Stauffer Chemical Company

National Labor Relations Board - Board Decisions

Jul 29, 1982

262 N.L.R.B. 1422 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stauffer Chemical Company and Robert W. Kirk-
connell. Case 2-CA-17092
July 29, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On September 8, 1981, Administrative Law
Judge Eleanor MacDonald issued the attached De-
cision in this proceeding. Thereafter, the General
Counsel, the Charging Party, and Respondent filed
exceptions and supporting briefs; Respondent filed
cross-exceptions; and all parties filed answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge only to the extent consistent herewith.
Respondent has excepted to the Administrative
Law Judge's finding that Respondent maintained a
rule prohibiting employees from contacting gov-
ernment agencies directly for information relating
to occupational safety and health standards in vio-
lation of Section 8(a)(1) of the Act. We find merit
in Respondent's exceptions.
The facts, as more fully set forth by the Admin-
istrative Law Judge, are as follows: Respondent
manufactures chemicals at its facilities throughout
the United States and the world. Respondent's En-
vironmental Engineering Department, located in
Dobbs Ferry, New York, regularly sends its engi-
neers to the various manufacturing facilities to pro-
vide onsite environmental engineering services, in-
cluding the design of pollution control devices. Re-
spondent's manager of Environmental Engineering,
Seymour Friedman, testified without contradiction
that the Environmental Control Department,
I The General Counsel and the Charging Party have excepted to cer-
tain credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefilly examined the record and find
no basis for reversing her findings.
2 We adopt the Adruinlstrative Law Judge's dismissal of the allegation
that Respondent violated Sec. 8(a)(1) of the Act by discharging employee
Kirkconnell. However, we find it unnecessary to reach the legal issues
involved in A/eluia Cushion Co., Inc., 221 NLRB 999 (1975), regarding
whether or not certain conduct constitutes protected concerted activity
since the Administrative Law Judge found in this case that Kirkconnell
did not in fact make any complaints about employee safety as the Le
Moyne, Alabama. project progressed to completion or refuse to perform
work because of any fears for employee safety.
262 NLRB No. 179
headed by Ed Conant, was responsible for the in-
terpretation of Environmental Protection Agency
(EPA) regulations that the engineers from Envi-
ronmental Engineering used in their designs. Some-
time in 1975, Conant complained to Friedman
about the environmental engineers' contacting gov-
ernment agencies and obtaining interpretations of
the regulations. Friedman and Conant came to an
"understanding" that, in order to avoid confusing
interpretations, Environmental Control would
make all the contacts. Friedman then reported to
his engineers that they were not to contact agen-
cies directly for information about the regulations
and that they would have to go through Environ-
mental Control.
On June 3, 1975, Friedman issued an interoffice
memorandum entitled "Contacting Pollution Au-
thorities" to his engineers, including Robert Kirk-
connell, the Charging Party here. The memoran-
dum, which Respondent concedes is still in effect,
reads in pertinent part as follows:
Once again let me remind you that Stauffer
Corporate procedures dictate who should con-
tact the pollution authorities in reference to
Stauffer's Environmental Affairs. It is the
function and concern of the Environmental
Control Department to make contact with any
pollution control authority, be it State, Feder-
al, county, local or otherwise.
There are occasions when Environmental
Control may request one or more of us to con-
tact a particular pollution control authority. In
that case, please inform me first that the re-
quest has been made . ...
Occasions may arise when other depart-
ments within Stauffer (Law, Manufacturing,
etc.) may request you to contact pollution au-
thorities. When this occurs, please contact me
before communicating with these authorities.
The record indicates that no similar understanding
or procedure was in effect between Environmental
Engineering and Respondent's Industrial Hygiene
Department, which is responsible for monitoring
employee exposure to hazardous substances and for
Occupational Safety and Health Administration
(OSHA) regulations.
In January 1977, Kirkconnell was performing
onsite tests at Respondent's Le Moyne, Alabama,
facility in conjunction with a project to remove or-
ganic waste from effluent water. While running
tests at a pond where waste streams converged,
Kirkconnell noted the presence of hydrogen sul-
fide, a toxic gas, and felt some physical effects
from it. Kirkconnell and another engineer then
took samples and obtained readings of the level of
1422
STAUFFER CHEMICAL COMPANY
hydrogen sulfide at different sites. Kirkconnell
asked two plant engineers for the permissible level
of employee exposure, but was dissatisfied with
their estimate. Kirkconnell then contacted the Na-
tional Institute for Occupational Safety and Health
(NIOSH), which is the research arm of OSHA, and
found that the standard was as the plant engineers
had estimated. Several days later, according to Kir-
connell, Friedman reminded him that he was not to
contact regulatory agencies under any circum-
stances and that he was to go through Environ-
mental Control. Friedman had no specific recollec-
tion of this incident but acknowledged that he "un-
doubtedly" told Kirkconnell to go through chan-
nels and not to contact the agency directly.
Based on Friedman's and Kirkconnell's testimo-
ny, the Administrative Law Judge found that Re-
spondent, by virtue of the June 3, 1975, memoran-
dum, maintained a rule prohibiting employees from
contacting government agencies directly for infor-
mation, including information about occupational
safety and health standards. She found, relying on
Alleluia Cushion Co., supra, that the rule had the
broad and unlawful effect of barring employee
communication with occupational safety and health
agencies for any reason. She also found that the
rule impermissibly conditioned the exercise of the
employees' Section 7 right to protect the safety of
the workplace on obtaining the Employer's permis-
sion. Finally, she rejected Respondent's asserted
justification for the rule, finding that Respondent
had not shown that, if its employees contacted
government agencies directly to obtain occupation-
al safety and health standards, confusion or other
harm to its business would result.
Contrary to the Administrative Law Judge, we
do not find that Respondent maintained a rule in
violation of Section 8(a)(l). Thus, we find that
Friedman's June 3, 1975, memorandum, read in its
entirety, is valid on its face. In so finding, we note
that the memorandum was issued only to the envi-
ronmental engineers, who had to allow for envi-
ronmental regulations in their designs; that it re-
ferred specifically to contacts with "pollution con-
trol authorities," not occupational safety and health
authorities;3 and that it dealt with requests to con-
tact pollution control authorities coming from
other departments. We further note that Respond-
ent in 1978 sent two letters to all salaried employ-
ees, including the environmental engineers, con-
cerning internal and statutory reporting require-
ments, which the Administrative Law Judge found,
3 In this regard, we find it significant that, as noted above, Respond-
ent's separate Industrial Hygiene Department had primary responsibility
over worker exposure to hazardous substances and compliance with oc-
cupational safety and health regulations.
and we agree, did not prohibit employees from
contacting government agencies regarding occupa-
tional safety and health matters. Based on the fore-
going, we find that the memorandum, on its face
and considered in context with the other memoran-
da, was not overly broad, but rather merely out-
lined the procedure whereby the environmental en-
gineers could obtain work-related information
about pollution control regulations.
Furthermore, we find, contrary to the Adminis-
trative Law Judge, that Friedman's remarks to
Kirkconnell following the latter's telephone call to
NIOSH in 1977 do not establish that the memoran-
dum was considered applicable to employee re-
quests for information on occupational safety and
health standards. Thus, it is not clear from the
record whether Kirkconnell's call to NIOSH for
the hydrogen sulfide standard was in furtherance of
his job responsibilities or was an attempt to enforce
the standard in connection with a personal safety
concern. Moreover, even if Kirkconnell's call to
NIOSH were to be construed as such an attempt,
we note that there is no showing of any subsequent
application of the rule to employee contacts with
occupational safety and health agencies and that
Friedman's statement to Kirkconnell not to contact
government agencies directly was an isolated
remark occurring several years prior to the filing
of the instant charges. Therefore, we do not find
that the 1977 incident is sufficient, in itself, to es-
tablish that the rule, which we have found valid on
its face, was otherwise unlawful.
Finally, we find that Respondent has demonstrat-
ed a legitimate and substantial business justification
for its rule. In this regard, the record indicates,
inter alia, that the Environmental Control Depart-
ment had the primary responsibility for obtaining
information on, and interpreting, EPA regulations;
that the Environmental Engineering Department's
engineers used such information in their designs;
that the head of Environmental Control com-
plained to Friedman about the environmental engi-
neers' contacting government agencies and obtain-
ing interpretations of the regulations; and that the
rule operated to establish an orderly way of obtain-
ing work-related information.
In view of the particular facts of this case, and
for all of the foregoing reasons, we conclude that
the Geperal Counsel has not proved by a prepon-
derance of the evidence that Respondent main-
tained a rule prohibiting employees from directly
contacting occupational safety and health agencies
1423
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of Section 8(a)(l.) of the Act.4 We
therefore shall dismiss the complaint in its entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' In view of our decision herein, we find it unnecessary to pass on the
Administrative Law Judge's citation of Alleluia Cushion Co., supra, as au-
thority for her finding that Respondent maintained a rule in violation of
Sec. 8(aX)(1).
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge:
This case was heard in New York, New York, on 19
days between October I and October 31, 1980. The
amended complaint, based on a charge filed by Robert
W. Kirkconnell, alleges that, in violation of Section
8 (aX1) of the Act, Respondent Stauffer Chemical Com-
pany discharged Kirkconnell because he "concertedly
complained to Respondent regarding the safety, health
and related working conditions of Respondent's employ-
ees," and that Stauffer has "maintained and promulgated
a company rule and policy which prohibits employees
from directly contacting Federal or State govermental
agencies concerning matters of health and safety relating
to their employment." The complaint alleges that Re-
spondent has thereby discouraged employees from en-
gaging in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
Stauffer filed an answer denying the material allegations
of the complaint and alleging that Kirkconnell was a su-
pervisor and was discharged for cause.'
Upon the entire record, including my observations of
the demeanor of the witnesses and after due considera-
tion of the briefs filed by the parties, I make the follow-
ing:
FINDINGS OF FACT
I. JURISDICTION
Stauffer Chemical Company is a Delaware corporation
engaged in the manufacture and nonretail sale and distri-
bution of chemicals and related products with an office
and place of business, inter alia, at Dobbs Ferry, New
York. In the course and conduct of its business, Re-
spondent annually sells and ships from its facility de-
scribed above products, goods, and materials valued in
excess of $50,000 directly to points outside theState of
New York. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
I Respondent's allegation that the charge was not timely served was
withdrawn at the hearing.
11. THE ALLEGED UNFAIR I.ABOR PRACTICES
A. Background
Kirkconnell, who holds a bachelor's degree in :hemi-
cal engineering, was hired by Stauffer in August 1974, as
a senior associate engineer in the Department of Envi-
ronmental Engineering located in Dobbs Ferry, New
York, the site of Stauffer's Eastern Engineering facility. 2
From time to time, Kirkconnell was assigned certain en-
gineering problems to be solved at Stauffer's various
facilities located throughout the United States. His spe-
cialty was the treatment of water for the purpose of re-
moving chemicals or other unwanted components from
water which had been utilized by or contaminated by
Respondent's manufacturing processes. Kirkconnell's
services were also used on a consultant basis by other
employees of Stauffer.
The instant case arises mainly from Kirkconnell's as-
signment in May 1978 to develop alternative treatment
schemes for polluted groundwater located below the sur-
face of Stauffer's Le Moyne, Alabama, facility. It was
the intention of Respondent to pump the water to the
surface, remove pollutants from the water, and then dis-
charge the treated water. Kirkconnell's task was to study
methods of treatment and disposal of the water. Pumping
the groundwater to the surface where it could be treated
was the responsibility of the Le Moyne plant geology
department. The General Counsel alleges that Kirkcon-
nell's actions in carrying out this assignment in such a
manner as to preserve the health and safety of Stauffer's
emloyees at the Le Moyne plant led to his unlawful dis-
charge on August 20, 1979.
A summary of the General Counsel's position will
serve as an aid to understanding the lengthy and com-
plex testimony discussed below. In brief, the General
Counsel maintains, the testimony of Kirkconnell shows
that Stauffer was more concerned with holding down
costs than with safely treating and discharging the
groundwater at Le Moyne so as not to endanger the
health of employees, and that Kirkconnell was prevented
from carrying out sufficient tests and studies fully to
evaluate and design an appropriate and safe water treat-
ment method.3 Kirkconnell testified that he was not per-
mitted to obtain the applicable safety and health stand-
ards and regulations directly from Government authori-
ties and that, despite his repeated requests therefor, no
Stauffer employee ever furnished him the safety and
health standards he required to determine the legal pa-
rameters governing his work. Kirkconnell testified to
several incidents which allegedly demonstrate Respond-
ent's lack of concern for the health of its employees and
2 Although Respondent claimed that Kirkconnell held supervisory
status, the evidence showed that Kirkconnell had no supervisor) duties
or authority whatsoever.
3 In particular, the General Counsel alleges that despite repeated re-
quests by Kirkconnell to obtain accurate data on the average contamina-
lionl of the groundwater so that he could accurately calculate expected
levels of pollution at the treatment site, Respondent denied Kirkconnell's
request to pump the observation wells which would have provided the
necessary data. It is evident that the greater the contamination of the
groundwater, the greater will be the expected levels of pollutant extract-
ed during treatment of the groundwater.
1424
STAUFFER CHEMICAL COMPANY
Respondent's alleged proclivity to endanger the safety of
its employees. 4 Kirkconnell testified that after being
gassed by chlorine gas and after suffering injury there-
from in September 1978, Respondent caused him to falsi-
fy a medical report about the incident in order to obtain
reimbursement for medical expenses. Kirkconnell testi-
fied that in May 1979 he was ordered to destroy files
containing environmentally sensitive material, and that in
July 1979 he was told that henceforth sensitive material
concerning the environment should no longer be includ-
ed in reports and memoranda. Kirkconnell testified that
the method of treating and discharging the groundwater
was determined arbitrarily in October 1978 without
regard to his findings, and that almost I year later, in
August 1979, the method was again changed. Despite the
change however, Kirkconnell was not given sufficient
time to perform work required to study the new method
before a new report was demanded of him, and a date
was set for issuance of the report without consulting or
informing him. Kirkconnell's testimony suggests that be-
cause he expressed safety concerns to his superiors
during the course of the groundwater project and re-
fused to submit an unsafe design, he was ultimately given
many tasks to perform in an impossibly short time; when
he did not complete these tasks, he was discharged. 5
B. The Le Moyne Groundwater Project
1. Early stages of the project
Kirkconnell testified that in May 1978 he was assigned
by Seymour Friedman, head of the Environmental Engi-
neering Department, to work on a method of removing
contaminants from the groundwater at the Le Moyne
plant. Kirkconnell visited the plant and was given a
rough chemical analysis of the groundwater as a data
base by Gregory Heausler, then technical superintendent
of the Le Moyne plant. One of the contaminants present
in the water was carbon tetrachloride, (CC14) which
Kirkconnell described as a soluble, volatile, carcinogen.
Heausler informed Kirkconnell that there were about 30
parts per million (ppm) of CCI4 in the groundwater.
4 At the outset, it is important to distinguish between the two sets of
safety regulations which will be referred to in this decision. The safety of
the environment, a matter affecting all those present in a geographical lo-
cality, is entrusted to the Federal Environmental Protection Agency
(EPA) and to certain local authorities such as the Alabama Water Im-
provement Commission (AWIC) The safety of the workplace and the
health of Stauffer's employees is under the jurisdiction of the Federal Oc-
cupational Safety and Health Administration (OSHA). The General
Counsel's theory of the case-that Kirkconnell engaged in concerted ac-
tivities for the mutual aid or protection of Stauffer employees-has refer-
ence only to Kirkconnell's attempts to safeguard the safety of the work-
place See Allelluia Cushion Co., Inc., 221 NLRB 999 (1975). In Alleluia
Cushion, the Board held that an employee who acts alone in making com-
plaints about conditions affecting fellow employees to a govermental oc-
cupational safety agency. will be deemed to be engaged in protected con-
certed activity for mutual aid and protection within the meaning of Sec.
7 of the Act in the absence of evidence that fellow employees disavow
the sole employee's efforts Activities directed toward preserving the en-
vironment in general as distinguished from insuring a healthy and safe
workplace for the benefit of employees are not dealt with by Alleluia
Cushion and related cases.
s Kirkeonnell also testified that he discussed his concerns for the
health and safety of the employees with union representatives and rank-
and-file employees of Stauffer
On August 24, 1978, Kirkconnell addressed a memo-
randum to Friedman "to provide an interim position on
alternate treatment schemes" for the polluted ground-
water at Le Moyne. The memo stated that samples taken
from a number of different 'wells over the past 5 years
indicated an estimated concentration of 30 ppm of CC14
in the groundwater. The memo also described spray tests
runs by Kirkconnell with water from well 029; this
water had a CC14 content of 475 ppm. The advantages
of spraying followed by ponding as a means of removing
CC14 from the groundwater are described in the memo."
The disadvantages of ponding were stated to be:
1. The CC14 air contamination will be at a maxi-
mum of about 0.01 of a ppm. The regulatory 8 hour
exposure level is currently at 10 ppm. A major frac-
tion of the CCl4 will be separated from the aqueous
phase and disposed of into the air.
2. A very preliminary investigation of the related
standards and regulations indicates that, if the
mining law is applicable, there is a potential prob-
lem with excessive iron in the effluent. To circum-
vent this legal problem, the groundwater can be
used as process water. Process water effluent is con-
trolled with an NPDES permit which does not
monitor soluble iron.7
Kirkconnell testified that he did not know the applica-
ble regulatory standards for CC14 either when it was dis-
charged into the air or dissolved in water. He made sev-
eral verbal requests for the information, and finally in-
corporated his request into a memorandum dated August
31, 1978, addressed to Tom Sayers in the Stauffer Envi-
ronmental Control Department. Kirkconnell testified that
the memorandum did not result in his being supplied
with the applicable regulatory standards and that no one
in the Company ever gave him standards and regulations
to govern his design.
The General Counsel introduced this memorandum
into evidence. In it, Kirkconnell stated that the purpose
of the memorandum was to bring the reader up to date
on the status of the project to "get your best practical
guesstimate [sic] of the standards and regulations we will
probably have to meet. Your guidance will dictate the
technical route we will follow with its related costs."
The memorandum described generally some of the then
current waste treatment facilities at Le Moyne stating
that the quality of the plant's effluent is regulated by an
NPDES permit. The memorandum stated that the criti-
cal pollutants at the plant are CC14, carbon disulfide
(GS2), chromium, mercury, zinc, iron, and thiocarba-
mates, and the memorandum posed four questions relat-
ing to possible alternative treatment schemes for the pol-
luted groundwater: (I) the relationship between stand-
ards under the plant's existing NPDES permit and the
6 Since CCI, is volatile, some of it will be discharged into the air as a
vapor if water containing dissolved CCIh is exposed to air. The process is
speeded up if the contaminated water is sprayed or if air is bubbled
through the water. One of the components of the treatment methods
being considered by Kirkconnell was the construction of a large pond
into which the groundwater would be pumped or sprayed.
7 This refers to a federally regulated permit for the discharge of water
containing certain permissible levels of contaminants into a waterway
1425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alabama Mining Law of 1962; (2) an estimate of effluent
quality levels which would be required in an NPDES
permit to cover discharge of treated groundwater; (3) an
estimate of criteria for disposal of sludge created by
treating the groundwater; and (4) a question concerning
the feasibility of disposing of the pollutants by, essential-
ly, evaporating them into the air. This last possibility is
the controversy around which the instant case centers.
Concerning this alternative, Kirkconnell's memo stated:
All the less expensive alternative treatment
schemes utilize transfer of CCI4 from the aqueous
phase to the gas phase (air) by spraying, passing
over a cooling tower, stripping or ponding. The
maximum CC1 4 concentration, within property
limits, is calculated to be about 0.01 ppm. I used the
standard computer program for this estimate. The
current 8 hr. exposure for CCI4 is 10 ppm ...
At this time the best overall treatment scheme ap-
pears to be a combination of spraying and ponding.
The maximum concentration of CCI4 is estimated
to be about 0.01 ppm at the pond. The location of
the concentration would be 1/2 mile from the plant.
Assuming the data to be accurate, what is your esti-
mate of the overall plan to dispose of ground water
pollutants to the air. Please consider today and
some such day at 1985.
The memorandum stated that tests on the composition of
the groundwater as well as on methods of reducing its
contamination were being done on water obtained from
"worst-case 029 well." Attached to the document were
various tables and diagrams. These show, inter alia, that
the "typical groundwater" was estimated to contain 25
ppm of CC14, although a graph of water taken from 029
well shows a raw concentration of 475 ppm. A map
showed the location of various test wells drilled to ob-
serve the groundwater under the Stauffer Le Moyne
plant, as well as on the adjoining property of Courtauld,
and showed the location of the proposed pond for treat-
ment of the groundwater.
Although Kirkconnell testified that he did not know
the applicable standards and regulations for discharge of
CCI 4 to the air, it is clear from the above-described
memorandum that he was in fact aware that "the current
8 hour exposure for CC14 is 10 ppm."
8 In the memoran-
dum, Kirkconnell was thus requesting information
whether the estimated maximum concentration above the
pond treatment site of 0.01 ppm was compatible with any
changes in regulations anticipated to be in effect by 1985.
(Indeed, on redirect, Kirkconnell changed his testimony
to accord with this interpretation.) It is evident that he
was also asking about regulations governing exposure to
the other contaminants listed in the memo; for instance,
the memo stated "To the best of my knowledge there is
no limit on CS2?" Further, there was the issue of stand-
ards which would apply to the treated water when it
was discharged to some receiving environment.
s As will be discussed in detail below, this is a time-weighted average
promulgated by OSHA which limits exposure of employees to CCI 4 in
air.
Kirkconnell prepared a lengthy "interim memo" on
the groundwater treatment project dated September 15,
1978, addressed to Friedman. The memo stated "the
choice of treatment and ultimate disposal schemes is
highly dependent upon the interpretation of, both current
and future, applicable Federal/State regulations and
standards. Environmental Control and Legal are study-
ing the applicable regulations and standards. The final
decisions will probably develop from interpretations and
rulings by the Alabama enforcement agency, AWIC."
Concerning the CC14, the memo stated, "The use of a
spray-pond for treatment of groundwater looks compara-
tively encouraging from both technical and economic
considerations. In spray ponding the major contaminant,
carbon tetrachloride, is flashed off into the atmosphere.
The transfer of the liquid phase contaminant to become a
potential gas phase contaminant, in the future, requires
careful study." The memo repeated the information that
the maximum predicted CC14 level above the pond was
0.01 ppm and that the current 8-hour maximum exposure
limit is 10 ppm. It stated "the air pollution limit on CS2
is unknown at this time." In discussing the m:/ior con-
taminants of the groundwater, the memo cauton!ed that
the "typical analysis" of groundwater, based on "samples
taken from several wells over a period of years" should
not be confused with the analysis of well 029 from
which the water was used for several studies. (This is the
"worst case" well described in the earlier memo.) In dis-
cussing the study of a spray pond possibility, the memo
stated that although the alternative offers certain advan-
tages of cost, flexibility and the like, it "also has some
unique disadvantages" due to the transfer of a pollutant
to the air. The proposed location of the pond was de-
scribed as being "at the apex of a rise, one-half way be-
tween the plant and the [Mobile River]." The other al-
ternatives considered and discussed in the memorandum
were removal of contaminants by activated carbon, by
air stripping and by the use of a cooling tower.
Arthur Wood, plant manager at Le Moyne from 1973
to 1975, and director of manufacturing, Industrial Chemi-
cal Division during the period relevant to this case, testi-
fied that he has the overall responsibility for Le Moyne
and 30 other Stauffer plants." Gregory Heausler, techni-
cal superintendent of the Le Moyne plant during the rel-
evant period, testified that from May 1978 he was the
manager of the Le Moyne groundwater project;10
Heausler was responsible for monitoring all the environ-
mental activities at the plant, and, as groundwater
project manager, his job was to coordinate efforts by the
plant, by the geology department, and by the engineering
department to solve the problem.
Both Wood and Heausler testified as to the origins of
the Le Moyne groundwater treatment project. The
9 Wood testified in a careful. quiet, and thoughtful manner. He dis-
played no animus toward Kirkconnell and gave exact, helpful answers on
cross-examination. I find that he was a truthful witness and I shall credit
his testimony.
'O Heausler testified in a thoughtful, careful, and exact manner. He was
helpful on cross-examination and did not seek to evade the questions. He
freely expressed his liking for Kirkconnell and admiration for Kirkcon-
nell's abilities. I find that he was a truthful witness and I shall credit his
testimony.
1426
STAUFFER CHEMICAL COMPANY
Stauffer plant at Le Moyne is located next to a facility
operated by Courtauld, a customer of Stauffer's. Cour-
tauld and Stauffer monitor the quality of the ground-
water under their plants by means of observation wells
which pump the groundwater to the surface so that it
can be analyzed. In the mid-1970's, a method for measur-
ing low levels of CC14 by gas chromatography was de-
veloped, and Stauffer was thus able to determine what
level of CC14 existed in the groundwater. From 1974 to
1976, monitoring of the wells showed a decrease in
levels of CC14, CS2 and iron in the groundwater under
the Le Moyne plant as a result of the construction of an
effluent treatment system by Stauffer. This system,
which kept the plant effluent from coming into contact
with the groundwater, was part of a program of compli-
ance with an NPDES permit issued by the EPA. By
mid-1977 and spring 1978, however, the level of CCI14 in
Courtauld C-I well showed an increase from 1 ppm to
30 ppm. Wood instituted a groundwater improvement
program to develop solutions which could be presented
to management for approval. Heausler, who had the
major responsibility for determining the source of the
groundwater contamination and its treatment, requested
the assignment of Kirkconnell to perform the engineering
work for the project. Both Wood and Heausler testified
that Kirkconnell was familiar with the qualities of the
groundwater at Le Moyne through his work on earlier
projects at the plant. Kirkconnell's major task at the be-
ginning of the project was to define the process by
which the contaminants would be removed from the
groundwater. The Le Moyne geology department was
responsible for defining the underground conditions and
devising a well system to pump the groundwater to the
surface. Plant managenent had the responsibility for pre-
venting further leaks which could contaminate the
groundwater.
A "kick-off' meeting for the project was held in June
1978, at which Heausler and Stilson of the Le Moyne ge-
ology department gave Kirkconnell the background in-
formation he required. Then, in July 1978, a meeting was
held at the Westport headquarters of Stauffer with
Heausler, Wood, Dr. Robert Mickley, a Stauffer vice
president, Ed Conant from the Environmental Depart-
ment, and Friedman present." Friedman made a presen-
tation of the available technologies to remove CC14 from
the groundwater which was based on work done by
Kirkconnell, and he mentioned steam stripping, carbon
adsorption, air stripping, and stripping with the use of a
pond. Due to the lower cost, it was thought aeration
would be an attractive method, but Friedman and others
were concerned that this would involve release of CC14
to the atmosphere and thus present a hazard and a possi-
ble violation of Federal regulations. Wood himself pre-
ferred steam stripping; this technique had been used suc-
cessfully by Stauffer to recover CCI4 and CS2 and it in-
volved no release of chemical vapors to the atmosphere.
Wood emphasized that aeration or spraying could be
used only if it met both environmental and health and
safety requirements. There was a discussion of current
"L None of the witnesses could recall why Kirkconnell was not
present. although Friedman believed it was due to illness.
employee exposure levels and future levels, and this area
was determined to be one requiring further investigation.
Friedman' 2 testified that, after the July 1978 meeting,
he directed Kirkconnell to get a written report of regula-
tions and standards applicable to CS2 and CC14 from
Williams, the then manager of industrial hygiene, and to
ask Bruce Davis, a diffusion expert, to do a diffusion
study of fallout at various distances from the treatment
site. Williams died and thus did not produce the report.
However, Davis submitted a handwritten report on Oc-
tober 6, 1978, which concluded that there would be "no
problems." Kirkconnell testified on cross-examination
that he never received the Davis meno. However, after
it was shown to him, Kirkconnell acknowledged receiv-
ing it after asking Davis to run a math model. Kirkcon-
nell testified that the memorandum dealt with atmospher-
ic concentration of CS2 and CC14 due to pond stripping
of groundwater and that it concluded that there would
be "no problems." Kirkconnell further testified that the
memo stated that the concentrations Davis received by
running figures through his math model were slightly
lower than previous calculations and that the 8-hour
limit for CC14 is 10 ppm. Kirkconnell recalled being
given the substance of the memo orally before receiving
a written copy. On redirect, Kirkconnell stated that the
"no problems" statement in the Davis memo applied
only to distances greater than 500 meters from the spray-
ing area. 3
During the summer of 1978, Heausler testified, Kirk-
connell informed him that he was investigating the cool-
ing tower and carbon adsorption possibilities, and
Heausler observed him performing aeration and spray
tests at Le Moyne. Kirkconnell told Heausler that spray-
ing was an advantageous method of removing CC14 and
CS2 and he demonstrated the technique. Heausler had
previously not been familiar with the method.
Heausler had contracted with Groundwater Asso-
ciates, a hydrological consulting firm, to conduct a study
of the Le Moyne groundwater based on data collected
from various observation wells. When the report was
ready, Heausler arranged a meeting with upper levels of
management to report on the status of the project and to
get management approval for discussions with the Ala-
bama Water Improvement Commission.1 4 This meeting
was held on October 10, 1978.
12 Friedman had a poor memory for certain details, occasionally con-
tradicted himself, and sometimes answered questions without giving the
proper attention required for exact and accurate testimony. In addition,
he admitted that he could not remember some of the events about which
he was questioned. For these reasons, I find Friedman to be an unreliable
witness and I am reluctant to give great weight to his testimony Howev-
er, it is necessary to evaluate his testimony on certain subjects in order to
make the findings of fact necessary for a decision of this case. Therefore,
I will consider Friedman's testimony in light of the other testimony and
evidence in the case, and I will accept it where it accords with documen-
tary evidence or other reliable testimony.
iL Apparently due to the fact that the diffusional study related not to
concentrations of CCI, above the pond but instead dealt with wind-car-
ried concentrations at various distances from the pond
'4 Heausler testified that the consultants found that the groundwater
contained an average concentration of CCI, of 30 ppm based on data col-
lected over several years including continuous pumping in 1978. The
consultants predicted that after 6 months of treatment the concentration
would drop to 15 ppm
1427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Events during fall and winter 1978
Kirkconnell testified that on October 6, 1978, a meet-
ing was held at Stauffer Corporate headquarters in West-
port, Connecticut, attended by Mickley, Stilson of the
Le Moyne geology department, Heausler, Conant, a rep-
resentative of the Stauffer legal department, and Kirk-
connell's supervisor, Friedman. Kirkconnell testified that
pursuant to Freidman's instructions, he spoke about four
alternative ways to treat the groundwater at Le Moyne
but offered no recommendations.' 5 After he spoke,
Mickley stood up and said he had decided that the water
would be sprayed to discharge CCI 4 into the air and that
the water would then be discharged to the swamp on the
plant property. (This so-called swamp is a creek which
empties into the Mobile River.) Kirkconnell further testi-
fied that at the end of the luncheon which took place
after the meeting, he told Mickley that the plant would
be cited for a violation if it dumped waste into the
swamp because the iron content would produce a red ge-
latinous waste. Kirkconnell also mentioned the toxic load
to the air and said he did not know if it would be
"within or without standards." This conversation lasted 5
or 6 minutes, although Mickley apparently said nothing
throughout its duration. Kirkconnell stated that he did
not know what the standards were at this time.
The memorandum dated October 6, 1978, prepared by
Kirkconnell for the October 10 meeting, was introduced
into evidence by Respondent. Its stated purpose was to
present alternative schemes for treating polluted ground-
water. The four alternatives discussed were (1) a spray
pond which would remove CC14 and CS2 to the air and
store ferric hydroxide waste in a pond, while the treated
water would be emptied to a receiving stream; (2) a
system using activated carbon to remove and contain
CC14 and CS2 with a further process to remove iron; (3)
steam stripping to remove and contain CC14 and CS2 fol-
lowed by treatment to remove iron; and (4) spraying to
remove CC14 and CS2 followed by iron removal. The
processes requiring a separating iron removal step culmi-
nate in discharge of treated water to a receiving stream.
The memorandum stated the advantages of activated
carbon and steam stripping to be containment and recy-
cling of CCI14 and CS2, and the advantage of spraying
without the pond to be low energy requirements. Con-
cerning the concentration of CC14 in the groundwater,
the memorandum stated that typical groundwater con-
tained 25 ppm of CC14, although well 029 produced test
samples that varied from 110 ppm to 475 ppm. Spraying
into the air, as suggested in two of the alternatives given,
"will release the CCI4 and CS2 into the air. Calculations
predict a maximum CC14 instantaneous concentration in
the spray area at 3 ppm.' 6 The current 8 hour exposure
limitation is 10 ppm." The memo also stated that quality
limitations regulating contaminants that will be returned
to a receiving stream are "unknown" and that all the al-
ternatives are designed to reduce CC14 in the effluent to
0.1 ppm.
"3 Indeed, Kirkconnell testified that he had no preference for a method
of water treatment because he did not know the applicable regulations.
:8 The earlier concentration given as 0.01 ppm was erroneously calcu-
lated.
In his testimony, Kirkconnell did not explain why his
memo gave the CCI4 exposure limit as 10 ppm although
he claims not to have known this standard. When
pressed to do so, Kirkconnell could not explain.
Heausler, who had the best recollection of any of the
witnesses of the October 10, 1978, meeting, testified that
Wood made some introductory comments at the meet-
ing. Then Stilson gave the geology report. Kirkconnell
gave a report reviewing alternative methods of treat-
ment, briefly going over carbon adsorption and stream
stripping, and concentrating on ponding, air stripping
and spraying. Conant reviewed the legal requirements
applicable to the project; the groundwater was not sub-
ject to Federal regulation since it did not affect drinking
water and there were no Federal or state environmental
air emission standards for CCI 4 or CS2, although there
was an OSHA employee exposure limit of 10 ppm which
might be lowered even further in the future. Heausler
testified that there was much open discussion during the
meeting, and that during this discussion, Mickley asked
why the treated groundwater could not be discharged to
the natural creek. Kirkconnell answered that the iron
content would produce a red color. Then Heausler
pointed out that Courtauld discharged to this creek with-
out any problems. Wood's recollection of the October 10
meeting generally paralleled that of Heausler. However,
he recalled that Kirkconnell had originated the idea of
spraying the groundwater before aerating it in the
pond."7 Wood recalled saying that spraying would not
be used unless it met all applicable regulations. He asked
about CC14 fumes over the proposed treatment pond,
and Kirkconnell informed him that the level of CC14
would not exceed 3 ppm. The result of the meeting, ac-
cording to Wood, was that Mickley, the highest ranking
member of management present, approved discussion of
the groundwater problem with officials of the State of
Alabama. However, Mickley did not announce a deci-
sion to discharge to the swamp. This was raised as a pos-
sibility. It was the sense of the meeting to proceed with
aeration as the most promising method of removing
CCI 4 from the groundwater.
I find that the description of the October 10, 1978,
meeting given by Wood and Heausler is accurate. I
credit their testimony generally; moreover Kirkconnell's
testimony is at variance with the memorandum which he
himself had prepared and with other evidence. For ex-
ample, the memorandum stated that the 8-hour exposure
limit for CC14 under OSHA is 10 ppm although Kirk-
connell testified that at the time of the October 10 meet-
ing he was unaware of any standards for CC14. Further,
Kirkconnell at first denied receiving the memorandum
written by Davis, but later changed his testimony to
admit receipt. That document contains the OSHA stand-
ard for worker exposure to CC14 in air. Thus, it is clear
that from the earliest months of his assignment to the
project, Kirkconnell was in possession of the standard
for CCI4. It is also clear from the testimony of Heausler
and Wood that Kirkconnell promoted the consideration
:" Wood had been aware of this before the meeting through his fre-
quent contacts with Heausler and Kirkconnell at Le Moyne. Wood had
approved Kirkconnell's plans to conduct the spray tests.
1428
STAUFFER CHEMICAL COMPANY
of a spray method of removing the CC14 from the
groundwater and that Kirkconnell enthusiastically devel-
oped tests to refine the spray method. I find also that
Kirkconnell stated that the concentration of CC14 above
the pond would not exceed 3 ppm.
The meeting with AWIC was held in late October
1978; present were Wood, Heausler, Call, and Perry, the
Le Moyne plant manager. According to Wood and
Heausler, the consultant's report was given to AWIC of-
ficials and the history and proposed remedy of the
groundwater contamination was set forth. Horn of
AWIC explained that a major goal of AWIC was to
obtain NPDES permitting authority from the Federal
government and that certain difficulties were being en-
countered. Horn wanted to avoid getting Federal offi-
cials involved in the project, and he suggested avoiding
any discharge of treated groundwater to a federally reg-
ulated waterway. Therefore, AWIC officials asked the
Company to evaluate reinjection of the treated ground-
water on Stauffer premises instead of discharge to the
creek or swamp which emptied into the Mobile River.'s
Following the October 10, 1978, meeting, Kirkconnell
testified, he went to Le Moyne and conducted various
engineering tests required for further design of the
groundwater treatment project. Late in December 1978,
or early in January 1979, he stated, the treatment plan
changed substantially; it was now proposed to pump
contaminated groundwater to the surface, treat it in a
pond and return it to the ground by means of reinjection
wells.' 9 In January 1979, Kirkconnell testified, using
analysis of water from six typical wells located in the
area of most concentrated waste, he conducted a paper
study of the average concentratio. of CC14 at Le Moyne
and found that instead of 30 ppm, the groundwater con-
tained an average of 54 ppm. He also pumped 029 well
at this time and, after 2 days of pumping, got a sample
containing 475 ppm. Kirkconnell testified that he decided
that this was a more accurate and representative sample
"after conference with the geology department, the
consultants with the geology department." He also de-
cided that the other five wells should be pumped for 2
days to get a more accurate figure for all of them. Kirk-
connell testified that, when he first obtained a figure of
475 ppm for CC14 in well 029 in January 1979, he gave
this figure to Stilson of the Le Moyne geology depart-
ment. He and Stilson decided long-term pumping would
be more accurate and Heausler also agreed that the wells
should be pumped for a longer continuous period.
Kirkconnell maintained that at this time "I did not
know the regulatory standards" for CCI4 in air; howev-
er, he knew that there would be a concentration of 50
ppm of CC14 in the air. Kirkconnell testified that the
original math model used to compute how much CC14
would be released into the air was based on 30 ppm in
'i In an aside to this testimony, Wood added that by July 1979, when
technical problems with reinjection seemed insuperable, AWIC had in-
formed Heau.ler that the Alabama State Legislature had appropriated
sufficient funds to enable AWIC to get Federal permitting authority. As
a result. surface disposal of the treated groundwater would be feasible
under the anticipated AWIC permitting authority.
i1 This change In the proposed method of disposing of the treated
water resulted from AWIC's preference for reinjection rather than sur-
face discharge to a waterway.
groundwater and showed a minimum of 2.5 ppm and a
maximum of 31 ppm released to the air. Based on
groundwater containing 45 ppm of CC14, the air load
would be from 4.5 ppm to 56 ppm. He concluded that
the level of CC14 in the air "would be above any regula-
tory limit" and that he and other workers would be ex-
posed to dangerous levels of CC14. Kirkconnell testified
that he spoke to Friedman concerning his desire to pump
the five other wells and concerning his fear of iron pre-
cipitation in the proposed reinjection or receiving wells,
but that Friedman said nothing.
It is evident from all of his memoranda written before
January 1979 that Kirkconnell did not, as he testified,
obtain the 475 ppm concentration of CCI, in January
1979. This figure was available to him and was used by
him as early as August 1978. In his testimony concerning
the "January" pumping and the 475 ppm reading, Kirk-
connell stated that January 1979 was a "critical period"
and that he kept elaborate notes. But on cross-examina-
tion, after having his attention directed to his own
August 31, 1978, memorandum, Kirkconnell stated "my
memory isn't as good as I thought it was," and he then
recalled that he obtained X reading of 475 ppm in August
1978. I find that the testimony concerning the January
pumping of well 029 is inaccurate and not credible and 1
shall not rely on it. I also do not credit Kirkconnell's tes.-
timony that Stilson and Heausler were concerned about
the accuracy of the figures for average CCI4 content of
the groundwater and wanted more continuous pumping
as a result of Kirkconnell's "January" pumping of well
029. My findings as to Kirkconnell's assertion that work-
ers would be exposed to 31 ppm or 50 ppm of CC14 in
air are discussed below. 20
Raymond Holt, Stauffer director of methods and serv-
ices, testified that he attended a meeting with Kirkcon-
nell and Friedman in mid-January 1979 to review the
status of the Le Moyne groundwater project including
the October 6, 1978, memo. 2 ' Kirkconnell told Holt that
reinjection was a preferred solution, but that he was also
studying other methods. In February 1978, Holt again
met with Kirkconnell and Friedman. They discussed the
design parameters for the groundwater project, the
spraying devices, the level of CS2 in the water, the prob-
lem of a ferric hydroxide floc and the problem of iron
bacteria. According to Holt, Kirkconnell said he needed
more tests, and mentioned the CC14 in the groundwater.
However, Holt stated that sufficient data were available
20 Kirkconnell also testified on redirect examination that he pumped
well 029 in 1979 and got a CCt: concentration of 490 ppn and that this
was more accurate However, this figure is not given in any of his menm,
randa, and given Kirkconnell's demonstrated inability to remember with-
out documentary aids when he pumped the wells and what concernration
of CCI, he found, I do not credit this assertion.
21 Holt was named director of methods and services in Noxenmber
1978. Before that he was chief engineer. The Le Moyne protect did not
come under his jurisdiction until January 1979. Holt was selected h.
counsel for Respondent to assist in the hearing while other witnesses
were sequestered I observed that he thought carefully before answering
questions and that he was cooperative on cross-examination despite the
General Counsel's efforts to confuse him. His recollection was not alu:ass
exact as to dates and was occasionally refreshed by documentary evi-
dence, but he gave no inconsistent testimony. On the whole. he made a
sincere effort to recall and I credit his testimony and shall rely on it
142o
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Kirkconnell's prior work and from samples taken
from the wells that had been pumped continuously and
some pumped biweekly. Holt told Kirkconnell to design
on the basis of data he had available then. Kirkconnell
told Holt that well 029 had a high concentration of CC14
averaging at 80 ppm and that one sample showed over
400 ppm, and he suggested other wells might contain a
lot of CCl4 also; however, Holt disagreed on the basis of
the available data. Holt said that the one very high
sample from 029 probably resulted from error or a con-
taminated bottle. Kirkconnell did not testify concerning
these two meetings described by Holt, and Holt's testi-
mony is uncontradicted.
3. Efforts to obtain regulatory standards
Because "I had given up on trying to get the regula-
tory standards and regulations through channels with the
company," Kirkconnell stated, he called Paul Kaplan at
NIOSH 2 2 in March 1979 to ask about the standards for
"air exposure" and Kaplan informed him that the 8-hour
exposure limit for CC14 was 2 ppm.
2 3 Kaplan also told
him that he would be held personally liable and could be
prosecuted for a design that exceeded regulatory limits.
As a result of this conversation and others, the specifics
of which he could not recall, Kirkconnell decided that
the design he was working on would "create an illegal
toxic atmosphere that was dangerous to myself, other
workers."
I find that Kirkconnell's testimony as to his conversa-
tion with Kaplan is unreliable. First, Kirkconnell clearly
knew that the 8-hour exposure limit was 10 ppm; he had
been regularly including this figure in his memoranda
sintce August 1978. Second, Kirkconnell's memoranda
written after the call to Kaplan in March 1979 make ab-
solutely no mention of the supposed 2 ppm legal limit.
Therefore, I shall not credit Kirkconnell's recollection of
his conversation with Kaplan.
Kirkconnell testified that when he was unable to get
the standards and regulations in response to his earlier
memo requesting them, Friedman suggested he call
Robert Leighton. Kirkconnell called Leighton in Hous-
ton and told him he needed standards and regulations
with respect to toxic impact on employees. During the
first conversation with Leighton, Kirkconnell did not get
a satisfactory answer: "I do not remember exactly what
he said but I did not get the numbers and data that I was
looking for." In the spring of 1979, Kirkconnell sent
Leighton a memo, with an identical copy to Sayers, re-
questing standards and regulations applicable to the Le
Moyne groundwater project. "24 Receiving no response,
Kirkconnell called Leighton, who said: "I don't know
what you guys are trying to do." Kirkconnell testified
that he made no response to Leighton when the latter
gave him an evasive answer, and then terminated the
conversation.
"2 National Institute for Occupational Safety and Health. This institute
conducts studies and makes recommendations to OSHA concerning
standards to be promulgated by OSHA.
"3 The evidence shows that a standard of 2 ppm was recommended to
OSHA by NIOSH in 1975. It had not been adopted as of the date of the
hearing herein, and the standard was still 10 ppm
24 This memorandum was not further identified.
Leighton, formerly employed by Respondent as a re-
gional industrial hygienist, testified that he had spoken to
Kirkconnell twice.25 Their first conversation took place
in late 1978 or early 1979; Leighton had received a docu-
ment concerning the proposed groundwater treatment
project at Le Moyne, and at his superiors' request, he
discussed the work with Kirkconnell, asking the latter
questions relating to the distance of the treatment facility
from employees, the length of time employees would
spend at the facility and the like. Kirkconnell told Leigh-
ton that the treatment facility would be physically re-
moved from plant employees and that any worker who
went over to monitor it would spend a maximum of 10
minutes per day performing monitoring duties. Leighton
next spoke to Kirkconnell in April 1979, after he re-
ceived a note from the latter requesting certain informa-
tion. Kirkconnell called Leighton and again informed
him that the Le Moyne treatment facility would be re-
moved from the workers, that any employee monitoring
the site would spend a maximum of 10 minutes per day
there, and that the maximum concentration of CC14 at
the site would be 3 ppm. Kirkconnell asked Leighton
about the Federal regulations, and Leighton told him
that no worker would reach the 25 ppm ceiling for 15
minutes.26 As the conversation continued, Leighton got
the impression from Kirkconnell's questions that he was
also asking about regulations that protect the environ-
ment, and Leighton attempted to explain that these are
not applicable to worker exposure. Leighton tried sever-
al times to explain to Kirkconnell the difference between
regulations that protect employees and those directed to
conserving the environment generally, and he told Kirk-
connell that he seemed to be asking about environmental
regulations and that OSHA does not seek to protect the
environment. However, Kirkconnell did not understand
and kept asking his questions over and over in an irritat-
ed manner. After about 10 minutes, Leighton asked Kirk-
connell what he was trying to do by twisting OSHA reg-
ulations to fit an environmental problem. Leighton stated
that he told Kirkconnell to ask the EPA for any air
standards he wanted, and that Kirkconnell implied that
Leighton had the standard but was withholding it.
Leighton testified that it was his duty both to offer as-
sistance to engineers working on projects and to review
all the documents in a formal appropriations request
before it was approved. 2 7 The assistance to engineers
25 Leighton is the holder of a bachelor's degree in chemistry and a
master's degree in health science. Hfie testified pursuant to a subpoena
served by Respondent Leighton was a credible and reliable witness: his
answers while testifying were careful and exact, and he made every
effort to be responsive and helpful on cross-examinaticn. I shall credit his
recollection of events and conversations, instead of Kirkconilell's, wher-
ever there is a conflict in the testimony.
2r Leighton testified that OSHA regulations provide for a maximum
exposure of employees to CCI, for an 8-hour time-weighted average of
10 ppm (exposure may exceed the limit as long as sufficient tihne is below
the limit); a 15-minute exposure ceiling of 25 ppm and a maximum peak
for 5 minutes in any 4 hours of 200 ppm.
27 An appropriation request (AR) is a formal document setting forth in
great detail all the information available and all the plans prepared in
connection with a proposed project. The AR is submitted to high level
menlbers; of management for approsal of funding
1430
STAUFFER CHEMICAL COMPANY
was informal and did not amount to an approval of the
project: the real review for purposes of safety and indus-
trial hygiene came with the drawing up of the AR.
Leighton testified that as Kirkconnell described the Le
Moyne project to him, it seemed to present no safety
problem. Further, he knew employees could wear respi-
rators for 10 minutes per day if necessary. Leighton de-
scribed the air-monitoring program in effect at Le
Moyne and said he was familiar with the levels of vapors
in the air at Le Moyne at the time of Kirkconnell's call.
There had been a few cases of overexposure of workers
at the loading docks and a CS2 problem in the lab was
corrected. Leighton testified that the ACGIH2 8 recom-
mends that notice of mixtures of vapors be taken, but
that no government regulations exist to limit permissible
mixtures. In response to a series of questions from the
General Counsel, Leighton testified that the presence of
chlorine, CC14 and CS2 vapors together does not pro-
duce a cumulative effect on the body, nor do these
chemicals in combination have a potentiating effect; they
all have different physiological effects on the body.
Thus, the combined presence of these three vapors, each
in permissible amounts, would not be harmful to the
safety and health of employees.
In view of my finding that Leighton is a more reliable
witness than Kirkconnell, and in view of Kirkconnell's
inability to recall many of the events relevant to the in-
stant case, I find that Leighton gave Kirkconnell the in-
formation he requested and that he did not conceal any
applicable standards and regulations. Further, I find that
Kirkconnell told Leighton that the proposed treatment
facility would be removed from the workers, that em-
ployees would not spend more than 10 minutes per day
at the site and that the maximum concentration of CCI.
at the site would be 3 ppm.
4. Discussions concerning the toxic load at the plant
Kirkconnell testified that in April 1979 he was as-
signed by Heausler to develop cost alternative treatment
schemes to remove toxicants from the air in the labora-
tory and office area in the Le Moyne plant. Kirkconnell
obtained data showing the vapors in the air from Larry
Palmer, the director of the laboratory, and he again
called Kaplan at NIOSH to ascertain how the legal
limits for contaminants in air were calculated. According
to Kirkconnell, Kaplan told him that "If you are at the
limit with CCl4 that is given a 1; and if you are at the
limit in SO2, that is given a I . . . you add them, and
that is a 2. In other words, you are at twice the legal
limit." 2 9 Kirkconnell testified that he decided that "the
toxic load under average conditions in the plant was 4-
1/2 times the maximum allowable limit."30
Kirkconnell testified that Heausler eventually told him
that nothing would be done about the quality of the air
in the laboratory, as the cost of correcting the situation
was too high.
g2 American Conference of Government Industrial Hygienists.
29 As will be seen from Leighton's testimony above, this method is cr-
roneous.
30 Apparently. Kirkconnell told no one in management of this startling
conclusion. Nor did he file a complaint with OSHA.
Palmer testified that a new sulfur chloride addition to
the plant caused problems when the seals on the pumps
used to load the sulfur chloride became corroded. The
area had to be hosed down and this led to the creation of
fumes. There is no procedure to measure levels of sulfur
chloride and the fume problem was detected by odor.
These fumes were drawn into the lab area by the action
of the lab hoods, which evacuate large amounts of air
from the lab, causing replacement of the air from outside
areas including the area near the sulfur chloride pumps.
In the first quarter of 1979, Palmer investigated solutions
to the fume problem and in doing so he spoke to Kirk-
connell who had mentioned that he might know of a
vendor to supply air scrubbers. Although he gave Kirk-
connell a guess as to the data for the fumes, Palmer
could not recall that Kirkconnell ever made any recom-
mendations for solving the problem or ever presented es-
timates on the cost of solving the problem.
Palmer is responsible, with others, for industrial hy-
giene at the plant, and he developed the personnel moni-
toring program for hazardous gases with Leighton. He
testified that the only area where values above the ac-
ceptable limits of toxicants have occurred is at die load-
ing department. The sulfur chloride problem has been
ameliorated but not solved. Palmer said that given his re-
sponsibilities in this area, he would remember if Kirkcon-
nell had suggested a solution for the lab fume problem.
Concerning Kirkconnell's work on the groundwater
treatment project, Palmer testified that his laboratory
was responsible for providing the analysis of samples col-
lected by Kirkconnell Palmer could not recall any talks
with Kirkconnell concerning the impact of the project
on employees nor concerning the level of CC14 to be put
into the air.
From Palmer's testimony, it is clear that he likes and
admires Kirkconnell for the range of his knowledge.
Palmer testified in a forthright manner, and I find him to
be a credible witness. I shall therefore credit his testimo-
ny that he had no figures to show that unacceptable
levels of toxicants were present in any area, except the
loading docks. It follows that I do not credit Kirkcon-
nell's testimony that Palmer gave him data to show that
legal limits were being exceeded in the lab. Further, I
credit Palmer's testimony that in his conversation with
Kirkconnell he was expressing concern only about sulfur
chloride and not about CC14. Palmer's testimony shows
that he was generally concerned with safety of the work-
ing environment and that in his effort to be "ambitious"
and "to do a little bit above what . . . the guy before me
did" he investigated certain areas including the question
of the level of toxicants in the air. In view of his interest
in this area, I find his testimony very reliable.
Around this time, Kirkconnell testified, he spoke to
several "union level workers" at the plant. He remem-
bered "in particular" being called into the office of one
of these men, Dennis Beaver, who assertedly spoke "as a
representative of the union." Beaver told him that he
was aware that the groundwater project would increase
the toxic load in the work area and he asked Kirkconnell
about present levels of contamination. Beaver "was sur-
prised that they were above the regulations and stand-
1431
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ards." Beaver then mentioned the possibility of working
together to avoid increasing toxic levels at the plant.
Also at about this time, Kirkconnell testified, Palmer
asked him what the toxic loads resulting from the
groundwater project would be and after hearing about
these "in some detail," he said, "Kirk, what are you
trying to do, kill us?" Finally, also in April and May
1979, Kirkconnell testified that he discussed the problem
of the toxic load at the Le Moyne plant with several en-
gineers and chemists, but he could not recall the names
of any of these employees
Dennis Beaver testified that he is no longer employed
by Respondent. He remembered talking to Kirkconnell
in the lunchroom at Le Moyne, but stated that they
never discussed pollution abatement at the plant. After
Beaver's testimony, Kirkconnell testified that he was
wrong in saying he had spoken to an employee named
Beaver, and that he thought he had spoken to D. O.
Smith, although he could not be sure about this. I do not
credit Kirkconnell's testimony that he spoke to D. O.
Smith or any other employees about the toxic load at the
plant in view of Kirkconnell's demonstrated inability to
remember any of these events clearly, accurately, or spe-
cifical y.
5. Events of spring 1979
Heausler and Holt testified about a meeting held with
Kirkconnell and Stilson at Dobbs Ferry, New York, in
April 1979.
Holt testified that he called a meeting for April 4,
1979, to review a rough draft of a preliminary appropri-
ation request written by Kirkconnell and in order to
make sure all participants were aware of their responsi-
bilities. In addition to Holt and Kirkconnell, Heausler,
Stilson, and Friedman were there. At the meeting, Stil-
son completely reviewed the hydrological consultant's
report. Kirkconnell said the work required to produce a
final AR would take 3 months and $100,000 for study
and testing. Kirkcornell also stated that he could not
start designing until he confirmed the level of CC14 in
the groundwater. Holt told him to make the best esti-
mate with available data and proceed on that basis. Stil-
son expressed the thought that a realistic average CC14
content was 35 ppm. In discussing the risks of the
project, Kirkconnell said that NIOSH permitted 10 ppm
of CC14 at ground level and that this would in the future
be lowered to 2 ppm. However, the anticipated level of
CC14 at the proposed pond would be 3 ppm.
Heausler volunteered to rewrite the preliminary AR,
and a schedule for completing further necessary work on
the groundwater project was drawn on a blackboard
with the participation and agreement of all the men
present. Instead of 3 months to achieve a final AR, 6
months were allowed-until September 1979. This would
permit the Le Moyne geology department to drill more
test wells to check the feasibility of reinjection wells in
view of possible iron content problems, permit Kirkcon-
nell to test spray devices and concentrations of CC14 in
both air and water after spraying, and would provide
more time to write the various sections of the AR in-
cluding the alternative treatments, fall back positions and
costs. Kirkeonnell again asked to pump well 029 and
Holt refused on the ground that there were sufficient
data.
Holt testified that by this time he had made no final
decision as to the method of treatment to be chosen. He
relied on reports from Kirkconnell to guide him, and al-
though the project was directed to using a spraying or
stripping step followed by reinjection, the preliminary
AR was to be written so as to preserve the option of dis-
charge to the river instead of to reinjection wells. The
final decision as to the method of disposal for the treated
water would only be made when the final AR was writ-
ten.
According to Heausler, the statuq meeting took place
on April 2, 1979, at Dobbs Ferry. }ieausler recalled that
Kirkconnell spoke about iron precipitation problems in
the proposed reinjection wells, and he wanted to do
more testing to determine volumes of sludge formation
and bacteria formation. Holt maintained that enough test-
ing had been done to determine if reinjection was practi-
cal. According to Heausler, Holt voiced a concern about
meeting deadlines for the project. Heausler stated that he
particularly remembered the level of disagreement be-
tween Holt and Kirkconnell over the need for further
testing of the feasibility of reinjection; in the event, the
schedule that was developed provided for future testing
as related above.
Although Kirkconnell did not recall this meeting on
his direct testimony, he testified on the General Coun-
sel's rebuttal case that he attended a meeting in late April
or early May or on April 11, 1979, and reported that he
had more accurate data on CC14 and that there was a
problem with the concentrations at the spray site. Kirk-
connell wanted to pump "the key wells," but Holt said
he wanted no more work on the observation test wells.
Kirkconnell testified that this was a planning meeting
and that a chart was established for the work effort. It
was decided to test the groundwater for compatability
with proposed reinjection wells. Kirkconnell suggested a
pilot study (a sort of miniature treatment spray pond)
and suggested it would test the actual concentration of
CCI, in air, but Holt rejected this as too costly. Kirk-
connell explained that he wanted to do the pilot study
because the math model for CC14 in air was inaccurate.
Concerning the idea of pumping the six observation
wells continuously, Heausler testified that continuous
pumping had been done in 1977 after one well had
shown a 30 ppm concentration of CC14. The effect of
the continuous pumping was to reduce the concentration
to I ppm. In early 1978, Stilson suggested continuous
pumping to Heausler. 3 ' The continuous pumping of six
wells including 029 was undertaken and was completed
in September or October 1978 Heausler thought the
wells should be pumped continuously throughout the
project in order to obtain the most representative sam-
ples of groundwater and to compare the new data with
the 1978 data which had formed the basis for the
consultant's report.
Based on the testimony of Holt and Heausler, whom I
have found to be more reliable witnesses than Kirkcon-
e Heausler was sure this was not Kirkconnell's idea.
1432
STAUFFER CHEMICAL COMPANY
nell, I find that this planning meeting took place in early
April 1979. I find that Kirkconnell wished to pump the
wells to obtain more data on the groundwater with re-
spect to levels of CC14 and the feasibility of reinjection
wells, but that Holt decided that there were sufficient
data to form the basis for a design. I also find that it was
decided that more tests would be conducted, including a
test by Kirkconnell of spray devices and concentrations
of CC14 resulting in air above the spray site as well as
levels of CC14 remaining in the treated water after
spraying. Thus, I do not credit Kirkconnell's testimony
that his idea for spray testing was rejected as too costly.
I find that at this meeting there was discussion to the
effect that fall back positions were available to be used in
case the spraying reinjection method was not approved
by Stauffer management. I credit Heausler's testimony
that the significant disagreement at this meeting between
Holt and Kirkconnell arose over the question of further
tests to determine the feasibility of using injection wells
as a method of disposing of the treated groundwater. I
also find that a major purpose of this meeting was to es-
tablish schedules and deadlines for future work.
Kirkconnell testified that on May 8, 1979, he wrote a
memorandum concerning the groundwater project to
Stilson. The memo stated that "solving this problem
must comply with the regulatory agencies." In response
to a question from the General Counsel, Kirkconnell
stated that he inserted that sentence into the memo be-
cause he was concerned that the selection of a technique
to remove toxicants from the water was "contingent
upon the regulatory agencies" and the method that was
going to be used was "clearly outside the regulations."
The General Counsel's next question was whether Kirk-
connell had yet received the relevant regulatory stand-
ards from Stauffer, and Kirkconnell answered "No." A
fair reading of this two page memorandum which was
introduced into evidence by the General Counsel shows
that it is a review of an April 19, 1979, telephone con-
versation between Stilson and Kirkconnell concerning
Kirkconnell's belief that grave technical problems relat-
ing to the iron content of the water would arise when
the treated water was atempted to be reinjected into re-
ceiving wells. The memo clearly was written in support
of Kirkconnell's conclusion that the iron content of the
water would plug the reinjection wells, and it concluded:
"It would seem reasonable that we re-evaluate the injec-
tion well concept." The mention of "regulatory agen-
cies" in the first substantive paragraph of the memo is a
repetition of the aim of the groundwater project restated
many times over in previous memoranda-to remove
contaminants from the groundwater while complying
with all applicable government regulations. There is no
basis for believing it related to CC14 alone; the statement
related to all sorts of regulatory problems.
During cross-examination of Kirkconnell by counsel
for Respondent, a memorandum written by Kirkconnell
to Heausler dated May 7, 1979, was introduced into evi-
dence. This document, an 8-page discussion with appen-
dixes, was an interim report on studies performed by
Kirkconnell relating to control of iron to prevent plug-
ging of proposed reinjection wells; it also reported recent
lab studies of techniques for stripping CCI4 from the
groundwater. The memo presented detailed facts and fig-
ures to support the conclusion that the iron content of
the groundwater would promote formation of gelatinous
and bacterial plugging of the receiving wells. The memo
showed test results of analysis of wells selected by the
geology department as being representative of the
groundwater. The average CC14 content was now
shown to be 54 ppm; included in this average is 029 well,
shown to have 160 ppm of CCI.. The memo described
studies performed by Kirkconnell to determine the
amount of CC14 that could be removed from the treated
groundwater with various spray and nozzle techniques
and to determine under what conditions the CC14 con-
tent could be decreased to I ppm and below. A cost
comparison was given for three alternative methods: ac-
tivated carbon, spray pond, and steam stripping (all with
iron removal). This memorandum did not mention the
concentration of CC14 in air at the plant location. When
counsel for Respondent attempted to inquire whether the
earlier figure for CC14 of 475 ppm had been abandoned
by Kirkconnell or whether it was included in the May 7
report, Kirkconnell answered evasively several times. Fi-
nally, he stated that the concentration of CC14 in the 029
well was included in the 54 ppm figure he used as the
average CC14 concentration of the groundwater, but that
the 475 ppm figure was not used. I conclude from a
review of this part of the testimony that Kirkconnell had
indeed accepted that the 475 ppm concentration was not
required to be included in any discussion of average
groundwater at Le Moyne. This memorandum is the first
mention in writing by Kirkconnell of an average CC14
content of groundwater above 30 ppm. It is clear that
Kirkconnell believed at this time that the average con-
centration of CCl4 in the groundwater was 54 ppm;
there is no basis for a finding that he believed the aver-
age was any higher.
On rebuttal, Kirkconnell testified that after this memo-
randum was sent to Heausler, he saw the latter at Le
Moyne and told him that with an average CC14 ground-
water concentration of 54 ppm, the math model showed
that the concentration of CC14 in the air above the treat-
ment site would be 4.5 ppm to 56 ppm and that if the
wells were pumped longer, one could get even higher
figures.3 2 Heausler said he would arrange for the tests
and around May 25 or 27, Kirkconnell received a memo
from Heausler saying the wells were in good enough
repair to be pumped. Heausler testified that Kirkconnell
never expressed any fears about CCI4 and the safety of
the project to him.
Concerning Kirkconnell's assertion that the math
model resulted in a range of possible concentrations of
CC14 above the proposed treatment pond, Holt testified
that such calculations do not produce ranges. The math
model provides a fixed result, but this result may vary as
the input is varied. Wood also testified that the math
model for computing concentrations of CC14 in air
would give a range of concentrations only if a range of
differing inputs were used in the computation. Thus,
both men testified, in essence, that Kirkconnell's asser-
32 Past pumping of the wells had actually reduced the level of CCI, in
groundwater according to the evidence in this case.
1433
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion could not be correct. Since Kirkconnell was feeding
into the math model a single number representing the
CCI4 in the groundwater, he would obtain a single result
showing the concentration of CC14 in air above the
water, not a range of results. Based on the testimony of
Heausler, Holt, and Wood described above, their testi-
mony that Kirkconnell never gave them "ranges" of con-
centrations of CC14 in the air above the spray site, and
on the complete absence of any mention of a concentra-
tion of CC14 in air at any value above 3 ppm at the treat-
ment site, I do not credit Kirkconnell's assertion that he
expressed his belief that CC14 concentrations in air might
be higher than 3 ppm. Nor do I credit his assertion that
"ranges" of concentration were ever mentioned by him.
In June or July 1979, Kirkconnell testified, he encoun-
tered Wood in the Atlanta airport. He told Wood that
there were two "serious problems" relating to the Le
Moyne groundwater project: disposal of the treated
water by reinjection was not feasible due to anticipated
plugging of the receiving wells, and the concentration of
CC14 above the spray pond would be far higher than
originally estimated. Wood could not recall the conver-
sation which took place when he met Kirkconnell in the
Atlanta airport, but he testified that Kirkconnell never
expressed the latter fears. I credit Wood's testimony.
6. Events of summer 1979
Sometime in the summer of 1979, Kirkconnell testified,
Holt asked him to prepare a report stating that the pol-
luted water could be pumped out of the ground in 2
years. Kirkconnell refused because in his view this
would be an inaccurate statement. Holt did not testify
concerning this event.
Holt testified that a meeting was held on July 11 or 12
with Kirkconnell and Friedman in order to prepare for
an August meeting requested by Wood to review the
status of the groundwater project. At this meeting, Holt
asked Kirkconnell what progress he had made on a cost
estimate, particularly with respect to the fall back posi-
tion of steam stripping, and what progress he had made
with the design of the pond. Holt informed the men that
AWIC could issue effluent permits by September or Oc-
tober 1979. (Wood had previously told him the plant was
leaning to discharge of the treated groundwater to the
river.) Kirkconnell reported that he did not have the
costs or the final pond design. He wanted further testing
of spray devices but did not have a protocol of the re-
maining test work. Kirkconnell said he would consider
the effects of weathering and aeration on CC14 removal
but that this design was not completed. Holt told Kirk-
connell to prepare at least a status report for the August
meeting. Holt stated that he had looked at curves at-
tached by Kirkconnell to his reports, and he expressed
the opinion that he was unsure the concentration of
CC14 in treated water could be reduced from 1 ppm to
50 ppm.33 Kirkconnell stated that with weathering and
aeration, this goal could be achieved. Kirkconnell report-
ed that the data for steam stripping were to be obtained
from a vendor. Holt testified that Kirkconnell did not re-
"s Parts per billion.
quest more tests of the CCI4 content of groundwater.
3 4
Friedman testified that Kirkconnell wanted to conduct
further spraying tests and that it was agreed that there
would be more testing; however, Friedman told Kirk-
connell that his report must be prepared before he could
go back to Le Moyne for further tests. Friedman stated
that the major topic discussed was reinjection and that
Holt asked many questions about the iron plugging prob-
lem. Kirkconnell told Holt that Holt didn't understand
the problem and "you don't have the right to ask me
questions." After this meeting, according to Friedman,
he told Kirkconnell that the latter should not talk to
Holt that way.
Kirkconnell testified that in July 1979 he spoke to
Friedman and Holt in the latter's office in what he char-
acterized as a "key" meeting. In the course of presenting
a status report on the Le Moyne project, he stated that
the amount of CC1 4 was higher than previously estimat-
ed and that employees at the plant would be exposed to
toxic materials at levels exceeding legal limits under the
proposed project design. Kirkconnell also told Holt that
precipitation of iron compounds would plug the reinjec-
tion wells. Kirkconnell requested permission to pump the
five other wells for 2 days to determine the amount of
CC14 in the groundwater. The request was denied.
During this meeting, Kirkconnell testified, Holt said that
he "didn't care" how much CC14 was in the water, "it
has to come out," and Holt repeatedly asked him why he
was working on a project if he did not believe it would
succeed. After the meeting, Friedman told Kirkconnell
he had a good job and asked, "Why don't you do what
he says?" Kirkconnell replied that he would not design a
system that was not technically feasible and that was
"outside legal limits." Friedman then remarked you
"can't talk to Holt that way."
Although Kirkconnell did not testify about them on
his direct examination, Respondent introduced two
memoranda written by him in July 1979. A two-page
memorandum dated July 17, 1979, addressed to Fried-
man, with copies to J. Cooper, manager of the industrial
hygiene department, Heausler, Holt, and Stilson, was en-
titled "groundwater interim report."3 5 The first para-
graph, entitled "problem statement" read: "The object of
this effort is to prevent groundwater, with certain con-
taminants, from flowing to Courtauld wells; all water
control and treatment techniques to be in compliance
with standards and regulations established, or negotiated,
with AWIC." The memo names four alternative treat-
ment schemes as being "concept design and in drafting as
block diagrams": Reinjection, with or without removal
of total suspended solids (mostly iron), and surface dis-
posal, with or without removal of total suspended solids.
Removal of CC14 is stated to be possible to below 50
ppm with air stripping. Concerning OSHA standards, the
memorandum states:
34 Holt's affidavit given in June 1980 states that Kirkconnell did re-
quest such testing. Holt stated that his affidavit was wrong.
35 Kirkconnell testified on the General Counsel's rebuttal that he
wrote this memorandum after the July meeting with Holt and Friedman.
1434
STAUFFER CHEMICAL COMPANY
An estimate has been made as to the anticipated
concentration of CC14 at the site where the strip-
ping will take place. The math model for this esti-
mate is admitted by all concerned to be highly inac-
curate, but is the best available technique. The an-
ticipated levels of concentration were verbally sub-
mitted to J. Cooper. The probability of being re-
quired to retrofit for CC14 recovery was discussed.
J. Cooper will provide his written comments and
suggestions to S. Friedman. 3 6
The concluding "comments" of the memo deal with
the "high" and "costly" risk of iron plugging of the re-
ceiving wells in the proposed reinjection technique. A
list of "future work" is given:
1. G. Heausler will negotiate with AWIC for
most favorable effluent standards to cover disposal
of the treated groundwater to the river . . . based
upon the best practical treatment methods.
2. A risk analysis will be made by EE [Eastern
Engineering] for the four alternative treatment
schemes.
3. An optimized stripping technique will be de-
veloped by EE which will include an estimate of
the CC14 concentration at the site.
4. The four alternative schemes will be illustrated
on a blow flow sheet.
5. The four alternative schemes will be costed by
our cost group.
6. A report will be issued by EE about August 1.
EE will carry the project through PFD's [process
flow design].
7. EE will secure a project engineer to take the
project beyond PFD's....
When Kirkconnell testified on the General Counsel's
rebuttal concerning this memorandum, he stated that he
referred to a standard math model used by Government
and industry to determine vapor concentrations at the
spray site. (There is a different math model used for con-
centrations carried by wind to locations away from the
site.) Kirkconnell testified that Bruce Davis ran the math
model and that he accepted Davis' answers and conclu-
sions. Kirkconnell asserted that Davis was the source of
the information in the summer of 1978 and that the con-
centration at the site would be a range from 2.5 ppm to
31 ppm. Kirkconnell's testimony at this point is confused.
He had testified that the Bruce Davis math model related
only to concentrations of CCI14 as they were diffused at
certain distances from the site and not concentrations di-
rectly above the spray site.
Careful reading of the memorandum, as well as all the
other memoranda introduced into evidence, convinces
me that Kirkconnell had reference to a math model for
diffusion of CC14 at various points from an air stripping
36 Retrofitting for recovery of CCI, refers to the possibility that if on
site concentrations of CCI exceeded permissible limits. a method of re-
covering CCI, rather than discharging it to the air would have to he im-
plemented. It will be remembered that Wood had favored this technique
from the beginning Several witnesses testified that Stauffer's policy when
planning new facilities was alwca)s to consider and provide an alternative
method if the one implemented should prove insufficient when il actual
operation
location including a cooling tower when he spoke of a
"highly inaccurate" math model. The concentrations of
CC14 at various points at the plant resulting from strip-
ping had not been stated by Kirkconnell in his previous
memoranda. However, the concentration of CC14 direct-
ly above a spray site had been stated by him to be a
maximum of 3 ppm and no inaccuracy had been asserted
in Kirkconnell's memoranda as to this figure.
Referring back to the October 10, 1978, meeting, Kirk-
connell stated that he did not inform those present at the
meeting that the concentration of CC14 would be as high
as 31 ppm; however, he testified that he told Mickley
"that the Carbon Tet levels would be in excess of stand-
ards-there was a risk here.""3 Counsel for the Charging
Party immediately called to Kirkconnell's attention the
fact that he may not have known the standards in Octo-
ber 1978 (indeed, Kirkconnell had been maintaining
during the hearing that he was ignorant of them), and
Kirkconnell then changed his testimony to say: "I did
not know the complete standards and regulations relative
to carbon Tetrachloride at that time." I believe that this
exchange is significant and illuminating. I believe this tes-
timony bears out what is suggested by all of Kirkcon-
nell's memoranda, beginning with the very earliest one
dated August 24, 1978; that is, that he was well aware
that the standard 8 hour time-weighted permissible expo-
sure was 10 ppm. It is possible he did not know "the
complete standards", however, Kirkconnell did not make
this distinction in his earlier testimony. Indeed, he strove
valiantly by his testimony to give the impression that he
did not know any of the standards for exposure to CC14
in air, that no one in the Company ever replied to his
requests for such information, and that he only received
the information in March 1q79, when he telephoned
Kaplan of NIOSH.3 8 I thus conclude that in this area
the witness was not candid and reliable. I have therefore
relied on his written memoranda rather than his memory
to make the necessary findings of fact.
I credit the testimony of Holt and Friedman, which is
fully supported by Kirkconnell's own memorandum of
July 17, 1979, as to the substance of the meeting of July
11 or 12, 1979. Thus, I find that Kirkconnell was asked
about his progress on the Le Moyne design and that
Holt inquired about the feasibility of treating the ground-
water so as to reduce the CC14 content to 50 ppb. I also
find that Holt and Kirkconnell discussed the problems
expected if the treated water were to be disposed of by
means of reinjection wells, and Kirkeonnell emphasized
his belief that these wells would quickly become plugged
as a result of the iron content of the groundwater. I find
that Kirkconnell stated his intention to conduct further
tests of the various spray devices and designs he was
considering in order to determine the best design and in-
37 The transcript at p. 3605. i. 22 reads, "in excessive standards." The
transcript is incorrect and it is hereby corrected to read as given above. I
note that when Kirkconnell testified on direct he stated that he told
Mickley that he did not know if the toxic load to the air would be within
or without the legal standard.
U l ntil he was confronted with the October 1978 Bruce Davis memo
and the July 31, 1979, memo written by Cooper. with copy to Kirkcon-
nell, he repeatedly maintained that no one in the Company ever gave him
applicable standards for exposure to CCI,
1435
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
corporate this into the final AR. I do not credit Kirkcon-
nell's a:,sertion that he told Holt and Friedman that em-
ployees would be exposed to unlawful concentrations of
CC14 in the air at the treatment facility; and I find that
he did not request pumping of the wells. I find that the
disagreement between Holt and Kirkconnell at this meet-
ing was over the feasibility of reinjection; Kirkconnell
was still attempting to show Holt that reinjection was
not a good method of discharging the treated water. The
memorandum of July 17, which Kirkconnell admitted
writing after the meeting, referred to only one aspect of
the project as having a "high" risk, and that was the not
yet fully abandoned plan to direct the treated water to
reinjection wells. The discussion of expected levels of
CC14 at the proposed treatment site did not indicate that
Kirkconnell was troubled concerning that subject. Final-
ly, I find that Kirkconnell resisted Holt's attempts to
question him as to various aspects of the groundwater
project.
On July 19, 1979, Kirkconnell addressed a one-page
memorandum to Friedman "to confirm our conversation
of this date, and to bring up-to-date my project status
report of 7/17/79." The first two items of this memo
read as follows:
R. Kirkconnell Report Date
The report is planned for issue about August 1,
1979.
Mid-August Meeting
The proposed date was estimated and flexible. It
was assumed that the specific date would be adjust-
ed to accommodate the progress of the related
work.
Two more items follow which discuss, in substance,
Kirkconnell's plan to review block flow sheets with Ed
Stocker on July 20, 1979, and additional details required
to cost the project.
Heausler testified that he saw Kirkconnell at Le
Moyne at various times between April and July 1979. In
May or June, Kirkconnell told him that he feared Holt
would fire him. Heausler responded that he did not be-
lieve it would happen because Holt's major interest was
in the schedule and if Kirkconnell met his deadlines
there would be no problem. However, Kirkconnell said
it had gone too far and that he was now concerned
about protecting himself. On cross-examination, Heausler
testified that Kirkconnell did not mention CC1 as being
involved in his inability to meet deadlines. Heausler
stated that he would have remembered such an assertion
if it had been made to him because at that time there was
no question in his mind about the ability to remove CC14
from the groundwater. Heausler added that he saw Kirk-
connell many times at Le Moyne and that they often
spoke about removal of CC14 from the groundwater, but
that Kirkconnell had not expressed any concerns about
the process to him. According to Kirkconnell, in June
1979 he talked to Heausler about personal matters includ-
ing the subject of a promotion to the Baton Rouge plant
for Heausler. They also discussed Holt, and Kirkconnell
asked Heausler's advice concerning his disagreement
with Holt over repumping of the wells. Heausler told
him to "keep your nose clean." Heausler was emphatic
in his testimony that he never discussed a Baton Rouge
promotion with Kirkconnell; he was sure that an assign-
ment to that city was not in his career plans. I credit
Heausler's version of this conversation.
Holt testified that in the latter part of July, Friedman
informed him that he was having difficulties with Kirk-
connell, who was, according to Friedman, not getting his
job done and not following instructions. Holt told Fried-
man to prepare goals for Kirkconnell, review them with
the latter and later conduct another appraisal of Kirkcon-
nell's work based on his performance of the goals. He
suggested that Kirkconnell might wish to add to the
goals himself. Sometime on August 6, before the meeting
with Wood, Friedman showed Holt the list of goals.
Friedman testified that on or about August 2, he spoke
to Mr. Raymond Zittel, a personnel supervisor, and
asked him to counsel Kirkconnell about antagonizing
Holt. He also mentioned to Zittel that he was preparing
a list of goals for Kirkconnell. 39
On August 2, 1979, Kirkconnel testified, Zittel in-
formed him by telephone that Friedman had told Zittel
that Kirkconnell "was going to be set up and fired."
Kirkconnell testified that he lunched with Zittel a few
times per week and took walks with him. He denied that
Zittel ever told him that he had to meet certain work
and performance standards.
Zittel testified that he spoke to Kirkconnell in Septem-
ber 1976 concerning a performance appraisal with which
Kirkconnell did not agree. Zittel counseled him that in
the section of the appraisal reserved for employee com-
ments, Kirkconnell should write that he did not agree
and would try to conform to Friedman's wishes. At that
time, Kirkconnell told Zittel that if things went badly
"he would have to seek legal recourse." 40 In July 1979,
Friedman asked Zittel to speak to Kirkconnell to try to
"get Mr. Kirkconnell to be more cooperative with Mr.
Friedman." Zittel spoke to Kirkconnell about mid-July
and told the latter to try to get along better with his su-
pervisor. According to Zittel, he had spoken to Kirkcon-
nell for a similar purpose "on numerous occasions." On
this occasion, Kirkconnell said "he was trying to make
an effort and that he thought he was making some head-
way in making an effort," but that he was concerned
about a report that was due in a short time and for
which he did not have all the information. Kirkconnell
told Zittel that he felt he was "in some sort of a setup
situation" because of the short deniline. Kirkconnell did
not "want to put in a report that was wrong." Zittel ad-
vised Kirkconnell to prepare the report, indicating where
necessary that he did not have all the required informa-
tion.
Sometime during the first week in August, Zittel testi-
fied, Friedman came into his office seeming agitated and
said: "I have had it with Mr. Kirkconnell. I don't want
39 Written goals are used by Stauffer management as a counseling tool
to help employees improve their job performance. Kirkconnell was famil-
iar with this method through prior incidents at Stauffer.
40 Zittel impressed me as a witness who attempted to give careful and
exact answers, and I shall credit his testimony.
1436
STAUFFER CHEMICAL COMPANY
Mr. Kirkconnell working for me any more." Friedman
mentioned that he was preparing a list of goals for Kirk-
connell. After this, Zittel called Kirkconnell in an effort
to save his job and informed him that he was "set up to
be terminated." Kirkconnell said he understood. A few
days later, Friedman called Zittel from California, again
in an agitated state. He told Zittel that he had just
spoken to Kirkconnell on the telephone and that Kirk-
connell said he was going to take legal action against
Friedman or Stauffer and would contact the Westport
office about this. Zittel suggested that Friedman inform
Holt. During this conversation, Zittel testified. Friedman
did not tell Zittel that Kirkconnell would be dis-
charged. 4
I credit Zittel's version of his counseling sessions with
Kirkconnell, including his efforts to counsel Kirkconnell
in July 1979. Indeed, Zittel's testimony that he often
spoke to Kirkconnell about relations with supervisors
and about meeting deadlines is supported by certain
annual performance evaluations introduced into evidence
by the General Counsel. These show that in 1976, Kirk-
connell was counseled concerning "communicating, re-
lating to others, stability under pressure [and] organizing
and scheduling." In 197S, Kirkconnell was told that he
needed improvement in estimating his work load so as to
meet agreed target dates. In May 1979. Kirkconnell was
told that he still needed to work on meeting agreed-upon
target dates and that lie must "continue to improve his
work relationships, particularly by controllier', his
temper."
On July 31, 1979, Kirkconnell testified, Friedman held
a meeting with the chemical engineers and told them
that in the future no technical information concerning
sensitive material in the environmental area should be in-
cluded in their regular reports because "it could be detri-
mental to the company." Kirkconnell testified that "this
was a change from normal procedure within the compa-
ny." In response to a question from the General Counsel
as to "what was the normal procedure at that time,"
Kirkconnell stated: "Normal procedure was to put your
factual information into a report in order to conduct
business. There was the confidential memo available."
During this meeting, according to Kirkconnell, he asked
Friedman who was responsible for the design of a unit
outside the law, and Friedman responded that it was not
his corcern.
Friedman recalled the July 1979 meeting of his depart-
ment as one where he told the engineers not to make re-
ports on insufficient information and to remove incom-
plete and misleading information from the files.
Kirkconnell testified that after the "key meeting" of
mid-July, he spoke to his attorney, Gregor F. Gregorich,
sometime in late July He told Gregorich that the system
he was working on was outside the law and a danger to
life, but that he would be fired if he did not design the
system. Gregorich testified that he spoke to Kirkconnell
in late July or early August 1979, and that the latter told
Gregorich that a meeting had been called to discharge
him but also to discuss his work. Gregorich told Kirk-
4I As will be seen htlow, this conersation took place on August 9 or
10, 1979.
connell that nothing could be done until the employer
took some action. According to Gregorich, Kirkconnell
told him that he was being asked to execute steps con-
cerning water and air treatment that he thought were un-
professional and hazardous to employees in the plant.
Kirkconnell was concerned that he was to be terminated
because he refused to carry out these orders. Although I
credit Gregorich's testimony, I do not find it persuasive
in finding the facts herein. First, it is clear from Gregor-
ich's version of the conversation that Kirkconnell knew
he was about to be terminated; thus, Kirkconnell was al-
ready trying to take steps to prepare for litigation.
Second, and most important, the fact that Kirkconnell
may have made certain statements to his lawyer does not
make them any more true than when they were made by
him on the witness stand.
7. The meeting of August 6, 1979
On August 2, 1979, Kirkconnell testified, he received
two short memoranda from Friedman. One stated that
Wood, Kirkconnell, Holt, and Friedman would meet in
Dobbs Ferry on August 6 at I p.m. "to review Bob
Kirkconnell's report and reconimendation." The agenda
was stated to be:
Presentation of Bob's report and recommendations.
Review of target date and environment restraints.
Need for a project engineer ...
Who's to prepare A/R? Timing and schedule.
The second memo from Friedman to Holt informed the
latter that Kirkconnell would have a rough draft of his
report for review in Holt's office at 2 p.m., August 6.
Kirkconnell testified that before August 2, 1979, he did
not know that he was expected to submit a report on
August 6. Indeed, on cross-examination he stated that
even after he saw the two memos described above, he
did not think he was supposed to prepare a report for
August 6. The only report that Kirkconnell knew of was
a cost-study that was to be issued by Mr. Ed Stocker,
the head of the costing group. When confronted with a
copy of his July 19, 1979, memorandum to Friedman
which states, "The report is planned for issue about
August 1, 1979," Kirkconnell testified that that referred
to the Stocker cost-study. Manifestly, that testimony
cannot be correct since in his memo Kirkconnell entitled
the topic "R. Kirkconnell Report Date." Further in the
memorandum of August 14, 1979, Kirkconnell refers to
"my report," stating that "report issuance is awaiting ap-
proval of the Operating Committee on the included cost
study." Thus, it is evident that the cost study to be done
by Stocker was to be added to a report which Kirkcon-
nell himself was to prepare.
After extensive cross-examination by counsel for Re-
spondent, Kirkconnell admitted that he had agreed with
Friedman that he would issue a report by August I, and
that items numbered 2, 4, and 5 listed as future work in
his memorandum of July 17 were to be in the report,
albeit in a scope and format that was altered as time
went on. Finally, on redirect examination by the General
Counsel, Kirkconnell conceded that the "report" re-
1437
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ferred to in his memo of July 19 and in Friedman's
memos of August 2 did indeed refer to the report which
he wrote and dated August 6, 1979.
On August 6, Kirkconnell testified, he met with Fried-
man in the latter's office. Friedman handed him a hand-
written sheet of paper entitled "Discussion of goals for
Robert Kirkconnell" and asked him to sign it. Kirkcon-
nell refused to sign until he had a chance to talk to his
attorney, and Friedman noted that fact on the bottom of
the page. The goals provided.
The following short term goals were prepared . . .
in order for Bob to maintain his present perform-
ance rating of 4.
1. To meet agreed schedules and target dates.
2. Unless I approve otherwise to work on one as-
signment until that assignment is completed. Not to
offer consultation in other areas and to restrict tan-
gential investigations and activities.
3. To significantly improve working relationships
with others, particularly by maintaining an even dis-
position and not offering free advice.
Friedman testified that he gave the goals to Kirkcon-
nell after having shown them to Holt, and that he
wished to discuss them but that Kirkconnell foreclosed
discussion by saying he wanted to see his attorney. As a
result, Friedman decided to distribute the goal sheet to
certain members of management.
On the afternoon of August 6, Kirkconnell testified,
the meeting took place with Wood, Jim Call (the indus-
trial division environmental coordinator), Holt, Fried-
man, and himself in attendance. Wood opened the meet-
ing by saying that the idea of reinjection wells was to be
eliminated and that the project should be redirected back
to surface disposal of the treated groundwater. The
meeting lasted several hours, and Kirkconnell testified
that he was assigned 14 tasks to perform. No time frame
for completing this work was mentioned, and Kirkcon-
nell testified it would take several months or I year to
accomplish. He began to work on one of the tasks, how-
ever, telephoning information requested by Call in con-
nection with negotiating the effluent permit.
On cross-examination, Kirkconnell was shown a
memorandum dated August 6, 1979, entitled "Granulator
Improvement," 4 2 addressed to Friedman, Holt, Heausler,
Stilson, Perry, and Wood. Kirkconnell t.'stified that this
memorandum, comprising 31 pages including engineering
drawings and tables of analysis, was the rough draft
mentioned in Friedman's August 2 note to Holt, but he
maintained that it was a routine report being prepared
over a period of time and not prepared for a specific
meeting such as the one to be held on August 6, 1979.
The report of August 6, 1979, in its rough draft form,
contains a one-page abstract which dwells on the prob-
lems inherent in reinjection wells and concludes: "Spray
ponding with surface disposal offers a much lower risk
assessment than reinjection." The memorandum discusses
42 This was a typographical error. The memo should have read
"Groundwater Improvement." A number of other typographical errors
are evident in this document.
in detail the proposal to treat the groundwater and ana-
lyzes the properties of the water. It sets forth in detail
studies that were done to test methods of removing CCl4
from groundwater. In this connection, the memo states
that the CC14 concentration in the groundwater "is esti-
mated at 54 ppm." Under the topic "Meeting OSHA
standards," the memo states that the subject is covered in
a memorandum from Cooper to Friedman dated July 31,
1979. The methods of removing CCI4 from the ground-
water which are discussed in the memo are spraying, air
stripping, and weathering. Further spray tests to confirm
the ability to reduce the level of CC14 in groundwater
are planned, as well as tests to investigate nozzle spacing.
The memo also contains an analysis of four alternative
treatment schemes, involving combinations of ponding,
spraying, reinjection, filtration, and the like. Each of
these schemes is illustrated on a drawing. One of the
schemes, denominated Case 111-032, calls for spraying,
aerating, solids removal, and surface disposal. As to this
scheme, the memo states that the "risk assessment is
low" based on the probable ability to achieve the desired
goal. The comment section of the memo discusses prob-
lems still to be solved concerning design of the proposed
treatment pond and summarizes the high risks of failure
associated with the reinjection well alternative. The con-
clusion is that Case 111-032 offers a minimum of disad-
vantages.
Kirkconnell testified that before Cooper wrote his
memorandum he spoke to Cooper and told him that the
math model showed a range of CC14 in air from 2.5 ppm
to 56 ppm and asked Cooper for the standards and regu-
lations applicable to the Le Moyne project. Cooper's
memorandum, which Kirkconnell obtained from Fried-
man, refers to the figure 2.5 ppm but not to the higher
numbers allegedly provided by Kirkconnell nor to the
existence of any range of CC14 concentration in air.
Kirkconnell testified that he never put ranges of CC14
concentration in his memoranda and he never put in
writing his concern that levels of CC14 would exceed
Government standards, because the Stauffer procedure is
that where there is an infringement of law, it should be
stated orally and not in writing. He stated that this had
always been the policy but that it was specifically stated
by Friedman at the July 31 meeting. Further, after his
July 12 meeting with Holt, Kirkconnell testified, where
he told Holt that there would be excessive levels of
CC14 in the air, "I was intensely aware that I was walk-
ing a narrow line."
I do not credit Kirkconnell's assertion that he did not
put any fears or questions he had concerning employee
exposure into writing because of a company policy
against such actions. First, when Kirkconnell testified
about the July 31, 1979, meeting, he clearly stated that
Friedman's direction to omit sensitive environmental in-
formation from memos was a departure from previous
practice which called for all factual information to be
contained in a report, and provided that the document
could be labeled "confidential" if necessary. Second, a
reading of Kirkconnell's memoranda shows that he was
not at all loath to convey dire messages about proposed
projects where he thought warnings were justified. For
1438
STAUFFER CHEMICAL COMPANY
example, Kirkconnell believed all along that the concept
of reinjection wells was unworkable and he kept up a
steady barrage of memos replete with statistics and rea-
soning to show that such wells, if adopted, would not
function. He did not hesitate to make arguments relating
to environmental problems in his attack on proposals he
opposed; for instance, he repeatedly mentioned a notice-
able red color that might result in the creek from im-
proper methods of discharge of the effluent. I conclude
that neither Kirkconnell's memoranda nor his oral com-
munications contain fears about CC14 and "ranges" of
concentration because neither the fears nor the ranges
ever existed.
At first maintaining that he himself presented no
report at the August 6 meeting, Kirkconnell then testi-
fied that he could not remember and that he might have
submitted the "rough draft" of August 6 on that date.
Kirkconnell testified that he did not give a presentation
at this meeting and that his report was n,;t mentioned.
He testified that he did not discuss the Copper report
either at the meeting or in his own report nor did he
mention that he disagreed with Cooper's conclusions be-
cause the "general policy in the Company, you do not
put in writing sensitive material of this type, specifically
at this time when my job was in jeopardy."
The Cooper memorandum, dated July 31, 1979, is a
two-page document stamped "Stauffer Confidential"
across both pages. It discusses vapor levels of CC14 and
CS2 "expected to result due to evaporation of these con-
taminants from the groundwater spray." The memo
states "your model calculation . .. predicts approximate-
ly 2.5 ppm of carbon tetrachloride." The memo discusses
the current standards For both of these vapors. It details
the OSHA regulation (8-hour time weighted average at
10 ppm, ceiling level of 25 ppm and peak exposure not to
exceed 5 minutes in any 4 hours of 200 ppm); the
ACGIH recommendation (10 ppm for 8-hour time-
weighted average and 20 ppm short-term exposure); and
the NIOSH recommended 2 ppm ceiling exposure limit
based on 60-minute sampling periods. The memo states
that while the math model used to calculate the vapor
concentration "may be inaccurate, it appears to provide
the best estimate . . . available." Since the model pre-
dicts permissible levels and "approaches the levels cur-
rently being considered for future exposure limits," the
"operation should not pose a problem." Further, "discus-
sions with plant personnel and yourself indicate that op-
eration of the evaporative spray systems would not re-
quire the continuous presence of an individual" and "op-
erators would only be in the area for I to 2 hours per
day, their average exposure . . . would be diluted." Ac-
knowiedging that fiuture lower ceiling limits could pose a
problem, the memo continues "this could be handled
through the use of respirators during the time required
for an employee to be in the immediate vicinity of the
evaporative spray system." The memo concludes by
giving the opinion that the project "does not present an
unmanageable employee exposure potential." Upon
having his attention draws to the fact that the memo was
stamped "Stauffer Confidential." Kirkconnell stated that
he could not remember whether he ever saw another
document marked confidential in his years at Stauffer.43
After the meeting of August 6, Kirkconnell testified,
the scope of the project changed dramatically and so did
the work he was assigned to do. He immediately went to
work on the new scope but was unable to complete the
report he had been requested to furnish by August 13.
Wood testified that he called the August 6, 1979, meet-
ing to evaluate current engineering recommendations for
the Le Moyne project after having been told by
Heausler that reinjection no longer seemed feasible. At
the meeting, Kirkconnell read from a report which
Wood then asked for. Although Kirkconnell was reluc-
tant to give Wood a copy because the report was not
complete and had typographical errors, he finally gave it
to Wood at the latter's insistence. The report contained a
copy of the letter from Cooper and this document was
discussed at the meeting. Kirlkconnell formally recom-
mended abandoning the concept of reinjecting the treat-
ed groundwater and he suggested reverting to surface
disposal.
Wood testified that after the meeting he told Holt that
the project was way behind schedule and that action
should be taken, and he wrote a memorandum to this
effect dated August 10, 1979. Wood stated that commit-
ments for dealing with the groundwater pollution had
been made to AWIC and that he was eager to get the
project underway.
Wood testified that at the August 6 meeting he noted
that many nonprocess aspects of the project were not
completed; further the decision as to which process
would be used had not been made in July, as expected.
Wood stated that he was not satisfied with those aspects
of Kirkconnell's work related to nonprocess work such
as cost estimates, and coordination of electrical and civil
engineering work, but that only a little of the process
design he had completed needed to be redone. Wood tes-
tified that the major change decided upon at the August
6 meeting concerned the method of disposing of the
treated groundwater. However, the work done in meth-
ods of removing contaminants from the water was still
valid and, in fact, surface discharge is simpler than rein-
jection and thus it simplified the process design. Wood
did not request that Kirkconnell be removed from the
job.
Concerning the "9" or "14" tasks listed by Kirkconnell
as having been assigned at this meeting, Wood testified
that many of these had been done by Kirkconnell and
that all that was required was to document the old work
or to compute or update costs of designs already made.
Further, some of the tasks listed by Kirkconnell were not
assigned to him at the August 6 meeting according to
Wood's testimony. Heausler testified in great detail con-
cerning each of the nine tasks listed by Kirkconnell, and
he stated that most of the work listed had been done by
Kirkconnell in 1978 and early 1979. All that remained
was to document certain work that had been done,
update costing that had been computed earlier or com-
43 In this he again contradicted his earlier testimony about the use of
"Confidential" memoranda
1439
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plete certain details. Heausler believed the work could be
done in a few days.
Holt testified that the August 6 meeting was relatively
short, beginning at 1:30 and ending by 3:30. Kirkconnell
had a rough draft of a report. Those present reviewed
process flow designs for the alternative water treatments
being considered. Call requested more information for
the NPDES permit application and Kirkconnell prom-
ised to provide this within the week. Kirkconnell stated
his conclusion that reinjection was not a feasible alterna-
tive. Wood had also expressed this conclusion to Holt
some weeks before the meeting, and he repeated it on
August 6. He also repeated that AWIC would get per-
mitting authority in September or October, and that the
best alternative was discharge to the Mobile River. After
the meeting, HIolt saw Wood in the hall, expressed his
disappointment that the project was not close to the final
AR stage, and stated that he would do something about
that. Wood agreed that something had to be done.
Friedman testified that the meeting of August 6, 1979,
was held to discuss the status ot' the Le Moyne ground-
water project and the issuance of a final AR. He stated
that Kirkconnell gave him a draft of his report prior to
the meeting: Friedman told Kirkconnell that the draft
contained typographical errors and that it was deficient
in its discussion of costs for the alternative treatment
plans. Friedman testified that at this meeting there was
some discussion of further testing of the groundwater,
but no discussion of testing levels of CC14 concentration
in the air. He stated that Wood made decisions as to
what would be done to carry the project along.
I find that Kirkconnell was aware that his report on
the groundwater project was due on August 6, 1979. I
find that at the meeting, Wood accepted the treatment
alternative recommended by Kirkconnell and that Kirk-
connell was directed to provide certain further data and
to update certain cost information. I do not find that 14,
or 9. new tasks were assigned. Further, the idea of rein-
jection which had been strongly opposed by Kirkconnell
was formally abandoned. I find that Kirkconnell did
indeed deliver an oral report at this meeting based on his
August 6 rough draft, and that the Cooper memo about
OSHA standards was discussed. I find that Kirkconnell
did not voice any concern about safety of employees or
levels of CC14.
On August 8, Kirkconnell testified, he received a
memorandum from Friedman summing up the results of
the August 6 meeting. The memorandum stated that
Wood had accepted preliminarily the concept of "dis-
charge with iron removal" based on a flow sheet draw-
ing. This is drawing 32 included in the August 6, 1979,
report and is Case 111-032, in that report, the treatment
design stated by Kirkconnell to have a low risk and a
minimum of disadvantages. A number of tasks to be per-
formed by Wood, Call, and Holt were listed, and the fol-
lowing three tasks were listed for Kirkconnell: (1) issu-
ance of Kirkconnell's report by August 13, including
costs expected from estimating by August 7; (2) issuance
of estimated effluent composition to Call and a material
'alance based on the flow sheet drawing; (3) sizing of
mire spray pond. The memo stated that an engineer would
be assigned to Le Moyne to obtain data necessary for the
issuance of the AR. After he received this memorandum,
Kirkconnell reached Friedman by telephone in California
on August 9, and informed him that there would be a
problem in releasing his report by August 13 because the
cost department could not release its estimate in the re-
quired time due to the failure of the operating committee
to meet and approve the estimate. Further, Kirkconnell
told Friedman that he would require "a considerable
study effort" to answer the questions raised at the meet-
ing. In a memorandum written to summarize the conver-
sation, Kirkconnell stated:
any changes in the cost study . . . pose a problem
in completing and releasing my report on Monday
8/13/79.
Kirkconnell testified that the report he referred to
above was not to be based on the rough draft of August
6, 1979, but he did not explain what report he was refer-
ring to. I conclude that it was indeed a reworking of the
August 6 draft.
Friedman testified that Kirkconnell informed him of
two things during the conversation: that it would take 2
more months of work to finish his report and that if
Friedman removed the goal sheet from his file, he would
not go to his lawyer. Kirkconnell denied telling Fried-
man that he would not call his attorney if Friedman re-
moved the goals from his file, and he denied threatening
to sue if the goals were not removed. However, he ad-
mitted mentioning Conrad Kent during this conversation,
and the fact that he intended to write to him. Kent is
employed in a legal capacity by Stauffer.
After speaking to Kirkconnell, Friedman telephoned
Holt and left a message with Holt's secretary relaying
the substance of his conversation with Kirkconnell.
8. The discharge of Kirkconnell
On August 10, 1979, Holt met with Kirkconnell in the
latter's office. Kirkconnell testified that Holt asked ques-
tions and took notes during this meeting. Holt asked
about the report due on August 13. and Kirkconnell re-
sponded that there was a problem with releasing the cost
estimate and that he had to perform many tasks. Holt re-
plied thot he would take care of the cost estimate release
and the operating committee, and that the tasks men-
tioned by Kirkconnell were "'eninetering details." Holt
told Kirkconnell to issue the report. Kirkconnell then
stated that he "hadn't started to do the work for the
basis for a report" and that it would he impossible to
write the report for the date specified. Holt repeated his
instruction to issue the report and left.
Holt testified that on either August 9 o;- 10, 197'), he
received a telephone message from Friedman stating that
Kirkconnell said there would be a 2-month delay in issu-
ing his report and that Kirkconnell would contact
Conrad Kent of the Stauffer Legal Department about
filing charges against Friedman. The message also men-
tioned that the cost estimate could not be released until
approved by the operating conmittee.
1440
STAUFFER CHEMICAL COMPANY
Holt testified that he spoke to Kirkconnell in the lat-
ter's office on August 10.4 4 Holt was concerned about
the delay in getting cost data on the steam stripping
backup and he asked to see the data relating to steam
stripping. Kirkconnell replied that the data were scat-
tered throughout his office and that it would take 2
months to put everything together. The two men then
discussed the proposed treatment pond, and Holt asked
about the basis for sizing the pond, the aeration devices
and the holding capacity required to diminish the CC14
content to 50 ppm. According to Holt, Kirkconnell indi-
cated that Holt should desist because Kirkconnell knew
more about the subject and Holt did not know what he
was talking about. During this meeting, Holt again asked
for the protocol for future testing, but Kirkconnell did
not have it. The types of testing Kirkconnell still deemed
necessary as of August 10, included testing of the effi-
ciency of spray devices and a determination of the
amount of aeration or weathering required to reduce the
concentration of CC14 in the water to 50 ppm.45 Fol-
lowing these comments by Kirkconnell, Holt informed
him that he had asked Friedman to prepare the goals and
that a reappraisal of Kirkconnell would take place. When
Kirkconnell stated his belief that the goals were a subter-
fuge for discharging him, Holt replied that he was un-
happy with his performance, that a reappraisal was nec-
essary and that Kirkconnell should review the goals and
add to them if he wished. Then Kirkconnell told Holt
that he would bring charges against both Holt and Fried-
man.
Holt at first testified that during this talk, Kirkconnell
told him to "shut up." However, Holt later changed his
testimony to say that while Kirkconnell had not used
these words, his attitude has been such as to indicate, in
Holt's view, that he should shut up. Kirkconnell denied
that he told Holt to "shut up" but did not deny any of
Holt's other testimony concerning this meeting. I credit
Holt's testimony.
From the testimony of both Holt and Kirkconnell, I
find that the major issue discussed at this meeting was
Kirkconnell's ability to release his report by August 13.
Kirkconnell told Holt that it would take months to com-
plete the report while Holt maintained that only "de-
tails" remained to be completed. Holt asked certain sub-
stantive questions of Kirkconnell relating to steam strip-
ping aeration and the size of the pond. Holt also asked to
see Kirkconnell's plans for future testing of spray devices
and the like. Kirkconnell rebuffed Holt and spoke
abruptly to him. Holt took offense and mentioned that
Kirkconnell should consider the goals that Friedman had
prepared and that Kirkconnell's performance was unsa-
tisfactory. Kirkconnell mentioned his fear of being dis-
charged and his intention to file some sort of
charges.Holt testified that after talking to Kirkconnell on
August 10, he returned to his office and prepared a
memorandum of the meeting based on his notes. He then
called Vice President Roberts, described the meeting,
and told Roberts that he was very unhappy with the lack
44 During the conversation with Kirkconnell, Holt took notes in a no-
tebook which he usually carries to meetings.
4' Kirkconnell did not mention pumping the wells, nor did he raise
any questions about levels of CCI, at the spray site.
of progress on the Le Moyne project and that Kirkcon-
nell refused to be questioned by management and was re-
luctant to discuss any goals for himself. Roberts, refer-
ring specifically to Kirkconnell's attitude when ques-
tioned by management and then asked to consider goals,
stated that this could not be condoned and that Kirkcon-
nell should be terminated. Holt testified that he had not
discussed terminating Kirkconnell with Friedman in July
1979 but that he had it in mind when he spoke to Rob-
erts on August 10. Following his conversation with Rob-
erts, Holt showed his memorandum to Mario Orlando,
manager of administration and personnel, and directed
him to take the steps necessary to effectuate Kirkcon-
nell's termination. On August 13, Holt told Friedman
about his meeting with Kirkconnell, and informed him
that the latter was to be discharged.
Friedman testified that when he returned from Califor-
nia on August 13, Holt informed him that he had an "un-
satisfactory" talk with Kirkconnell on August 10. Holt
said that Kirkconnell would have to be replaced on the
Le Moyne project because he was going to be dis-
charged. Later, Friedman saw Roberts who told him
that he had read Kirkconnell's files and that there was
sufficient cause to discharge Kirkconnell. On August 15,
Friedman, Orlando, and Carothers met to discuss termi-
nation procedures: it was decided to tell Kirkconnell that
his discharge was for failure to work within the compa-
ny structure and because he would not accept supervi-
sion.
Orlando testified that he is responsible for termination
interviews and that he has jurisdiction over personnel
files and the periodic employee merit reviews.46 Orlando
testified that on the afternoon of August 10, 1979, Holt
informed him that Kirkconnell was to be terminated and
asked him to make the necessary arrangements. Holt
showed Orlando a note he had written after talking to
Kirkconnell that morning. He told Orlando that he had
discussed the termination with Roberts and that he
would inform Friedman of the decision. Orlando ar-
ranged a meeting with William Carothers. the manager
of employee relations, and Friedman to be held August
15. At that meeting, Kirkconnell's personnel file and pe-
riodic evaluations were reread and reviewed. 47 Orlando
told Carothers that Kirkconnell was unable to work
within the system and had been a problem for his super-
visor from the beginning, and that "we were terminating
him because we couldn't tolerate him any longer." The
decision to terminate had been made by line manage-
ment, including Friedman, Holt, and Roberts. Orlando
told Carothers that the matter was sensitive because
Kirkconnell had made reference to a lawsuit against
Stauffer and Holt. Carothers concurred in the decision to
discharge after reading the file and Holt's note. Orlando
testified that Kirkconnell would not have been dis-
4' Orlando testified carefully and his answers were direct and forth-
right on cross-examination. I find him to be a credible witness.
47 Orlando testified that Kirkconnell was given yearly merit increases
below the average increases given in those years from 1975 through 1979.
except that he was given no increase in 1976 due to poor performance.
Merit increases must be approved by Holt and Roberts The last increase
given was effective June 1. 1979.
1441
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged but for the events which took place at the
August 10 meeting between Kirkconnell and Holt.
Carothers testified that on August 10 or 13 he was
asked to attend a meeting to be held on August 15, at
which the termination of an engineer was to be dis-
cussed.48 On August 15, he attended a meeting with Or-
lando and Friedman to review the background and to in-
dicate whether he concurred in the proposed discharge
of Kirkconnell. The three reviewed Kirkconnell's per-
formance appraisals. Friedman told Carothers that Kirk-
connell had been a problem employee since the begin-
ning of his employment; he was difficult to supervise, ar-
gumentative, talkative, wanted to do things his way, and
his performance was poor in that he did not complete his
jobs when promised and always needed more time. Car-
others testified that no particular incident was mentioned
to him as precipitating the discharge and that there was
no mention of regulatory agencies or the Le Moyne
groundwater project.
On August 20, Orlando testified, Kirkconnell's termi-
nation meeting was held, with Friedman present. Fried-
man told Kirkconnell that he was terminated immediate-
ly for refusal to meet goals, fighting Friedman on
instructions and interference with others. Kirkconnell
said he would sue Stauffer or Holt, and stated either that
he had been asked to perform illegal acts or to perform
acts against company policy. He did not specify what
these actions were. According to Kirkconnell, Friedman
told him his discharge was "for failure to follow orders
as directed."
When asked about Kirkconnell's contentions concern-
ing his termination, Wood testified that Kirkconnell
never told him that CC14 released into the air by the
groundwater treatment Project would exceed concentra-
tions of 10 ppm nor was he ever given a "range. " 49
Indeed, Kirkconnell's reports to Wood said the concen-
tration of CC14 in air at the treatment site would be 2.5
ppm or 3 ppm. Further, Wood stated that he had not
been informed that Kirkconnell had raised questions con-
cerning CC14 with Holt and Friedman, nor that Kirk-
connell had asked for more testing of the CC14 which
would be released into the atmosphere. Wood stated that
he could not recall Kirkconnell saying at the August 6
meeting that the average CC14 content of the ground-
water was over 54 ppm. He had thought the 54 ppm
average was inaccurate when he first heard of it in
spring 1979 based on the consultant's report, and he be-
lieved the 30 ppm average used in earlier reports was ac-
curate. However, Heausler wanted the project designed
to handle average CC14 concentrations in water of 54
ppm as this was the most conservative approach. 5 0
48 I find that Carothers was a credible witness and I shall rely on his
testimony.
49 Wood was not involved in Kirkconnell's discharge, and he learned
about it only after it had taken place. Heausler also heard of the dis-
charge only after it was decided upon; he received a telephone call from
Friedman who stated that he would rather not talk about it
0so Heausler testified that when Kirkconnell showed him the method he
had used to average the groundwater concentratioll of CCI, in April
1979, he told Kirkconnell that he believed the figure reached was too
high.
Heausler testified that the consultants had predicted that
after 6 months of operation, the groundwater treatment
project would reduce concentrations of CC14 in the
water to 15 ppm. This, coupled with steps the plant was
taking to prevent further contamination of the ground-
water, meant that the highest ccncentrations of CC14
would be pumped first and that there would be ever de-
creasing concentration of CCl. in the groundwater and
thus in the air above the treatment site as the project
continued to operate. Both Wood and Heausler believed
that there would he no problems in meeting OSHA regu-
lations, and even if the NIOSH recommended limit were
adopted in a few years, there would likely be no prob-
lem. However, in case the project functioned differently
than expected, Wood testified, he had requested that
Kirkconnell include plans to retrofit a backup system in-
volving recovery of CC14 and CS. at the treatment site
without release of these vapors to the air. This was
standard planning procedure at Stauffer."5
Holt's testimony about discussions of CC14 comports
with that of Wood and Heausler. Thus, Holt testified
that at the April 1979 planning meeting, Kirkconnell told
him that the anticipated CC14 level at the spray site
would be 3 ppm. Although, Kirkconnell apparently disa-
greed with Stilson's statement that the average CCI4
content of the groundwater was 35 ppm, Holt refused to
let Kirkconnell pump more observation wells to obtain
more samples and told him to use the data available to
compute average concentrations. I find that this direction
resulted in Kirkconnell's memo of May 7, 1979, which
stated for the first time that the average CC14 content of
the groundwater was 54 ppm.
By the time of the July meeting, Kirkconnell did not
request any further pumping of the observation wells ac-
cording to the credible testimony, and it is clear that
there was no controversy remaining over the average
''C14 content of the groundwater. The disagreement in
July 1979 between Holt and Kirkconnell was over the
feasibility of reinjecting the treated groundwater. More-
over, none of the participants at the August 6, 1979,
meeting, not even Kirkconnell, testified that Kirkconnell
expressed any fears about levels of CC14 at this meeting.
Friedman testified that Kirkconnell was discharged be-
cause he did not get along with many people in the com-
pany, he was argumentative, he engaged in unauthorized
tangential investigations, he could not meet agreed upon
schedules, and he could not delegate work and wasted
time doing unnecessary work. Friedman also testified
that Kirkconnell's call to him in California lead him to
recommend Kirkconnell's termination, but Friedman
later altered this testimony and stated that Holt and Rob-
erts had decided on termination without his own partici-
pation. When asked about Kirkconnell's employment his-
tory, Friedman acknowledged that in his performance
evaluations of Kirkconnell in 1978 and 1979, he noted
"improvement in supervisor relationships' and a continu-
ation of efforts to adjust to the needs of the job. Kirk-
connell maintained a rating of "4" throughout his tenure
5i According to Heausler, and Wood, Kirkconnell had done the work
designing for a retrofit in 1978, and all that was required was I day's
work to update the cost figures.
1442
STAUFFER CHEMICAL COMPANY
at Stauffer, which was considered "average." Friedman's
recollection about the specific events leading to Kirkcon-
nell's discharge is inexact. However, Friedman's testimo-
ny about Kirkconnell's abrasive manner and about his in-
ability to meet deadlines is uncontradicted and is sup-
ported by documentary evidence. Further, Zittel, who
was friendly and helpful to Kirkeonnell testified that on
"numerous occasions" over the years of his employment
at Stauffer. he had counseled Kirkconnell with respect to
maintaining a cooperative relationship with his supervi-
sors. Therefore, I find that Kirkconnell had a history of
difficult relationships with his supervisors and that he
also had a history of being unable to meet deadlines.
9. Kirkconnell's letter to Davis
On August 13, Kirkconnell had written a letter to Ken
Davis, the executive vice president of Stauffer. Although
no evidence was presented linking Respondent's decision
to discharge Kirkconnell with the receipt of this letter
by Davis, its contents are instructive. The letter, marked
personal and confidential, is headed by an "Abstract."
The first paragraph of the abstract states that Friedman
and Holt "have verbally ordered me to perform in a
manner that is contrary to corporate policies and proce-
dures, is illegal and against good engineering practice."
The abstract then mentions the corporate image and a re-
duction in stock value, and concludes that Kirkconnell
has been told that if he does not carry out "these verbal
orders, they threaten to destroy my professional career.
The information offered below the abstract is grouped
under six headings.
Under the title "Destruction of Sensitive Material,"
the letter states that Friedman ordered the destruction of
"sensitive environmental information" that was "poten-
tially incriminating." Under the heading "Le Moyne
Groundwater Pollution," the subject to which the most
space is devoted, the letter summarizes a longstanding
disagreement with Holt over the reinjection well con-
cept. The first paragraph states that Holt ordered Kirk-
connell to conduct the project in an "unprofessional
mode" with procedures that presented "an unacceptable
and unnecessary risk. I disagreed." There follows a de-
scription of the possible problems encountered in reinjec-
tion which would lead to plugging of the wells and an
assertion that Holt would not permit Kirkconnell to
obtain analysis and lab studies required to predict plug-
ging problems but instead verbally ordered him to design
the project. "I refused to follow [lHolt's] direction with-
out a written order establishing accountability. It is not
legal to verbally order a subordinate to carry out an act
that the subordinate states to be unprofessional and could
reflect on his professional career." The letter next de-
scribes work performed by Kirkconnell on an Easter
holiday weekend which resulted in his being able to
demonstrate through analysis of data and laboratory tests
that the "risk of plugging is high." After the submission
of verbal and written reports, the letter states, "the rein-
jection concept has been dropped as of August 1979."
The two concluding paragraphs state, in substance, that
Kirkconnell's "recommendations of September 1978 for
spray ponding and surface disposal have been accepted."
"In addition to presenting a higher risk than spray pond-
ing, the cost for reinjection is about twice the cost of
ponding with surface disposal.... The decision to study
reinjection as an alternative was not of my choosing.
. . I have done my best to abort this reinjection effort
from first knowledge of its inception. .. .5
The next heading in the letter of August 13 is "Ques-
tionable Purchase Tactics;" it details a disagreement with
Friedman over purchase of some water treatment equip-
ment for the Chicago Heights plant during which Fried-
man "vigorously and loudly" suggested that Kirkconnell
"should leave the company." Under the heading "Indi-
vidual Productivity," the letter asserts that Friedman
told his department members to "reduce work output, as
an effort to reduce costs." Under "Departmental Goals
and Objectives," the letter offers Kirkconnell's sugges-
tions for saving money. Finally, under "General Com-
ments," Kirkconnell offers to review similar problems at
other company locations.
This letter, written by Kirkconnell after the level of
disagreement between him and Holt had risen and when
Kirkconnell had been told that he might be discharged,
apparently sets forth all of his grievances against
Stauffer. The purpose of the letter was obviously to
make the strongest case possible for the view that Kirk-
connell was a valuable and productive employee of
Stauffer who had been unfairly treated and maligned by
certain members of management. Yet the letter contains
no mention at all of the circumstances which the General
Counsel alleges were the cause of Kirkconnell's dis-
charge. The letter does mention Kirkconnell's long fight
to defeat the reinjection method of disposing of the treat-
ed groundwater and characterizes Holt's orders to Kirk-
connell as "illegal" and "unprofessional;" however, there
is no mention of any other illegality in connection with
the Le Moyne project.
This letter leads me to the inescapable conclusion that
at the time of his discharge, Kirkconnell was aware of no
controversy between himself and Holt over the amount
of CCI4 in the groundwater or over the possible concen-
tration of CC14 in air at the treatment site, and that Kirk-
connell did not believe that any disagreement he may
have had with members of management over CC14 was
in any way relevant to his discharge. If Kirkconnell had
been aware when he wrote the August 13 letter to Davis
of any danger to employees from CCI4 he could not
have failed to include this information in the letter.
Thus, I find that the letter is one more indication that
Kirkeonnell had no belief that there would be dangerous
levels of CCI4 vapor at Le Moyne, and that he had no
knowledge of any actions or expressions of concern on
his part that may have led to any conflict with Stauffer
management over levels of CC14.
My conclusion is supported also by a memorandum
written by Kirkconnell on August 14, 1979, for the pur-
pose of giving Heausler a status report on the Le Moyne
project. Under the final section entitled "Comments," the
memorandum discussed the fact that costs have changed
since estimates were made in 1978. The cost of operating
a carbon unit was given in 1978 based on a concentration
52 There is no mention of CCI, in this topic, nor in any other part of
the letter Nor is there any mention of the health or safety of employees.
1443
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of CCI, in the groundwater of only 30 ppm and a final
standard to be met equal to I ppm, where as now the
standard for the effluent will be 50 ppm and the ground-
water concentration of CCl4 "has been more accurately
estimated ... to be 53 ppm...." There is no mention
here of high levels of CCI4.
C. The Chlorine Gas Incident
On a Thursday afternoon, in late September 1978,
Kirkconnell testified, he inhaled some chlorine gas out-
side the plant at Le Moyne and blacked out for a few
moments.5 3 He returned home, and when he saw his
doctor the next Monday, the latter ordered some hospital
tests. Kirkconnell filed a reimbursement claim for medi-
cal bills with Stauffer, but he was told by John William-
son, the office manager, to resubmit the claim and denote
it a claim for influenza. Kirkconnell then resubmitted the
claim in accordance with these instructions.
On cross-examination, when asked whether his doctor
had in fact confirmed that his illness was the result of the
chlorine gas, Kirkconnell did not testify that his doctor
had diagnosed exposure to chlorine gas. Instead, Kirk-
connell stated his doctor asked him to sit down because
"the last man that came into his office that had been ex-
posed to chlorine died in the spot where I was standing
. . . [and said] I want you to go to the hospital for ex-
tensive tests to determine the degree of damage." There
is thus no evidence in the record that Kirkconnell was
medically diagnosed as suffering from poisoning by chlo-
rine gas. There is also no evidence as to any medically
determined "degree of damage." The bills submitted into
evidence show that Kirkconnell was seen in his doctor's
office on September 26, 1978, a Tuesday, and that certain
laboratory tests and X-rays were performed by the hos-
pital on an outpatient basis on the next day, September
27, 1978, a Wednesday. Kirkconnell did not clarify the
discrepancy between these dates and his testimony.
Williamson testified that he had heard that Kirkconnell
might have inhaled chlorine gas and that he made some
inquiries about this. When Kirkconnell returned to the
office, and saw Williamson, Kirkconnell said his doctor
had stated the illness was probably a virus. Kirkconnell
nevertheless submitted a claim for a work-related injury.
Since the claim was inconsistent with Kirkconnell's prior
statements, Williamson asked him to resubmit the claim
on the proper basis and Kirkconnell complied.
Williamson testified concerning a memorandum he
prepared when he first spoke to Kirkconnell about the
possibility that he might have inhaled chlorine gas. The
memorandum, dated September 29, 1978, supports Wil-
liamson's version of these events, including the fact that
Kirkconnell reported his doctor's diagnosis that the ill-
ness was a virus infection rather than the result of
breathing chlorine gas fumes. Williamson testified that if
Kirkconnell had indeed been ill due to the effects of
chlorine gas, he would have processed the appropriate
forms for reimbursement for job-related injury.
" Kirkconnell testified that after he inhaled the first whiff of chlorine
gas he did not put his gas mask on because he did not think it was dan-
gerous. On the General Counsel's rebuttal, Kirkconnell changed his testi-
mony and placed this incident on Friday, September 22, 1978.
Kirkconnell denied that his doctor had diagnosed a
respiratory virus infection, and denied telling anyone he
had a respiratory flu.
Kirkconnell's recollection of this episode is not very
good and his testimony showed some confusion as to the
sequence of events. In addition, I find it hard to credit
his assertion that he was poisoned by chlorine gas since
he avoided testifying that that was his doctor's diagnosis,
and since he waited 4 or 5 days before seeing his doctor
after the alleged incident and 5 or 6 days before under-
going the laboratory tests and X-rays. If the diagnosis of
chlorine gas poisoning had indeed been made, Kirkcon-
nell would surely have recalled this fact and would have
been able to give clear and unambiguous testimony about
it.
Based on the documentary evidence and on William-
son's and Kirkconnell's testimony, I do not find that
Kirkconnell was ordered to falsify his claim for reim-
bursement. I find that Kirkconnell told Williamson that
his doctor had not diagnosed chlorine gas poisoning but
instead had concluded that there was a probable virus in-
fection. 4
The General Counsel introduced evidence as to the
chlorine gas incident as background in an attempt to es-
tablish that Respondent was indifferent to the health and
safety concerns of its employees and had a propensity to
cover up safety related incidents. I find that there is no
record evidence that Respondent had any such tenden-
cies as were suggested by the General Counsel. 5s
D. Conclusions as to Kirkconnell's Discharge
From the record before me, I am convinced that any
questions Kirkconnell raised concerning CC14 and the
need to determine with greater accuracy the amount of
that chemical in the groundwater were abandoned by
April 1979. 1 find that he was not in any conflict with his
superiors over the concentrations of CC14 in late spring
and summer 1979. Further, I find that there is no evi-
dence that he refused to continue designing the treatment
project because of safety concerns on his part. It seems
from the evidence before me that all those who had been
involved in the Le Moyne project had considered the
safety aspects of the design, including anticipated levels
of CC14 in the groundwater and at the treatment site,
and had concluded that the levels of CC14 posed no
safety risk to employees. Kirkconnell's memoranda do
not express any disagreement with the consensus that the
project would meet OSHA regulations. Even his earlier
memoranda, written when he was still maintaining the
desirability of obtaining more data on the content of the
"4 Kirkconnell testified that other engineers had told him of ill effects
from working at Le Moyne, but I do not credit that testimony.
ss The General Counsel and counsel for the Charging Party rely on an
internal memorandum dated July 11, 1979, summarizing Stauffer's busi-
ness strategy for 1980. It is claimed that this document shows a wish to
avoid governmental health aid safety regulatory standards and cut
corners generally. However, a reading of this memorandum in context
shows that the subject addressed is internal Stauffer "red tape; procedur-
ism: excessive paperwork" and the like, and that the aim is to speed up
decision making and permit the taking of business risks involving the
commitment of money. However, there is absolutely no suggestion in this
ducument that any other type of risk, such as a health risk, is to be taken
by Stauffer.
1444
STAUFFER CHEMICAL COMPANY
groundwater, do not contain any warnings about safety
violations.
The credible testimony and the memoranda prepared
by Kirkconnell himself show that his wish to pump the
wells at Le Moyne contii:uously and obtain more read-
ings with which to compute average CC14 concentration
in the groundwater was expressed in spring 1979. The
record also shows that Kirkconnell received a salary in-
crease on June 1i, 1979. By the time Kirkconnell pre-
pared his memoranda of July and August 1979, he was
no longer engaged in any disagreement with Holt about
the amount of CC14 in the groundwater. Howeser, he
was still maintaining his oral and written battle against
the use of reinjection wells. On the set of facts described
above, I cannot find that the issue of CC14 was related
to Kirkconnell's discharge.
Kirkconnell's testimony during this hearing was incor-
rect on a number of major points. Although Kirkconnell
denied knowing the standard for worker exposure to
CC14, his memoranda show that he was aware of OSHA
regulations from an early point in the project. Although
Kirkconnell denied recommending the use of a spray
pond, his memoranda show he originated and promoted
this method. Although Kirkconnell denied being assigned
to write a major report for the August 6, 1979, meeting,
he later admitted that he knew a report was due. Al-
though he denied being counseled about meeting dead-
lines and controlling his temper, his employment records
show that he was repeatedly so counseled. Although
Kirkconnell testified that he discussed his fears about
CC14 with employees at the plant, there is no reliable
evid over 400 ppm of CC14 and would thus lead to large
concentrations of CC14 vapor at the treatment site, his
memoranda show that he was satisfied that the average
CC14 content of the groundwater was at most 54 ppm
and that the vapor at the site would not exceed 3 ppm.
There is thus no evidence that Kirkconnell believed, or
expressed a belief, that concentrations of CC14 vapor at
the Le Moyne plant would exceed OSHA regulations or
endanger the health and safety of employees.
Counsel for the Charging Party urges that Kirkconnell
"refused to perform two work assignments because of his
workplace, health and safety concerns." The first refusal
is asserted to be the refusal to state in a report that the
groundwater would be fully treated in 2 years. Although
Kirkconnell did refuse to write this report, there is abso-
lutely no evidence in the record to show that this refusal
was in any way related to his discharge. The second re-
fusal is said to have occurred when Kirkconnell "actual-
ly declined to design the Le Moyne groundwater
project." This assertion is not supported by the record in
the instant case. Kirkconnell did not refuse to design the
Le Moyne project: he had substantially completed the
design by the August 6, 1979, meeting, and at that meet-
ing Wood accepted the alternative design recommended
by Kirkconnell in his memorandum, shown on drai.ing
32 attached to the memorandum. Further, rather than
trying to slow down completion of the project, it is clear
that Kirkconnell was trying to finish his work as quickly
as possible. He mentioned to Zittel his concern about not
having his report finished in time for the August meet-
ing; further, Kirkconnell testified that immediately after
the conclusion of the August 6 meeting he began per-
forming the tasks assigned to him at the meeting so that
design of the project would proceed and the final appro-
priations request could be prepared.
In summary. I find that Kirkconnell did not voice any
complaints or fears about employee exposure to CCl. as
his work on the Le Moyne project progressed to com-
pletion, and I find that he did not refuse to perform any
work because of complaints or fears related to employee
safety. Thus, I find that Kirkconnell did not engage in
concerted activity under the rationale of 4lleluia Cush-
ion, supra.
The General Counsel has not met the burden of prov-
ing, prima facie, that Kirkconnell was discharged for
concerted activities. Indeed, I find that Kirkconnell did
not engage in the concerted activities as alleged by the
General Counsel. Therefore, I need not perform the
analysis set forth in p'r/eht Line. a Division of Wright
Line. Inc., 251 NLRI 10WS (1980) as to dual motive or
pretextual reason for disclharge. It is clear that Kirkcon-
nell was discharged because he had offended Holt and
Friedman, because they believed he was uncooperative
and arrogant, and because they blamed him for a certain
lack of progress. Whether the termination was justified
or whether Kirkconnell was the victim of corporate poli-
tics is a speculation not required for purposes of this de-
cision. 56
I conclude that Kirkconnell's discharge did not violate
Section 8(a)(1) of the Act.
E. Contacts With Government Agencies
Kirkconnell testified that, in January or February
1977, Friedman assigned him to work on a problem relat-
ing to the effluent water at the Le Moyne plant. Kirk-
connell had some doubts about the method being used to
measure total suspended solids in the effluent because he
thought the readings being obtained were too high, and
he called the TAFT research center of the EPA to ask if
there were any new permissible filtration techniques he
could adopt. He did learn of such a technique, and he
wrote a memorandum giving the details to Friedman.
Friedman then asked Kirkconnell where he had gotten
the information, and upon hearing about the source, he
instructed Kirkconnell not to contact any regulatory
agencies and in the future to get information from regu-
latory agencies by going through company channels, that
is, through the Stauffer Department of Environmental
Control headed by Ed Conant. Kirkconnell's reply to
Friedman was that this was a highly technical question
and that Conant would not grasp the significance of the
answer.
Palmer, since 1976 the chief chemist at Le Moyne, tes-
tified that he recalled asking for Kirkconnell's help in
connection with a problem in measuring total suspended
solids in the effluent at the plant. Kirkconnell suggested
using a rinse before measuring the solids and suggested
calling someone he knew at EPA to confirm his method.
It was decided at the plant that Kirkconnell should make
56 See Bay State Gas Company, 255 NLRB 708 (1981).
1445
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the call, and the plant eventually adopted the new
method.
In January 1977, Kirkconnell testified, he breathed a
quantity of hydrogen sulfide (H2S) emanating from a
lined pond at the Le Moyne plant and suffered some
physical effects. The plant engineers determined that the
level of H2S was 8 or 9 ppm in the air, and Kirkconnell
was informed that the permissible level was 10 ppm.
Kirkconnell was not satisfied with this information, how-
ever, and he called NIOSH and spoke to Paul Kaplan
who informed him that the OSHA 8-hour standard was
indeed 10 ppm. A few days after this, when Kirkconnell
was back in Dobbs Ferry, Friedman reminded Kirkcon-
nell not to contact regulatory agencies directly. When
asked about this incident, Friedman could not recall it
specifically but he agreed that he "undoubtedly" told
Kirkconnell to obtain his information through channels.
Friedman testified that there is no formal company
policy concerning information co;ntacts with regulatory
agencies, but that he made a "request" that when em-
ployees seek information concerning government regula-
tions and standards, they inform him and the Stauffer
Environmental Control Department before proceeding.
Friedman recalled discussing this with Kirkconnell in
connection with the suspended solids problem in 1977,
but he did not believe it related to Kirkconnell's dis-
charge in 1979.
Friedman testified that he wrote a memorandum dated
June 3, 1975, to the engineers in his department which
stated: "It is the function and concern of the Environ-
mental Control Department to make contacts with any
pollution control authority, be it state, Federal, county,
local or otherwise." The memo requests that Friedman
be informed before an engineer contacts any pollution
control authority with respect to Stauffer's environmen-
tal affairs. Friedman testified that the memorandum is
still in effect.
Friedman testified that the official Stauffer policy was
set forth in two letters dated respectively June 5 and
July 14, 1978, which were sent to all employees at home.
The first letter deals with Stauffer's "Environmental
Compliance Policy" as well as with "OSHA Workplace
Standards." The memorandum provides for compliance
planning, emergency reporting of noncompliance inci-
dents and an environmental audit by the Stauffer Depart-
ment of Environmental Services. The memorandum con-
cludes with the admonition that employees will be
judged to have failed and will be subject to severe disci-
pline if they do not comply with existing regulations and
permits affecting Stauffer. The memorandum clearly es-
tablishes that a "specific incident" of noncompliance will
be reported directly to the appropriate regulatory agency
where "mandated by regulations," although other reports
are to be cleared with the Stauffer environmental depart-
ment. The second letter establishes reporting procedures
to enable "individual employees to fulfill their reporting
obligations under the Toxic Substances Control Act."
The "Company Policy" is stated to be "prompt disclo-
sure within the Company by all employees of informa-
tion of potential hazards to human health or the environ-
ment...." The memorandum requires individual em-
ployees aware of such potential hazards "immediately"
to report them to certain stated individuals, and steps are
provided for carrying the process through the reporting
requirements including advice to the reporting individual
of the ultimate actions taken. This memorandum does not
mention direct contacts with government agencies.
Respondent asserts that the Stauffer policy enunciated
in the two letters described above, "is designed simply to
encourage internal reporting of possible violations of en-
vironmental, safety and health laws and regulations." Re-
spondent urges that the policy does not prohibit reports
directly to a governmental agency but instead that it
"obliges employees who are given specific reporting as-
signments to carry out such assignments...." As to
Friedman's requests that Kirkconnell not contact regula-
tion agencies directly but instead seek information of
government regulations through the Stauffer environ-
mental control department, Respondent argues that this
was done "to avoid confusing opinions and to assure
unanimity in directions for complaince with . . . regula-
tions."
It is clear that the two letters do not prohibit employ-
ees from contacting government agencies concerning
safety and health matters relating to the workplace.
Their object is to assure that employees fulfill their
duties under the law to prevent noncompliance with ap-
plicable regulations and permits, and to report any inci-
dents of noncompliance. The aim of the memoranda, in
sum, is to enable Stauffer management to prevent
breaches of the law by prescribing certain internal meth-
ods of orderly management and accountability.
A different question is presented with respect to Fried-
man's request that information about government stand-
ards be obtained through Stauffer channels and that
Friedman be notified before direct contacts with govern-
ment agencies were to be made. Friedman testified that
he had told Kirkconnell of this requirement, that he had
issued a memorandum concerning it to all engineers
under his supervision and that his directive was still in
effect. This directive applied to Kirkconnell's call to
NIOSH concerning safety standards for worker exposure
to H2S.
s57
Thus, according to Kirkconnell's and Friedman's testi-
mony, Respondent maintained a rule that employees
were not to contact government agencies directly for in-
formation, including information related to health and
safety standards for the workplace. Alleluia related to
health and safety standards for the workplace. Alleluia
Cushion, supra, establishes that a sole employee engages
in concerted activities when he contacts a government
agency to enforce occupational safety regulations which
protect his fellow employees unless those fellow employ-
ees disavow the sole employee's actions. If under Alleluia
Cushion it constitutes interference with the employee's
"I It is clear that Kirkconnell's direct contacts with government agen-
cies were not the cause of his discharge since there is no evidence in the
record to show that Holt, Roberts, or Carothers considered Ihese con-
tacts in reaching their decision or indeed that they were even aware of
them. Apparently, Kirkconnell's personnel file contained no reference to
his calls to government agencies. Kirkconnell's calls to NIOSH took
place in 1977 and 1978; Kirkconnell received salary increases after these
contacts and no warnings about them appear in any of the goals estab-
lished for him in counseling sessions held thereafter.
1446
STAUFFER CHEMICAL COMPANY
Section 7 rights under the Act to discipline him in retali-
ation for contacting the government agency, then it must
also constitute interference with an employee's Section 7
rights to maintain a rule prohibiting the employee from
contacting the government agency to enforce occupa-
tional safety standards.
Although Respondent maintains that its rule requiring
OSHA standards to be obtained through channels was
adopted only to avoid confusing opinions and assure una-
nimity in compliance with OSHA regulations, it is clear
that the rule has the broad effect of barring direct em-
ployee communication with any occupational safety
agency for any reason. Under Alleluia Cushion, this is an
unlawful result. Moreover, the rule impermissibly condi-
tions the exercise of employees' Section 7 rights concer-
tedly to protect the safety of the workplace on the
knowledge and assistance of the employer.5 8
Respondent has not shown that if its employees call
government agencies directly to obtain occupational
safety standards they will obtain confusing or contradic-
tory answers. In the instant case, Kirkconnell's call to
NIOSH confirmed the information he had received from
the Le Moyne plant to the effect that the 8-hour stand-
ard for H2S was 10 ppm, and no confusion or other dele-
terious effect to Respondent's business was shown to
have occurred.
"s See AMC Air Condirioning Co., 232 NLRB 283, 284 (1977).
Accordingly, I find that by maintaining a rule which
prohibits employees from contacting government agen-
cies directly for information relating to occupational
safety and health standards Respondent violated Section
8(aXl) of the Act. 59
CONCLUSIONS OF LAW
1. Stauffer Chemical Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By maintaining a rule which prohibits employees
from contacting government agencies directly for infor-
mation relating to occupational safety and health stand-
ards, Respondent interfered with and restrained employ-
ees in violation of Section 8(aX1) of the Act.
3. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
4. No other violations of the Act were committed.
THE REMEDY
Having found that Stauffer Chemical Company has en-
gaged in an unfair labor practice, I shall recommend that
it cease and desist therefrom and that it take certain af-
firmative action to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
19 Cf. Utrad Corporation, 185 NLRB 434 (1970), enfd as modified 454
F.2d 520(1971).
1447