication with the media regarding safety conditions at its workplace was
found to be protected activity. 552 F.Supp. at 253. Again, the court urged a
broad construction of the statute and cited the " broad remedial purposes of
the Act."
The Respondent suggests that even if an oral complaint is a protected
activity, it is still a quantum leap to the position that a demonstration of a
problem is a protected activity. That argument is not persuasive. An
employee might, for instance, tap an inspector on the shoulder and point to a
piece of machinery without technically making an oral or written complaint.
Yet such an action is certainly a communication making a complaint to the
Department to aid in its enforcement of the Act. If the Respondent's
interpretation were accepted, an employer might be able to successfully defend
such a case simply because the employee did not utter the word " look" when he
pointed to -a piece of machinery. Similarly, Mr. Berthiaume was providing
information to the inspector in a non-verbal manner.
This tribunal is persuaded that given the expansive reading of identical
statutory language by the federal courts, the communication engaged in by Mr.
Berthiaume is protected activity and a complaint related to Chapter 182. The
Minnesota courts have stated that the statutes in question should be
interpreted with the goal in mind of aiding the Department in enforcing
Chapter 182. Given this goal , it would be ironic i f an employee could be
discharged for attempting to provide information about safety or health
conditions to an OSH inspector during an inspection.
The Emplovee's Motive.
The Respondent argues in its brief that as a part of its case the
Complainant must show that Mr. Berthiaume's actions were intended to be a
demonstration of a health or safety concern about the smoke. The Respondent
maintains that his actions were simply a thoughtless or spiteful act on the
part of a disgruntled employee. The Respondent points out that when
questioned by a partner of the firm immediately after the incident Mr.
Berthiaume did not mention his intent to demonstrate a health hazard.
However, immediately after that conversation, he did announce such an intent
to his immediate supervisor. (Finding of Fact No. 16). The Respondent also
suggests that there was no need to demonstrate a smoke problem since the
employer had created a new policy against burning scrap during the shifts.
The testimony of the employees however, demonstrates that the scrap was still
being burned during shifts on occasion in order to supply sufficient aluminum
to prevent the production process from having to shut down. It is also argued
that because Mr. Berthiaume created a potential problem for employees by
creating large amounts of smoke, this demonstrates this lack of concern for
safety. The record supports the conclusion, however, that smoke was produced
in the plant on occasion after March of 1986. Accordingly, the employees were
not unfamiliar with this safety hazard. The employer also suggests that Mr.
Berthiaume's nature as a disgruntled employee is demonstrated because he had
been once disciplined for insubordination, had once quit his position after
demanding a pay increase which was refused, and demanded pay raises at other
times. However, the record clearly supports the conclusion that both Mr.
Berthiaume's supervisor and his co-workers saw him as a very hard worker who
had his employer's interests in mind by striving to increase its
productivity.
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Mr. Berthiaume credibly testified that his motive in producing the smoke
on May 7 was to demonstrate a health or safety hazard to the OSH inspector.
He was unaware of how long the inspector might be there and so proceeded to
burn some scraP even though it wasn't needed at that time for the
manufacturing process. The Respondent argues that Mr. Berthiaume's
credibility is undermined by his indication in his complaint that he was just
doing his job. While the complaint did not acknowledge the new policy, Mr.
Berthiaume may have believed that burning scrap was still being done during
the shift and that therefore the May 7, 1986 incident was not all that
unusual. The employer's characterization of Mr. Berthiaume's action as the
spiteful act of a disgruntled employee does not square with his active
participation in the March safety meeting where he other workers expressed a
great deal of concern over the smoke created by the remelter. Mr. Berthiaume
was the employee responsible for creating the smoke on 'the night shift and
therefore heard complaints from other employees when smoke was created
Additionally, David's supervisor, John Witschen, testified that he believed
that Mr. Berthiaume had burned the scrap to show the inspector the smoke and
that his motives for doing so were altruistic. Other employees also believed
that Mr. Berthiaume's intent was to demonstrate the smoke hazard to the OSH
inspector rather than to simply embarrass his employer. It is therefore
concluded that the evidence preponderates in favor (of a finding that the
employee's intent was to demonstrate a safety or health concern and that
therefore his act was a protected activity.
Substantial Reason for Discharge.
The Commissioner must also demonstrate that the protected activity was a
substantial reason for the employee's termination. The Complainant need not
prove that it was the only reason for the firing. The employer is not
protected if the conduct is one of a number of reasons for the termination.
First of all, a partner in the firm, Roger Griep, admitted that the presence
of the OSH inspector was i factor in his ternmination of Mr. Berthiaume.
(Finding of Fact No. 21 ; Tr. 177-78; Tr. 293). Secondly, the prior work
record of Mr. Berthiaume would not lead one to believe that he would be fired
for this act unless its significance as a complaint to the Department were
involved. Mr. Berthiaume had a good work record at Cedarbrook. His only
prior discipline 2s a one-day suspension in February of 1985. (Finding of
Fact No. 13). His immediate supervisor testified that he would not have fired
Mr. Berthiaume for the incident in question. Also significant in this regard
is that the policy implemented by the Respondent subsequent to the March
safety meeting had been violated in April and May of 1986 without any
disciplinary action having been taken against either the night shift or day
shift remelter or any warnings having been given.
The employer admitted that immediate discharge was usually only justified
by drug use or drunkenness at work. Given that standard the termination seems
unusual unless it related to the presence of the OSH inspector. The federal
case law lists factors which are considered in determining whether a complaint
was a causative factor in a discharge. In Marshall v. Commonwealth Aquarium,
supra, the court cited such factors as a reluctance to cooperate with health
officials, resentment at their interference with the employer's business
activities, a belief that the employee was overreacting to a hazard, the fact
that the employee was discharged, and whether or, not the employer had
considered discharge of the employee before. 469 F . Supp. at 692-3. In
applying these factors in this case, Mr. Griep was quite plain in expressing
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his hostility towards the Department's investigators and his resentment at
their interference in his business. lie told an investigator that "All you
people with OSHA are sick" and that the investigators "listen to everyone's
bullshit and tell a man how to run his goddamn business., (Finding of Fact
No. 22 ) . It also appears that Cedarbrook had not previously considered
discharging fir. Berthiaume for his handling of the release of smoke or for any
other reason. Given the evidence discussed above, it must be concluded that
the Commissioner has satisfied his burden of demonstrating that Mr.
Berthiaume's conduct on May 7, 1987 was a substantial reason for his firing.
The Employer's Defense.
The Respondent argues in its post-hearing submissions that Mr. Berthiaume
was terminated as an employee because he deliberately violated a safety rule.
The employer must show by a preponderance of the evidence that it would have
discharged Mr. Berthiaume even in the absence of the protected activity on May
7, 1986 or that the protected activity was not the cause of the dismissal. An
employee is not protected from discipline or discharge for legitimate reasons
apart from a protected a (Conclusion No. 10). Cedar-brook did make a
change in policy in late March of 1986. It was decided that scrap would be
burned only after hours or on weekends and this change in policy was
communicated to Mr. Berthiaume by his supervisor. (Finding of Fact No. 10,
11). The policy was never reduced to writing or posted and was not apparently
communicated to all employees but only to the two remelter's. Although there
was some dispute among the parties as to whether or- not Mr Berthiaume's
supervisor had knowledge that Mr. Berthiaume felt it would be impossible to
fully comply with the new policy, there is no doubt that Mr. Berthiaume
violated the policy on May 7, 1986 by burning the scrap at the beginning of
the shift.
Mr. Griep testified that the reason he fired Mr. Berthiaume was for
violating the safety rule. The employer insists that the appropriate
discipline for violation of a company policy is the perogative of the employer
and also points to the insubordination incident in 1985 as justification for
the severity of the 1986 disciplinary action. As discussed above, however,
the discipline taken is unusually severe given the employer's own standards
for discharge and certainly does not reflect any idea of progressive
discipline. It simply seems unusually harsh for- the violation of a safety
rule, especially one that had been violated with impunity in the prior month
and a half subsequent to its adoption. An employee who violated the policy
during 1987 received only an oral warning to stop. (Tr. 146, 149-50).
Termination for a simple rule violation also seems unlikely because Mr.
Berthiuame was an acknowledged good employee who had received regular raises
from Cedarbrook.
Considering all of the Respondent's arguments, as well as the factual
matters discussed in regard to the Complainant's demonstration of a
substantial reason for termination, it cannot be concluded that the employer
has demonstrated that it is more likely than not that Mr. Berthiaume was fired
simply for a rule violation. The accumulated evidence quite strongly
indicates that the employee's communication to the OSH inspector was a
substantial reason for the discharge even if the rule violation was one
facto" The record convincingly demonstrates that the employee would not have
been dealt with so severely for a simple violation of the policy about burning
scrap, absent other factors. A violation of the Act has therefore been
proved.
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Damages and other relief
The matter of damages and an appropriate remedy must also be considered.
At the hearing the Complainant moved to amend the complaint in regard to
damages. The original complaint alleged total damages of $10,980.78. It
included back pay only through January 5, 1987. At the hearing the
Complainant sought to prove a back pay award through March 31, 1987 when Mr.
Berthiaume's started attending truck driving school full time. The Respondent
opposed the motion to amend at the hearing and in its post-hearing brief
argued that the motion was untimely. However, Minn. Rule 1400.5600, subp. 5
provides that at any time prior to the close of the hearing, an agency may
serve an amended notice provided that an opposing party has a reasonable time
to prepare to meet the new allegations if requested. The Respondent in this
case sought no further time to prepare to meet the allegation of additional
back pay from January to March of 1987.
The general rule in regard to administrative pleadings is that they are
liberally construed and freely amended. National Realty and Construction Co.
v. __OSHRC, 489 F.2d 1257 (D.C.Cir. 1973). An employer must show prejudice or
surprise by a propsed amendment of the pleading. Mineral Industries and
Heavy Construction Group _y._ OSHRC, 639 F.2d 1289 (5th.Cir. 1981). In this
case the Respondent was not surprised. The original complaint described the
damages claimed as those "sustained by Mr. Berthiaume to date." Generally, an
employer is not prejudiced by an amendment unless there is a loss of evidence,
unavailability of witnesses, or other factors which would diminish an
employer's defense on the merits. Usery v. Marquette Cement Mfq. Co., 568
F.2d 902, 908 (2nd.Cir. 1977); Rothstein, Occupational Safety and Health Law,
sec. 360 (2nd. Ed. 1983))))) No such prejudice was demonstrated. The motion to
amend the complaint to include a claim for additional back pay is therefore
granted.
The Minnesota discrimination statute specifically permits the award of
back pay. (Conclusion No. 13). Additionally, the federal case law has
recognized that back pay is an appropriate remedy for -a discriminatory and
therefore unlawful (discharge. Marshall v. N.L. Industries., 618 F.2d 1220,
1224 (7th.Cir. 1980). The back pay is reduced by the actual earnings of the
employee during the time period in question. Commonwealth _ Aquarium, supra,
469 F.Supp. at 693. Mr. Berthiaume claims back pay from the date of his
discharge through April 1, 1987 when he began attending truck driving school
full time. The employee calculates damages based upon the rate of pay he was
receiving at the time of discharge, namely, $8.00 per hour which results in
regular wages of $13,696.00. It was also demonstrated in the record that
based upon the number of overtime hours worked in prior years, Mr. Berthiaume
likely would have earned $1,143.71 in overtime from May of 1986 to April of
1987. Although the Respondent argues that overtime hours cannot be determined
with reasonable certainty, Mr. Berthiaume's calculations are consistent with
the historical overtime data. It is appropriate that any uncertainty in this
regard be charged against the employer who discriminates rather than the
employee. The overtime claim is not speculative but is based upon past
practice. Since no back pay is claimed or awarded for four weeks at the end
of 1986, it is also appropriate to award the employee back pay for the two
weeks of vacation he would have earned had he not been fired. This amounts to
$640. Mr. Berthiaume was able to find some part-time work during his
unemployment and did earn $1,228.00 doing cement work and odd jobs. This
amount must be subtracted from the claim for back pay.
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The Respondent suggests that Mr. Berthiaume failed to mitigate his damages
by obtaining suitable employment. However, Mr. Berthiaume creditably
testified that he continued to look for full-time employment in a job that
paid at least $6.00 per hour from May of 1986 through April 1, 1987, except
for a one-month period at the end of 1986 when he was out of town. He applied
for work at approximately 25 firms in the northwest metropolitan area and
registered with the state job service. (Finding of Fact No. 23). Generally,
employees are not required to accept lower-paying jobs in order to mitigate
their damages. Ford Motor Company v. EEOC. 458 U.S. 219, 232 (1982). The
record supports a conclusion that the employee made a persistent effort to
find employment after his discharge.
At a Saturday meeting shortly after Mr. BErthiaumne was fired, his
immediate supervisor told him that he could be rehired if he would accept a
suspension without pay for a few days. Mr. Berthiaume thought that this was
unfair and rejected the offer. In late June or early July of 1986, Mr.
Berthiaume was willing to take his job back without back pay, however, at that
time the employer declined to rehire him. The Respondent's offer to rehire
Mr.Berthiaume after a suspension without pay does not terminate its liability
for back pay. The offer of employment must be unconditional and a terminated
employee is riot required to accept a job on the condition that his claims
against the employer be compromised. Ford Motor Company, supra, 458 U.S. at
2 3 2 . In Donovan_ v. Commercial Sewing.__Inc,, 562 F.Supp. 548, 554 (D.Conn.
1982), the court noted that the decisionmaker must consider the circumstances
under which the offer was made or rejected including the terms of the offer
and the reasons for refusal. In this case the offer of re-employment was not
unconditional since it included the penalty of a two or more day suspension.
Mr. Berthiaume reasonbly rejected the offer since he believed that he was
acting within his rights and that a suspension was therefore inappropriate.
Prejudgment interest on back pay awards is usually awarded in
discrimination cases since it places the employee in the position he would
have been in absent discrimination, by compensating him for the loss of use of
his money. Spurk v. Civil Service Board, 231 Minn. 183, 42 N.W.2d 720, 728
(1950), 2 Larson, Emplovment Discrimination sec. 55.37(b)(iii). In Donovan v.
Freeway Construction Co., 551 F.Supp. 869, 881 (D.R.I. 1982), the court noted
that prejudgment interest is intended to compensate a party for the time value
of money lost due to a wrongful dismissal. The Minnesota Court of Appeals has
expressed a preference for calculating prejudgment interest on back pay awards
by an administrative agency by reference to Minn. Stat. sec. 334.01 , subd. 1
which provides for interest at the rate of 6% per annum. Henry v
Metropolitan Waste Control Commission, 4Ol N.W.2d 401, 407 (Minn.App. 1987).
Interest is therefore awarded on the back pay at the rate of 6% per annum from
April 1 , 1981 to the date of this decision . Additionally, the testimony and
exhibits demonstrate that Mr. Berthiaume incurred late charges on three bills
during his period of unemployment because he did not have the money to pay
them promptly. Since these charges, in the amount of $9.42, are directly
related to the wrongful termination they are properly compensable.
Minn. Stat. sec. 182.669 also provides that the Administrative Law Judge may
order "other appropriate relief." The record in this case demonstrates that
the employer has an undisguised hostility towards safety and health regulation
and the Department's regulators. (Finding of fact No. 22 ). The employer
views enforcement of the anti-discrimination statute in this case as
interference with its business. It is reasonable to assume that this attitude
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has been communicated to its employees. Its employees are of course aware
that Mr. Berthiaume was fired for demonstrating a hazard to an OSH inspector.
Employee concern about employer retaliation was evidenced by an employee
inquiry to the OSH inspector on May 7, 1986, asking if he too might be fired.
Finding of Fact. No. 16.
It is therefore important in this case to fashion a remedy which provides
notice to Cedarbrook's employees that the discrimination law is being enforced
by the State of Minnesota and that the Respondent has been ordered to stop
discriminating and to pay Mr. Berthiaume damages for his termination.
Accordingly, the Order requires the employer to post an appropriate notice in
the workplace for a period of 60 days to provide its employees with this
information. Federal OSHA discrimination cases have fashioned a similar
remedy. Freewav Construction Co., supra, 551 F.Supp. at 881. Commercial
Sewing, Inc., supra, 562 F.Supp at 556. Additionally, it is appropriate to
remove the notice of discharge from Mr. Berthiaume's personnel record and to
provide that Cedarbrook shall not hinder his future employment possibilities
in order to place him in the position fie would have been in absent the
discrimination.
G.A.B.