Stuntz v. Ashland Elastomers, Llc et al

MOTION for Partial Summary Judgment

E.D. Tex.June 27, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION MICHAEL DAVID STUNTZ, § INDIVIDUALLY AND ON BEHALF § OF ALL THOSE SIMILARLY § SITUATED § § Plaintiffs § VS § C.A. No. 1:14-CV-000173 § (RC) ASHLAND ELASTOMERS, LLC; § ET AL § § Defendants § COLLECTIVE ACTION § PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT TO THE HONORABLE CHIEF UNITED STATES DISTRICT JUDGE: COMES NOW NAMED PLAINTIFFS, MICHAEL DAVID STUNTZ, and DWAYNE NEWMAN, INDIVIDUALLY AND ON BEHALF OF THOSE SIMILARLY SITUATED, and file this Motion for Partial Summary Judgment requesting a Partial Summary Judgment that Defendants violated and continue to violate the Fair Labor Standards Act by failing to pay for compensable time occurring prior to and after the shift, which Defendants purposely do not record in hours worked. Defendants’ management previously determined and agreed that the failure to pay Plaintiffs for the time in question violates the Fair Labor Standards Act (“FLSA”) and Plaintiffs are entitled to back pay and liquidated damages under the FLSA. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 1 of 31 PageID #: 5124 2 I. INTRODUCTION 1. The Named Plaintiffs and Opt-In Plaintiffs have all been employed at the elastomers plant located in Port Neches, Texas (“the Plant”), which Defendants have each owned during the years covering the claims in the case. The unpaid time at issue is often referred to as either “Relief Time” or “Early Relief” or “FLSA Window” and occurs before and after the paid shift. During the Relief Time Plaintiffs are permitted and suffered to perform work activities that are compensable under the Fair Labor Standards Act (“FLSA”), among which include donning and doffing PPE, work meetings with co-workers, and receiving job assignments and instructions from foreman. During this Relief Time Plaintiffs are expected to be ready to work. These activities have occurred at all times thru the present during the Relief Time; however, the location of these “off the clock” activities and wait time has occurred at different locations depending on Defendants’ unilateral placement of the time clocks used to record hours worked. The rights Plaintiffs seek to enforce in this case are guaranteed by the FLSA and may not be abridged or reduced by any contract, collectively bargained or otherwise. Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 74-41 (1981); Bernard v. IBP, Inc. of Neb., 154 F.3d 259, 264 (5th Cir. 1998) (plaintiffs’ right to pursue a suit under the FLSA is completely independent from their rights under the CBA); See also 29 C.F.R. §541.4. The summary judgment record includes, (1) the determinations and admissions of Defendants’ management that the compensable work day includes the Relief Time, and (2) Defendants’ purposeful exclusion of the Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 2 of 31 PageID #: 5125 3 Relief Time/FLSA Window in “hours worked.” Each of these acts are violations of Plaintiffs’ rights and protections guaranteed by the FLSA, which protections may not be abridged or otherwise reduced by any contract or collective bargaining agreement. Id. 2. In specific regards to PPE, all Plaintiffs were required to don PPE as one of their first work activities. In response to Defendant’s argument that the actual donning time is excluded under 29 U.S.C. 203(o), the record in this case is that the management team of both Defendants Ashland and Lion -- Scott Hardegree and Trudy Lord -- were aware that donning and doffing occurs during the Relief Time (among other activities and wait time), and determined that not paying for the activities was a violation of the FLSA, which determination was/is consistent with authorities holding that even donning and doffing PPE that may otherwise be considered “clothes” under 203(o) can still be considered a principal activity sufficient to start the “continuous work day.” See, infra. The summary judgment record includes evidence that the donning of PPE generally occurred simultaneously and/or in close proximity to the time Plaintiffs were engaging in other “off the clock” work activities (i.e., meetings and receiving job assignments from shift foreman) and that donning and doffing PPE was/is part of the job and germane to the job. Specifically, Scott Hardegree and Trudy Lord, both of whom have been senior management for Ashland and Lion, previously determined that Plaintiffs’ activities occurring during the Early Relief/FLSA Window are compensable under the FLSA and paid Plaintiffs back wages and liquidated damages for the 3-year period Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 3 of 31 PageID #: 5126 4 prescribed by the FLSA. Accordingly, Plaintiffs seek partial summary judgment that the activities performed during the Early Relief/FLSA Window are compensable. 3. Separate from not paying Plaintiffs for the Relief Time work, Defendants -- through Hardegree and Lord -- purposely relocated the time clocks to avoid recording the Relief Time work in “hours worked” which violates the FLSA’s requirement that Defendant accurately records hours worked. See, 29 U.S.C. §211; 29 C.F.R. §516.2(7). Defendants’ past and continued placement of the time clocks purposely carves out the Relief Time activities from being recorded in hours worked in “violation of the FLSA.” II. STATEMENT OF THE ISSUES 4. Are the work activities Plaintiffs performed, and continue to perform during the Relief/FLSA Window compensable under the FLSA, when Defendants have admitted the activities are compensable under the FLSA. 5. Did Defendants’ relocation of the time clocks convert the Relief/FLSA Window activities to “non-work” time under the FLSA. III. STATEMENT OF UNDISPUTED FACTS 6. The corporate representative for Defendant Ashland Elastomers, LLC (“Ashland”), Julie Hopkins,1 confirmed that Ashland acquired the elastomers Plant from Defendant ISP Synthetic Elastomers (“ISP”) around August 2011. “Exhibit A,” 1 Julie Hopkins is Senior Group Counsel for labor, employment and litigation for Ashland including oversight of FLSA claims. Exhibit A - Hopkins, P. 5, L. 21 – P. 6, L.8. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 4 of 31 PageID #: 5127 5 Testimony of Julie Hopkins, P. 5, L. 13 – P. 6, L. 8; P. 15, L. 23 – 24; P. 15, L. 23 – P. 18, L. 6. Ashland owned and operated the Plant thru December 1, 2014, when the Plant was acquired by Defendant Lion Elastomers, LLC (“Lion”). “Exhibit B,” Testimony of Paula Sharp, P. 37, L. 5 – P. 37, L. 11. 7. The paid shift for Plaintiffs is generally either (5:00am to 5:00pm) or (5:00am to 5:00pm). See, “Exhibit C,” Testimony of Dwayne Newman, P.44, L. 21 – 24; “Exhibit D,” Testimony of Scott Hardegree,2 P. 48, L. 13 -16. At all times thru the present, Defendants ISP, Ashland and Lion permitted and/or suffered Plaintiffs and their co-workers to report to work up to 30 minutes prior to their shift, between 4:30 and 5:00 – whether that’s 4:30am to 5:00am, or 4:30pm to 5:00pm, and stay after 5:00pm to doff PPE, shower and clean up. See, “Exhibit E,” Testimony of Trudy Lord – P. 406, L. 12 – P. 407, L. 16, Ex. 40 to the Deposition of Trudy Lord; “Exhibit D,” Hardegree, P. 30, L. 5 – 9; P. 38, L. 5 – 9; P. 50, L. 8 – P. 52, L. 11. This “off the clock” time is referred to herein as “Early Relief,” “Relief Time,” or “FLSA Window.” 8. Before September 2013, during the pre-shift Relief Time Plaintiffs would badge in the front gate, walk to the bathhouse, put on their PPE, have planning and safety meetings, discuss the status of the Plant before shift, meet with the person they were relieving and get any necessary instructions. During the post-shift relief time they would doff PPE and clean up, and shower. “Exhibit C,” Newman, P. 346, L. 4 – P. 354, L. 25, Excerpt from Ex. 21 to Deposition of Dwayne Newman. In specific regards to PPE, Newman testified that it would take him 5 to 10 minutes to 2 Scott Hardegree was the Plant Manager for both Ashland and Lion. Exhibit D - Hardegree, P. 11, L. 13 – P. 12, L. 11. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 5 of 31 PageID #: 5128 6 don his PPE on those days when the cleaning service has the Nomex coveralls ready and clean, but it would take longer (up to possibly 30 minutes) if the coveralls are not ready. “Exhibit C,” Newman, P. 52, L. 14 – P. 53, L. 20. This process was completed in reverse at the end of the shift with doffing of PPE and showering on some days. “Exhibit C,” Newman, P. 81, L. 3 – P. 83, L. 3. Scott Hardegree acknowledged employees’ use of the Relief Time to don and doff PPE and shower. “Exhibit D,” Hardegree, P. 50, L. 8 – P. 52, L. 11. In fact, Hardegree acknowledged that the chemicals Plaintiffs showered off post-shift are the same chemicals they showered off during the paid shift hours. “Exhibit D,” Hardegree, P. 51, L. 23 – P. 52, L. 11. Obviously, the difference being that post shift showering was “off the clock” unpaid time, but cleaning during the shift was “on the clock” paid time. 9. On May 28, 2013, the Named Plaintiffs and other Members of the Union Workers Committee submitted a Grievance Report to Trudy Lord. See, “Exhibit F,” Grievance Report dated May 28, 2016 – Lion Elastomers 003216. The Report alleged a violation of the FLSA and any other state or federal law, statute or regulation dating back to 2002 and requested Alternative Dispute Resolution. See, “Exhibit F.” 10. On June 3, 2013, Trudy Lord, as Human Resource Manager, responded to the Grievance Report stating as follows: “alleged violation under FLSA is not a grievance under the collective bargaining agreement.” “Exhibit G.” Ms. Lord directed the complaint be sent to the appropriate federal Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 6 of 31 PageID #: 5129 7 office that administers the Act. “Exhibit G,” Response from Trudy Lord, Human Resources Manager. Scott Hardegree confirmed that he would have likely been aware of Trudy Lord's response in real time. “Exhibit D,” Hardegree, P. 10, L. 1 - P. P. 12, L. 11; P. 99, L. 1 – 20. Consistent with the position that FLSA allegations are not under the CBA, Hardegree corroborated that the FLSA complaint was not handled pursuant to the CBA grievance procedure. “Exhibit D,” Hardegree, P. 99, L. 24 - P. 100, L. 24; P. 102, L. 3 - 9. 11. At this juncture it is worth emphasizing that Scott Hardegree, Trudy Lord and Tom Rogers (the operations manager) served in their same/similar management positions for both Ashland and Lion. Scott Hardegree remained plant manager, Tom Rogers remained operations manager, Trudy Lord remained head of human resources under Ashland and Lion. “Exhibit B,” Sharp, P. 37 L. 8 – 11; P. 48, L. 15 – 18; “Exhibit E,” Lord, P. 39, L. 21 – P. 41, L. 12; “Exhibit D,”Hardegree, P. 11, L. 13 – P. 12, L. 11; P. 167, L. 18 – P. 169, L. 11; “Exhibit H,” Testimony of Tom Rogers, P. 41, L. 9 -14; P. 47, L. 8 -14; P. 38, L. 11. 12. On July 10, 2013, Ashland's management -- including Trudy Lord, Scott Hardegree and Tom Rogers -- met with the Named Plaintiffs and others to discuss the “FLSA Window.” Trudy Lord took notes of the meetings. See, “Exhibit E,” Testimony of Trudy Lord, P. 386, L. 23 - P. 387, L. 23, and Exhibit 36 to the Lord Deposition. Among those present were Hardegree, Lord, Stuntz, Newman, Rogers, Joseph Wells and Richard “Hoot” Landry. “Exhibit E,” Lord, P. 387, L. 13 – 21, Ex. 36. During his deposition, Scott Hardegree reviewed the meeting notes and Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 7 of 31 PageID #: 5130 8 confirmed the notes covered the meetings leading up to the initial payout by Ashland. “Exhibit D,” Hardegree, P. 22, L. 17 - P. 23, L. 3. The meeting includes the following relevant statements by Scott Hardegree: a. “I agree we owe back pay. The quantity of time is what is in question.” See Lion Elastomers 003219 - 00320 b. “7.5 mins. -- gate to pipe rack x 2 15:00” See, “Exhibit E,” Lord, Exhibit 36, Lion Elastomers, 003218 - 003224. To emphasize, the Plant Manager for both Ashland and Lion agreed that employees were owed back pay for the FLSA Window/Relief Time/Early Relief. Referring to the 7.5 minutes, Hardegree initially testified that a round trip walk between the front gate and pipe rack was 15 minutes, which is obviously 9 minutes less than the 6 minutes Hardegree and Lord eventually determined and agreed employees were owed under the FLSA. “Exhibit D,” Hardegree, P. 79, L. 1 – 17, “Exhibit E,” Lord, Exhibit 36, Lion Elastomers 003224. To put the “time and location” into perspective when considering the 15 minute round trip walk between the front gate to the pipe rack, versus the 6 minute calculation Ashland determined represented the round trip walk occurring before and after the performance of “compensable work activities,” attached to the deposition transcript of Trudy Lord is a map/diagram showing, (i) the Plant entrance, (ii) bathhouse, (iii) Densmore Building where the time clocks were relocated to, and (iv) the pipe rack. “Exhibit E,” Lord, P. 396, L. 9 – P. 398, L. 7, Exhibit 37, Pg. 003230 – 003231. Notably, during the July 2013 meeting, Trudy Lord made a notation to call Richard Boheme at the Department of Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 8 of 31 PageID #: 5131 9 Labor, which is consistent with the company’s position that the FLSA violation and the meeting regarding the “FLSA Window” was not a CBA matter. “Exhibit E,” Ex. 36, Pg. 3220. During this first meeting, there was much discussion concerning donning and doffing, and most of the notes reference PPE. “Exhibit E,” Ex. 36, Pgs. 3218 – 3224. Despite any suggestion by Defendant, there was NO discussion concerning a potential relocation of the time clocks, or that the continuous compensable work day would not include the FLSA Window/Relief Time work activities. “Exhibit E,” Ex. 36, Pgs. 3218 – 3224. 13. On August 7, 2013, a follow up meeting was held, which again was recorded by the written notes of Trudy Lord. “Exhibit E,” Lord, P. 407, L. 24 – P. 408, L. 4, Ex. 41, Pg. 003225 – 03226. At the conclusion of the second meeting, Plaintiffs were requesting payment of time encompassing donning and doffing. “Exhibit E,” Ex. 41, Pg. 003226. Like the July meeting, at the meeting on August 7th, there was NO discussion concerning a potential relocation of the time clocks, or that the continuous compensable work day would not include the FLSA Window/Relief Time work activities. Hardegree did not recant his previous admission that Plaintiffs were owed back pay for the FLSA Window. “Exhibit E,” Ex. 41, Pg. 003226. 14. Just over one month later, Ashland – thru Trudy Lord – sent a letter to Plaintiffs and their co-workers advising as follows: “Ashland has determined that during your employment at the Port Neches Facility, you were not properly paid for ‘relief time.’ As such, the company has made the decision to back pay for the shifts that you worked and were not properly compensated for the time period of April 1, 2010 through your termination of employment. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 9 of 31 PageID #: 5132 10 Please find enclosed your check, calculation worksheet, and Q&A … Best Regards, Trudy Lord Human Resources Manager” See, “Exhibit I,” Correspondence from Trudy Lord dated September 19, 2013 with Question & Answer. According to Lord, the Question & Answer came from Ashland corporate, and particularly Deborah Click. “Exhibit E,” Lord, P. 416, L. 19 – P. 417, L. 7. The undersigned deposed Deborah Click, who was/is Manager of Payroll Services for Ashland, Inc. “Exhibit J,” Testimony of Deborah Click, P. 11, L. 21 – 24; P. 15, L. 11 – 18. Ms. Click confirmed that she and Julie Hopkins prepared the Question & Answer. “Exhibit J,” Click, P. 144, L. 20 – P. 146, L. 5; Exhibit 17 – Interrogatories to Ashland with Question & Answer. That said, Julie Hopkins confirmed that she and Deborah Click prepared the Q & A on behalf of Ashland Elastomers, LLC based on the statements they received from Trudy Lord and Scott Hardegree that the employees were owed punch to punch minus 6 minutes, plus liquidated damages for 3 years. “Exhibit A,” Hopkins, P. 43, L. 24 – P. 45, L. 5; P. 54, L. 11 – P. 55, L. 22. Scott Hardegree and Trudy Lord were NOT subject to the direction of Julie Hopkins or Deborah Click in determining employees was owed back pay and liquidated damages for three years. “Exhibit A,” Hopkins, P. 46, L. 21 – P. 47, L. 7. That said, it is worth emphasizing that Julie Hopkins was the Senior Group Counsel for labor, employment and litigation for Ashland including oversight of FLSA claims. “Exhibit A,” Hopkins, P. 5, L. 21 – P. 6, L.8. Thus the determination of a FLSA violation and corresponding payments of wages and Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 10 of 31 PageID #: 5133 11 liquidated damages was done with the approval of Ashland’s counsel and FLSA compliance officer. The determination that employees were owed “punch to punch minus 6 minutes” came from Scott and Trudy, and Julie never confirmed the formula with the Union, but instead simply relied on direction from Scott and Trudy. “Exhibit A,” Hopkins, P. 54, L. 11 – P. 55, L. 11. In Hopkin’s words, “Trudy and Scott verified it to me that that’s what was agreed to.” “Exhibit A,” Hopkins, P. 55, L. 10 – 11. The only verification for the “punch to punch minus 6 minutes” came from Scott and Trudy, and that was the basis for the Q&A. “Exhibit A,” Hopkins, P. 55, L. 2 – 22. 15. By virtue of the letter dated September 19, 2013 with Question & Answer, Ashland advised Plaintiffs that it determined and agreed a violation of the FLSA had occurred and was paying Plaintiffs back pay, liquidated damages and going back the 3 years as provided for willful violations. “Exhibit I,” Q & A. Ashland, through Hardegree and Lord, and with the approval of Hopkins, determined and agreed that Plaintiffs’ compensable time started 3 minutes after they badged in the front gate and continued thru 3 minutes before they badged out at the front gate. “Exhibit A,” Hopkins, P. 54, L. 11 - P. 55, L. 22; “Exhibit I.” This timeframe encompasses the pre-shift time after Plaintiffs badged in the front gate and were donning PPE, meeting with their co-workers pre-shift regarding safety and planning, getting any necessary instructions from supervisors pre-shift, as well as post-shift doffing PPE, cleaning up and showering. “Exhibit C,” Testimony of Dwayne Newman, P. 52, L. 14 – P. 53, L. 20; P. 81, L. 3 – P. 83, L. 3; P. 346, L. 4 – Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 11 of 31 PageID #: 5134 12 P. 354, L. 25, Excerpt from Ex. 21 to Deposition of Dwayne Newman; “Exhibit D,” Hardegree, P. 50, L. 8 – P. 52, L. 11; “Exhibit E,” Lord, Ex. 36 & 41 - Meeting Notes referring to donning and doffing; “Exhibit K,” Declarations of Joseph Wells, Richard Landry, Micah Quincy Richard, and Joseph K. Colone Sr. Scott Hardegree’s testimony corroborates that the compensable Relief Time covers time Plaintiffs were donning PPE, conducting work meetings, and doffing PPE and showering. “Exhibit D,” Hardegree, P. 50, L. 8 – P. 52, L. 11; P. 130, L. 6 - 11. The PPE in this case included steel toed boots, Nomex, hearing protection, hard hat, safety glasses with side shields and gloves. “Exhibit D,” Hardegree, P. 54, L. 12 – L. 25. Consistent with paying for the donning and doffing time, Tom Rogers, the former Operations Manager for both Ashland and Lion, testified that donning and doffing the PPE was “part of the job” and “germane” to the work. “Exhibit H,” Testimony of Tom Rogers, P. 38, L. 11; P. 72, L. 20 - P. 73, L. 10; P. 74, L. 8 -11; P. 76, L. 3 – P. 77, L. 14. 16. In September 2013, Trudy Lord forwarded payments to current and former employees representing wages and liquidated damages under the FLSA and included a spreadsheet showing the workweeks and payments covered by the payout for each individual. See, “Exhibit I.” The Question & Answer admits that not paying for the Relief Time violated the FLSA by including back pay, liquidated damages and going back 3 years. “Exhibit I.” Included in Exhibit L are spreadsheets that accompanied the first round of payments issued to the Named Plaintiffs and other opt-in Plaintiffs for the first payout. “Exhibit L,” Spreadsheets Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 12 of 31 PageID #: 5135 13 from First and Second Payout. 17. At or around the same time Ashland determined and agreed to a violation of the FLSA regarding the Relief Time/FLSA Window, Defendant – without agreement from Plaintiffs or the Union -- relocated the time clocks from the front gate to the Densmore Building, effectively carving out a majority of the compensable time at issue, which, as discussed below, is in violation of the FLSA’s recordkeeping requirements. Plaintiffs did not agree to the relocation of the time clocks, and contend that the relocation of the time clocks were made to carve out time that is indisputably compensable under the FLSA and to avoid recording hours worked under the FLSA, all of which is a continued violation of the FLSA. “Exhibit C,” Newman, P. 193, L. 5 – 6; “Exhibit K,” Declarations of Joseph Wells and Richard Landry; See, “Exhibit E,” Lord, Ex. 36 & 41. That said it should come as no surprise Scott Hardegree could not even recall a discussion with employees prior to simply deciding to relocate the time clocks and carve out the Relief Time/FLSA Window from hours worked. “Exhibit D,” Hardegree, P. 141, L. 22 – P. 142, L. 2. To the extent Defendant still takes the position there was an agreement with the Union to move the time clocks, Hardegree, who again was Defendants’ Plant Manager, was (i) unaware of any written agreement, (ii) unaware of who any such alleged agreement was made with, and (iii) unaware of who was present when any such alleged agreement was made. “Exhibit D,” Hardegree, P. 92, L. 15 – 20. When asked about the relocation of the time clocks, Julie Hopkins eventually concluded that because the Union never aggrieved the relocation of the time clocks they Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 13 of 31 PageID #: 5136 14 agreed to it. “Exhibit A,” Hopkins, P. 76, L. 9 – P. 79, L. 13. Specifically, Hopkins testifies as follows: In my experience, with this union, if they had not been in agreement with those changes they would have immediately grieved them, and they did not. So if you want to talk about the entirety of the circumstances and -- you know, then our position is we reached an agreement and the best evidence of it is the fact that the union began working under that new setup without complaint. “Exhibit A,” Hopkins, P. 78, L. 21 – P. 79, L. 3. As discussed below, Plaintiffs were not required to aggrieve Defendants’ violations of 29 U.S.C 211, and Defendants are prohibited from limiting employees’ rights to file a lawsuit to enforce and protect their rights under the FLSA – which right is expressly granted by 29 U.S.C. 216 (b). 18. After moving the time clocks, Ashland and Lion continued the 30 minute “Early Relief” “FLSA Window” without compensating Plaintiffs. “Exhibit D,” Hardegree, P. 38, L. 5 – 9. That is, after the time clocks were relocated to the Densmore Building, Plaintiffs continue to go to the bathhouse don PPE, meet with each other to plan their day discuss work, and get instructions from foreman prior to Plaintiffs badging in the relocated time clock. See, “Exhibit C,” Newman, P. 87, L. 22 – P. 88, L. 24; P. 344,L. 10 – P. 345, L. 11; “Exhibit M,” Declarations of Rory Dean Bishop, Edward Barlow; “Exhibit K,” Declarations of Micah Quincy Richard and Joseph K. Colone Sr. Thus, the activities Ashland, Hardegree and Lord determined were compensable [“Exhibit I”], were subsequently carved out of the “hours worked” by relocating the time clocks from the front gate. Ironically, when Lion acquired the Plant, Trudy Lord became responsible for payroll and recording “hours worked.” “Exhibit B,” Testimony of Paula Sharp, P. 20, L. 18 – P. 22, L. 11. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 14 of 31 PageID #: 5137 15 19. Following the initial payouts by Ashland, Plaintiffs discovered the amounts had not been correctly calculated and that time punches had been altered. Accordingly, on September 24, 2013, Plaintiffs sent a letter to Scott Hardegree advising that if the company did not make the correct payments, they would go to the Department of Department of Labor. See, “Exhibit N,” Letter of September 24, 2013. This statement that Plaintiffs would go to the Department of Labor further demonstrates that Trudy Lord and Scott Hardegree never altered their position that the FLSA violation was not under the CBA. See, “Exhibit N,” Letter of September 24, 2013. 20. Following receipt of the letter of September 2013, Ashland sent employees a second payment to try and pay for the FLSA violation, including additional wages and penalty. “Exhibit A,” Ex. 28 to deposition of Julie Hopkins. 21. Plaintiffs filed this lawsuit in March 2014. Defendant Lion acquired the Plant on December 1, 2014, and to this day Plaintiffs are permitted and suffered to perform most all of the same work activities during the Relief Time, which Defendants -- through Hardegree and Lord -- previously determined and agreed are compensable under the FLSA, including but not necessarily limited to donning and doffing PPE, meetings with co-workers, and getting assignments from foreman. Additionally, any wait time that occurred during the compensable Relief Time/FLSA Window -- within the punch to punch minus 6 minutes -- is equally compensable under the FLSA thru the present. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 15 of 31 PageID #: 5138 16 IV. Argument and Authorities A. Standard for Summary Judgment 22. “Summary judgment is appropriate [if the summary judgment evidence shows] ‘that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” Mello v. Sara Lee Corp., 431 F.3d 334, 335 (5th Cir. 2005) (quoting FED. R. CIV. P. 56). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986)). Where “the moving party will bear the burden of persuasion at trial, that party must support its motion with credible evidence that would entitle it to a directed verdict if not controverted at trial.” McKee v. CBF Corp., 299 Fed. App’x 426, 428 (5th Cir. 2008) (citing Celotex Corp., 477 U.S. at 331). And while the party moving for summary judgment must demonstrate the absence of a genuine of material fact, it does not need to negate the elements of the nonmovant’s claims or defenses. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir. 2005). To overcome summary judgment, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial.” Warfield v. Byron, 436 F.3d 551, 557 (5th Cir. 2006); see also, Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007) (nonmoving party must identify specific evidence in the record and articulate how that evidence supports its claim or defense). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 16 of 31 PageID #: 5139 17 unsubstantiated assertions, or by only a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)). B. The FLSA Requires Employers to Pay Overtime Compensation for all Work Over 40 Hours in a Workweek, and Prescribes Specific Damages and Limitations Periods When Employers Violate the FLSA 23. The FLSA was enacted for the purpose of protecting all covered workers from substandard wages and oppressive working hours. See Collins v. Sanderson Farms, Inc., 568 F. Supp. 2d 714, 717-18 (E.D. La. 2008) citing Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 739, 101 S. Ct. 1437, 67 L. Ed. 2d 641 (1981); 29 U.S.C. §202(a). The FLSA mandates that employers pay overtime compensation for nonexempt employees. Rainey v. McWane, Inc., 314 Fed. Appx. 693, 694 (5th Cir. Mar. 12, 2009), citing 29 U.S.C. §207(a). Specifically, Section 207 (a)(1) requires an employer to pay overtime compensation (at a rate of one and one-half times the regular rate of pay) to an employee after the employee has worked over 40 hours in one week. Thibodeaux v. Executive Jet Intern., Inc., 328 F.3d 742, 749 (5th Cir. 2003); 29 U.S.C. §207 (a)(1). Separately, §216(b) expressly authorizes the affected employees to file an action in court and prescribes the damages and relief employees are entitled to receive for violations of §207 of the FLSA. Section 216 (b) provides as follows: Any employer who violates the provisions of section ... 207 shall be liable to the employee or employees affected in the amount of their … unpaid overtime compensation, ... , and in an additional equal amount as liquidated damages. ... An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 17 of 31 PageID #: 5140 18 competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. ... The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action… 29 U.S.C. § 216(b). To overcome imposition of the liquidated damage penalty the burden – “which is a substantial burden” – rests with the employer to prove it acted in good faith and had reasonable grounds to believe its pay practices complied with the FLSA. See Singer v. City of Waco, Tex., 324 F.3d 813, 821 (5th Cir. 2003); Bernard v. IBP, Inc. of Neb., 154 F.3d 259, 267 (5th Cir. 1998); 29 U.S.C. § 260. If a violation of the FLSA was “not” willful, then a two-year statute of limitations applies. Singer, 324 F.3d at 821; 29 U.S.C. § 255(a). However, if the violation was willful, a three-year statute of limitations applies, meaning that employees can collect three years of unpaid wages and/or overtime compensation. Singer, 324 F.3d at 821; 29 U.S.C. § 255(a). A violation is “willful” if the employer either “knew or showed reckless disregard for whether its conduct was prohibited by the statute.” Singer, 324 F.3d at 822 citing Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir. 1994) (quoting McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 100 L. Ed. 2d 115, 108 S. Ct. 1677 (1988)). Here, Defendants’ management – Hardegree and Lord – with the approval of Ashland’s Senior Labor counsel (Hopkins), expressly determined that (1) a violation of the FLSA occurred when employees were not paid for the Relief Time, (2) employees were entitled to back pay, (3) employees were entitled to liquidated damages, and (4) employees were entitled to application of the three year limitations period. “Exhibit I.” In fact, when the initial calculations Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 18 of 31 PageID #: 5141 19 were not correct, Defendants management issued a second payment under the FLSA representing wages in liquidated damage penalties. “Exhibit A,” Testimony of Julie Hopkins, P. 82, L. 8 – L. 20, Ex. 28 to deposition of Julie Hopkins. C. Compensable Time Under the FLSA Encompasses Activities that Qualify as “Integral and Indispensable,” and/or that Occur During the “Continuous Work Day” 24. It is well settled that, “an employer who is armed with [knowledge that an employee is working overtime] cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation.” Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995) quoting Forrester v. Roth’s I.G.A., Inc., 646 F.2d 413, 414 (9th Cir 1981) ([e]mploy’ includes to suffer or permit to work” “[T]he words ‘suffer’ and ‘permit’ as used in the statute mean ‘with the knowledge of the employer’” (citation omitted). Thus an employer who knows or should have known that an employee is or was working overtime must comply with the provisions of §207). See also, 29 CFR 785.11, 785.13, which state as follows: 29 CFR § 785.11 General. Work not requested but suffered or permitted is work time. For example, an employee may voluntarily continue to work at the end of the shift. He may be a pieceworker, he may desire to finish an assigned task or he may wish to correct errors, paste work tickets, prepare time reports or other records. The reason is immaterial. The employer knows or has reason to believe that he is continuing to work and the time is working time. (Handler v. Thrasher, 191, F. 2d 120 (C.A. 10, 1951); Republican Publishing Co. v. American Newspaper Guild, 172 F. 2d 943 (C.A. 1, 1949; Kappler v. Republic Pictures Corp., 59 F. Supp. 112 (S.D. Iowa 1945), aff'd 151 F. 2d 543 (C.A. 8, 1945); 327 U.S. 757 (1946); Hogue v. National Automotive Parts Ass'n. 87 F. Supp. 816 (E.D. Mich. 1949); Barker v.Georgia Power & Light Co., 2 Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 19 of 31 PageID #: 5142 20 W.H. Cases 486; 5 CCH Labor Cases, para. 61,095 (M.D. Ga. 1942); Steger v. Beard & Stone Electric Co., Inc., 1 W.H. Cases 593; 4 Labor Cases 60,643 (N.D. Texas, 1941)). 29 CFR § 785.13 Duty of management. In all such cases it is the duty of the management to exercise its control and see that the work is not performed if it does not want it to be performed. It cannot sit back and accept the benefits without compensating for them. The mere promulgation of a rule against such work is not enough. Management has the power to enforce the rule and must make every effort to do so. 25. Addressing what is meant by the term “work,” the Court in Armour & Co. v. Wantock, 323 U.S. 126 (1944), clarified that “exertion” was not in fact necessary for an activity to constitute “work” under the FLSA. To the contrary, in Armour, the Court recognized that “an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for something to happen.” Id., at 133; Karr v. City of Beaumont, 950 F.Supp. 2d 1317, 1322 (E.D. Tex. 1997) (“Work” encompasses mental exertion that is not burdensome and is controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business.) In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680 (1946), the Court defined “the statutory workweek” to “includ[e] all time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed workplace.” Id., at 690- 691. Following Anderson, Congress passed the Portal to Portal Act of 1947 (“PPA”). The PPA amended the FLSA to provide that the FLSA does not require employers to compensate for (1) walking, riding, or traveling to and from the actual place of performance of the principal activity or activities which such employee is employed to perform, and (2) activities which are Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 20 of 31 PageID #: 5143 21 preliminary to or postliminary to said principal activity or activities. See 29 U.S.C. §254(a) (1). 26. In Steiner v. Mitchell, the Supreme Court determined that preliminary or postliminary activities are compensable if they are not specifically excluded under Section 254(a)(1) and are “an integral and indispensable part of the principal activities for which covered workmen are employed.” Steiner, 350 U.S. 247, 76 S. Ct. 330, 335, 100 L. Ed. 267 (1956)). The Supreme Court has identified several activities that satisfy the “integral and indispensable” test, including time spent showering and changing by workers at a battery plant due to the toxicity of the chemicals there and time meatpacker employees spent sharpening knives. See Steiner; Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513, 518, 190 L. Ed. 2d 410 (2014) (citing Steiner, 350 U.S. at 249, 251; Mitchell v. King Packing Co., 350 U.S. 260, 262, 76 S. Ct. 337, 100 L. Ed. 282 (1956)). In Integrity Staffing, the Court cited to long standing federal regulations as examples of activities that would qualify as “integral and indispensable,” among which includes “clothes changing” by chemical workers. Integrity Staffing, 135 S. Ct. 517: The Department of Labor’s regulations are consistent with this approach. See, 29 CFR §790.8(b) (2013) “The term ‘principal activities’ includes all activities which are an integral part of a principal activity”); §790.8(c) (“Among the activities included as an integral part of a principal activity are those closely related activities which are indispensable to its performance.”) As an illustration, those regulations explain that the time spent by an employee in a chemical plant changing clothes would be compensable if he “c[ould not] perform his principal activities without putting on certain clothes” but would not be compensable if “changing clothes [were] merely a convenience to the employee and not directly related to his principal activities.” See, §790.8(c). Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 21 of 31 PageID #: 5144 22 Id. In IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S. Ct. 514 (2005) the Court confirmed that the donning and doffing of the protective clothing involved in Steiner can qualify as a principal activity. Id., at 521. The Alvarez Court also expressly recognized the continuous workday doctrine as follows: Other than its express exceptions for travel to and from the location of the employee’s “principal activity,” and for activities that are preliminary or postliminary to that principal activity, the Portal-to- Portal Act does not purport to change this Court’s earlier descriptions of the terms “work” and “workweek,” or to define the term “workday.” A regulation promulgated by the Secretary of Labor shortly after its enactment concluded that the statute had no effect on the computation of hours that are worked “within” the workday. That regulation states: “[T]o the extent that activities engaged in by an employee occur after the employee commences to perform the first principal activity on a particular workday and before he ceases the performance of the last principal activity on a particular workday, the provisions of [§4] have no application.” 29 CFR §790.6(a) (2005). Similarly, consistent with our prior decisions interpreting the FLSA, the Department of Labor has adopted the continuous workday rule, which means that the “workday” is generally defined as “the period between the commencement and completion on the same workday of an employee’s principal activity or activities.” §790.6(b). Alvarez, 126 S. Ct. at 520-21. 27. For purposes of the record here, Defendants’ management – Hardegree and Lord-- determined that the continuous work day included, at the least, punch to punch minus 6 minutes. This is the same timeframe Plaintiffs have, at all times been permitted and/or suffered to donn/doff PPE, conduct work meetings and discussions, and receive assignments from foreman. As discussed below, Defendant may not avoid paying employees for activities that were otherwise determined to be compensable work, or that fall within the continuous work day. The FLSA violations made the basis of Exhibit I continue thru the present as demonstrated by Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 22 of 31 PageID #: 5145 23 the above referenced testimony of Plaintiff Newman and Declarations of Plaintiffs, as well as the testimony of Defendants Hardegree and Lord expressly acknowledging that employees are permitted to perform the same activities previously determined to be compensable work under the FLSA. 1. Defenses that Exclude the Actual Time Spent Donning/Doffing -- Such as 29 U.S.C. 203(o) or the De Minimis Doctrine, Do Not Preclude the Donning/Doffing from Being Integral and Indispensable to Define the Continuous Work Day, or Otherwise Affect Activities Occurring Simultaneous or After Donning 28. Applying the “continuous work day” regulation to a set of facts that included employees donning and doffing otherwise generic PPE and showering, the Alvarez Court held as follows: … any activity that is “integral and indispensable” to a “principal activity” is itself a “principal activity” under §4(a) of the Portal-to- Portal Act. Moreover, during a continuous workday, any walking time that occurs after the beginning of the employee’s first principal activity and before the end of the employee’s last principal activity is excluded from the scope of that provision, and as a result is covered by the FLSA. Id., at 525. Relying on Alvarez, the Court in Gatewood v. Koch Foods of Miss., LLC, 569 F. Supp. 2d 687 (S.D. Miss. 2008) held that while the time spent donning and doffing protective clothing may not itself be compensable time based on a custom or practice defense under §203(o), the donning/doffing activities may still be integral and indispensable so as to define the start and stop of the continuous work day, and in any event will not affect the compensability of activities that occur immediately after the donning. Id., at 702 citing Alvarez, 546 U.S. at 34 (Although the statute precludes recovery for time spent washing and “changing clothes,” it does not affect Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 23 of 31 PageID #: 5146 24 the fact that these activities could be the first “integral and indispensable” act that triggers the start of the continuous workday rule for subsequent activities that are not covered by §203(o), such as post-donning sanitation and travel time.) In Andrako v. United States Steel Corp., 632 F. Supp. 2d 938 (W.D. Penn. 2009), the Court followed the above holding in Gatewood in a case involving the Steelworkers Union and a 203(o) defense. Citing to Gatewood, Alvarez, and one of the cases made the subject of the Alvarez appeal -- Tum v. Barber Foods, Inc., 360 F.3d 274, 278-79 (1st Cir. 2004)3 -- the Andrako Court held as follows: After careful review of the statute, the case law, and the arguments of the parties, I agree with Plaintiffs, as well as the courts in Gatewood and Figas, that the Portal-to-Portal Act does not preclude compensation for the post-donning/pre-doffing walking time in this case. Section 203(o) relates to the compensability of time spent donning, doffing, and washing in the collective-bargaining process. It does not render such time any more or less integral or indispensable to an employee’s job. As the court in Gatewood explained: Although the statute precludes recovery for time spent washing and “changing clothes,” it does not affect the fact that these activities could be the first “integral and indispensable” act that triggers the start of the continuous workday rule for subsequent activities that are not covered by §203(o), such as post-donning sanitation and travel time. 569 F. Supp.2d at 702 n. 31. Like the Gatewood court and Judge Cercone in Figas, I am not convinced that §203(o) changes the “principal” nature of donning and doffing activities, or that “principal” activities somehow become “preliminary” or “postliminary” under the Portal Act simply because they are rendered noncompensable by a collective-bargaining agreement in accordance with §203(o). A determination to the 3 The Tum case had determined that the actual time spent donning and doffing was de minimins; however, that fact did not preclude a finding that the donning/doffing could still be found to qualify as an integral and indispensable activity. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 24 of 31 PageID #: 5147 25 contrary would expand §203(o)’s exclusion beyond donning, doffing and washing time to include post-donning and pre-doffing travel time, which is not mentioned therein. Figas, 2008 U.S. Dist. LEXIS 87199, 2008 WL 4170043, at *20. This reading of Section 203(o) is consistent with the Supreme Court’s decision in Alvarez. In Tum v. Barber Foods, Inc., one of the cases before the Supreme Court in Alvarez, the jury had found that otherwise “integral and indispensable” donning and doffing time was not compensable under the de minimis doctrine.” See Alvarez, 546 U.S. at 38-39 (explaining Tum’s procedural history); see also Tum v. Barber Foods, Inc., 360 F.3d 274, 278-79 (1st Cir. 2004), rev’d on other grounds sub nom. Alvarez, 546 U.S. 21, 126 S. Ct. 514, 163 L. Ed. 2d 288; De Asencio, 500 F.3d at 370 n.9. Notwithstanding this fact, the Supreme Court firmly held that the employees’ post-donning and pre- doffing walking time in Tum was part of the continuous workday and, therefore, the Portal-to-Portal Act did not apply to such time. Alvarez, 546 U.S. at 39. Id, at 413. See Figas v Horsehead, 2008 U.S. Dist. LEXIS 87199, 2008 WL 4170043, at *20 (W.D. Penn. 2008) (“activities rendered noncompensable under §203(o) by a collective-bargaining agreement can nevertheless mark the beginning and the end of a continuous workday for purposed of the Portal Act.”). In Frankin v. Kellogg, 619 F.3d 604 (6th Cir. 2010), the Sixth Circuit adopted the holdings from Gatewood and Andrako, in analyzing the impact of a 203(o) defense to the compensability of donning and doffing protective gear. Discussing the divergent view among courts, the Franklin Court held: We agree with the courts that have taken the position that compensability under §203(o) is unrelated to whether an activity is a “principal activity.” Accordingly, we must consider whether time spent donning and doffing the standard equipment and uniform is integral and indispensable to Franklin’s job. Id., at 619. Finally, the Department of Labor, Wage & Hour Division issued Administrator’s Interpretation No. 2010-2 which adopted the above authorities Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 25 of 31 PageID #: 5148 26 among others finding that “Section 3 (o) Clothes Changing Can be a Principal Activity.” See U.S. Dep’t of Labor, Opinion Letter, 2010 DOL WH LEXIS 2, 2010 WL 2468195, at 4 (June 16, 2010) (Consistent with the weight of authority, it is the Administrator’s interpretation that clothes changing covered by §203(o) may be a principal activity. Where that is the case, subsequent activities, including walking and waiting, are compensable. The Administrator issues this interpretation to assist employees and employers in all industries to better understand the scope of the §203(o) exemption.).4 D. Defendants Ashland and Lion Violated, and Remain in Violation, of the FLSA Recordkeeping Requirements. 29. The FLSA and the regulations promulgated pursuant to the FLSA require employers to keep records of, among other things, wages and hours worked. 29 U.S.C. §211(c); 29 C.F.R. §516.2(a)(6)-(7). The Supreme Court has held that when a defendant-employer fails to keep accurate records, plaintiff-employees may recover unpaid wages by proving that they “in fact performed work for which [they were] improperly compensated and . . .[and by] produc[ing] sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687, 66 S. Ct. 1187, 90 L. Ed. 1515 (1946). Thus, when an employer does not keep adequate time records, a 4 The regulations and the clarifications of regulations by the DOL are entitled to deference unless they are unreasonable. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)(“[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s [*875] answer is based on a permissible construction of the statute.”); Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)(holding that the DOL’s interpretation of a FLSA regulation is “controlling unless ‘plainly erroneous or inconsistent with the regulation.’”), quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 359, 109 S. Ct. 1835, 104 L. Ed. 2d 351 (1989). Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 26 of 31 PageID #: 5149 27 plaintiff may satisfy his burden by showing an approximation of his work hours. Id. at 688. If the defendant fails to rebut the plaintiff's evidence, the plaintiff’s recollection and estimates of hours are presumed to be correct. Id. at 687-88. See Ford v. Houston Indep. Sch. Dist., 97 F. Supp. 3d 866 (S.D. Tex. 2015): ‘It is . . . a fundamental precept of the FLSA that an employee should not be denied [recovery] because proof of the number of hours worked is inexact [**11] or not perfectly accurate.’”). [citations omitted]. “A plaintiff need not ‘prove each hour of overtime with unerring accuracy or certainty.’” Prince v. MND Hospitality, Inc., 2009 U.S. Dist. LEXIS 61637, 2009 WL 2170042 *6 (S.D. Tex. July 20, 2009). “In the absence of rebuttal by defendants, plaintiffs’ recollection and estimates of hours worked are presumed to be correct.” Id., quoting Ting Yao Lin v. Hayashi Ya II, Inc., No. 08-CV-6071, 2009 U.S. Dist. LEXIS 12963, 2009 WL 289653, *3 (S.D.N.Y. Jan. 30, 2009) (finding plaintiffs’ initial burden was satisfied by affidavits based on the plaintiffs’ recollection describing the time spent performing various tasks for which they did not receive overtime compensation). Evidence can include plaintiff’s testimony as to when and how many overtime hours he worked, plaintiff’s affidavit to such, etc. Prince, 2009 U.S. Dist. LEXIS 61637, 2009 WL 2170042, at *6. Id., at 873. Here, Defendants’ management – Hardegree and Lord – arbitrarily placed the time clocks at a location to carve out the compensable Relief Time/FLSA Window from the continuous compensable work day. See, “Exhibit O.” Specifically, Defendants produced “Exhibit O” titled “Agenda” which identified Trudy Lord and Scott Hardegree as the individuals who came up with the idea to relocate the time clocks. The Agenda provides as follows: Ray has been working with David Gleisner at Port Neches. He is the IT support for the plant and worked with Trudy and Scott to come with the arrangement they believe works. I will attach the diagram that [THEY] sent us. Basically, [THEY] [emphasis added] want to turn the clocks at the gate to access only. Ray and I agree with that approach. …. This will then require (9) new “timeclocks” to be added inside the facility. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 27 of 31 PageID #: 5150 28 See, “Exhibit O.” Comparing, (1) the above statement that David Gleisner Trudy Lord and Scott Hardegree had prepared a diagram for relocating the timeclocks from the front gate, with (2) the actual diagram attached to Trudy’s deposition at Ex. 37 (See, “Exhibit E,” Ex. 37), there can be no credible doubt that Defendants’ Management – Trudy Lord and Scott Hardegree – are the individuals who concocted the idea to carve out the Relief Time/FLSA Window from hours worked, which is a violation of 29 U.S.C. 211; 29 C.F.R. 516.2. Notably, none of the clocks on the diagram are located at the Pipe Rack, and there is no mention of the Pipe Rack in David Gleisner’s email to Trudy Lord. See, “Exhibit E,” Ex. 37. Likewise, there is mention of the Pipe Rack in “Exhibit O.” This evidence is consistent with, (1) the fact there is no mention of moving the time clocks in the meetings of July and August 2013, (2) the denial by Dwayne Newman, Joseph Wells, and Richard Landry of any agreement to move the time clocks, and (3) Hardegree’s inability to recall who allegedly entered into any agreement or and related discussions. E. Defendant is Prohibited from Relying on a Collective Bargaining Agreement to Abridge Plaintiffs’ Rights to Maintain this Action to Recover Unpaid Wages, Liquidated Damages and Relief Under the FLSA. 30. In Barrentine, the Supreme Court emphasized the importance of preserving employees’ protections and rights vested by the FLSA from improper use of collective bargaining agreements and contracts as follows: This Court’s decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would “nullify the purposes” of the statute and thwart the legislative policies it was designed to effectuate. Brooklyn Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 28 of 31 PageID #: 5151 29 Savings Bank v. O'Neil, 324 U.S. 697, 707 [***654] (1945); see D. A. Schulte, Inc. v. Gangi, 328 U.S. 108, 114-116 (1946); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 42 (1944); Overnight Motor Transportation Co. v. Missel, supra, at 577; see 29 CFR § 785.8 (1974). Moreover, we have held that congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation arrangement. See, e. g., Martino v. Michigan Window Cleaning Co., 327 U.S. 173, 177-178 (1946); Walling v. Harnischfeger Corp., 325 U.S. 427, 430-432 (1945); Jewell Ridge Coal Corp. v. Mine Workers, 325 U.S. 161, 166-167, 170 (1945). As we stated in Tennessee Coal, Iron [****26] and R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 602-603 (1944) (footnote omitted): “The Fair Labor Standards Act was not designed to codify or perpetuate [industry] customs and contracts. . . . Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights.” Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 74-41 (1981). See also 29 C.F.R. §541.4; Other laws and collective bargaining agreements. “The Fair Labor Standards Act provides minimum standards that may be exceeded, but cannot be waived or reduced …, collective bargaining agreements cannot waive or reduce the Act’s protections…” Following Barrentine, the Fifth Circuit in Bernard v. IBP, Inc., 154 F.3d 259 (5th Cir. 1998) held that plaintiffs' who were subject to a collective bargaining agreement had the absolute right to pursue a suit under the FLSA, completely independent from their rights under the CBA. Id., at 263-64.; Martin v. Spring Break 83 Prods., LLC, 688 F.3d 247, 257 (5th Cir. 2012) (We reiterate that FLSA substantive rights may not be waived in the collective bargaining process,…); Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 29 of 31 PageID #: 5152 30 See also, Collins v. Sanderson Farms, 568 F. Supp.2d 714 (E.D. La. 2008) (The provisions of the statute are mandatory, and not subject to negotiation and bargaining between employers and employees. [citations omitted]. Under Section 16(b), an employer who Violates Section 206 or 207 is liable to the employee or employees affected in the amount of their unpaid minimum or overtime compensation, and for an additional equal amount as liquidated damages.) Id., at 718. 31. In sum, the collective bargaining agreement for the Plant does not impair Plaintiffs’ rights to recover for unpaid work and time arising during the continuous work day, which Defendant has previously admitted is compensable under the FLSA, but which Defendant has chosen not record in hours worked. PRAYER Wherefore, all premises considered, Plaintiffs move the Court to grant Plaintiffs’ Motion for Partial Summary Judgment and enter Judgment that (1) Defendants ISP, Ashland and Lion have violated the FLSA by (1) failing to pay Plaintiffs for compensable work activities and time occurring at the Plant, during the Relief time between 4:30 and 5:00, and (2) failing to accurately record all hours worked. Plaintiffs seek partial summary judgment that Plaintiffs are entitled to recover relief under the FLSA, including back pay, liquidated damages and attorney fees. Plaintiffs seek a partial summary judgment that Defendants have willfully violated the FLSA. Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 30 of 31 PageID #: 5153 31 Respectfully Submitted, REAUD, MORGAN & QUINN, LLP 801 Laurel Street Post Office Box 26005 Beaumont, Texas 77720-6005 Telephone: (409) 838-1000 Telecopier: (409) 833-8236 By: /s/Mark Frasher John Werner State Bar No. 00789720 jwerner@rmqlawfirm.com Mark Frasher State Bar No. 00798187 mfrasher@rmqlawfirm.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE This is to certify that all counsel of record who are deemed to have consented to electronic service are being served with a copy of this instrument via the USDC Eastern District's CM/ECF system on June 27, 2017. /s/Mark Frasher Mark Frasher Case 1:14-cv-00173-RC Document 146 Filed 06/27/17 Page 31 of 31 PageID #: 5154 “EXHIBIT A” Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 1 of 13 PageID #: 5155 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS BEAUMONT DIVISION ------------------------------------ : MICHAEL DAVID STUNTZ, Individually : and on behalf of all those : similarly situated, : : Plaintiffs, : C.A. No. : 1:14-CV-000173 vs. : (RC) : ASHLAND ELASTOMERS, LLC, : ISP SYNTHETIC ELASTOMERS, LP; : ISP SYNTHETIC ELASTOMERS, LLC, : : Defendants. : ------------------------------------ Deposition of: JULIE K. HOPKINS, ESQ. Taken: By the Plaintiffs Pursuant to Notice and Subpoena Date: May 24, 2016 Time: Commencing at 5:28 p.m. Place: Dinsmore & Shohl Suite 1300 255 East Fifth Street Cincinnati, Ohio 45202 Before: S. Diane Farrell, RDR, CRR Notary Public - State of Ohio Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 2 of 13 PageID #: 5156 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 2 (Pages 2 to 5) Page 2 1 2 APPEARANCES: 3 On behalf of the Plaintiffs: 4 Mark Frasher, Esq. of 5 Reaud, Morgan & Quinn, LLP 801 Laurel Avenue 6 Beaumont, Texas 77701 Phone: (409) 727-6642 7 Email: mfrasher@rmqlawfirm.com 8 On behalf of Defendant Ashland 9 Elastomers, LLC: 10 Charles Roesch, Esq. and 11 Jason Hilliard, Esq. of 12 Dinsmore & Shohl, LLP 255 East Fifth Street, Suite 1900 13 Cincinnati, Ohio 45202 Phone: (513) 927-8200 14 Email: croesch@dinsmore.com jason.hilliard@dinsmore.com 15 16 On behalf of Defendant Lion Elastomers: 17 Jeff Barnes, Esq. of 18 Fisher Phillips 333 Clay Street 19 Houston, Texas 77002 Phone: (713) 292-5625 20 Email: jbarnes@fisherphillips.com 21 22 23 24 25 Page 3 1 2 I N D E X 3 JULIE HOPKINS, ESQ. PAGE 4 Cross-Examination by Mr. Frasher 4 5 EXHIBITS MARKED REF. 6 Exhibit 39 31 31 Exhibit 40 103 103 7 8 9 - - - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 4 1 JULIE K. HOPKINS, ESQ. 2 of lawful age, a witness herein, being first duly 3 sworn as hereinafter certified, was examined and 4 deposed as follows: 5 CROSS-EXAMINATION 6 BY MR. FRASHER: 7 Q. Mrs. Hopkins, if you could, just 8 state your name for the record. 9 A. Julie, middle initial K., Hopkins, 10 H-o-p-k-i-n-s. 11 Q. And have you ever given your 12 deposition before? 13 A. Yes, I have. 14 Q. How many times? 15 A. Once. 16 Q. What kind of case was that? 17 A. A Family Medical Leave Act case. 18 Q. Where was that filed? 19 A. I'm not sure if the case was actually 20 filed or if we just did it as part of settlement 21 negotiations. But it was in Lexington, Kentucky. 22 And I believe it would have been under my maiden 23 name. It's been a long time. I've been married for 24 ten years, so it's been ten years ago. 25 Q. So it was over ten years ago? Page 5 1 A. I think so, yeah. 2 Q. Well, then you understand that you're 3 under oath. It's just like we're sitting in front 4 of the judge and jury, right? 5 A. Sure. 6 Q. That any answer you give is actually 7 courtroom testimony, and so, therefore, you're 8 subject to the rules of criminal perjury, just like 9 you would be in a courtroom. 10 A. I do. I was a litigator before. 11 Q. Then I need to doubly remind you of 12 that. The case is filed in the Eastern District of 13 Texas. I know that you have appeared on behalf of 14 the company in the case. So I want to get some 15 background information from you first. 16 A. Sure. 17 Q. And then talk about the notice and 18 the subject on the notice, your knowledge of the 19 case. 20 A. Sure. 21 Q. So why don't we start off by telling 22 me how long you've worked -- who is your employer? 23 A. My employer is Ashland Incorporated. 24 Q. Okay. And how long have you worked 25 for Ashland? Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 3 of 13 PageID #: 5157 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 3 (Pages 6 to 9) Page 6 1 A. 17 years, one month, and 24 days. 17 2 years and almost two months. 3 Q. And what is your job? 4 A. I am senior group counsel for labor, 5 employment, and litigation matters for Ashland. 6 Q. So you have oversight of claims that 7 would involve the FLSA? 8 A. I do. 9 Q. Do you all have written procedures 10 and policies in place for your folks at the Port 11 Neches facility about following the FLSA, how to 12 follow the FLSA? 13 A. I don't know that we specifically -- 14 MR. ROESCH: Objection to form. You 15 can go ahead. 16 A. Okay. Yeah. I don't know that we 17 specifically call out the FLSA. We have -- well, 18 and you're talking about historically, correct? 19 Because I can't testify to anything that's occurred 20 there after the sale. 21 Q. Sure. 22 A. I -- we have -- we have policies on 23 overtime. 24 Q. Are those policies available to the 25 Trudy Lords and the Scott Hardegrees and the folks Page 7 1 that are actually at the plant? 2 A. Yes. 3 Q. Do they receive any sort of training? 4 A. On? 5 Q. On compliance with FLSA, on recording 6 hours worked, making sure that overtime is recorded? 7 A. I have not personally done training 8 for them. We have manager training on payment of 9 overtime, payment of wages. 10 Q. When you say you have manager 11 training, would they have undergone that? 12 A. I don't know. 13 Q. I mean, is it a requirement? 14 A. When you -- when we have new managers 15 promoted in the company, it is a requirement that 16 they have new manager training. 17 Q. That would have been in effect -- my 18 questions are geared at the time frame when -- when 19 you all owned -- 20 A. Uh-huh. 21 Q. -- owned the plant in Port Neches. 22 So if I ask you if you have policies and procedures 23 at the plant, that's the time frame I'm concerned 24 with. 25 A. Right. Page 8 1 Q. So did -- so as you sit here today, 2 can you testify that Scott Hardegree, Trudy Lord, 3 other management level positions at the Port Neches 4 plant underwent any sort of FLSA training? 5 A. While we owned the plant. I cannot 6 say that, definitively. They were long-term 7 employees of the company prior to the time that we 8 acquired it. So I can't speak, specifically, to 9 what training they may have had before the 10 acquisition. 11 Q. Okay. And can you speak to whether 12 or not they received any training from Ashland after 13 the acquisition? And strictly on compliance with 14 the overtime regulations of the -- of the Fair Labor 15 Standards Act. 16 A. No, I can't speak to that. 17 Q. Was there any rule or procedure at 18 the plant that forbid employees from performing 19 meetings, work prep, before the start of the pay 20 period? 21 A. Pay period, to me, is the two-week 22 period over which they received a paycheck. Are you 23 talking about before the start of a shift? 24 Q. Yes. 25 A. Okay. Sorry. I didn't want to -- Page 9 1 Q. That's all right. No, no. Let's 2 talk about -- we'll use -- 3 A. Okay. That -- forbid? 4 Q. That forbid work before the start of 5 the shift? 6 A. Well, I don't -- I'm not sure I -- 7 can they begin working before their scheduled start 8 time? 9 Q. Right. 10 A. I don't know. I don't know how you 11 would -- I'm not sure exactly how to answer that. 12 Q. Well, there's been declarations 13 filed. 14 A. Right. 15 Q. And testimony, I believe, from Mike 16 Stuntz, maybe Dwayne, too -- 17 A. Uh-huh. 18 Q. -- that after the pay clocks were 19 moved, employees would badge in at the front gate 20 and then they would get their PPE on and go down the 21 sidewalk a little bit to where the clocks had been 22 relocated to. 23 A. Uh-huh. 24 Q. Shift supervisors would come down and 25 give them their job assignments there. Was there Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 4 of 13 PageID #: 5158 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 5 (Pages 14 to 17) Page 14 1 Did I ever receive a copy of it, yes. 2 Q. Yes. 3 A. Yes, I saw the grievance. I believe, 4 at the point that I saw the grievance, she had 5 already responded to it. 6 MR. ROESCH: 29. 7 A. It's also an exhibit to one of the 8 earlier -- an attachment to one of the earlier 9 exhibits. 10 Q. The interrogatories, maybe. Yeah. 11 Here we go. No. Well, I'll tell you what. 12 While I'm looking for that, I'm going to jump around 13 with you because I know you're on a time frame. 14 Exhibits 20 and 21, they're the 15 collective bargaining agreements. The first one is 16 between ISP Synthetic and the Steelworkers local at 17 Port Neches, and the second one is between Ashland 18 Elastomers, LLC -- 19 A. Yes. 20 Q. -- and the local? 21 A. Right. 22 Q. Did you participate in the 23 negotiations for the Ashland Elastomers agreement? 24 A. No, I did not. 25 Q. Okay. Who did handle the Page 15 1 negotiations for the company? 2 A. These -- the negotiations for Exhibit 3 20 would have occurred before Ashland was the owner 4 of the parent of ISP Synthetic Elastomers, so I do 5 not know who handled the negotiations for this 6 agreement. By 2014, they were part of Ashland's 7 corporate structure and at that point it would have 8 been Kevin Meyers, who is our -- 9 MR. ROESCH: You're referencing 10 Exhibit 21? 11 THE WITNESS: I'm sorry, yes, Exhibit 12 21. 13 A. Would have been Kevin Meyers. 14 Q. Now, would Kevin have actually, if 15 you know, gone to the facility and met with the 16 union? 17 A. Yes. 18 Q. Was there ever -- does the agreement 19 that's marked as Exhibit 21 encompass Ashland Inc. 20 or is it strictly Ashland Elastomers, LLC? 21 A. It's Ashland Elastomers, LLC. 22 Q. Okay. 23 A. The wage employees at this facility 24 are employed by Ashland Elastomers, LLC. 25 Q. Okay. In terms of -- you said Page 16 1 they're employed by the -- by Ashland Elastomers, 2 LLC? 3 A. Yes. 4 Q. Does Ashland Elastomers, LLC, does it 5 have employees at any other plant location? 6 A. No. 7 Q. Was -- was it -- 8 A. To my knowledge, it never had any 9 employees at any other location. 10 Q. Strictly Port Neches? 11 A. Yes. 12 Q. Okay. Was it set up in conjunction 13 with that purchase? 14 A. No. It wasn't. 15 Q. It was an existing entity on paper 16 but it never had any employees until the purchase of 17 the plant, is that right? 18 A. No, that's not correct. When we 19 acquired the parent company to ISP Synthetic 20 Elastomers, we acquired them in August of 2011. One 21 of their subsidiaries, it was the acquisition of 22 International Specialty Products. ISP Synthetic 23 Elastomers -- by this point it was -- by 2009 it was 24 an LLC. It was already the legal entity conducting 25 business at the Port Neches plant. So it was -- Page 17 1 this legal entity, ISP Synthetic Elastomers, was a 2 subsidiary of International Specialty Products. 3 There are a couple of subsidiaries in 4 between, but the direct parent of ISP Synthetic 5 Elastomers was ISP Chemco. ISP Chemco was, again, 6 part of the corporate structure that we acquired 7 when we acquired all of the stock in International 8 Specialty Products from a company called GAF. And 9 so ISP Synthetic Elastomers already existed. What 10 happened with ISP Synthetic Elastomers is in 2013 we 11 did a name change and ISP Synthetic Elastomers, LLC, 12 was renamed Ashland Elastomers, LLC. So before this 13 name change, Ashland Elastomers, LLC did not exist. 14 So that happened in 2013. 15 Q. And when you say "we acquired"? 16 A. Ashland Incorporated acquired 17 International Specialty Products and all of its 18 subsidiaries. 19 Q. And in doing so, they acquired this 20 plant? 21 A. Uh-huh. 22 Q. And in 2013, they changed the name to 23 Ashland Elastomers, LLC? 24 A. Yes. The name of -- the name of ISP 25 Synthetic Elastomers, LLC, was changed to Ashland Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 5 of 13 PageID #: 5159 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 6 (Pages 18 to 21) Page 18 1 Elastomers, LLC. 2 Q. When did that -- when did the 3 acquisition happen where Ashland -- 4 A. August of -- August -- I want to say 5 23rd of 2011, is when the sale -- the purchase of 6 International Specialty Products closed. 7 Q. Okay. And then Ashland -- could you 8 explain the sale of the plant to Lion? 9 A. Yes. We -- I'm trying to remember 10 the exact date that the sale closed. We sought -- 11 you know, there's sign and then there's close. You 12 sign and then the deal closes usually some period 13 after. 14 I believe that we signed the initial 15 agreement to sell on -- in October of 2014 and the 16 sale closed on November 30th of 2014. So it was a 17 very short time period between sign and close of 18 that deal. But we sold -- we sold Ashland 19 Elastomers, LLC, and all of its assets to -- it was 20 Lion Copolymer, and I'm not sure if it's LLC or 21 Incorporated, or it's -- it was -- it might have 22 been Lion Copolymer Holdings. I'm not sure. But 23 anyway, we sold it to Lion. It was all of the stock 24 of Ashland Elastomers, LLC. So it was a stock 25 purchase, I believe. Page 19 1 Q. Do you know how the plant became 2 known as Lion Elastomers? 3 A. I would imagine that they renamed it 4 because they no longer wanted it to be Ashland 5 Elastomers, but I couldn't -- I couldn't speculate 6 to -- well, I just did speculate to that, but I 7 don't know. I guess maybe I should own up that I'm 8 speculating. Sorry. 9 Q. Whenever Ashland Inc. sold the 10 plant -- 11 A. Uh-huh. 12 Q. -- sold the -- did the stock sale to 13 Lion Copolymer Holdings, LLC -- who is responsible 14 for the claims in this case? 15 A. Who is responsible for the claims in 16 this case? 17 MR. ROESCH: Objection to the form. 18 You can go ahead. 19 MR. BARNES: Objection. Form. 20 A. There's a sale agreement that would 21 outline responsibilities. We have not -- we have 22 had discussions with Lion concerning the liabilities 23 associated with this claim. We have not attempted 24 to assert that Lion would be responsible for claims 25 arising prior to the date of the sale. Page 20 1 Q. No claim that Lion would be 2 responsible for anything prior to the sale, 3 obviously, I suppose? 4 A. Uh-huh. 5 Q. And as far as you know, is there -- 6 so there's no transfer of the liabilities from 7 Ashland to Lion? 8 A. I would have to look at the sale 9 agreement again to understand what liabilities went 10 with Lion, what they agreed to assume and what they 11 did not. But I can speak that, with respect to this 12 case, we have not asserted that Lion is responsible 13 for anything that occurred prior to the sale. 14 Q. Either by virtue of the actual claims 15 or by virtue of contractual indemnity or anything 16 like that? 17 A. Correct. 18 Q. Or transfer on assignment? 19 A. Right. 20 Q. Okay. In terms of control of -- at 21 the -- at the plant -- 22 A. Uh-huh. 23 Q. -- in Port Neches, Ashland Inc. 24 controlled the payroll, correct? 25 A. I would not characterize it that way. Page 21 1 What I would characterize is Ashland Inc. was the 2 payroll services provider to Port Neches. As a 3 subsidiary to Ashland, they provided payroll 4 services. They didn't control the payroll in that 5 they didn't control the data that they received from 6 Port Neches. But they did provide the payroll 7 services. That's both with respect to trying to 8 determine the payouts. They also did the day-to-day 9 payroll. Or not day-to-day, but the weekly payroll. 10 If you look at some of the exhibits, 11 you will see that, prior to the acquisition of 12 International Specialty Products, ISP had -- was 13 using an outsourced payroll provider. That's why 14 the checks say ADP, the first batch of checks that 15 you have that -- I can't remember. 16 Q. Mr. Stuntz's? 17 A. Mr. Stuntz's checks. They say ADP 18 because it was an outsourced service provider. If 19 you look, you'll note that about -- somewhere down 20 through there -- 21 MR. ROESCH: Exhibit 10. 22 A. -- Exhibit 10, sorry -- that changes 23 and you will see checks coming through that don't 24 have ADP's logo on there and then they will begin to 25 have the Ashland -- yeah. They'll begin to have the Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 6 of 13 PageID #: 5160 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 12 (Pages 42 to 45) Page 42 1 operations, that we report financially. It's a 2 way -- I don't know a better way to put it than 3 that. But it's a segment. It's not a legal entity. 4 It doesn't have an FEIN. It doesn't have employees. 5 It's just a -- it's a -- it's a business segment. 6 Q. Okay. Exhibit 35 is the letter 7 and -- where Trudy encloses the calculation 8 worksheet, the Q and A? 9 A. Uh-huh. 10 Q. Both of which are prepared by Ashland 11 Inc., right? 12 A. I don't know. I think -- I don't 13 know that -- I don't think I prepared this letter. 14 I think Trudy prepared this letter, but yes. 15 Q. I think Trudy testified that the 16 letter came from Ms. Click. But irrespective. 17 A. If it came from Deborah, I would have 18 reviewed it first. 19 Q. Do you recall? You don't recall that 20 letter? 21 A. No, but it's -- I mean, it's such a 22 simple letter. It's not something that you would 23 have had to -- I mean, it kind of just repeats 24 information that is already in here, so I don't know 25 if it's -- Page 43 1 Q. Well, that's my -- you know, you 2 mentioned review. Would it be unusual for Trudy to 3 send out a letter like that that hadn't been 4 reviewed by you, particularly in conjunction with 5 sending out this first set of payments? 6 A. If she -- I mean, I -- if she said, 7 I'm going to do a cover letter that just, you know, 8 summarizes what we're doing, and here's what I'm 9 going to say, I don't know that I necessarily would 10 have said, well, I want to see the letter before you 11 send it out. But -- and I certainly didn't 12 supervise everything that Trudy ever did. I may -- 13 I may have seen this. But again, there's nothing in 14 here that's inconsistent with the documents that I 15 did work on. 16 Q. But you did pretty much supervise 17 the -- the payouts, right? 18 A. I don't know that I would say that I 19 supervised the payouts. I was a part of the 20 process, yes. 21 Q. Debbie Click, or Ms. Click -- 22 A. Uh-huh. She's a -- she doesn't like 23 being called Debbie. She's Deborah. 24 Q. Ms. Click would -- Deborah Click 25 would, from what I could tell based on her Page 44 1 testimony, would generally defer to you, would check 2 with you before anything was done? 3 MR. ROESCH: Objection to the form. 4 A. No, not before -- I mean, not before 5 anything was done. What I was involved in was 6 having conversations with the business to try to 7 determine what -- what the issues were and how we 8 were going to address them. And then I -- so I was 9 kind of -- I guess maybe I was an interface. I took 10 the information and the discussions that we -- that 11 I had with Scott, with Trudy, with the business, 12 and -- then took that information after we'd reached 13 an agreement on how we were going to compensate 14 employees for their time, and then took that to 15 Deborah and said, Deborah, here's what we need to 16 do. We need to -- and that's what she testified to 17 about, we need to do punch-to-punch, less six 18 minutes. And so those are the calculations that she 19 and her team worked to develop. I didn't oversee 20 that process. That would be -- 21 Q. Before -- before the payouts went 22 out, did you have to get authorization from anyone 23 above you? In other words, did you have to say, we 24 need to make these payouts? Here's what they are; 25 here's the proposal; here's what we're going to do. Page 45 1 We're going to pay punch-to-punch the Port Neches 2 plant, minus six minutes, minus what they're 3 actually paid. Can I get approval for that? 4 A. I talked to the plant, Scott 5 Hardegree. And I talked to the operations manager 6 for the Ashland Performance Materials segment, Russ 7 Montgomery and Jodi Lewis about it, and said that 8 this -- basically said that this is the direction 9 that I think we need to proceed; are you comfortable 10 with that. They said yes. And then we went from 11 there. 12 Q. Did you have to -- did you have to 13 get authorization or were you the person who could 14 basically give the authorization for the payments to 15 go out, the calculation worksheets to go out? 16 A. You mean was it going out under my 17 financial authority? No, it was not going out under 18 my financial authority. 19 Q. Whose financial authority was it 20 going out under? 21 A. I think the ultimate approval would 22 have been Russ Montgomery, because he was the 23 director of APM. 24 Q. And what does that stand for? 25 A. That's Ashland Performance Materials. Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 7 of 13 PageID #: 5161 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 13 (Pages 46 to 49) Page 46 1 Q. And that's just a segment, not an 2 entity? 3 A. Yes. Right. 4 Q. What entity was he with? 5 A. He was with Ashland Inc. 6 Q. So ultimately he could have said no, 7 Julie, we're not going to do that? 8 A. He could have, and then I would have 9 gone to the person above him and said, here's what 10 we have to do. And if that person had said no, then 11 I would have probably gone to the general counsel 12 and said here's what we need to do. And if that 13 person -- if the general counsel had said no, I 14 probably would have gone to Jim O'Brien, who was the 15 CEO of Ashland, Inc, and said, here's what we need 16 to do. But, you know, I've been there for 17 years, 17 and they know that I don't tell them we need to pay, 18 you know, three-quarters of a million dollars if we 19 don't need to pay three-quarters of a million 20 dollars. 21 Q. Right. If Trudy Lord or Scott 22 Hardegree would have said, Julie, we're not doing 23 this, you would have said, yeah, we are? You 24 wouldn't have had to go above their head, if you 25 understand the difference I'm making? Page 47 1 A. No, I couldn't tell Scott and Trudy 2 to do something. I mean, I would -- you know, we 3 did talk at that level about what we thought needed 4 to happen. And it was after we talked at that 5 level, that then I took it up the chain. I didn't 6 go to Russ before I talked to Scott and Trudy about 7 it. 8 Q. No. I mean, you have got to do fact 9 gathering and figure out what the best course is to 10 go. 11 A. Right. 12 Q. And so, therefore, you have to talk 13 to the folks at Port Neches, right? 14 A. Right. 15 Q. But the pitch is, or the proposal 16 that you need to make is to Russ, is what I'm 17 hearing? 18 A. I went to him for final approval, 19 yeah. 20 Q. And it might be, since we're on this 21 topic or set of questions to -- 22 MR. ROESCH: What's the number? 23 MR. FRASHER: Trying to put them in 24 order. 31. 29. 30. 31. 25 Q. 29, if you could take a look at that. Page 48 1 A. Uh-huh. 2 Q. Is the grievance? 3 A. Right. 4 Q. Now, my understanding from Trudy's 5 testimony is that she would have emailed that to 6 Deb -- Deborah Click and to you, or maybe Carolyn? 7 A. She sent it to Carolyn. Carolyn is 8 the one who told me about it. 9 Q. Okay. And at the time, Carolyn -- 10 A. Reported to me. 11 Q. Reported to you. Okay. So -- 12 A. I -- 13 Q. Did you participate or did Carolyn 14 participate in responding to it? And we're looking 15 at Exhibit 29, which is the grievance. 16 A. I don't -- I don't believe so. 17 Q. Well, that's sort of a double 18 question there. Do you know, did Carolyn 19 participate in responding to it? 20 A. No, I don't -- I don't believe she 21 did. 22 Q. The response is in Exhibit 30? 23 A. Uh-huh. 24 Q. Did anyone from Ashland Inc. 25 participate in the response? Page 49 1 A. Other than Trudy? 2 Q. Right. 3 A. And possibly -- well, Scott is not an 4 employee of Ashland Inc. 5 Q. Kevin Meyers? 6 A. I don't believe so. 7 Q. Ms. Click? 8 A. No. 9 Q. Carolyn, you? 10 A. Uh-huh. I believe that that was 11 Trudy and Scott at the plant level. 12 Q. Okay. Was it unusual for them to 13 correspond like that with Ashland Performance 14 Materials letterhead? 15 A. No. 16 MR. ROESCH: Objection. Foundation. 17 Q. So are you -- are you aware of any 18 meetings that occurred with Kevin Meyers or anyone 19 else that would have involved responding to the 20 grievance that's marked as Exhibit 29? 21 A. I am not aware or -- I didn't 22 participate in any meetings. If -- Trudy may have 23 spoken with Kevin about it. I don't -- but I can't 24 confirm that. 25 Q. Okay. Would you expect you all's Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 8 of 13 PageID #: 5162 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 15 (Pages 54 to 57) Page 54 1 Scott saying "We are just going to have to disagree 2 on that issue. So I think we're done here." And 3 Dwayne is saying: "When can you get back with us?" 4 And then the next document I see is documentation 5 related to the payout, which is August 21st -- 6 A. Uh-huh. 7 Q. -- 2013. Trudy, the proposed clocks 8 to collect payroll punches to which you need to 9 assign employees are as follows. 10 A. Uh-huh. 11 Q. So do you know -- do you recall, as 12 you sit here, any communications that would have 13 occurred between management and the union that say 14 we agree to accept punch-to-punch, minus six 15 minutes, minus what we were actually paid? 16 A. Yes. That's what I was told by the 17 plant personnel and that's why we created the 18 calculation that knocked six minutes off. 19 Q. Okay. The basis for that is what you 20 were told by plant personnel? 21 A. Yes. 22 Q. And that would be who? Scott 23 Hardegree and Trudy Lord? 24 A. Yes. 25 Q. Anyone else? Page 55 1 A. I don't recall anyone else, no. 2 Q. Did you ever contact the union to 3 make sure that was the agreement? 4 A. No. 5 Q. Did anyone in the legal department do 6 that? I guess it would have been Carolyn. 7 A. Not to my knowledge, no. 8 Q. Did anyone at Ashland Inc. verify 9 that that was, indeed, what was agreed to? 10 A. Trudy and Scott verified it to me, 11 that that's what was agreed to. 12 Q. Looking at Exhibit 33. 13 A. Uh-huh. 14 Q. And we'll get away from that set of 15 questions. But the only verification you had was 16 from Scott and Trudy, is that correct? 17 A. Yes. 18 Q. And I'm assuming that, based on that, 19 you and Deborah Click prepared the Q and A? 20 A. And the calculations. 21 Q. And the calculations? 22 A. Yeah. 23 Q. And whenever the calculations -- 24 whenever there were complaints about the 25 calculations being short and you all went back and Page 56 1 looked at it and recalculated -- 2 A. Uh-huh. 3 Q. -- and issued the second payment -- 4 A. Uh-huh. 5 Q. -- did you have any sort of 6 communications with -- first, did you have any 7 communications with the union about that? 8 A. Did I, directly? 9 Q. Yes. 10 A. No. 11 Q. Did you have any communications with 12 Scott and Trudy about that? 13 A. Yes. 14 MR. ROESCH: You said "about that." 15 Q. Second payment. 16 A. Yes. 17 Q. How it was going to be calculated? 18 A. Yes. 19 Q. Okay. Did anyone, for lack of a 20 better term, get in trouble for the way the first 21 payout was handled? 22 A. No. 23 Q. Or the fact that -- 24 A. Are you -- you're talking about 25 discipline? Page 57 1 Q. First, formal discipline. Do you 2 remember any formal discipline? 3 A. No. 4 Q. Do you remember any informal 5 discipline, like saying, why in the world did you do 6 that; why are you all having supervisors changing 7 punches, anything like that? 8 A. No. 9 Q. Why not? 10 A. Well, we made some inquiries about 11 the reasons for the punch changes. By and large, 12 the information that we received didn't make the 13 punch changes look improper. The issue was the 14 backup documentation, just like the issue with, you 15 know, the 30-minute rounding rule. We know for a 16 fact that there are a lot of employees who showed up 17 at Port Neches early, and they went into the 18 breakroom and they drank coffee and they read the 19 newspaper and they did a lot of non-work related 20 activities before they then walked out of the 21 bathhouse and went to work. The problem was we had 22 un -- we did not have the records that we needed in 23 order to show how much of that time, when they 24 clocked in early between 4:30 and 5:00 and it got 25 rounded up, was spent working, and how much was not. Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 9 of 13 PageID #: 5163 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 20 (Pages 74 to 77) Page 74 1 Q. -- this looks to me, if you read the 2 first sentence, "Ray has been working with David 3 Gleisner in Port Neches." That's Ray Weiher, I'm 4 assuming? 5 A. I would assume so. 6 Q. Yeah. David Gleisner not -- Gleisner 7 is not a member of the union, I don't believe. He's 8 the IT support for the plant and worked with Trudy 9 and Scott to come up with the arrangement they 10 believe works. I'm thinking this is the moving of 11 the clocks is what this whole thing addresses. 12 A. No. He was working with them on the 13 mechanics of placing clocks. Once -- once there 14 were decision -- because he's talking about the 15 electrical supply and the Ethernet cable and that -- 16 that piece of this. So this is a logistics 17 document. 18 Q. I see -- I understand what you're 19 saying part of it is. But if you look -- "Determine 20 the pay rules, elimination of change point, 21 elimination of 'unapproved' overtime, inclusion of 22 rounding rule (Ray suggests tenth hour rounding), 23 schedules used only for reporting purposes, not 24 calculation of time worked." 25 A. Uh-huh. Page 75 1 Q. This seems to be a memorial -- 2 memorializes what -- what Ray, in conjunction with 3 David Gleisner and Trudy and Scott have come up 4 with, and whoever has written -- whoever has written 5 this has agreed to it, agreed to the approach. 6 A. I don't know that I would -- 7 Q. If you know -- I mean, tell me if you 8 know. If you can't tell me who this person is, is 9 this a document that you've seen before? This is an 10 agenda, it says. 11 A. I have seen it, but I can't recall 12 exactly when I first saw it. Again, to me, this 13 looks like a logistics and configuration discussion. 14 Q. It has -- it has no reference to the 15 union or an agreement by the union or that there 16 is -- the union agreed to anything on this agenda. 17 But -- can you think of any facts or evidence that 18 would indicate the union was collaborative in this? 19 MR. ROESCH: "In"? 20 MR. BARNES: Objection. Form. 21 MR. ROESCH: "This" being the last 22 two pages of this document? 23 MR. FRASHER: Yes. Yeah. The topics 24 discussed. 25 MR. BARNES: Objection to form. Page 76 1 A. I -- I don't -- I'm not sure that I 2 understand the question. I mean, I'm reading the 3 document. It's -- it looks, to me, like a 4 configuration document, not a -- I mean, this is an 5 after-the-fact discussion. 6 Q. Where the clocks are going to be 7 moved -- 8 A. Uh-huh. 9 Q. -- where the time clocks are going to 10 be moved, that would be an example of -- I mean, 11 that's sort of a big deal, don't you agree? The 12 time clocks are going to be moved from the front 13 gate to where -- 14 A. Uh-huh. 15 Q. -- in the facility. 16 A. Uh-huh. 17 Q. That's -- that's a -- a decision 18 that's going to decide what a -- what a worker gets 19 paid, right? 20 A. Correct. 21 Q. And so you would expect that there 22 would be an agreement between the union and Ashland 23 Elastomers on that subject, right? 24 A. It's my understanding that there was 25 an agreement. Page 77 1 Q. But you haven't seen anything in 2 writing about that, right? 3 A. Not -- I mean, not like you would see 4 something like the CBA, no. 5 Q. Right, or a letter of understanding, 6 or a memorandum of understanding, or a letter 7 agreement, or anything in writing? 8 A. That was signed by the union, no. 9 Not that I'm aware of. 10 Q. And so for purposes of testifying 11 that there was an agreement by the union to move the 12 clock, the pay clock, from the front gate to the 13 Dinsmore -- 14 A. Uh-huh. 15 Q. -- what is the basis for that 16 testimony? If it's Trudy and Scott, then so be it. 17 A. Right. I mean, keep in mind, I'm 18 here as a corporate rep. And the corporation's 19 position is that, based on the information that our 20 employees participated in, an agreement was reached 21 with the union on this issue. And that is why we 22 calculated the payments the way that we did with the 23 six-minute deduction. 24 Q. Separate from the calculation of the 25 payments, the movement of the time clock -- Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 10 of 13 PageID #: 5164 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 21 (Pages 78 to 81) Page 78 1 A. Uh-huh. 2 Q. -- that's -- I mean, that's a 3 fundamental -- 4 A. Uh-huh. 5 Q. -- shift in payroll, right? 6 A. To begin to pay people based on the 7 point where they begin to work as opposed to basing 8 it on the gate with rounding rules that were 9 problematic. 10 Q. Objection, nonresponsive. 11 A. I don't know what you're trying to 12 ask me. 13 Q. I'm just asking you, you would expect 14 to see that in writing. You would expect -- if 15 there's an agreement between the union and Ashland 16 about where payroll is going to start, you would 17 expect to see that in writing? 18 MR. ROESCH: Objection to the form. 19 A. Okay. 20 Q. Wouldn't you? 21 A. In my experience, with this union, if 22 they had not been in agreement with those changes, 23 they would have immediately grieved them, and they 24 did not. So if you want to talk about the entirety 25 of the circumstances and -- you know, then our Page 79 1 position is we reached an agreement and the best 2 evidence of it is the fact that the union began 3 working under that new setup without complaint. 4 They knew how to file grievances. 5 They had filed grievances on various things in the 6 past. We've had lots of -- lots and lots of 7 discussions about this. And when these changes were 8 put into place, there were problems that they 9 identified and they came back and asked for 10 adjustments to their payments, but none of the 11 adjustments that they requested dealt with moving 12 the time clocks to different locations or changing 13 the six-minute deduction. 14 THE WITNESS: I'm going to get some 15 more water real quick. 16 MR. FRASHER: Go ahead. 17 Q. Exhibit 36 was the document that 18 reflected the amount of the first payout, 19 775,536.48. That's correct? 20 A. I believe Deborah testified to that. 21 If that's her testimony, I wouldn't have any reason 22 to contradict it. 23 Q. The subpoena to Ashland Inc., Exhibit 24 Number 24 -- 25 A. Uh-huh. Page 80 1 Q. -- had you seen that before today? 2 A. Yes. I saw that you served several 3 subpoenas on several of our legal entities in 4 different locations and they all were routed to me. 5 Q. Did you prepare responses to any of 6 them, other than -- other than objections through 7 the law firm? 8 A. You mean the responses? 9 MR. ROESCH: I mean, her counsel 10 prepared the responses. 11 A. Yeah. 12 Q. Right. 13 A. Yeah. 14 Q. Right. Did you actually -- are there 15 responsive documents? Exhibit 24 -- the subpoena to 16 Ashland Inc. reads -- asks for "All documents and 17 ESI which discuss the terms of the Port Neches 18 payout. All documents and ESI which discuss the 19 facts and terms set forth in the documents included 20 in Exhibit B. All documents in ESI which discuss 21 the Stuntz lawsuit." 22 I mean, as far as you know, are there 23 any documents at Ashland Inc.? 24 MR. ROESCH: Objection to the form. 25 I mean, Ashland's produced lots of Page 81 1 documents. 2 Q. Right. No, I understand. I don't 3 know. Did Ashland Inc. produce any documents? I 4 don't remember, honestly. 5 A. Well, I mean, Deborah -- you got 6 documents from Ashland Inc. when you got documents 7 from Deborah. 8 Q. The calculation worksheets? 9 A. Yeah. She was pulling -- she was 10 pulling documents relating to the work that they did 11 on behalf of Ashland Elastomers because, as she 12 testified, that work was done for Ashland Elastomers 13 by Ashland Inc. So you got -- I mean, I don't know 14 the right way to say it, but -- 15 MR. ROESCH: What I would say is that 16 our obligation, when you served discovery on 17 Ashland Elastomers, is to produce any 18 documents under their custody or control. 19 We interpreted that to mean that we needed 20 to produce the Ashland documents because 21 they could, at least -- I mean, I think 22 there's a definite argument that they're 23 within the custody and control of Ashland 24 Elastomers, since it's a subsidiary. 25 THE WITNESS: Subsidiary. Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 11 of 13 PageID #: 5165 Hopkins, Esq. 5/24/2016 30 Garfield Place, Suite 620 Cincinnati, OH 45202 ©Ace-Merit, LLC (513) 241-3200 22 (Pages 82 to 85) Page 82 1 MR. ROESCH: So we interpreted it 2 that way and we produced the documents out 3 of Ashland earlier on in the case for that 4 reason. We did not take the position that, 5 well, these were not asked of Ashland Inc. 6 and so, therefore, we are not going to 7 produce them. 8 Q. Exhibit 28 is the second payout. Did 9 you participate in preparing Exhibit 28? 10 A. I think so. I think I worked with 11 Deborah on this. 12 Q. Can you explain why it does reference 13 or -- first of all, was Ashland Elastomers -- were 14 they part of the Texas City human resources group? 15 A. No. Texas City has a dedicated HR 16 person. Trudy Lord does not do HR for Texas City. 17 This would have been -- if you wanted to refer to 18 the Texas City human resources group, that would be 19 someone else. That's not part of Ashland 20 Elastomers. 21 Q. So that would just be a typo? 22 A. I guess so. 23 Q. Exhibit -- if you could -- Exhibit 24 35. The Q and A that's attached to Exhibit 35 is 25 different than Exhibit 19. See if you could explain Page 83 1 why there's differences in those documents. Just 2 one example -- I think there's some differences in 3 the language in the first paragraph. 4 A. One may have been an earlier draft 5 than the other. I -- I don't know. 6 Q. Do you know if multiple Q and As went 7 out on that first round of payments, versions? 8 A. You mean to the employees? 9 Q. Yes. 10 A. I don't believe so. 11 Q. And these payments, the calculations 12 and the representations that went with them, they 13 went to not just employees, but they went to former 14 employees, too, right? 15 A. Payments did. I -- I don't -- 16 this -- this would not have gone to former employees 17 because this talks about clocking in and out and 18 that -- you know, that wouldn't have been applicable 19 to somebody that didn't work there anymore. 20 MR. ROESCH: When you say "this," you 21 have to refer to the exhibit. 22 A. I'm so sorry. Neither of these 23 documents, either the attachment to Exhibit 35 or 24 Exhibit 19 -- it is not my understanding that 25 that -- that those went to former employees. Page 84 1 Q. You were here for the whole -- pretty 2 much the whole testimony of Deborah Click, right? 3 A. Pretty much, yeah. 4 Q. Is there anything about her testimony 5 that you don't agree with? 6 MR. ROESCH: Objection to the form. 7 A. Oh, gosh. Not that I can recall. I 8 don't -- I don't remember. I mean, I know that 9 there were some -- there were some times when you 10 were discussing the legal entity issues and FEINs 11 and it may have been less than clear as far as the 12 legal structure. I'm not aware of Deborah giving 13 any incorrect information, though, about kind of the 14 substance of her area. 15 Q. Okay. Topic 7, you have been 16 designated for that, the scope, structure, and 17 background of defendants' business and operations? 18 A. Right. 19 Q. We've been through that, right? 20 A. I mean, to some extent. It's a big 21 company. 22 Q. I mean, Ashland Elastomers, LLC is a 23 subsidiary of Ashland Inc.? 24 A. It's an indirect subsidiary. There 25 are several legal entities in between it and Page 85 1 Ashland Inc. 2 Q. What would be those? 3 A. ISP Chemco is one of them. If you 4 look at the documents that are publicly filed, 5 associated with the sale of Elastomers, it includes 6 reference to ISP Chemco. ISP Chemco was a 7 subsidiary of International Specialty Products, 8 Inc., which again, Ashland Inc. purchased from GAF 9 in 2011. So there are at least two subsidiaries in 10 between Ashland Inc. and Ashland Elastomers when we 11 owned it. But Ashland Inc. was the ultimate parent 12 of Ashland Elastomers, LLC during the time that it 13 was part of our corporate structure. 14 Q. Okay. The ISP Chemco, okay. In 15 terms of -- are there Ashland -- are there 16 procedures and policies that went into effect at the 17 plant that were implemented, put out by 18 Ashland Inc. whenever it became Ashland Elastomers? 19 A. Sure. The employees became subject 20 to Ashland Inc.'s personnel policies. They became 21 part of some of our -- with the union facility. 22 Sometimes there are policies that are unique to the 23 facility and unique to that -- you know, they're 24 bargained over. But, you know, the overall umbrella 25 policies, the corporate codes and et cetera, Ashland Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 12 of 13 PageID #: 5166 Why am i receiving an additional pay correction check or direct deposit today? After the original calculations were made, we discovered that some of the punches that were used to make the calculations for the payment had been adjusted by supervisors, based on the payment tiles in place at the time, This was not known at the time of the original coriecuon payment Once we found that adjustments had been made in some cases, we dewrmined the process for pulling original punches and performed the analysis agaIn. We calculated the total payments again, compared them to the original payments, and this check or direct deposit represents the difference, All payments1 both live checks and direct deposits are dated 11-1-13. Can you explain how this is reflected on my pay stub? The portion of your payment that Is iciK eligible was paid under a wago code called MLSC-401K Elig. The penalty piece was paId using a wage code called MISC PAYMENT, How is this adjustment payment taxed? It Is taxed at a supplemental tax rate (25% for lederal wIthholding tax). Other required taxes have been withheld as well. Is this payment 401(k) elIgible? Yes and no. For the straight tIme and 01 pieces of the payout, O1.K was withheid at your current eledion amount and will be matched according to company policy. The penalty piece Is not 401K eligible. t have more questlnns...whom dat contact? Talk to your Texas City Human Resources group. They will address any concerns you have. Questions & Answers: Pay Correction-Operators ASHLAND 1288 Case 1:14-cv-00173-RC Document 146-1 Filed 06/27/17 Page 13 of 13 PageID #: 5167 “EXHIBIT B” Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 1 of 6 PageID #: 5168 64f67985-bb19-4ca4-a270-b469e6f70aff depos@simplecharlotte.com Charlotte Smith Reporting, Inc. Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION MICHAEL DAVID STUNTZ, ) INDIVIDUALLY AND ON ) BEHALF OF ALL THOSE ) SIMILARLY SITUATED ) ) Plaintiffs, ) C.A. No. 1:14-CV-000173 ) (RC) VS. ) ) ASHLAND ELASTOMERS, LLC; ) ISP SYNTHETIC ELASTOMERS, ) LP; ISP SYNTHETIC ) ELASTOMERS, LLC ) COLLECTIVE ACTION ) CLASS ACTION COMPLAINT Defendants. ) FRCP 23 ******************************************************** ORAL DEPOSITION OF PAULA G. SHARP DECEMBER 8, 2016 ******************************************************** ORAL DEPOSITION OF PAULA G. SHARP, produced as a witness at the instance of the PLAINTIFFS, and duly sworn, was taken in the above-styled and numbered cause on the 8th of December, 2016, from 10:03 a.m. to 5:10 p.m., before Mona S. Whitmarsh, CSR, in and for the State of Texas, reported by machine shorthand, at the law offices of Fisher & Phillips, LLP, 333 Clay Street, Suite 4000, Houston, Texas, pursuant to the Texas Rules of Civil Procedure and the provisions stated on the record or attached hereto. Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 2 of 6 PageID #: 5169 64f67985-bb19-4ca4-a270-b469e6f70aff depos@simplecharlotte.com Charlotte Smith Reporting, Inc. 6 (Pages 18 to 21) Page 18 1 A It would be the people on this page. 2 Q On Exhibit 2? 3 A Yes. 4 Q Well, on Exhibit 2, Tab 2? 5 A Yes. This management team. 6 Q So whenever you say, "policies, benefits, 7 401(k)s for the companies," what are "the companies"? 8 A The one -- well, let's see. The policies 9 would cover Vinmar International. They would cover -- 10 Q Are you saying, "Denmar" or "Vinmar"? 11 A "Vinmar." 12 Q V-i-n- -- 13 A -- -m-a-r. 14 Q Where is that located? 15 A The employees are all over the world. The 16 headquarters are in Houston. 17 Q What is Vinmar International's business or in 18 the business of? 19 A Distribution and it's plastics and chemicals. 20 Q All right. And then what was the next 21 company? 22 A The policies would be for the Port Neches 23 site, which is Lion Elastomers, and the Geismar, 24 Louisiana, site, which is Lion Copolymer. 25 Q Any others? Page 19 1 A No. 2 Q Where is the home office of Lion Elastomers 3 and Lion Copolymer? 4 A What do you mean by "home office"? The 5 sites -- Lion Elastomers' site is Port Neches, Texas. 6 Geismar is Geismar, Louisiana. 7 Q Well, you mentioned that Vinmar International 8 has employees all over the world and that they are based 9 in Houston. 10 A Vinmar is separate from Lion and Vinmar has -- 11 it's an international company based in Houston. 12 Q Vinmar is an international company based in 13 Houston. At what address? 14 A 16800 Imperial Valley Drive, Houston, 77060. 15 Suite 499. 16 Q Is that your office as well? 17 A Yes. 18 Q Does Lion Elastomers, LLC, have an office at 19 that address? 20 A No. 21 Q Lion Copolymer? 22 A No. 23 Q Lion Elastomers, LLC, of course, has the 24 address there in Port Neches where the plant is located, 25 right? Page 20 1 A Yeah. 2 Q And then Lion Copolymer has an address in 3 Geismar, Louisiana. Does Lion Elastomers have any other 4 addresses, or is it just strictly in Port Neches? 5 MS. VALDERRAMA: Objection, form. 6 A Port Neches. 7 Q (BY MR. FRASHER) All right. Who or what 8 individuals -- are there any individuals that are listed 9 on Exhibit 2, Tab 2, that we have gone over, the 10 management team, are any of those individuals owners of 11 Lion Elastomers, LLC? 12 A I don't know. 13 Q Are any of those individuals owners of Lion 14 Copolymer? 15 A I don't know. 16 Q And the same for Vinmar International? 17 A I don't know. 18 Q Who does payroll for Lion Elastomers, LLC? In 19 other words, who collects the punches and the badges and 20 generates payroll? 21 MS. VALDERRAMA: Objection, form. 22 A That would be Trudy at the office. 23 Q (BY MR. FRASHER) During the deposition of 24 Ashland's payroll officer, Deborah Click, she explained 25 that when an individual -- during Ashland's ownership of Page 21 1 the plant, when an individual would punch in at the 2 facility, those punches were recorded in Kronos, that 3 would upload to a server, and then they would do payroll 4 out of their office -- I believe it's in Kentucky or 5 Ohio, one of those offices. It wasn't at the plant. It 6 wasn't at the local level. 7 Did that change whenever Lion purchased the 8 facility? 9 MS. VALDERRAMA: Objection, form. 10 A Payroll wasn't done out of Ohio or Kentucky 11 anymore. 12 Q (BY MR. FRASHER) Where was it done out of? 13 A Port Neches. 14 Q So after Lion purchased the facility, you are 15 saying that there was no other entity involved with 16 recording hours worked and making payroll than Lion 17 Elastomers; is that correct? 18 MS. VALDERRAMA: Objection, form. 19 A Yes, correct. Port Neches does Port Neches 20 payroll. 21 Q (BY MR. FRASHER) Okay. And Goradia Capital 22 plays no part in recording hours worked or doing 23 payroll? 24 A That's correct. 25 Q Okay. And neither does Lion Copolymer? Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 3 of 6 PageID #: 5170 64f67985-bb19-4ca4-a270-b469e6f70aff depos@simplecharlotte.com Charlotte Smith Reporting, Inc. 7 (Pages 22 to 25) Page 22 1 A In Port Neches payroll? 2 Q Yes, ma'am. I'm just strictly talking about 3 the Port Neches plant right now. 4 So no other entity, other than Lion 5 Elastomers, LLC, records hours worked and generates 6 payroll? 7 A Cheryl Benoit does -- Cheryl and Trudy at Port 8 Neches, yes. 9 Q And they are both employees of Lion 10 Elastomers, LLC, correct? 11 A Yes. 12 Q All right. Have you ever been employed by 13 Lion Elastomers, LLC? 14 A No. 15 Q Have you ever had any sort of management or 16 oversight responsibility with regard to the Port Neches 17 plant? 18 MS. VALDERRAMA: Objection, form. 19 A No. I act as more of a consultant or guidance 20 for Trudy. 21 Q (BY MR. FRASHER) In Trudy's deposition, I 22 think she characterized it as she has a dotted line to 23 you, something along those lines. 24 Do you remember that? 25 A I don't remember that specific statement Page 23 1 but... 2 Q You are a resource for her? 3 A I am a resource. 4 Q Okay. And you understood that Trudy was 5 designated as a corporate rep on limited certain 6 subjects during her deposition? 7 Do you recall that? 8 A Yes. 9 Q And so let me go back to whenever I was asking 10 you what you did to prepare for your deposition. 11 When you met with Ms. Valderrama yesterday, 12 you understood she is the attorney for Lion Elastomers, 13 LLC, in this lawsuit? 14 A Yes. 15 Q Have you ever looked at the pleadings that's 16 been filed on behalf of Lion Elastomers, the answer to 17 the lawsuit? 18 A No. 19 Q Okay. Have you ever looked at any of the 20 discovery responses that either Mike Stuntz or Dwayne 21 Newman produced to Lion, to Lion's counsel? 22 MS. VALDERRAMA: Objection, form. 23 A No. 24 Q (BY MR. FRASHER) Have you ever done any sort 25 of your own independent investigation of the claims and Page 24 1 defenses in the case? 2 A No. 3 MS. VALDERRAMA: Objection, form. 4 Q (BY MR. FRASHER) So yesterday when you met 5 with Ms. Valderrama, what did y'all talk about? 6 MS. VALDERRAMA: Object to you responding 7 to questions that involve attorney work product, 8 attorney-client communication. 9 She testified that her role was to 10 obtain, in part, legal counsel, provide guidance, 11 general guidance, and she defined the "guidance" to 12 include legal assistance in that issue -- on those 13 issues. 14 So she clearly has a privilege, and the 15 communications we would have would also involve attorney 16 work product. It is communications that have occurred 17 after the instigation of litigation of one of the 18 affiliates that she is responsible for, so it's very 19 privileged. 20 Q (BY MR. FRASHER) How long have you been with 21 Goradia Capital? 22 A I was hired on January 19th, 2015. 23 Q Prior to Goradia, where did you work? 24 A I was -- I was retired for four years right 25 before Goradia. I actually started with Goradia as a Page 25 1 consultant from October 14th of 2014 until they hired 2 me. Before that, I was vice president of human 3 resources at Texas Petrochemicals Group. 4 Q Texas Petrochemicals Group? 5 A Yes. 6 Q Where are they located? 7 A Houston. 8 Q Okay. 9 A And before that, I was a senior HR director at 10 BP. 11 Q How long were you a senior HR director at 12 British Petroleum? 13 A Six and a half years. From 2000 to right at 14 2007. 15 Q As a senior HR director at BP, was part of 16 your responsibilities to engage outside counsel? 17 A Yes. 18 Q In the defense of claims? 19 A For some of them. We -- BP has a lot of 20 internal attorneys. 21 Q Right. 22 Did you play any role in the management of the 23 claims from the oil spill? 24 A Not specifically the management of the claims. 25 Q Go ahead. Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 4 of 6 PageID #: 5171 64f67985-bb19-4ca4-a270-b469e6f70aff depos@simplecharlotte.com Charlotte Smith Reporting, Inc. 10 (Pages 34 to 37) Page 34 1 A Correct. 2 Q And they continued to work there for some 3 amount of time, correct? 4 A Yes. Scott longer than Tom. Tom left, it 5 seems, pretty quickly after I started. 6 Q Why did Tom Rogers leave? 7 A Another job. 8 Q Was Tom asked to resign? 9 A No. 10 Q Are you aware of any claims made against Tom 11 that claimed he treated employees unfairly or 12 discriminatory or retaliatory, anything like that? 13 A Not that I am aware of. 14 Q At the time that you began working for Lion, I 15 guess you said you did some consulting work from October 16 to January of '15; is that right? 17 MS. VALDERRAMA: Objection, form. 18 A Yes, but I have never worked for Lion. 19 Q (BY MR. FRASHER) Okay. So from October to 20 January of '15 -- I think you said the 19th; is that 21 correct? 22 A Correct. 23 Q -- you were a consultant with Goradia, 24 correct? 25 A Yes. Page 35 1 Q Were you performing HR responsibilities for 2 Goradia? 3 A Yes. 4 Q And that included HR covering the Lion 5 Elastomers plant in Port Neches; is that right? 6 A It was from the standpoint of looking at 7 policies and benefits, that type of thing, yes. 8 Q Okay. 9 A Because it wasn't purchased until December 1st 10 of 2014. 11 Q Right. 12 After the purchase, were you made aware of any 13 claims against the company that involved claims for 14 unfair treatment of employees, retaliation, anything 15 like that, discrimination? 16 A After we purchased -- after it was purchased? 17 Q Yes. 18 MS. VALDERRAMA: I'm going to object to 19 the extent you had any communications with counsel on 20 that issue. 21 Anything that was not communications with 22 counsel, go ahead and answer. 23 A Yeah, I am thinking. 24 No, not that I recall. 25 Q (BY MR. FRASHER) When is the first time you Page 36 1 became aware of this lawsuit? 2 A I would have to remember that. I guess it was 3 when Lion was brought into it. I guess that was, what, 4 the summertime of '15 or something? 5 Q Right. I believe it was somewhere around 6 there. It may have been a little earlier. I don't 7 recall the date but... 8 A Me either. 9 Q Prior to that, were you aware that Ashland had 10 a lawsuit pending against it filed by Mike Stuntz and 11 Dwayne Newman seeking overtime wages on behalf of a 12 group of folks? 13 MS. VALDERRAMA: Objection, form. 14 A I don't remember that. 15 Q (BY MR. FRASHER) Okay. 16 (EXHIBIT 3 WAS MARKED.) 17 Q (BY MR. FRASHER) Exhibit 3 is a copy of the 18 lawsuit. The first page has -- 19 MS. VALDERRAMA: Can you give me a chance 20 just to look at it? 21 Q (BY MR. FRASHER) -- has got the service 22 information, and it is Ashland Elastomers, LLC. It was 23 filed back when Ashland Elastomers, LLC, owned the 24 plant, but it is this lawsuit. 25 Is it correct that the first time you learned Page 37 1 about this lawsuit was when Lion Elastomers was brought 2 into this lawsuit, brought into this case? Is that 3 correct? 4 A As I've said, that's what I remember. 5 Q When Lion Elastomers, LLC, purchased the 6 plant, you said that purchase was in December of... 7 A December 1st, 2014. 8 Q So as of December 1st, 2014, Scott Hardegree, 9 Tom Rogers, and Trudy Lord became employees of Lion 10 Elastomers, LLC; is that right? 11 A Right. 12 Q Okay. In fact, I believe all employees at 13 Lion Elastomers, LLC's location in Port Neches at that 14 point became employees of Lion Elastomers, LLC; is that 15 right? 16 MS. VALDERRAMA: Objection, form. 17 A No, I don't think so. 18 Q (BY MR. FRASHER) Who was there that was not an 19 employee of Lion Elastomers, LLC? 20 A There is some -- one person quit. I can't 21 remember his name, because it was -- I was not involved. 22 Another person that was in marketing was not made an 23 employee, but he was given a short-term contract for 24 transition. And that's what I remember. 25 Q So at the time that Ashland, the facility in Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 5 of 6 PageID #: 5172 64f67985-bb19-4ca4-a270-b469e6f70aff depos@simplecharlotte.com Charlotte Smith Reporting, Inc. 13 (Pages 46 to 49) Page 46 1 Court to decide. I would like to know if this witness 2 has any information or knowledge concerning 3 communications that would be the basis for a good-faith 4 defense. 5 So with that, I will ask the witness. 6 Q (BY MR. FRASHER) In terms of doing any sort of 7 investigation or research into whether or not Lion 8 Elastomers was complying with the FLSA, were you a party 9 to any of that research or investigation? 10 MS. VALDERRAMA: And the instruction is: 11 If it's anything you did with counsel or at the 12 instruction of counsel, you are instructed not to answer 13 the question, but you are free to respond with respect 14 to anything you may have done, other than communications 15 or at the direction of counsel, either inside counsel or 16 outside counsel. 17 A No. 18 Q (BY MR. FRASHER) Is the only communication or 19 the only research or investigation that you would have 20 had any participation in, in regards to whether or not 21 Lion Elastomers was -- has been in compliance with the 22 FLSA since the purchase of the facility in December, 23 '15, is the only communication or investigation -- or 24 the only research or investigation would have been done 25 with counsel; is that right? Page 47 1 A Yes. 2 Q And you are not going to answer the question 3 as to whether -- as to what the substance of that was? 4 MS. VALDERRAMA: She is being instructed 5 not to answer that question. 6 Q (BY MR. FRASHER) Is that correct? 7 A No. 8 MS. VALDERRAMA: You are going to follow 9 my instructions. 10 Q (BY MR. FRASHER) Is that correct? You are not 11 going to answer those questions, right? 12 A No. 13 Q Okay. And the reason you are not, Ms. Sharp, 14 is because Ms. Valderrama, the attorney for Lion, is 15 telling you not to do that. 16 MS. VALDERRAMA: The attorney for Lion, 17 the attorney for Goradia. 18 Q (BY MR. FRASHER) Is that correct? 19 A Yes. 20 Q And you understand Goradia is not a party in 21 the case, right? 22 A Yes. 23 MS. VALDERRAMA: We have been at it for 24 about an hour, so when you get to a stopping point, it 25 would be a nice time to take a break. Page 48 1 Q (BY MR. FRASHER) The timing of these 2 attorney-client communications would not have occurred 3 until after you learned about the lawsuit; is that 4 right? 5 A Yes. 6 Q And you are not here as a corporate rep today, 7 correct? 8 A Correct. 9 Q But part of your roles and responsibilities as 10 the -- well, strike that. 11 You are the chief HR person for Goradia, 12 correct? 13 A Yes. I am the only HR person in Goradia 14 Capital. 15 Q And Trudy Lord is the -- as I understand it, 16 is the senior HR person at the plant, at Lion 17 Elastomers, LLC, correct? 18 A Yes. 19 Q And do you have to -- you -- is there any -- 20 well, let's just talk in terms of the termination of 21 Mike Stuntz. 22 MS. VALDERRAMA: Do you want to take a 23 break before we start a new topic, or do you want to -- 24 MR. FRASHER: It's not really a new 25 topic. Page 49 1 MS. VALDERRAMA: All right. Fine. 2 MR. FRASHER: We can take a break in just 3 a minute. 4 Q (BY MR. FRASHER) In terms of the relationship 5 between you and Trudy Lord and your job, your job 6 titles, does she have to get authorization from you -- 7 or did she have to get authorization from you to -- or 8 did anyone at the plant have to get authorization from 9 you or anyone at Goradia to terminate Mike Stuntz? 10 MS. VALDERRAMA: Objection, form. 11 A No. 12 Q (BY MR. FRASHER) Okay. Did Lion Elastomers or 13 anyone -- any employees of Lion Elastomers -- Trudy 14 Lord, Tom Rogers, Scott Hardegree -- were they required 15 to get authorization to deny the grievance that 16 concerned -- that was as a result of the termination of 17 Mike Stuntz? 18 A No. 19 Q So Lion Elastomers -- Trudy Lord, Scott 20 Hardegree -- however they handled it locally, they could 21 deny -- they could terminate Mike Stuntz and they could 22 deny his subsequent grievance without authorization from 23 Goradia; is that correct? 24 A Correct. 25 MR. FRASHER: We can take a break. Case 1:14-cv-00173-RC Document 146-2 Filed 06/27/17 Page 6 of 6 PageID #: 5173 “EXHIBIT C” Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 1 of 14 PageID #: 5174 1 (Pages 1 to 4) Jan Girouard & Associates, LLC 409.832.2721 1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE EASTERN DISTRICT OF TEXAS 3 BEAUMONT DIVISION 4 MICHAEL DAVID STUNTZ, ) INDIVIDUALLY AND ON BEHALF OF ) 5 ALL THOSE SIMILARLY SITUATED ) ) 6 Plaintiffs, ) ) 7 VS. ) C.A. NO. 1:14-CV-000173 ) (RC) 8 ASHLAND ELASTOMERS, LLC; ) ISP SYNTHETIC ELASTOMERS, LP; ) 9 ISP SYNTHETIC ELASTOMERS, LLC;) ET AL. ) 10 ) Defendants. ) 11 12 ********************************************* ORAL DEPOSITION OF 13 DWAYNE ARNOLD NEWMAN 14 October 26, 2015 15 ******************************************** 16 ORAL DEPOSITION of DWAYNE ARNOLD NEWMAN, produced 17 as a witness at the instance of the Defendant, and duly 18 sworn, was taken in the above-styled and numbered cause 19 on the 26th of October, 2015, from 10:00 a.m. to 8:03 20 p.m., before Dianna L. Edwards, CSR in and for the State 21 of Texas, reported by machine shorthand at the offices 22 of Reaud, Morgan & Quinn, LLP, 801 Laurel Street, 23 Beaumont, Texas 77701, pursuant to the Federal Rules of 24 Civil Procedure and the provisions stated on the record 25 or attached hereto. 2 1 A P P E A R A N C E S 2 FOR THE PLAINTIFF(S) MICHAEL DAVID STUNTZ, INDIVIDUALLY AND ON BEHALF OF ALL THOSE SIMILARLY SITUATED: 3 Mr. Mark Frasher REAUD, MORGAN & QUINN, LLP 4 801 Laurel Street Beaumont, Texas 77701 5 FOR THE DEFENDANT(S) ASHLAND ELASTOMERS, LLC; ISP 6 SYNTHETIC ELASTOMERS, LP; AND ISP SYNTHETIC ELASTOMERS, LLC: 7 Mr. Charles M. Roesch Mr. Jason W. Hilliard 8 DINSMORE & SHOHL, LLP 255 East Fifth Street, Suite 1900 9 Cincinnati, OH 45202 10 FOR THE DEFENDANT(S) LION ELASTOMERS: Ms. Teresa S. Valderrama 11 FISHER & PHILLIPS, LLP 333 Clay Street, Suite 4000 12 Houston, TX 77002 13 ALSO PRESENT: Trudy Lord, Lion Elastomers Representative 14 Paula S. Sharp, Goradia Capital LLC Representative Mr. Michael Stuntz, Plaintiff 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X 2 Page 3 Appearances.................................... 2 4 DWAYNE ARNOLD NEWMAN 5 Examination by Mr. Roesch................. 5 6 Examination by Ms. Valderrama............. 244 7 Examination by Mr. Frasher................ 328 8 Reexamination by Mr. Roesch............... 362 9 Changes and Signature.......................... 372 10 Reporter's Certificate......................... 374 11 EXHIBITS 12 NO. DESCRIPTION PAGE 13 1 Plaintiffs' First Amended Collective Action Complaint and Class Action 14 Complaint Under FRCP 23 96 15 2 Plaintiff's Responses and/or Objections to Defendant, Ashland Elastomers, LLC's 16 Request for Production 96 17 3 Plaintiff's Responses and/or Objections to Defendant, Ashland Elastomers, LLC's 18 Interrogatories 96 19 4 Mr. Newman's time records for 2011, 2012, and 2013 114 20 5 United Steelworkers Grievance Report, 21 dated May 28, 2013 146 22 6 Letter to Richard "Hoot" Landry from Trudy Lord, dated June 3, 2013 160 23 7 Document entitled, "Questions & Answers: 24 Pay Correction and Change in Pay Rules - Operators" 198 25 4 1 8 Letter to Whom It May Concern from Trudy Lord, dated September 19, 2013 212 2 9 Payout records for Dwayne Newman 215 3 10 Letter to Scott Hardegree from United 4 Steelworkers, dated September 24, 2013 226 5 11 Payout records for Kory Manuel 240 6 12 Collective bargaining agreement in effect from July 1, 2010, to June 30, 2014, at the 7 Port Neches facility 244 8 13 Plaintiff's Responses and/or Objections to Defendant, Lion Elastomers, LLC's 9 Interrogatories 24 10 14 Plaintiff's Responses and/or Objections to Defendant, Lion Elastomers, LLC's 11 Request for Production 246 12 15 Interoffice correspondence to Michael Stuntz from Tom Rogers, dated September 13 30, 2014, Last Chance Agreement 269 14 16 ISP Port Neches Plant Attendance Policy, dated 9/15/03, revised 1/17/14 293 15 17 United Steelworkers Grievance Report, 16 dated 2/2/15 294 17 18 ISP Port Neches Plant Attendance Policy, dated 9/15/03, revised 1/17/14 329 18 19 Form entitled, "Grievance Procedure," 19 dated 2/2/15 329 20 20 Form entitled, "Grievance Procedure," dated 2/10/15 329 21 21 Plaintiffs' First Amended Collective 22 Action Complaint and Class Action Complaint Under FRCP 23 350 23 24 25 Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 2 of 14 PageID #: 5175 11 (Pages 41 to 44) Jan Girouard & Associates, LLC 409.832.2721 41 1 air, whatever it may be. 2 Q. Okay. So, then let's kind of stick with on a 3 normal day. Would the PPE that you're normally going to 4 wear for your job be the steel-toed shoes, the hard hat, 5 the glasses? Do you wear fire retardant clothing? 6 A. That is the coveralls. 7 Q. Coveralls? 8 A. Yeah. And they're -- you can either have 9 coveralls or pants and a shirt. 10 Q. And then is there anything else? Would you 11 normally wear earplugs? 12 A. Yes, in specific areas. 13 Q. For your job would you be wearing them? 14 A. In specific areas. 15 Q. Of the facility? If you go into specific 16 areas of the facility, I guess what you're telling me, 17 you have to have earplugs to go into those areas? 18 A. Yeah. We have posted signs in there that will 19 tell us "You're entering a high noise area. You have to 20 have ear protection." 21 (BRIEF INTERRUPTION WHEN MR. MICHAEL 22 STUNTZ ENTERS DEPOSITION.) 23 Q. (BY MR. ROESCH) So, we were talking about 24 earplugs. So, you put the earplugs in when you go to a 25 specific designated area of the facility; and then you 42 1 can take them back out once you leave that area. Is 2 that what you're telling me? 3 A. If I'm -- if I'm in central control, I'm 4 inside a pressurized control room. I don't have to have 5 earplugs in. 6 Q. Uh-huh. 7 A. If I walk out into a reactor on the first 8 floor, I do have to have earplugs in. If I go to the 9 second and third floor, I don't. Depending on the -- 10 I'm not sure exactly what they called it -- the decibels 11 of noise or how high it is. It's already been 12 preestablished -- 13 Q. What areas? 14 A. -- through testing. 15 Q. What areas have to -- what areas of the 16 facility require people to have earplugs has been 17 preestablished? 18 A. Correct. 19 Q. And, so, let's kind of go back to what I was 20 asking. I think I'm right. If you go into that area, 21 you have to put your earplugs in before you go into that 22 area; and then once you leave those designated areas, 23 you can take the earplugs back out. Is that correct? 24 A. Yes. You have a choice. 25 Q. What do you mean "You have a choice"? 43 1 A. Well, you may walk out of that area and you 2 may want to leave your earplugs in. 3 Q. Oh, okay. I thought you were talking about on 4 the way in, and I was kind of guessing -- 5 A. No. 6 Q. -- you don't have a choice -- 7 A. I'm just saying that a lot of times that 8 it's -- you're doing this (indicating) constantly all 9 day long. Sometimes people choose to continue to have 10 them in. 11 Q. Sure. Okay. So, kind of where we started it, 12 we were talking about for normal days -- 13 A. Excuse me. 14 Q. -- you're going to have your steal-toe shoes; 15 your hard hat; your glasses; your clothing -- protective 16 clothing, whether it's coveralls or pants and a shirt; 17 and then potentially earplugs. Is there anything else 18 that you would have as PPE on a normal day? 19 A. Did I say "hard hat"? 20 Q. Yes. 21 A. Okay. I think I've covered everything. 22 Q. All right. 23 A. I think. 24 Q. Let's kind of go through a normal day for you 25 at work and what you would do so I can kind of get an 44 1 understanding of what happens in your position. What 2 shift do you typically work? 3 A. I'm a shift worker. I work a 12-hour rotating 4 shift. 5 Q. How often does it rotate? 6 A. Every week. 7 Q. And what are the 12-hour shifts? 8 A. We work 36 hours one week, 48 the next, back 9 and forth. 10 Q. Do you have a standard time that you come to 11 work? 12 A. Yes. 13 Q. What is your shift time? I know it changes 14 each week but -- 15 A. By the contract is says that the start/stop 16 time is 5:00, 5 to 5. 17 Q. And let's just start like with -- with this 18 week. Are you on 5 a.m. to 5 p.m. or the opposite? 19 A. I just got through working days. This weekend 20 is 5 a.m. to 5 p.m. 21 Q. All right. So, there's essentially two shifts 22 that you work. It's either 5 a.m. to 5 p.m. or 5 p.m. 23 to 5 a.m., correct? 24 A. Uh-huh. 25 Q. You've got to give her a verbal. Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 3 of 14 PageID #: 5176 13 (Pages 49 to 52) Jan Girouard & Associates, LLC 409.832.2721 49 1 Q. So, you -- I think what you're telling me is 2 you take those home with you and then back to the plant; 3 is that correct? 4 A. Correct. 5 Q. Okay. So, you're telling me you leave at 6 4:10. It takes you five or so minutes to get to the 7 facility. Where do you park? 8 A. I park in the main parking lot right adjacent 9 to the main gate. There's actually two different 10 parking lots. One is for the salaried employees and the 11 wage employees, and then there is another parking lot to 12 the north of the main gate that is for the contractors. 13 Q. You're talking about outside contractors who 14 are working at the facility? 15 A. Yes, sir. 16 Q. So, you park in the first of the two lots you 17 were describing; is that correct? 18 A. Correct. 19 Q. Okay. And how long does it take you to go 20 from the parking lot to the main gate? 21 A. Depends on what parking spot I get. If I 22 normally get my parking spot that I normally park in, it 23 takes me about a minute. 24 Q. Okay. So, you get to the gate. And do you 25 have to do some type of a badge to get through the gate, 50 1 or is this a gate that you can simply walk through? 2 A. If I get to the gate at 4:15, I'm not allowed 3 to go into the plant until 4:30. So, there is a table 4 with four benches surrounding it outside the front gate 5 where most of the employees kind of gang up together; 6 and we talk about the upcoming events of the day. 7 Q. And how long has that been the procedure? 8 A. It's not a procedure. 9 Q. Well, how long have you followed that process, 10 whatever you want to call it, routine where you can't 11 come into the facility until 4:30 and, so, you sit at 12 the table? 13 A. For as long as I can remember. 14 Q. So, it would have been back through the time 15 frame when Ashland was running the facility. Would that 16 be correct? 17 A. Correct. 18 Q. Okay. So, you're sitting out there at the 19 bench. At that point -- and at 4:30 you get to go 20 through the gate; is that correct? 21 A. Yes. 22 Q. Do you get to walk through the gate or do you 23 have to do some badge to get through the gate? 24 A. You have to do a badge similar to this 25 (indicating), bar code on the back, says who I am, what 51 1 time I'm coming in. 2 Q. Is there security at that gate? 3 A. Yes. 4 Q. So -- - so, you have to badge in to have 5 entrance to the facility? 6 A. Correct. 7 Q. And how long has that been the case? 8 A. Kronos system was put in right after ISP 9 bought us. I would say that was sometime in between 10 2003, maybe a little bit later than that, maybe 2004. 11 I'm not quite sure exactly what that time was but 12 somewhere in that time frame. 13 Q. So, you had to badge in somewhere in the 2003, 14 2004 time frame coming forward, correct? 15 A. If I'm correct on when the bankruptcy 16 procedures went through, most of the employ -- some of 17 the employees were hired back; some were not. There was 18 a lot of different things going on. At the very first 19 part of ISP, the employees were filling out their time 20 sheets on a piece of paper. 21 Q. Okay. I'm just trying to understand. You 22 told me that you have to badge in at approximately 4:30 23 to get access to the facility. I'm just trying to 24 understand how long that's been in place. And I thought 25 you told me 2003-type time frame. 52 1 A. As I recall it, it was somewhere in that time 2 frame. 3 Q. Okay. All right. So, now you've badged in. 4 And what do you do from there coming through that gate? 5 A. I walk to the shower room. 6 Q. And how long does it take you to walk to the 7 shower room from the badge-in gate? 8 A. Thirty, forty-five seconds. 9 Q. And then what do you do once you get to the 10 shower room? 11 A. I unlock my locker, get my shoes, my hard hat 12 out, start getting -- putting my clothes on, getting 13 ready to go to work. 14 Q. And how long does it take you to go through 15 that process to get your -- unlock your locker, get your 16 shoes and your hard hat and your clothes? 17 A. Sometimes it depends. It depends on if I come 18 to work -- there's been instances where employees have 19 come to work, went into their -- we have several -- we 20 have two different sets of lockers. One is our own 21 personal locker. The other locker is the coverall 22 locker where our FRCs are, our clothing that Munro's or 23 whoever the carrier is that does the cleaning, the 24 laundering. And they go there and open up their locker, 25 and they have no coveralls. So, then they may have to Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 4 of 14 PageID #: 5177 14 (Pages 53 to 56) Jan Girouard & Associates, LLC 409.832.2721 53 1 go back to the front gate to get a alternate pair of 2 coveralls to use for that day. 3 Q. Okay. So, let's take first a day where Munro 4 has coveralls available to you. So, how long does it 5 take you to go through the process of obtaining your 6 coveralls, putting them on, with your shoes and your 7 hard hat? 8 A. Five to ten minutes. 9 Q. And on a day when Munro doesn't have the 10 coveralls available, how long will it take you to go 11 through the process? 12 A. That could be a wide area there. 13 Q. What would the range be? 14 A. I'm not sure. There's been times when it 15 could be done quickly, depending on the availability and 16 where the coveralls are kept and if any are available. 17 Q. I'm just trying to understand what the range 18 would be here. 19 A. It could be as early as 10 minutes. It could 20 be as late as 30 minutes. 21 Q. Okay. So, now you've got your clothing on. I 22 assume you lock your locker; is that right? 23 A. I try to. 24 Q. And then what's the next thing you do? 25 A. I need you to ask that question again -- 54 1 Q. Sure. 2 A. -- please. Please. 3 Q. So, we've gotten to the point where you've -- 4 you put your coveralls on and your shoes. You've got 5 your hat. And my question -- and you've locked your 6 locker. And my question is: What do you do next? 7 A. Okay. Can I -- 8 THE WITNESS: Can I ask a question? 9 MR. FRASHER: If you don't understand, 10 you know, if you need him to clarify, yeah. 11 A. Okay. The clarification I need is that is 12 this prior to the Kronos clocks being changed from the 13 front gate to the new area that they're at now? 14 Q. (BY MR. ROESCH) Well, first of all, tell me 15 what happened; and then we'll go through, I guess, prior 16 and after. But I need the record to be clear when 17 you're talking about the clocks being moved so when 18 someone reads the record they understand what you're 19 talking about here. 20 A. Okay. So, you want me to address the first 21 scenario first? 22 Q. No. I want you to -- you made reference to 23 the fact that the -- the Kronos clocks were moved. Tell 24 me where they were and where they were moved to. 25 A. Okay. They were moved from the front gate 55 1 past the shower rooms down into a building that is 2 called the "Densmore building." 3 Q. Okay. So, as I understand what you're telling 4 me, that at some point the time clocks were at the front 5 gate, correct? 6 A. They had always been at the front gate until 7 after FLSA. 8 THE REPORTER: After what? 9 THE WITNESS: FLSA. 10 Q. (BY MR. ROESCH) What is FLSA? 11 A. Fair Labor Standard Act. 12 Q. Okay. 13 A. When all that came into -- 14 Q. All right. 15 A. That's my short version of it, I guess. 16 Q. I've never heard it referred to that way. So, 17 we can agree at one point for a long time the time 18 clocks were at the front gate where you badge in, 19 correct? 20 A. They were always at the front gate. 21 Q. And at some point you're telling me the time 22 clocks were moved to a different location, correct? 23 A. That's correct. 24 Q. And that location to which they were moved is 25 past the shower room to a building called the "Densmore 56 1 building"? 2 A. Yes, sir. 3 Q. Okay. So, now to get to your time clock, as I 4 understand what you're telling me, you badge in to have 5 access to the facility, correct? 6 A. Correct. 7 Q. You go to the locker room/shower room; and 8 then you continue on past the shower room/locker room to 9 actually clock in in the Densmore building, correct? 10 A. Correct. 11 Q. So, as I understand what you're telling me 12 now, your time is being kept as of the time frame when 13 you clock in at the Densmore building; is that correct? 14 A. Yes. 15 Q. Okay. All right. So, you were telling me 16 that you needed to know which one of these versions we 17 were talking about before you could answer my prior 18 question. So, let's talk about before the clocks were 19 moved -- the time clocks were moved to the Densmore 20 building. All right? So, we're pre that move. 21 A. Okay. 22 Q. So, now you've -- you've finished putting on 23 your clothes. You've locked your locker. What do you 24 do next? 25 A. I leave, go outside and get on my bike, and I Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 5 of 14 PageID #: 5178 21 (Pages 81 to 84) Jan Girouard & Associates, LLC 409.832.2721 81 1 foreman likes numbers to look like this. So, he's 2 making changes based on what he wants and what he sees. 3 Q. And then you have to make relief at the end of 4 your shift? 5 A. Yes. 6 Q. Just like at the beginning? 7 A. Correct. 8 Q. What time would you start that? 9 A. As of today or -- 10 Q. No. We're -- 11 A. -- what we're doing now? 12 Q. Yeah. I think we're still in the time frame 13 before the clocks were moved. 14 A. Before the clocks? Normally that guy gets in 15 around 4:45. Some of them get there earlier. Some get 16 there a little bit later. And we, you know, are telling 17 them what has been going on throughout the day. 18 Q. You go through the same process? 19 A. The same process. 20 Q. Okay. 21 A. I've got a pump that I've taken out of 22 service. I've locked it out. I haven't done any line 23 breaks on it yet; so, you've got to get this ready and 24 that ready. 25 Q. Okay. So, now you've finished relief. And 82 1 what do you do? 2 A. I get my belongings and start my way to the 3 front gate. 4 Q. And I assume on your bike; is that correct? 5 A. Yes, sir. 6 Q. And how long does it take you to get to the 7 front gate on your bike from your work site? 8 A. Three to five minutes, sometimes longer, like 9 yesterday when it was pouring down rain. 10 Q. Okay. Then you get to the front gate, and you 11 had to badge out because, again, we're still on the 12 frame before the clocks were moved. 13 A. Right. 14 Q. And you have to badge out, correct? 15 A. Correct. 16 Q. So, do you go straight from your work site to 17 the front gate? 18 A. No. 19 Q. Okay. So, you go to -- from your work site, I 20 thought you told me you go to -- to the gate on your 21 bike. Where do you go? 22 A. I go to where we park our bikes by the shower 23 room. I go into the shower room and take off my PPEs 24 and put them in my locker. 25 Q. Okay. How long does that take? 83 1 A. That also depends on if I've gotten any kind 2 of chemicals on me that day. I may take a shower. I 3 may not. 4 Q. Well, let's talk about -- how long does it 5 take you to take off your coveralls? 6 A. If you were helping me, maybe a minute. 7 Q. I'm not sure why I would be helping you but -- 8 A. Several minutes to try to get them off because 9 they're so tight, and you've got to get both sides and 10 try to wiggle out of them. A minute or two to get out 11 of those. 12 Q. Okay. A minute or two? Okay. So, you take 13 off your coveralls. What do you do with them? 14 A. Sometimes if they're dirty, I'm going to have 15 them laundered. If they're not, I will wear them home. 16 Q. And do you get to make that decision on 17 whether or not to have them laundered or wear them home? 18 A. Yes. There's -- there's no policy in place 19 where the plant has where they restrict employees from 20 leaving the facility with their coveralls on or their -- 21 their PPEs. 22 Q. That applies to all the PPEs? 23 A. Correct. 24 Q. So, with regard to all their PPEs, the 25 employees have the option of either -- either leaving 84 1 them at the facility or taking them home? 2 A. Correct. As I think I stated earlier in the 3 deposition, it was -- it was recommended -- this was 4 brought up in a recent JRC, where it was brought up and 5 we saw it in red, that the company recommends that you 6 launder your coveralls and have them washed and stuff 7 like that; but there's no policy that says you must get 8 out of your coveralls and have them laundered and you go 9 home in your privies. 10 Q. Yeah. And what you've indicated to me is that 11 at times if yours are not dirty, then you make the 12 choice to wear them home, correct? 13 A. Correct. 14 Q. And if -- and if they are dirty, then you'll 15 leave them to be laundered. 16 A. Correct. I'll take a shower and clean off if 17 I think I need to clean up because I've got some stuff 18 on me. 19 Q. And how long does it take you to take a 20 shower? 21 A. Ten to fifteen minutes, twenty minutes. 22 Q. How often in a given week do you normally 23 shower at the facility? 24 A. Maybe once, maybe twice. It's undetermined. 25 It depends on what happens that day. Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 6 of 14 PageID #: 5179 22 (Pages 85 to 88) Jan Girouard & Associates, LLC 409.832.2721 85 1 Q. In -- in the instances when you're not 2 showering at the facility those four to -- three to 3 four days, are you wearing your PPEs home? 4 A. My coveralls. I won't take my hard hat and my 5 shoes. 6 Q. How many sets of PPEs are you -- or 7 coveralls -- I'm sorry -- are you provided? 8 A. We're supposed to have eight pair. At the 9 present time right now, I have four. 10 Q. How often in a given month would you come and 11 not have coveralls available? 12 A. Numerous times. I don't know exactly how many 13 times. Numerous times. 14 Q. Do you sometimes have your coveralls laundered 15 at home? 16 A. Yes. 17 Q. And that's permitted? 18 A. (No response.) 19 Q. That's permitted, correct? 20 A. That's permitted by me or permitted -- 21 Q. No. The company allows you to make that 22 decision to do that. In other words, you're not -- 23 you're not breaking any rules or violating any rules by 24 making the decision to launder your coveralls at home, 25 correct? 86 1 A. No, I'm not breaking any rules. 2 Q. All right. So, we've gotten to the point 3 where you've finished showering on the days when you 4 take a shower. Otherwise, you've told me generally 5 you'll wear your -- your coveralls home. How long does 6 it take you to get from the shower room to the front 7 gate? 8 A. Thirty to forty seconds, forty-five seconds. 9 Q. And then you used to badge out at the front 10 gate, correct? 11 A. Correct. 12 Q. And then I assume five minutes again to get 13 home? 14 A. Normally. 15 Q. Approximately? Okay. Now, at a certain point 16 you indicated to me that the time clocks were moved from 17 the front of the facility to the Densmore building. Do 18 you recall that? 19 A. Yes. 20 Q. Okay. So, in terms of the process of going to 21 your work site after the time clocks were moved to the 22 Densmore building, I assume you still do the same thing 23 in terms of getting ready to come to work; is that 24 correct? 25 A. Correct. 87 1 Q. The same thing in terms of getting to the 2 front gate, correct? 3 A. Correct. 4 Q. And now you're simply badging in to get access 5 to the facility as opposed to time-clocking, correct? 6 A. We were told that the front gate would now 7 became a head count purpose only. 8 Q. So, it's not a time clock, correct? 9 A. I -- I assume that it's not a time clock. 10 Q. Okay. That's what they've indicated to you? 11 A. Right. 12 Q. Okay. So, then you go from that badge entry 13 at the front gate to the locker room again; is that 14 correct? 15 A. Uh-huh. 16 Q. I need a yeah -- I need a verbal. 17 A. Yes. 18 Q. And the same process, I assume, you're 19 utilizing in the shower room as you described 20 previously; is that correct? 21 A. Correct. 22 Q. Okay. So, now you're leaving the shower room. 23 And tell me what happens from there under the system as 24 it exists once the time clocks were moved to the 25 Densmore building. 88 1 A. We normally go outside, get on our bikes. 2 We've got guys walking. We walk down the sidewalk. 3 Some people are standing outside. We're talking about, 4 you know, what we've been hearing about, what's been 5 going on in the plant. We're waiting because we cannot 6 punch in until 4:55. 7 Q. Where are you waiting? 8 A. We're waiting right there at the Densmore 9 building. We're normally sitting -- it depends on 10 temperature. If it's hot hot, sometimes we get up 11 against the building because there's shade there and we 12 stand there by the building and we're talking about what 13 we've been hearing that's been going on in the facility. 14 The process foreman will come down the sidewalk in his 15 scooter before we've punched in, and he is informing a 16 lot of the process hands of where they'll be going to 17 work that day because we change often. 18 With the amount of reactor trains we have 19 running now and the amount of lines we have running now, 20 we're constantly shutting this line down, cranking these 21 lines up; and then people are being instructed to go to 22 different areas. So, that foreman will come there 23 before we punch in and tell them where they're going to 24 be going that day. 25 Q. Then you punch in at the Densmore clock? Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 7 of 14 PageID #: 5180 49 (Pages 193 to 196) Jan Girouard & Associates, LLC 409.832.2721 193 1 Q. Okay. So, 5 is one of the provisions that the 2 complaint asserts was agreed to between the parties, 3 correct? 4 MR. FRASHER: Objection; form. 5 A. We did not agree with the company to relocate 6 the clocks. 7 Q. (BY MR. ROESCH) Does the complaint indicate 8 that that agreement was made? 9 MR. FRASHER: Objection; form. 10 A. That's what it says. 11 Q. (BY MR. ROESCH) Okay. All right. The 12 complaint also indicates that the agreement is contained 13 in Exhibit D; isn't that true? See the references at 14 the end of each one of the subparagraphs 1 through 5 say 15 "See Exhibit D, Terms of Settlement"? 16 A. Yes. 17 Q. Okay. Can you look back on your exhibit and 18 find exhibit -- or I'm sorry -- on your complaint and 19 find Exhibit D? 20 A. Is it in the back? 21 Q. Yes, sir. 22 A. Do you have any idea what page? 23 Q. It's here. It's got a big reference like that 24 right before. 25 A. Oh, okay. 194 1 Q. It says "Exhibit D." 2 A. Okay. 3 Q. Do you want to take a minute to read that, or 4 are you familiar with this document? 5 A. I'm familiar with this document. This was 6 handed out with the checks. 7 Q. Okay. When we look at the complaint, it 8 specifically indicates that the agreement negotiated 9 between the union and the company is Exhibit D, correct? 10 MR. FRASHER: Objection; form. 11 A. That's what it says. 12 Q. (BY MR. ROESCH) Okay. So, let's look at 13 Exhibit D. Look at the bottom part of Exhibit D on the 14 first page. 15 A. At the very bottom? 16 Q. Yes. I mean, this is the agreement that is 17 being claimed has been reached with the company and the 18 union, correct? 19 MR. FRASHER: Objection; form. 20 A. That's what it says. 21 Q. (BY MR. ROESCH) Okay. That's what your 22 complaint alleges, correct? 23 MR. FRASHER: Objection; form. 24 A. If that's your interpretation of it. 25 Q. (BY MR. ROESCH) I'm sorry? 195 1 A. If that's your interpretation of it. 2 Q. Well, I guess all I'm doing is going off of -- 3 if we look at paragraph 19.1, it says, "See Exhibit D, 4 Terms of Settlement." 5 A. That was the terms of the settlement. 6 Q. Okay. Exhibit D is the terms of the 7 settlement. 8 A. That was the terms of -- 9 MR. FRASHER: Objection; form. 10 A. That was the terms of the settlement until the 11 payout was made, and it was found out that the payouts 12 were not correct. 13 Q. (BY MR. ROESCH) All right. I understand. 14 A. Which they violated that. 15 Q. Okay. And I'll get -- 16 A. So, the -- so, the six minutes -- throw it 17 out. We go back to one minute. You violated the 18 agreement. 19 Q. Okay. I'll get to the payouts and whatnot. 20 But we have to establish what the agreement was and what 21 is -- you're asserting in the complaint is the agreement 22 reached between the company and the union is Exhibit D, 23 correct? That's the negotiated agreement. 24 A. That's what it says. 25 MR. FRASHER: Objection; form. 196 1 Q. (BY MR. ROESCH) Well, I understand that's 2 what it says. That's what you're asserting in the 3 complaint, correct? 4 MR. FRASHER: Objection; form. 5 A. That's what it says. 6 Q. (BY MR. ROESCH) Okay. All right. So, then 7 let's look at the bottom part of Exhibit D. The last 8 section says, "Are my pay rules changing going forward?" 9 Says, "Yes, going forward you'll be paid as follows:" 10 You see that? Then it continues over. And then there 11 are three dot point -- or three points over there on the 12 second page, correct? 13 A. Yes. 14 Q. And it says that "The time clocks located at 15 the gate will use -- will be used only to allow entrance 16 and exit from the plant," correct? 17 A. Yes. 18 Q. So, it -- after the point of this agreement, 19 the time clocks at the gate are going to just be used to 20 badge into the facility, correct? 21 A. That was the agreement. 22 Q. Okay. And then the second provision says, 23 "You're assigned certain time clocks that you may use to 24 record your time worked. They are located closer to 25 your work area, and they will eliminate the need for any Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 8 of 14 PageID #: 5181 86 (Pages 341 to 344) Jan Girouard & Associates, LLC 409.832.2721 341 1 you do not see on the original. 2 Q. When you say you see James Mosley's signature, 3 you're -- you're referring to Exhibit 19 under the first 4 step; is that correct? 5 A. That's correct. 6 Q. Okay. And you're saying you don't see 7 Mr. Mosley's signature on Exhibit 20 under the first 8 step. 9 A. No, I don't. 10 Q. So, according to Exhibit 19, does Exhibit 19 11 indicate that on the first step -- the first step -- in 12 the first step of the process of the grievance 13 procedure -- 14 A. Uh-huh. 15 Q. -- the first step was denied. Is this what 16 this Exhibit 19 indicates? 17 MS. VALDERRAMA: Objection; form. 18 A. That's what it says on Exhibit 19, is that the 19 first step is denied. 20 Q. (BY MR. FRASHER) Okay. And it's denied by -- 21 who -- who signs it on behalf of the company? 22 A. James Mosley. 23 Q. All right. When you look at Exhibit 20, 24 that's dated February 10th, 2015. 25 A. Correct. 342 1 Q. All right. At least according to Exhibit 20, 2 there has not been a response from the company as of 3 February 10th; is that correct? 4 A. Correct. 5 Q. What -- what, Dwayne, does -- do the 6 inconsistencies indicate to you, if anything, between 7 the Exhibits 19 and 20? 8 A. What does it indicate to me? 9 Q. Yes, sir. 10 A. Is that there was a process going on between 11 numerous different individuals to falsify this document. 12 Q. I want to turn -- I'm having -- having to jump 13 around a little bit. I want to turn your attention back 14 to Exhibit 1. I'm going to ask you a little bit about 15 that exhibit, about some of the subjects you went over 16 with counsel for Ashland. 17 First of all, Exhibit 1 is a copy of the 18 first amended collective action complaint. You didn't 19 play any part in preparing that complaint, correct? 20 A. No, I did not. 21 Q. And you're going to rely on Reaud, Morgan, and 22 Quinn to prepare and prosecute your claims in this case, 23 right? 24 MS. VALDERRAMA: Objection; form. 25 MR. ROESCH: Objection; form. 343 1 A. Yes. 2 Q. (BY MR. FRASHER) Okay. You don't have any 3 training from a legal standpoint, do you? You haven't 4 been to law school. 5 A. No, I haven't. 6 Q. And you don't have any legal expertise, 7 correct? 8 A. No, I don't. 9 Q. Okay. And that's why y'all came to a law 10 firm, right? 11 A. That's correct. 12 MS. VALDERRAMA: Objection; form. 13 Q. (BY MR. FRASHER) And, you know, you were 14 asked a lot of questions about whether you verified the 15 allegations in that complaint. 16 MR. ROESCH: Objection to the form. 17 MS. VALDERRAMA: Objection; form. 18 Q. (BY MR. FRASHER) Do you remember that? 19 A. Yes, I do. 20 Q. Okay. In terms of verifying allegations in 21 the complaint, you certainly didn't verify any of the 22 claims or causes of action, right? 23 MS. VALDERRAMA: Objection; form. 24 A. That's correct. 25 Q. (BY MR. FRASHER) And if we could, let's -- 344 1 let's flip to -- you were asked a good deal of questions 2 about early relief. Do you remember that? 3 MS. VALDERRAMA: Objection; form. 4 A. Yes, I do. 5 Q. (BY MR. FRASHER) Okay. I want to -- what I'd 6 like for you to do is -- is give us an explanation 7 explaining what you do -- what you would -- before the 8 time clocks were moved from the front gate. 9 A. Before they were removed? 10 Q. Before. Tell me, tell the jury generally what 11 you would do after you would badge in. 12 A. Once we would badge in, we would go straight 13 to the shower room, get into our PPEs. We would 14 normally be in there talking. Sometimes we would see 15 the shift foreman coming out, and we would talk to him. 16 He would tell us different things about, "Hey, y'all got 17 trouble on this" or whatever. We were talking about 18 what was going on in the plant. 19 And then we made our way down the 20 sidewalk to where the new clock was. We kind of ganged 21 up as a group there because we had to wait, and we 22 continued to talk about what was going on and what we 23 were told by the superintendent or by anybody else that 24 we had talked to. We were talking about -- in general 25 about what our specific tasks we're going to be looking Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 9 of 14 PageID #: 5182 87 (Pages 345 to 348) Jan Girouard & Associates, LLC 409.832.2721 345 1 at as we got ready to go into the plant. 2 And then the foreman -- the process 3 foreman would come riding up on a scooter and get most 4 of the process operators over there and tell them where 5 they would be going to work that certain day or night, 6 whichever shift we were working. 7 Q. What you just described -- you said the "new 8 clock." Are you talking about after the clocks were 9 moved or before? 10 A. I'm talking about after the clocks were moved 11 to their new location. 12 Q. Okay. So, all that testimony you just gave 13 was -- 14 MS. VALDERRAMA: Objection; form. 15 Q. (BY MR. FRASHER) -- was for after the 16 clock -- because I asked you specifically -- 17 MS. VALDERRAMA: Objection. 18 Q. (BY MR. FRASHER) -- "Tell me what you did 19 before" -- 20 MS. VALDERRAMA: Objection; form. 21 Q. (BY MR. FRASHER) -- "the clocks were moved." 22 But everything you just testified to was after the 23 clocks were moved. 24 A. After the clocks were moved. 25 MR. ROESCH: Objection; leading. 346 1 Q. (BY MR. FRASHER) Okay. 2 MS. VALDERRAMA: Objection; violates Rule 3 30. 4 Q. (BY MR. FRASHER) Tell me everything you 5 did -- okay -- before the clocks were moved. You 6 understand what I'm asking. 7 A. Okay. Before they were moved, when they -- 8 Q. Yes. 9 A. -- were still in the clock alley. 10 Q. When the clock alley as at the front gate -- 11 A. Okay. 12 Q. -- you would clock in. 13 A. Okay. 14 Q. What would you do? 15 A. The majority of us always got there at around 16 4:15, and we would sit there at the benches in the 17 front. We would talk about work. You know, everybody 18 was interested in what was going on on their specific 19 jobs. There would be occasional times when the 20 superintendent of that shift before us that was coming 21 out of the plant would stop and talk with us and tell us 22 what was going on. Such and such reactor is killing 23 off. They had a BD leak in the tank farm today. Just 24 it was a myriad of different things that we discussed. 25 And then we got ready to le -- go into the plant at 347 1 4:30. We walked into the plant at 4:30, walked right 2 across the sidewalk into the shower room, got ourself 3 prepared and ready to work, and went on down to the job 4 and made relief. 5 Q. Okay. 6 MR. FRASHER: Can you pass me another 7 exhibit sticker, please? 8 THE REPORTER: Exhibit 21. 9 MR. ROESCH: Could we go off the record 10 for just a second? 11 MR. FRASHER: Yeah. 12 (DISCUSSION OFF THE RECORD FROM 7:36 P.M. 13 TO 7:37 P.M.) 14 Q. (BY MR. FRASHER) If you could, once -- so, 15 once you would get to the bathhouse, what in the bath -- 16 what in the bathhouse, if anything, would y'all talk 17 about? 18 A. Talk about the -- 19 MS. VALDERRAMA: Objection; form. 20 A. -- what's going on on the job. You're talking 21 with your coworkers about, you know -- we got younger 22 guys coming in the plant that haven't been there that 23 long; and they're talking about, "Well, I heard you're 24 going here and I hear you're going there. Well, why are 25 they sending me to this job." And then the older 348 1 operators are worried about whether or not the plant's 2 going to explode or not. We're talking about, "I wonder 3 what's going on in the reactor," you know. We got a -- 4 fixing to ride down the road right here where there's a 5 styrene storage tank that holds 600,000 gallons of 6 styrene, and I'm fixing to ride right by it. I'd kind 7 of like to know if it's maybe leaking or not so I could 8 head the other direction. I might swim toward the 9 river. 10 Q. (BY MR. FRASHER) Okay. 11 A. I mean, just in general we try to look at 12 things as -- not as what was going on but what could be 13 going on in the facility, to look ahead to what we were 14 walking into. 15 Q. Okay. 16 A. I'm not walking into Dairy Queen. 17 Q. Okay. 18 A. I'm walking into a place that is very highly 19 hazardous. 20 Q. Okay. The -- the donning of PPE in the 21 bathhouse and the conversations that you-all would have 22 regarding work and the workday, would that be fair to 23 put that under the umbrella of early relief? 24 MS. VALDERRAMA: Objection; form. 25 MR. ROESCH: Objection; form. Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 10 of 14 PageID #: 5183 88 (Pages 349 to 352) Jan Girouard & Associates, LLC 409.832.2721 349 1 Q. (BY MR. FRASHER) As a component of making 2 early relief? 3 MS. VALDERRAMA: Objection; form. 4 Q. (BY MR. FRASHER) Do you understand what I'm 5 asking? 6 A. No. 7 MS. VALDERRAMA: Objection; form. 8 Q. (BY MR. FRASHER) Could you go to the area 9 where you were doing your craft, where you were -- where 10 you were being an operator -- could you do that without 11 your PPE? 12 A. No. 13 Q. Okay. The conversations that you would have 14 at the bathhouse or around the gate regarding the 15 hazards or whenever the superintendents or the foremen 16 were coming out, were those necessary for you to know 17 what you were going to be doing that day? 18 MR. ROESCH: Objection to the form. 19 A. Certainly. 20 MS. VALDERRAMA: Objection; form. 21 Q. (BY MR. FRASHER) Okay. 22 THE REPORTER: I'm sorry. What was his 23 answer? 24 THE WITNESS: Certainly. 25 Q. (BY MR. FRASHER) All right. So, were those 350 1 activities part of -- of early relief? 2 MS. VALDERRAMA: Objection; form. 3 A. Yes. 4 Q. (BY MR. FRASHER) So, when we look at 5 Exhibit 1 and we go to Exhibit D of Exhibit 1, I'm going 6 to circle "early relief" on the questions and answers. 7 MS. VALDERRAMA: Objection. 8 Q. (BY MR. FRASHER) And -- 9 MS. VALDERRAMA: Is that our Exhibit 1? 10 MR. FRASHER: No. 11 MS. VALDERRAMA: Is that the official 12 Exhibit 1? 13 MR. FRASHER: Actually, no. It'll be 14 Exhibit 21. 15 (EXHIBIT NO. 21 MARKED.) 16 MR. ROESCH: Can I see -- have a chance 17 to see what you circled? 18 MS. VALDERRAMA: Let the record reflect 19 that counsel has marked on the exhibit to circle 20 something as he's giving it to his client. 21 MR. ROESCH: Are you going to get us a 22 copy afterwards? I mean, I don't care -- 23 THE REPORTER: I didn't hear what you 24 asked him down there. 25 MR. ROESCH: That's all right. 351 1 MS. VALDERRAMA: He asked for a copy of 2 that page afterwards. 3 THE REPORTER: Okay. Thank you. 4 MS. VALDERRAMA: Because it will be 5 different from the Exhibit 1. 6 Q. (BY MR. FRASHER) Okay. So, next -- next -- 7 I've circled "early relief" and I've written an arrow 8 out here. And what I'd like to do is write down a 9 couple activities, ones we just talked about, that would 10 be encompassed with -- within early relief that you 11 would do before you would get on your bike -- okay -- to 12 head further into the plant. 13 MS. VALDERRAMA: Objection; form. 14 Q. (BY MR. FRASHER) So, tell -- 15 MS. VALDERRAMA: Object to counsel -- 16 Q. (BY MR. FRASHER) Tell me one of those 17 activities. 18 MS. VALDERRAMA: Object to counsel 19 marking on an exhibit -- 20 A. I've got to go in and get -- 21 THE REPORTER: Wait. Wait. 22 A. I've got to go in and get my PPEs on. 23 Q. (BY MR. FRASHER) Okay. So, put on PPE. 24 A. Correct. 25 MS. VALDERRAMA: Objection; form. 352 1 Q. (BY MR. FRASHER) And I've written a -- a 2 number 1, put on PPE, and a number 2 for -- give me a 3 way to explain the type of conversations that you would 4 have around the gate and in the bathhouse concerning 5 work -- 6 MS. VALDERRAMA: Objection; form. 7 Q. (BY MR. FRASHER) -- that I could write on 8 here. 9 A. There have been instances in my career where 10 we've got to the front gate to where we were not allowed 11 to go into the plant because there was a BD leak or 12 there was a fire and there was issues going on down in 13 the plant and we had to wait. But we would mostly talk 14 about what's going on in the plant, how did the plant 15 run last night or how did it run today. And you're 16 trying to prepare yourself mentally for what you're 17 fixing to walk into as you get ready to go in there. 18 You're not fixing to go in there and pet a cat on the 19 back. It's like petting a polar bear on the back. 20 Q. So, would the conversations that you just 21 described -- would it be fair to characterize them as 22 safety-related conversations? 23 MR. ROESCH: Objection; form. 24 MS. VALDERRAMA: Objection -- 25 A. Well, certainly -- Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 11 of 14 PageID #: 5184 89 (Pages 353 to 356) Jan Girouard & Associates, LLC 409.832.2721 353 1 MS. VALDERRAMA: -- form. 2 A. -- we talked about safety. 3 MS. VALDERRAMA: You need to wait until 4 we have a chance to object before you answer because 5 otherwise we're talking over you. And I apologize for 6 that, but we have a responsibility to object to 7 objectionable questions. 8 THE REPORTER: And I do need you to start 9 your answer over because I couldn't hear. 10 Q. (BY MR. FRASHER) I said would it be fair to 11 characterize -- I've -- I've written "safety-related 12 hazards" -- hazard -- and I'm going to write 13 "safety-related hazards discussions." 14 MS. VALDERRAMA: Objection; form. 15 A. Right. Is that -- 16 THE WITNESS: Where did you get with what 17 I had said? 18 THE REPORTER: I didn't get anything you 19 said. 20 Q. (BY MR. FRASHER) I'm going to ask you. I'm 21 going to ask you. Where I've written "safety-related 22 hazard discussions" on here, would that be a fair 23 characterization of the type of discussions you would 24 have in the bathhouse around the gate in that -- that 25 time frame before you would go on your bike to head 354 1 further into the plant? 2 A. Yeah. That and what was going on on our 3 specific jobs. 4 Q. Operations. 5 A. We want to know what's going on down there. 6 Q. Okay. I'm just going to write -- 7 MS. VALDERRAMA: Objection; form. 8 Q. (BY MR. FRASHER) I'm going to write "What was 9 going on in the plant." 10 A. What was happening in the plant. 11 Q. All right. So, on Exhibit 21 where I've 12 written, "Put on PPE, safety-related hazard discussions, 13 what was going on in the plant," are these activities 14 that you would do before you would get on your bike to 15 head further into the plant? 16 A. Yes. 17 Q. Okay. Would it be fair to characterize them 18 as part of early relief? 19 MR. ROESCH: Objection; form. 20 MS. VALDERRAMA: Objection; form. 21 A. Yes. 22 Q. (BY MR. FRASHER) Okay. 23 MR. ROESCH: Mark, what exhibit did you 24 mark that as? 25 MR. FRASHER: 21. 355 1 MR. ROESCH: Thank you. 2 Q. (BY MR. FRASHER) Also, looking at Exhibit 21, 3 I want to go back to paragraph 19. Okay? And this 4 is -- you were taken through this by Ashland's attorney. 5 Particularly here, "The terms of Defendant's agreement 6 included the following relevant provisions." Okay. And 7 it -- it cites to -- it cites back to this Exhibit D. 8 Okay? And I think you confirmed earlier that you 9 received a copy of Exhibit D with your first check; is 10 that right? 11 A. Right. 12 Q. Okay. And you understood this to be an 13 explanation of the payment -- 14 MS. VALDERRAMA: Objection; form. 15 Q. (BY MR. FRASHER) -- is that right? 16 A. Correct. 17 Q. Okay. Now, this document Exhibit D to 18 Exhibit 21, the Questions and Answers: Pay Correction 19 and Change in Pay Rules - Operators, the union didn't -- 20 the union did not prepare this document, did they? 21 A. No, we did not. 22 Q. Okay. This came from Ashland, right? 23 A. I would assume, yes, it did. 24 Q. Okay. This would contain statements of 25 Ashland's agreements? 356 1 A. Correct. 2 Q. Okay. And just a for example, they agreed 3 that they would go back until April of 2010 as the 4 window of time to go back to in calculating the 5 payments, right? 6 A. That is correct. 7 Q. Okay. They agreed to double whatever wages 8 you were owed, right? 9 MS. VALDERRAMA: Objection; form. 10 A. Yes, they did. 11 Q. (BY MR. FRASHER) Okay. They agreed that they 12 had received prior complaints that they were not 13 complying with FLSA and were not paying for early 14 relief. 15 MS. VALDERRAMA: Objection; form. 16 MR. ROESCH: Objection; form. 17 A. That's right. 18 Q. (BY MR. FRASHER) One other thing before we 19 get away from Exhibit D to Exhibit 21, which is the 20 amended complaint, you were asked some questions about 21 the second paragraph of this document. It says, "From 22 your punch time, we subtracted six minutes, the amount 23 of time that it would have taken you to get to and from 24 your work site from the main gate where you were 25 punching." What did that six minutes encompass? Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 12 of 14 PageID #: 5185 Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 13 of 14 PageID #: 5186 Case 1:14-cv-00173-RC Document 146-3 Filed 06/27/17 Page 14 of 14 PageID #: 5187 “EXHIBIT D” Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 1 of 17 PageID #: 5188 COASTAL REPORTING SERVICE 713-224-1659 Page 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION MICHAEL DAVID STUNTZ, ) INDIVIDUALLY AND ON BEHALF ) OF ALL THOSE SIMILARLY ) SITUATED ) ) Plaintiffs, ) ) VS. ) C.A. NO. 1:14-CV-000178 ) (RC) ASHLAND ELASTOMERS, LLC; ) ISP SYNTHETIC ELASTOMERS, ) LP; ISP SYNTHETIC ) ELASTOMERS, LLC ) COLLECTIVE ACTION ) CLASS ACTION COMPLAINT Defendants. ) FRCP 23 ----------------------------------- ORAL DEPOSITION OF HOWARD SCOTT HARDEGREE NOVEMBER 30, 2016 VOLUME I ----------------------------------- ORAL DEPOSITION OF HOWARD SCOTT HARDEGREE, produced as a witness at the instance of Mr. Mark Frasher, and duly sworn, was taken in the above-styled and numbered cause on November 30, 2016, from 10:06 a.m. to 6:48 p.m., before Gina D. Ellis, CSR in and for the State of Texas, reported by machine shorthand, at the law offices of Fisher & Phillips, 333 Clay Street, Suite 4000, Houston, Texas 77002, pursuant to the Federal Rules of Civil Procedure. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 2 of 17 PageID #: 5189 COASTAL REPORTING SERVICE 713-224-1659 4 (Pages 10 to 13) Page 10 1 Q. And when I say the "claim for unpaid wages," 2 you understand that in this case -- you understand what 3 this case is about, right? 4 A. Yes. 5 Q. Okay. You were still working at the plant 6 whenever the case was filed, right? 7 A. You're talking about the one that's on the pay 8 issue? 9 Q. Right. Right. Yes. 10 A. Okay. Yes. 11 Q. Okay. 12 A. Well, okay. So let's go back. Was this filed 13 against Ashland or was this filed against Lion? Was it 14 after Lion took over the plant? I'm just trying to make 15 sure I understand what we're talking about. 16 Q. All right. So, the lawsuit was initially filed 17 against Ashland -- 18 A. Okay. 19 Q. -- and ISP -- 20 A. Okay. 21 Q. -- seeking to recover unpaid wages -- 22 A. Yes. 23 Q. -- from the -- related to, initially related to 24 the grievance that was filed by the, by the union for 25 the Fair Labor Standards Act. Page 11 1 A. Okay. 2 Q. And that was, I believe, or I understand Trudy 3 Lord responded to. Do you recall that? 4 MS. VALDERRAMA: Objection, form. 5 A. So -- 6 MS. VALDERRAMA: You can answer. 7 THE WITNESS: Okay. 8 A. So, I am familiar with the grievance; and I 9 really don't know the timing on the submittal of the 10 lawsuit that's been done here. I'd have to go back and 11 review some timing, some documents, or anything like 12 that to really understand what that is. 13 Q. (BY MR. FRASHER) Let me frame it this way. 14 When you were working at the, at the plant in Port 15 Neches -- and when I say the "plant in Port Neches," I'm 16 talking about the plant where Mike Stuntz and Dwayne 17 Newman worked -- 18 A. Yes. 19 Q. -- and that you worked and managed under ISP, 20 Ashland and Lion, right? 21 A. Yes. 22 MS. VALDERRAMA: Objection, form. 23 Q. (BY MR. FRASHER) As I understand it, you were 24 the manager of the plant throughout the time Ashland 25 owned it; is that right? Page 12 1 A. That's correct. 2 Q. And you remained the plant manager after the 3 plant was sold to Lion Elastomers; is that right? 4 A. That is correct. 5 Q. Okay. And as I understand it, you remained the 6 plant manager of that plant during the term that Lion 7 Elastomers owned it for how long? You tell me. About. 8 Six months? A year? 9 A. It was -- it would have been a little over six 10 months. So, I think my last day there was the end of 11 September 2015. 12 Q. Okay. And I'm going to go through sort of the 13 terms of your employment. But, just for purposes of 14 these questions, whenever I refer to the "plant," that's 15 what I'm referring to. Okay? 16 A. Okay. 17 MS. VALDERRAMA: Okay. I'm going to object 18 to the extent that your claims may be differentiating 19 between the two Defendants. I'm okay if you have that 20 agreement with him, as long as you understand my 21 objection that it's not going to be clear as to which 22 Defendant you're talking about. 23 MR. FRASHER: What I'd like to do now, 24 because I've read back through a number of the 25 transcripts, is say that the objections under Rule 30 Page 13 1 are to form. 2 MS. VALDERRAMA: Okay. I'll just say 3 "form." But I wanted you to know because I don't want 4 you to get offended when I object to form. 5 MR. FRASHER: I know. I'm not. 6 MS. VALDERRAMA: Okay. 7 MR. FRASHER: I'm not. And I don't, and I 8 don't need the explanation. 9 MS. VALDERRAMA: Okay. All right. 10 MR. FRASHER: If I do, I'll ask for it. I 11 think I'm required to ask for it. 12 MS. VALDERRAMA: Okay. All right. 13 Q. (BY MR. FRASHER) So, the -- 14 MS. VALDERRAMA: I'll have to the -- 15 objection to the form question. 16 Q. (BY MR. FRASHER) So, the plant, whenever I 17 refer to the "plant," that's what I'm referring to in 18 Port Neches that you managed. You understand? 19 A. Yes. 20 Q. Okay. And you were working at the plant 21 whenever the initial grievance was filed seeking to 22 recover overtime pay for that window between 4:30 and 23 5:00; is that right? 24 A. That's correct. 25 Q. And you were the manager of that plant at the Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 3 of 17 PageID #: 5190 COASTAL REPORTING SERVICE 713-224-1659 7 (Pages 22 to 25) Page 22 1 on July 10th, 2013. And if you flip to tab -- 2 A. Now, do you want me to go ahead and read 3 through these? 4 Q. You can. 5 A. Because if we're flipping to the next tab, I 6 haven't finished with this section. 7 Q. Go ahead. Go ahead. 8 A. Okay. 9 Q. Take your time. Just so you know, the next tab 10 is Tab 41 that has meeting minutes on it. 11 MS. VALDERRAMA: Objection, form. 12 A. What was the tab? 13 Q. (BY MR. FRASHER) 41. 14 A. 41. 15 Q. Of Exhibit 2. 16 A. Okay. 17 Q. Have you had a chance to look at Exhibit 2 at 18 Tabs 36 and 41? 19 A. Yes. 20 Q. Okay. Now, are these the meetings that you 21 were referencing earlier between you and -- 22 A. And the union? 23 Q. -- and the union? 24 A. Yes. 25 Q. Yeah. Okay. These are the meetings where Page 23 1 you-all discussed how to handle this pay issue, this pay 2 problem and get everyone paid; is that right? 3 A. That's correct. 4 Q. Okay. And if you look at Tab 36, this is -- 5 well, I tell you what, let's put this into a little bit 6 of, these meetings into a little bit of chronological 7 perspective here. Look at Tab 33 of Exhibit 2. It's 8 titled Grievance Report. Now, you're going to notice, 9 Mr. Hardegree, that everything in Exhibit 2, I believe, 10 already has an exhibit sticker on it at the top. 11 A. Okay. Yeah. 12 Q. You're going to see that because I've gone over 13 these documents with Trudy Lord -- 14 A. Okay. 15 Q. -- as the corporate representative for Lion. 16 And some of them I may have gone over with Ashland's 17 corporate representative as well. So, these aren't new 18 to the case. 19 A. Uh-huh. 20 Q. You understand? 21 MS. VALDERRAMA: Objection, form. 22 Q. (BY MR. FRASHER) Is that "yes"? 23 A. Yes. 24 Q. All right. 25 A. Thank you. Page 24 1 Q. So, looking now at Tab 33, the Grievance Report 2 dated May 28, 2013, have you seen this document before 3 today? 4 A. Yes. Yeah, this was when we were still with 5 Ashland. 6 Q. Right. 7 A. Yes. 8 Q. All right. Would you have seen this document 9 or do you recall seeing this document when a grievance 10 was actually submitted back on May 28th of '13? 11 MS. VALDERRAMA: Objection, form. 12 A. I don't recall whether this was, you know, as a 13 part of -- is there another document in here that would 14 be at a different time? 15 Q. (BY MR. FRASHER) I don't know. 16 A. Okay. Is this the only item that was done is 17 the question that you're asking? 18 Q. No. My question is: Do you recall or is this 19 a document you would have seen in real time back when it 20 was submitted? It was submitted to Trudy Lord. 21 A. Yes, I should have seen this. 22 Q. Okay. 23 A. Now, can I guarantee that I did? No. But, I 24 would probably have seen this. 25 Q. Okay. Trudy Lord in her testimony testified Page 25 1 that she would have sent this to corporate. I believe 2 she said -- I can't remember who she said. It might 3 have been Jodi Lewis or Kevin Meyers; but, in any event, 4 it was not you. Okay? Do you have any reason to 5 dispute that testimony? 6 MS. VALDERRAMA: Objection, form. 7 A. No, I don't. 8 Q. (BY MR. FRASHER) Okay. 9 A. Again, you know, would I have seen this; or 10 should I have seen this? Probably. But I don't know 11 that I did. 12 Q. Right. 13 A. So, in that dispute I'd have to say, you know, 14 I can't say whether that is correct or not. 15 Q. Okay. 16 A. That's Trudy's issue there. 17 Q. The grievance refers to an occurrence date of 18 2002 to the present. Do you see that? And I'm still 19 referring to -- 20 A. Yes. 21 Q. -- Tab 33. And this does refer to that window 22 of time between 4:30 and 5:00 before a shift and 5:00 23 and 5:30 after a shift, right? 24 A. You know, I was not privy to that agreement 25 that the, that the union and the company had. I wasn't Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 4 of 17 PageID #: 5191 COASTAL REPORTING SERVICE 713-224-1659 9 (Pages 30 to 33) Page 30 1 or refers to Letters of Understanding. Have you ever 2 seen a Letter of Understanding that would address the 3 early window? 4 A. No. 5 Q. The window of time that was made the subject of 6 the grievance, that was not -- it was not mandatory for 7 employees to show up early, correct? 8 A. I'm not aware of any requirement to do that, to 9 show up early. 10 Q. So, whenever you say there was an agreement, 11 that agreement did not somehow require employees to show 12 up between 4:30 and 5:00? 13 A. You know, I wasn't there during those 14 discussions; so I have no idea. I think Ron Densmore 15 would be the right guy to ask on that. Ron Densmore 16 more was -- maybe Ron is not, because Ron wasn't there 17 in the beginning either. So, Steve Bissett may have 18 been the individual who worked with that. 19 Q. All right. If you would flip to, on Exhibit 2, 20 flip to Tab 40. 21 A. Okay. 22 Q. Now, these joint resolution committee meeting 23 minutes, these describe the itinerary and what's 24 discussed at meetings between the company and the union, 25 right? Page 31 1 A. Correct. 2 Q. And here on May 29th, 2008, we're looking at 3 Tab 40, Ron Densmore is there; and you're there as well 4 too, right? 5 A. That's what it says. 6 Q. Okay. Were you the plant manager at that time? 7 A. No. 8 Q. Okay. Who was the plant manager? 9 A. That was Ron Densmore. 10 Q. Okay. What was your position? 11 A. I was the production manager. 12 Q. If you look down at Item No. 4, the 4:30 to 13 5:00 window, it says, "Union committee has requested 14 discontinuance of 30-minute window. Issue is tabled for 15 now, pending additional research. No changes at this 16 time. Not mandatory." Does that refresh your 17 recollection at all? 18 A. I do not recall that even coming up. Now, at 19 some of these meetings people are in and out, including 20 me. So, I may have missed that; or I may just not 21 remember that. I don't know. 22 Q. Okay. Has it ever been your understanding 23 through your tenure as plant manager, was it ever your 24 understanding that the window was mandatory? 25 A. A mandatory window? Page 32 1 Q. Right. 2 A. My understanding is that the window was 3 voluntary to be a benefit to the workers that gave them 4 that leeway. It was not a company-driven time frame. 5 Q. Okay. During this, during this window of 6 time -- and let's go on the beginning of a shift as 7 opposed to the end. 8 A. Okay. 9 Q. All right? During this window of time workers 10 could come in the plant, in other words, badge in at the 11 front gate, right, and enter the plant? 12 A. Uh-huh. 13 Q. Is that a yes? 14 A. Okay. So, let's make sure that I'm clear on 15 the question. So, badge in at the front gate, they 16 would -- 17 Q. Uh-huh. 18 A. -- yes, they would access through the front 19 gate. 20 Q. Right. 21 A. Yes. 22 Q. Yeah. And before September of '13, as I 23 understand it, before the time clocks were moved, which 24 occurred around September of '13, do you recall that? 25 A. The timing is probably correct. Page 33 1 Q. Okay. But you definitely during -- as 2 production manager of the plant, during your tenure as 3 production manager and plant manager up through the time 4 of the grievance, at least in May of '13, when employees 5 would get there, they would badge in at the front gate, 6 right? 7 A. Correct. 8 Q. And they would badge not only for entrance, but 9 for time, for timekeeping purposes, right? 10 A. No, not that I'm aware of. Kronos came about 11 at some point and that was -- I'm not sure when Kronos 12 was installed, but that was the timekeeping function. I 13 don't believe it was in place when I was production 14 manager. I may be wrong. But, I think that that came 15 along a little bit later. It was, it was a security 16 function. And that was all that the gate actually did 17 was make sure that people were accounted for if they 18 were in the plant, for safety purposes. 19 Q. Whose idea was it to install Kronos? 20 A. I really don't know. It wasn't mine. 21 Q. Okay. Did you ever have any criticisms of 22 Kronos? 23 A. I don't recall any criticisms of Kronos. 24 Q. Okay. Before Kronos, how was a man's actual 25 time tracked for pay purposes? Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 5 of 17 PageID #: 5192 COASTAL REPORTING SERVICE 713-224-1659 11 (Pages 38 to 41) Page 38 1 meetings that we had talked about where the idea of the 2 pipe rack becoming the negotiated point where work 3 started. That's when you had to have equipment on to 4 get into the plant. 5 Q. Okay. And the 30-minute window, maybe the -- 6 employees could still -- after the time clocks were 7 moved, employees could still come into the plant between 8 4:30 and 5:00, correct? 9 A. Yes. 10 Q. Okay. 11 A. In the safe zone, yes. 12 Q. Right. You know, you brought up something 13 there, the safe zone. The entire plant is an OSHA work 14 site, right? 15 A. Well, it's a company work site. It's a PSM 16 regulated work site. 17 Q. What does PSM stand for? 18 A. Process Safety Management. 19 Q. Okay. And what's the importance of that or the 20 significance of that? If you had to explain that to a 21 person on the jury, how would you explain PSM? 22 A. PSM is a requirement to make sure that people 23 know and understand the process of safety information. 24 In other words, what are the hazards that are within the 25 process; how is that process operated; what are the Page 39 1 consequences of deviation. So, you have a set of 2 training requirements and guidelines. You have 3 procedures that have to be in place. People have to be 4 trained on those procedures. So, there's several 5 different elements; and I don't recall how many elements 6 there are in PSM. Part of it is mechanical integrity. 7 Mechanical integrity looks at making sure the piping 8 systems maintain integrity so that you don't release 9 chemicals. 10 It's a requirement to have maintenance 11 personnel that are certified -- certified is probably 12 not the right word -- qualified is a better word, to 13 work within the facility so that they do the proper work 14 to test and repair relief valves so that equipment 15 doesn't overpressure and rupture. 16 There's contractor requirements that they 17 understand the hazards within the plant and that there's 18 a process for making sure that they are vetted before 19 coming into the facility. 20 There's a management of change process. 21 Management of change is where if we're going to make a 22 significant change -- and, really, it's anything other 23 than a change in kind, which sometimes can be less than 24 significant. But, a change in kind would be described 25 as anything that has the same functionality, the exact Page 40 1 same materials of construction. Anything outside of 2 that change in kind would have a requirement to go 3 through a management of change document, which now takes 4 technical individuals to take a look at and say, yes, 5 this is change is acceptable for good measure. 6 Not all of the facility has to be a part of 7 Process Safety Management. It's those areas that 8 contain a certain amount of chemicals that have been 9 defined by OSHA as requiring PSM. An example of that 10 would be chlorine. So, when you have 2,000 pounds of 11 chlorine, I believe is the number, when you have that 12 quantity of chlorine, that puts you in that standard. 13 For petroleum volatile organic compound type items, 14 there's going to be a different number and that may be 15 10,000 pounds for general. For butadiene it's going to 16 be another number. 17 So, there's -- to really get into all of the 18 details, you'd have to go to the standard, PSM standard, 19 which is in OSHA 1910.119, I believe, and get all of 20 those details. 21 Q. You mentioned butadiene and you mentioned -- 22 what was the first one? 23 A. Chlorine. 24 Q. Chlorine. Both of those chemicals are in the 25 plant, right? Page 41 1 A. Chlorine is not. We use bleach in place of 2 chlorine because bleach is a much safer chemical. 3 Q. Was isoprene in the plant? 4 A. No. Isoprene is a totally different product 5 than what we made at our facility. 6 Q. Okay. Was there -- there wasn't any sort of 7 chromium? 8 A. Chromium, not while I was there. There would 9 have not been any chromium. Okay. So, let's go back to 10 what are we looking at on chromium. So, chrome, 11 chromium, is a part of stainless steel. So, is there 12 chromium in the plant? Yes. It's part of the stainless 13 steel. 14 Q. I mean friable hexavalent chromium? 15 A. Well, there's going to be if you're welding 16 stainless steel. 17 Q. And there was welding going on, right? 18 A. Yes. 19 Q. You mentioned the pipe rack. What goes through 20 the pipe, what product? 21 A. That area is going to be steam and fire water. 22 Q. And so, going back to the early relief, the 23 30-minute window, that window was never, the 30-minute 24 time frame was never eliminated from the standpoint of 25 employees were never told, "You can't come in until Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 6 of 17 PageID #: 5193 COASTAL REPORTING SERVICE 713-224-1659 13 (Pages 46 to 49) Page 46 1 Q. Okay. During that three-year lookback period, 2 is it your testimony that there would have been 3 employees coming in early drinking coffee, taking a 4 shower, early, between 4:30 and 5:00 and also doing that 5 at the end of the shift? 6 A. You know, when I looked at some of the time, 7 there were some large periods of time for some people 8 that were stated to have been drinking coffee or taking 9 a shower. 10 Q. There were some large periods of time for some 11 people that stated -- I don't understand. 12 A. Okay. Yeah, let me clarify. That wasn't well 13 stated. So, in the time record there were some examples 14 of clock punch in and punch out that had some long 15 period of time that weren't consistent -- consistent is 16 not a real good term -- that were longer than what they 17 were paid for, significantly longer. And when I say 18 significant, 15 to 30 minutes longer, right? So, you 19 know, that really gets back to the philosophy that 20 Ashland had in making the decision for the payout were 21 these periods of time, which could have been drinking 22 coffee or taking a shower. 23 Q. Can you give me just an example using some real 24 times? 25 MS. VALDERRAMA: Objection, form. Page 47 1 A. Of real times of? 2 Q. (BY MR. FRASHER) Just give me, what you just 3 described, just give me an example of a guy whose 4 badge -- what his badge times would be on either end. 5 A. I couldn't give you anything without taking a 6 look at some records. 7 Q. Well, you said that there were instances where 8 when you looked at their time records that they were 9 staying beyond their pay period -- 10 A. Yeah. 11 Q. -- or beyond their shift? 12 A. Yes. 13 Q. Can you give me an example? 14 A. Of somebody who did that or of -- 15 Q. No. 16 A. -- specific times? 17 Q. Times you're talking about, what kind of range? 18 MS. VALDERRAMA: Objection, form. 19 A. I don't have specific ranges. I just know 20 there were some people that were very prompt, 21 immediately in and immediately out. So, you know, those 22 folks didn't have a whole lot of gap in their time. And 23 then there were some who had large gaps that would 24 receive more money because of that payout. So, I was 25 really looking at that schedule. There was a large time Page 48 1 frame difference between different people. And when 2 some of them talked to me, they talked about, "Well, you 3 know, I sat and talked about football, or whatever, with 4 the guy who's relieving." There's a lot of friends on 5 shifts. Different shifts converse with each other. So, 6 I noticed that there was a big variation in the amount 7 of time that people were in or out of the plant beyond 8 their scheduled time. 9 Q. (BY MR. FRASHER) Okay. And the scheduled time 10 was 5:00 to 5:00, right? 11 A. There was that window at the time, right, 12 30-minute window. 13 Q. No. The shift was 5:00 to 5:00? 14 A. The shift schedule -- I believe that's in the 15 agreement between the union and the company that the 16 shift is 5:00 to 5:00. 17 Q. Okay. So, what you're saying is when you 18 looked at the time records, there were, there were guys 19 that would badge in at 4:30, 4:45 and stay until 5:15, 20 5:20; is that right? 21 A. Yes, sir. 22 Q. Okay. And they could have been talking about 23 personal matters? They could have been taking a shower? 24 They could have been talking about work? 25 A. I wasn't there. So, I really can't say. So, Page 49 1 they could have been doing other things. 2 Q. And you can, you can -- I mean, as general as 3 this sounds, you can say that throughout the day 4 employees may have conversations that are not work 5 related, right? 6 A. Yes. 7 Q. Okay. They may talk about football -- 8 A. Yes. 9 Q. -- or what they did over the weekend at any 10 time during the day, right? 11 A. Absolutely. 12 Q. The commonality is that they're at the plant, 13 right? 14 A. Correct. 15 Q. They're inside the front gate, right? 16 A. Or many times they're having those 17 conversations sitting on the bench outside as well; but, 18 yeah, there's going to be conversation inside of the 19 plant. 20 Q. No. My question is restricted to after they 21 got badges in. 22 A. Okay. 23 Q. Okay? This case is not about the time that 24 happened at the parking lot. It's about the badge in 25 the front gate. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 7 of 17 PageID #: 5194 COASTAL REPORTING SERVICE 713-224-1659 14 (Pages 50 to 53) Page 50 1 A. Okay. 2 Q. Okay? So, the conversations that you described 3 that may have occurred between 5:00 and 5:15 in the 4 afternoon or 4:30 and 5:00 in the morning, these same 5 conversations could have occurred during the shift, 6 right? 7 A. Absolutely. 8 Q. The early relief between 4:30 and 5:00 when 9 workers could come in, they could -- that was a time 10 frame that they could put on their PPE, right, in the 11 morning? 12 A. There was some who used that time to do that, I 13 guess. There were many people who come in already 14 dressed. So, there was no requirement in the plant to 15 use the facilities there. It was there as a convenience 16 to those folks who wanted to use that. I used that 17 sometimes as well. I mean, that's a -- it was 18 convenient to have that as an opportunity to -- storage 19 place. 20 Q. I mean, there's lockers there designed for you 21 to put your clothes into, right? 22 A. Uh-huh. 23 Q. Your street clothes; is that right? 24 A. Well, they're designed to put whatever clothes 25 you put in there. So, you know, I would run; and I Page 51 1 would use the showers and those lockers to keep my 2 running clothes in. 3 Q. And a lot of guys would put on their PPE in the 4 morning in those locker rooms, right? 5 A. I don't know what "a lot" is, but there are 6 some that would do that. 7 Q. Okay. And there were a lot of guys in the 8 afternoon that would take a shower and leave their PPE 9 there, right? 10 A. I don't know how many would take a shower in 11 the afternoon. I know there were some. I don't know a 12 percentage. I don't even -- I have my doubts that it's 13 a large percentage, because you would see, you know, 14 people come in and go out pretty quickly. 15 Q. Okay. They provided a laundry service, right? 16 A. Yes. 17 Q. Ashland did? 18 A. Yes. 19 Q. ISP provided a laundry service, right? 20 A. Yes. 21 Q. And so did Lion, right? 22 A. Yes. 23 Q. And you'd agree that -- well, let me put it 24 this way: You're not going to fault a man if at the end 25 of his shift he wants to clean off, right? Page 52 1 A. Why would I? I mean, that's a -- I'm not -- 2 that's a -- 3 Q. Let me just give you an example. 4 A. Okay. 5 Q. Let's say I've been working and I've got carbon 6 black on me. 7 A. Uh-huh. 8 Q. Shouldn't I be allowed to wash that off? 9 A. You're allowed to wash that off throughout the 10 shift. I don't think that there's any difference in 11 after the shift being able to do that either. 12 Q. That's an activity that you would expect a 13 worker to do, right? 14 MS. VALDERRAMA: Objection, form. 15 Q. (BY MR. FRASHER) To wash carbon black off, 16 right? 17 A. Well, that's a chemical for sure, an item that 18 you wouldn't want to walk around with. There is no 19 requirement that you do that prior to going home. I 20 think there were some that definitely didn't based on 21 appearances coming out of the plant. 22 Q. Is it fair to say that Ashland, Lion, ISP, 23 whoever the plant owner was, would prefer that their 24 employees wash off carbon black before they leave the 25 plant? Page 53 1 MS. VALDERRAMA: Objection, form. 2 A. Well, I don't know that I can answer for the 3 entire company on that. You know, do I want to take any 4 chemicals home? No. I don't believe that the employee 5 would prefer that either. So, it's, you know, it's upon 6 them to understand their exposures and make sure that 7 they're not exposing families. 8 Q. (BY MR. FRASHER) When you say "take the 9 chemical home," the chemical is obviously going to be on 10 your Nomex, right? 11 A. It can be. It's not always going to be there. 12 Q. I mean, that's your outer garment? That's your 13 outer protection is your FRC, right? 14 A. Yes. 15 Q. Okay. And the FRC can actually be put on over 16 your clothes or not, right? 17 A. Yes. 18 Q. And the FRC is going to -- is meant to be or is 19 designed to be and is actually prescribed by OSHA, 20 right? I think it's 1910 something? 21 MS. VALDERRAMA: Objection, form. 22 A. As far as -- 23 THE WITNESS: I'm sorry, what was that? 24 MS. VALDERRAMA: I was objecting to form. 25 THE WITNESS: Okay. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 8 of 17 PageID #: 5195 COASTAL REPORTING SERVICE 713-224-1659 15 (Pages 54 to 57) Page 54 1 A. PPE is not -- doesn't specify fire protective 2 clothing, that I'm aware of. There are standards for 3 different types. But the company has to establish the 4 different PPE requirements based on the hazards that are 5 there. That is established based on SDSs, safety data 6 sheets. So, now you have companies who manufacture 7 chemicals that are then on those safety data sheets 8 going to specify some PPE requirements for handling 9 those different items. And then you look at the hazards 10 that are within the plant, such as butadiene, which is a 11 flammable gas. 12 Q. (BY MR. FRASHER) The PPE that was -- are you 13 familiar with the PPE that was required to work in the 14 plant? 15 A. Yes. 16 Q. And what was that PPE? 17 A. That PPE is steel-toed shoes, Nomex, hearing 18 protection, hard hat, safety glasses with side shields, 19 gloves if you're doing any kind of work. 20 Q. Was that PPE requirement, was that the required 21 PPE the whole time you worked at the plant? 22 A. Yes. 23 Q. Okay. When I say "the whole time," I mean ISP, 24 Ashland and Lion? 25 A. Yes. Page 55 1 Q. That PPE was necessary for workers to be able 2 to do their craft, right? 3 A. It was a requirement that they wear that PPE in 4 the plant, not to do their craft, but to be protected. 5 You got engineering controls that try to keep everything 6 within, but then there's that other layer of PPE. So, 7 you're not really trying to use the PPE as the means of 8 primary protection. You're using that in case something 9 else fails. So, it's secondary to the -- it's secondary 10 to engineering controls and management controls. 11 Q. Okay. Could workers do their job without their 12 PPE on? 13 A. You can do your job without -- so, here's the 14 question that I have back for you, just to clarify. To 15 do their job they are required to wear PPE due to the 16 hazards that are present in the workplace. Okay? As a 17 secondary, tertiary protection against those hazards, 18 because you've already got -- go back to the PSM 19 regulation. We've already got, you know, mechanical 20 integrity. We've got, you know, those items that are 21 the primary protection against those hazards. So, the 22 requirement is that we wear them. But I can turn a 23 valve and I can operate a controller without having any 24 of that protection on, if that makes sense. 25 Q. I think I hear what you're saying. You're Page 56 1 saying I can go drive a car right now and, I wear 2 glasses, I don't have to have my glasses on. And I 3 don't have to have a driver's license with me and I 4 don't have to have insurance and I don't have to have 5 brakes and I don't have to have signals. But, I can go 6 get in the car and turn it on and drive it, right? 7 MS. VALDERRAMA: Objection, form. 8 A. Hold, please. I was asking what question were 9 you asking? So -- 10 Q. (BY MR. FRASHER) I'm asking was the PPE 11 required for them to do their job? 12 A. The PPE was definitely required for them to do 13 the work that we had assigned them to do. Could they do 14 the task -- and maybe that's where I need to separate. 15 Can you push the foot pedal on the car without having a 16 shoe on? Yeah. Are you required to have a shoe on? 17 Yes. So, I think that's where I might need some 18 explanation on there. And I think I, I think I got it. 19 It is required that they have the PPE on. Can they do 20 their task without it? They can do their task without 21 it. And in the past they did it without that, you know, 22 back in the '40s. That plant has been around a long 23 time. Nomex has not been around that long. 24 Q. Nomex was added, Nomex was something that was 25 added later? Page 57 1 A. Yes. 2 MS. VALDERRAMA: If you're at a breaking -- 3 you said every hour; so, we've been going over an hour. 4 MR. FRASHER: Okay. 5 (Short Break.) 6 Q. (BY MR. FRASHER) Mr. Hardegree, are you ready 7 to proceed? 8 A. I am. 9 Q. Is there anything that you'd like to change 10 about your testimony thus far? 11 A. Not that I'm aware of. 12 Q. We left off talking about PPE and a requirement 13 for PPE in the facility. You had mentioned that there 14 was, long ago, there was a time frame when not all that 15 PPE was required. When I say "required," I mean like 16 the Nomex wasn't around; is that right? 17 A. Nomex wasn't around. 18 Q. Yeah. 19 A. Yes. 20 Q. And so -- but at the time that you were working 21 there under ISP, Ashland and Lion, PPE stayed the same, 22 right? 23 MS. VALDERRAMA: Objection, form. 24 A. So, the PPE -- 25 Q. (BY MR. FRASHER) The items of PPE. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 9 of 17 PageID #: 5196 COASTAL REPORTING SERVICE 713-224-1659 21 (Pages 78 to 81) Page 78 1 communication -- 2 A. Well, again -- 3 Q. -- right? 4 A. -- I think that that -- and I apologize for 5 stepping on you there. I think that, you know, there 6 was a text that was sent, and I believe to Trudy, that, 7 you know, the 6 minutes was acceptable. I don't know 8 who that was. I don't remember if we were in a meeting 9 on that. But I assume that we were, just from that 10 recollection. 11 Q. Okay. 12 MR. FRASHER: Read that back, that answer. 13 (The reporter read the previous answer.) 14 Q. (BY MR. FRASHER) I honestly don't remember, 15 you know, if Trudy verified that or not. I don't think 16 she did; but, I'll have to look back at her transcript. 17 Other than that -- whenever you say you believe there 18 was a text sent, who would have told you that, Trudy? 19 A. Trudy, yeah. 20 Q. Okay. Do you remember looking at the text? 21 A. I don't recall that, looking at it. 22 Q. Do you remember the text saying anything -- or 23 do you remember what the text, the substance of the 24 text, whether Trudy told it to you or anything? 25 MS. VALDERRAMA: Objection, form. Page 79 1 A. No. 2 Q. (BY MR. FRASHER) If you look back at Tab 36 on 3 Page 3224, you see that? 4 A. Was this the first meeting? 5 Q. Yes, sir. 6 A. Okay. 7 Q. Tab 36, Page 3224. It looks like on this page 8 there is a discussion during that meeting of a potential 9 formula, punch to punch. Do you see that? 10 A. I do. 11 Q. Okay. And then out to the right it's got 7.5 12 minutes gate to pipe rack times two. 13 A. Uh-huh. 14 Q. Okay. 15 minutes. Okay. So, the pipe rack 15 being discussed there, punch to punch would be a 16 15-minute round trip walk; is that right? 17 A. That's correct. 18 Q. Okay. The agreement was for a 6-minute round 19 trip walk, correct? 20 A. Right. 21 Q. So, was there a different pipe rack that you 22 were relating the 6 minutes to? 23 A. No. We were working off of -- remember, this 24 is the initial meeting. There's been no real definition 25 of what the compromise would be. Mike brought up the Page 80 1 idea of pipe rack, gate to pipe rack as being that time 2 period. Right? So, when you're looking at these 3 notes -- and it doesn't specify here in the notes. But, 4 this is what I was putting up on one of those big note 5 pads. And this information here was an explanation of 6 my thoughts of how the system would work, not 7 necessarily the specific times. So, that's where the 15 8 minutes came from in the definition. 9 The A, B, C and D, you know, those are going to 10 show the -- in Example A, the individual would have 11 worked 12 hours 30 minutes. So, you would take 15 12 minutes off. Right? So, they would have had 15 minutes 13 of overtime for that example. 14 The next item, 12:20, here 15 minutes off of 15 that 20 minutes, they would have had 5 minutes of 16 overtime. 17 And then C, D and E are examples where they 18 wouldn't get any overtime at all, because they didn't, 19 they didn't meet that 15-minute requirement. 20 Q. And so, what you just went through there on 21 3224 you were going over on sort of one of these big 22 tablets? 23 A. Yes. 24 Q. And this pipe rack that you're referring to, 25 this is the same pipe rack you testified to earlier Page 81 1 about, I think you said it had fire water? 2 A. Yes, steam and fire water. 3 Q. Steam and fire water? 4 A. Uh-huh. 5 Q. Okay. And it's your testimony that the 6 eventual payout badge to badge or punch to punch minus 6 7 minutes involved a walk to this same pipe rack; is that 8 right? 9 A. That's where we came to compromise. My initial 10 position is, "Hey, we need to take off all of the time 11 that it takes you to get down to your work site." So, 12 we're in this conversation on how to compromise to get 13 to a fair and reasonable spot on this. So, part of this 14 is taking Mike's input and trying to come up with a 15 solution. But, I'm not sure that I answered your 16 question there. 17 Q. Well, your -- I'm not either. The 6-minute 18 round trip walk that you eventually came up with, 3 19 minutes from the -- after a guy punches in and he walks 20 3 minutes where is he. 21 MS. VALDERRAMA: Objection, form. 22 Q. (BY MR. FRASHER) Okay? According to this, it 23 takes him 7 1/2 minutes to get to the pipe rack. 24 A. Well, according to this, I was starting at a 25 time of 15 minutes to take off of their punch to punch. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 10 of 17 PageID #: 5197 COASTAL REPORTING SERVICE 713-224-1659 24 (Pages 90 to 93) Page 90 1 come up with as a suggestion. 2 Q. (BY MR. FRASHER) Okay. Well, 7 1/2 is over 3 twice the amount of what the payout was, right, 7 1/2 4 minutes, right? 5 A. Yes. 6 Q. Okay. And the bathhouse is basically in 7 between the front gate and the pipe rack, right? 8 A. Yes. 9 MS. VALDERRAMA: You done? You want me to 10 see if lunch is here? 11 MR. FRASHER: I mean, I'm -- if you want to 12 take a quick check. 13 MS. VALDERRAMA: Okay. 14 MR. FRASHER: Go ahead. 15 MS. VALDERRAMA: You going to ask 16 questions? 17 MR. FRASHER: No. No. Go ahead. 18 MS. VALDERRAMA: Okay. You want to break 19 in 10 minutes? It's here so we could eat. 20 MR. FRASHER: Yeah. Let me just finish up 21 real quick. 22 MS. VALDERRAMA: That's fine. Okay. 23 Q. (BY MR. FRASHER) Is it, is it possible that 24 after the August 7th, 2013 meeting that you and Trudy, 25 maybe not Trudy, but you and anyone else got together Page 91 1 and said, "You know, it's about 3 minutes. Let's just, 2 let's just do half. Let's just agree to pay 6 minutes. 3 It's 15 -- we've thrown out 15 and they want to be paid 4 from the time they want to get to the bathhouse. And 5 we'll just do 6, punch to punch minus 6 minutes; and 6 we'll just do it" and didn't talk to the union about it? 7 MS. VALDERRAMA: Objection, form. 8 A. Okay. So, there's a lot of different 9 statements and questions in there. So, how about asking 10 maybe one at a time so that I can respond a little bit 11 better. 12 Q. (BY MR. FRASHER) Is it possible that after 13 August 7th, 2013 you did not go back and talk to anyone 14 from the union and just got with Ashland, Inc. and came 15 up with a payout -- 16 MS. VALDERRAMA: Objection, form. 17 Q. (BY MR. FRASHER) -- a punch to punch minus 6 18 minutes? 19 A. Okay. Let's try that one one more time just so 20 I can make sure I understand what you're asking. 21 Q. Is it possible that after August 7, 2013 you 22 didn't go back to the meeting -- the union? The payout 23 was just made? It was just the flyers went out and 24 said -- the Q&A went out and the checks were cut and the 25 union was not part of that anymore? It's just, "Here's Page 92 1 your payout"? 2 A. No, that's not possible. 3 Q. Okay. Why not? 4 A. Because we got an agreement from them that 5 that's how we would do it. And I'm pretty sure there's 6 some documentation in there that -- well, I know that we 7 had the documentation from those presentations that said 8 this is how we're going to do this. And if that wasn't 9 the agreement, why wasn't anybody complaining about it? 10 Q. Okay. So, it was more of "Here's how we're 11 going to do it. And if we don't get any complaints, 12 then there must be an agreement"? 13 MS. VALDERRAMA: Objection, form. 14 A. No. There was an agreement. 15 Q. (BY MR. FRASHER) No written agreement. And 16 you can't tell me anything about who was present or who 17 it was with with the union -- 18 A. No. 19 Q. -- right? 20 A. No, I can't. 21 MS. VALDERRAMA: Objection, form. 22 Q. (BY MR. FRASHER) And the presentations you're 23 talking about, would they have occurred before the 24 payout went out September 3rd, 2013? 25 A. I believe they were. Page 93 1 Q. And where were they made? 2 A. Where? 3 Q. Yes, sir. 4 A. They would have been in the -- I've forgotten 5 what the building is called, but it's basically a large 6 building where training occurs. And I believe that, if 7 I recall correctly, we had the union in the 8 administrative building conference room to show them 9 that presentation beforehand. 10 Q. If you would, look at Tab 44. Do you remember 11 Julie Hopkins, lawyer for Ashland? 12 A. Actually, I do remember the name; and I have 13 met her. If I saw her on the street I would not 14 recognize her. 15 Q. On Tab 44, this is a Communications and 16 Timeline. I believe Trudy said she may have prepared 17 this she thought. Do you remember having any part in 18 preparing this? 19 A. No. 20 Q. Do you remember this document, seeing it? 21 A. I don't recall the document, no. 22 Q. Okay. According to this Communications and 23 Timeline, on Thursday August 29, 2013 there would have 24 been an "Informational meeting with Union Committee and 25 Business Agent to discuss modifications and designations Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 11 of 17 PageID #: 5198 COASTAL REPORTING SERVICE 713-224-1659 26 (Pages 98 to 101) Page 98 1 Q. (BY MR. FRASHER) Tab 34 is just a few days 2 later, June 3rd, 2013. It's addressed to Richard "Hoot" 3 Landry, who at the time was a business agent for the 4 union, right? 5 A. Yes. 6 Q. And those who don't know on the jury maybe, a 7 business agent, that's the representative of the union 8 at that facility, correct? 9 A. My understanding of the business agent is that 10 they are at a higher level. They're actually, instead 11 of being the workers, they're -- they actually work for 12 the union, but they represent many sites. So, it's not 13 just our site. 14 Q. And I agree with you there about, in terms of 15 seniority or if you're looking at a chain of command, 16 Hoot Landry would have been the most senior union 17 official at the plant, right? 18 MS. VALDERRAMA: Objection, form. 19 A. He's not at the plant, so. 20 Q. (BY MR. FRASHER) He's not even at the plant? 21 A. That's right. 22 Q. The plant is in his area? 23 A. That's right, so. 24 Q. It's part of his geography? 25 A. It's like an area manager. Page 99 1 Q. Right. So, this response from Trudy to 2 Mr. Landry, it says, regarding the Grievance Report 3 Citing - Fair Labor Standards Act, it says, "Any 4 perceived allegation by the union of an alleged 5 violation under FLSA is not a grievance under the 6 collective bargaining agreement." Did you have any part 7 in preparing that statement? 8 A. No. 9 Q. Did you have any part in preparing this 10 response? 11 A. No. 12 Q. Okay. Who did, other than Trudy? 13 A. You'll have to ask Trudy that one. 14 Q. Were you aware that the response was made? 15 A. From? 16 Q. From Ashland. Back at the time would you have 17 reviewed this response or been aware that it went out 18 back to Hoot? 19 A. Yeah, I'm sure that I would have known that 20 this was going out. 21 Q. When you say you're sure you would have known, 22 why? Was it typical for you to know that? 23 A. Yes. 24 Q. Was there a procedure in place where you 25 approved responses to grievances? Page 100 1 A. There was a procedure in place on how 2 grievances are handled within the collective bargaining 3 agreement. So, there's several steps that go in there; 4 and I am not a part of any of those steps. 5 Q. Right. 6 A. It goes to Trudy at that point, at the end. 7 Q. And that procedure was not followed here, 8 correct? 9 MS. VALDERRAMA: Objection, form. 10 A. That, I don't know. In what way was it not 11 followed here? 12 Q. (BY MR. FRASHER) Well, there's steps. There's 13 Step 1, Step 2, Step 3, right? 14 A. There are definitely steps in the CBA. 15 Q. Right. And the response from Ashland here at 16 Tab 34 says that "Any perceived allegation by the union 17 of an alleged violation under FLSA is not a grievance 18 under the collective bargaining agreement and the union 19 is responsible to direct its complaint to the 20 appropriate federal office that administers the Act." 21 So, Ashland's response was this was not covered under 22 the collective bargaining agreement, correct? 23 A. That is not a grievance under the collective 24 bargaining agreement is what is in that letter. 25 Q. And if it was a grievance under the collective Page 101 1 bargaining agreement, then there's a procedure to 2 follow, right? 3 A. Yes. 4 Q. Okay. And we're going to go through Mike 5 Stuntz's termination after a while. And there was a 6 procedure that was followed for him, right? 7 MS. VALDERRAMA: Objection, form. 8 A. I'd have to go back and take a look at that. 9 Q. (BY MR. FRASHER) Okay. 10 A. One thing about the procedures, there's also a 11 lot of ability to not follow the procedure as defined in 12 the collective bargaining agreement, which is basically 13 if I don't respond to your first step, then it's 14 automatically move on to the second step without any, 15 without any procedure going on. It's just, it's going 16 to go ahead and move forward. We regularly bypass all 17 of those other ones. I say we do. We did bypass those. 18 If it was significant issues that were going to have to 19 go to Trudy no matter what, we'd just go ahead and take 20 them there. Why mess with the timing. Let's just go 21 ahead and get them resolved. 22 Q. Right. Or arbitration, right? 23 A. Yes. 24 Q. Yeah. And so, that wasn't done in this case, 25 though, correct? Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 12 of 17 PageID #: 5199 COASTAL REPORTING SERVICE 713-224-1659 27 (Pages 102 to 105) Page 102 1 A. What wasn't done? 2 MS. VALDERRAMA: Objection, form. 3 Q. (BY MR. FRASHER) That procedure wasn't 4 followed? 5 MS. VALDERRAMA: Objection, form. 6 A. Okay. So, the procedure that's in the CBA -- 7 Q. (BY MR. FRASHER) Yes, sir. 8 A. -- we did not go through the steps as described 9 in that CBA. 10 Q. All right. Tab 36, if you would, the meeting 11 notes from July 10th of 2013. On the first page of the 12 meeting notes at the bottom it says, Scott, "I would 13 like to come to an agreement at this table. I agree we 14 owe back pay." 15 A. Uh-huh. 16 Q. Was that your position? 17 A. That was the company's position, yes. 18 Q. Okay. The only question was the amount of back 19 pay, correct? 20 A. That's correct. 21 Q. On the next page, 3219, you say, I want to look 22 into Kronos and calculate. We need to come to a 23 reasonable time that it takes, say, Enod to get to his 24 job." Whenever you say, "That's not correct. I want to 25 look into Kronos and calculate" -- Page 103 1 A. Okay. Hang on a second. Where are you? 2 Q. On Page 3219, the second page of the July 10th, 3 2013 meetings. 4 A. Let me read what I was responding to here. 5 Okay. 6 Q. Okay. How often would you -- when you say you 7 want to look into Kronos and calculate, what did -- did 8 you actually look into Kronos, into the Kronos records? 9 A. Well, I need to understand a little bit better 10 what it is we were talking about. So, hang on. Let me 11 go back a little bit further. That doesn't help much. 12 So, we're looking at travel time and different travel 13 time to each plant. 14 Q. I guess my only question was: Did you look 15 into Kronos? 16 A. Did I go into Kronos? 17 Q. Yes, sir. 18 A. I would not go into Kronos. I would have 19 somebody pull that information out and look at it in 20 some sort of a spreadsheet. 21 Q. Okay. During your time at the plant did you 22 ever actually log into Kronos, an employee's Kronos 23 records? 24 A. No. 25 Q. A timecard or a time detail, anything like Page 104 1 that? 2 A. Not that I'm aware of. 3 Q. Would you rely on Trudy to do that? 4 A. I'm sure that Trudy would do that quite often. 5 Q. Was there anyone else at the plant who would do 6 that? 7 A. To look at the times that are in there? 8 Q. Yes, sir. 9 A. I would assume that the supervisors would do 10 that regularly. I don't know that Cheryl would. Cheryl 11 was not on that payroll side. Lorraine McMahan at the 12 Texas City site would definitely be looking at it. 13 Q. What was Lorraine's job? 14 A. She was payroll for Ashland in that area. 15 Q. If you look at the next page of the notes, 16 3220, Hoot -- so, Hoot is -- again, that's Richard 17 "Hoot" Landry we were talking about earlier, the 18 business agent for the union. Hoot says that, "We 19 believe the portal to portal would be from gate to 20 locker room." You see that? 21 A. I see it. 22 Q. Okay. And that "Compensable Time: From locker 23 room to job and back. We would like to come up with a 24 reasonable amount of time would be from dressing to job 25 and relief. Believe time starts at the moment they Page 105 1 begin dressing out. Walk it out & come up with time." 2 And then Tom, I'm assuming that's Tom Rogers, "dressing 3 out, transit time from locker room to job site, relief 4 time & time back to locker room?" And then you, "What 5 is compensable & what is not?" So, based on what I just 6 read, Hoot, the business agent, from the get-go is 7 wanting to get everyone paid from the time they get to 8 the locker room, correct? 9 MS. VALDERRAMA: Objection, form. 10 A. From -- is this the second set of notes? 11 Q. (BY MR. FRASHER) The first. 12 A. This is the first go-round. My understanding 13 at the time was the starting time was from punch to 14 punch. And I'm pretty sure that that was the starting 15 point. 16 Q. I think that was the starting point. And you 17 see on the next page -- 18 A. Which page are we talking about? 19 Q. 3221. 20 A. Okay. 21 Q. There's some notes, "We don't require cleanup." 22 There's your statement, "Let me make sure time you hit 23 locker room to time you hit your locker back." Then "My 24 stance is what is the time that is non-compensable from 25 the gate to the work site. This is the gulp of time we Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 13 of 17 PageID #: 5200 COASTAL REPORTING SERVICE 713-224-1659 34 (Pages 130 to 133) Page 130 1 when they got to their station. So it was a, it was a 2 12-hour shift; and they used that flexibility. So, you 3 know, as far as me being in agreement that that time 4 should be paid, that time should be paid from when you 5 start work. 6 Q. Okay. 7 A. The agreement was that we would pay time from 3 8 minutes to and from that gate. So, if that included 9 time that they were in the bathhouse, then it included 10 that time. If it included time that they were walking 11 to the gate, it included that time. 12 Q. Do you, yourself, agree that if Mr. Bishop and 13 Mr. Richard are getting lined out by the supervisors 14 before 4:55 that they should be paid for that time? 15 MS. VALDERRAMA: Objection, form. 16 A. I think we're making a big assumption there 17 that that occurred. If there's an individual that is 18 doing work, they should be paid; and I think that that's 19 very clear. Did this occur? I wasn't there. I don't 20 know. If they had put in a valid grievance for that, I 21 would have known; and I also would have made sure that 22 it got paid if it were valid. 23 Q. (BY MR. FRASHER) When you say "valid," if it 24 truly happened? 25 MS. VALDERRAMA: Objection. Page 131 1 Q. (BY MR. FRASHER) If it's truly happening, then 2 they should be paid? 3 MS. VALDERRAMA: Objection, form. 4 A. If you are doing work, valid work, then yes, 5 you should be paid for that. 6 Q. (BY MR. FRASHER) Do you agree that if you're 7 getting directions and instructions from your supervisor 8 that that's valid work? 9 A. It has been established many times I do believe 10 that if you are being directed to do work by your 11 supervisor, that that's compensable time. 12 Q. And then at the end of the day, do you believe, 13 you, believe that if Rory Sean Bishop wants to clean 14 carbon black and talc off of him and get out of his PPE, 15 that he should be paid for that time? 16 MS. VALDERRAMA: Objection, form. 17 A. I have been, I think, pretty clear that that is 18 not a part of the compensable act. Some people can do 19 that at home and they do. Some people do it at work and 20 they do. That's there as a convenience to the employee. 21 And I believe that work is work and what's outside of 22 that is not. And I'm not sure why we're trying to get 23 paid for things that are not part of the work. So, 24 that's -- I have a pretty clear line on that. 25 Q. (BY MR. FRASHER) You don't agree that a man Page 132 1 who has carbon black and talc on him, you don't believe 2 that his cleaning it off is work? 3 MS. VALDERRAMA: Objection, form. 4 A. You know, I -- 5 Q. (BY MR. FRASHER) If it occurs on the job site, 6 if it occurs on premises? 7 MS. VALDERRAMA: Objection, form. 8 A. I don't know that I can agree with that. I 9 clean up myself, you know, after a day's work. What 10 level is that that's required? I don't know. But, you 11 know, these are things that can be cleaned at home. 12 There's -- now, there are times, there were times when 13 somebody could be exposed to something that, you know, 14 was hazardous. We definitely paid that in overtime. 15 But, not in some kind of, you know, just doing something 16 anytime anywhere. That was not. 17 Q. (BY MR. FRASHER) What would be an example of a 18 chemical that would make the cleaning off and the 19 doffing of PPE compensable? 20 A. I would say maybe a styrene. 21 Q. And styrene is at the plant, right? 22 A. Uh-huh. 23 Q. Is that a yes? 24 A. Yes, it is. And it's also within the pipe. 25 So, it would be a very unusual situation. And that Page 133 1 would be the only time I would see that would be a valid 2 concern. 3 Q. Can you think of any other instances when you 4 would think donning and doffing of PPE would be 5 compensable at the plant? 6 A. No. I could sit here and think about it for a 7 while, but... 8 Q. The plant that -- 9 A. That would be the only time that I could think 10 of that anything like that has been done. 11 Q. Okay. 12 A. And, you know, there's -- that really goes to a 13 requirement even for any kind of emergency response. 14 You have to decontaminate on chemicals that require that 15 decontamination. What you're talking about, talc, 16 there's no requirement for that. 17 Q. Take a look back at Exhibit 2, Tab 37, the 18 second page, which is Lion Elastomers 3231. You've got 19 on here -- Trudy wrote some things on here I asked her 20 to write. I asked her to write the badge in and she 21 wrote "badge in for entry." 22 MS. VALDERRAMA: Objection. 23 Q. (BY MR. FRASHER) Do you see that? 24 MS. VALDERRAMA: Objection, form. 25 A. I do. It's pointing to something I don't quite Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 14 of 17 PageID #: 5201 COASTAL REPORTING SERVICE 713-224-1659 36 (Pages 138 to 141) Page 138 1 Q. (BY MR. FRASHER) It says that David Gleinser 2 is the IT support. It doesn't say David. It says, "He 3 is the IT support for the plant and worked with Trudy 4 and Scott to come up with the arrangement that they 5 believe works." So, the "they" is you, Trudy and David 6 Gleinser. "I will attach diagram they sent us. 7 Basically, they want to turn the clocks at the gate to 8 access only. Ray and I agree with that approach." Do 9 you know who wrote this? 10 A. No, I don't. That was my next question. 11 Q. Trudy didn't know and I don't believe anyone 12 with Ashland knew. So, do you recall -- this does not 13 mention -- this only mentions you, Trudy and David as 14 coming up with the arrangement you-all believe works. 15 Doesn't mention anything about the union. 16 A. So -- 17 MS. VALDERRAMA: Objection, form. 18 A. -- I think what we need to define is what we're 19 talking about on arrangement. And the arrangement is 20 how do we put the time clocks at the pipe rack, the 21 physical location, because sticking a time clock or a 22 card swipe out in the middle of the rain is difficult 23 for the employees. We didn't have a shed up at the 24 time. Now, there was some talk about putting a shed up, 25 I think. And that's, that may be -- and I didn't read Page 139 1 through all this, but. How do you get power to it? I 2 see that that's in here. The issue is, is how do you 3 implement what the agreement was of the time being taken 4 at the pipe rack. So, this is getting into the physical 5 implementation. This is not about the agreement. 6 Q. (BY MR. FRASHER) And you say that and there's 7 no mention of the word "pipe rack" in there. You see 8 that? 9 A. Okay. 10 Q. Wouldn't you expect there to be some mention of 11 pipe rack if the, quote, "alleged" agreement was to the 12 pipe rack? 13 A. No. 14 Q. Why not? 15 A. This is, this is a working document of how 16 we're going to go forward and put things in place. The 17 agreement has already been made. So, these are post 18 discussions that, you know, we had already had trying to 19 hash out how do we get power to these things, how do we 20 get, you know, them put up where the employees don't 21 have to stand in the rain. I mean, this is not at all 22 about negotiations of the pipe rack. That's already 23 been done. This is about how do we physically implement 24 what we've said we're going to do. 25 Q. You don't know who wrote this, though, right? Page 140 1 A. I do not. 2 Q. Did you have any discussions with anyone from 3 the union about where the new time clocks were going to 4 be placed? 5 A. I'm not aware of any of those discussions. 6 But, if it's in those notes that we had that were going 7 to be sent to the employees, then the answer would be 8 yes. Mind if I go back and take a look at those notes 9 for a minute? Was that -- 10 Q. I don't think, I don't think it was in the 11 meeting notes. Is that what you're talking about? 12 MS. VALDERRAMA: No. 13 A. No. In the presentation to the employees. 14 Q. (BY MR. FRASHER) It's in the Q&A, I believe. 15 A. Okay. So, if it's in that Q&A, then it would 16 have been discussed with the union. 17 Q. But you didn't prepare a Q&A, right? 18 A. No. 19 Q. And so, you're saying because it's Q&A it would 20 have been discussed with the union? 21 A. Wasn't that Q&A a part of the presentation made 22 to the union prior to the meeting with the body? 23 Q. I think you're talking about Tab 44, 24 Communications and Timeline, that on August 29th, 2013 25 there be an informational meeting with union committee Page 141 1 to discuss modifications and designations of time 2 clocks? 3 A. Yes. So, that PowerPoint information was 4 provided to the union prior to that meeting with those 5 employees. 6 Q. Say that again. That PowerPoint presentation 7 was provided to? 8 A. To the union committee prior to the meeting 9 with the employees, with the union body. 10 Q. As to where the time clocks were going to be 11 placed? 12 A. I didn't say as to where the time clocks should 13 be placed. It is the information that would be provided 14 to the employees. And I believe that that did indicate 15 where the time clocks would be placed. 16 Q. Was there, was there an agreement with the 17 union as to where the time clocks would be placed? 18 A. Okay. So, are you talking about the specific 19 arrangement as in the doorway to the Densmore building; 20 or are you talking about the time it would be from the 21 pipe rack? 22 Q. I'm talking about was there ever an agreement 23 that the time clocks would be moved from the front gate 24 to the Densmore? 25 MS. VALDERRAMA: Objection, form. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 15 of 17 PageID #: 5202 COASTAL REPORTING SERVICE 713-224-1659 37 (Pages 142 to 145) Page 142 1 A. As far as the arrangement goes, I'm not aware 2 of a discussion; but there may have been. 3 (Mr. Jason Hilliard leaves deposition room.) 4 Q. (BY MR. FRASHER) Is it, is it possible that 5 you and Trudy and David came up with that and presented 6 it to the union? Said "Here's what we're going to do. 7 We're going to move the time clocks from the front gate. 8 We're going to move them over here to the Densmore"? 9 A. Well, the agreement was we were going to start 10 taking time from the pipe rack. So, the practical 11 arrangement of that was the Densmore, which was actually 12 a little bit before that pipe rack. So, I don't know if 13 we did or did not discuss the arrangement prior to. I 14 think in good faith we were making sure we were staying 15 inside the agreement by not putting it outside the pipe 16 rack. 17 Q. You said there was an agreement that you would 18 start taking time at the pipe rack. Is that what you 19 just testified to? 20 A. That's my understanding. 21 Q. Okay. What's your understanding based on? 22 A. Oh, just as we went forward with this whole 23 issue. Now, I think you come back to a meeting that we 24 don't have a record of. But, we had based everything 25 off of the pipe rack; and we were trying to be Page 143 1 consistent with that agreement. 2 Q. Was there ever any discussion as to whether or 3 not moving the time clocks from the front gate to the 4 Densmore would comply with the Fair Labor Standards Act? 5 A. You know, I don't recall any of that. So, I 6 don't know. 7 THE WITNESS: Would you pass that water 8 down there? 9 MS. VALDERRAMA: It's been about an hour 10 since we got back. You want to take another five-minute 11 break? 12 MR. FRASHER: Yeah, that's fine. 13 (Short Break.) 14 (Exhibit 5 was marked for identification.) 15 Q. (BY MR. FRASHER) Exhibit 5 is another 16 declaration. This was from Edward James Barlow. Do you 17 remember Mr. Barlow? 18 A. I do. 19 Q. Okay. He said he's worked for the plant for 20 about 40 years. He retired in January of '16. You had 21 already left by the time he retired? 22 A. Oh, did he retire? Yeah, he had been there for 23 a while. 24 Q. He says, "For years, I and my coworkers only 25 clocked in and out at the front gate. During that time Page 144 1 frame, I would clock in, go to the bathhouse and get on 2 my PPE." Here's a guy that would put his PPE on on 3 premises. He didn't bring it on with him. 4 MS. VALDERRAMA: Objection, form. 5 Q. (BY MR. FRASHER) That wasn't unusual, was it? 6 MS. VALDERRAMA: Objection, form. 7 A. There were some who put it on at work and some 8 who came with it on already. 9 Q. (BY MR. FRASHER) I mean, the design of the 10 premises was such that it was made so that people could 11 donn and doff their PPE on site; is that right? 12 A. There was a locker that was available to the 13 employees for their benefit. 14 Q. And a laundry service, right? 15 A. There was a laundry service. 16 Q. Which means you took your dirty PPE and you put 17 it in a designated area; and Ashland, ISP or Lion would 18 clean it for you; is that right? 19 A. Yes, sir. I used that service quite a bit. I 20 would wear my coveralls to and from work and then -- I 21 wouldn't make my wife do it. I would bring it back in 22 work and have it washed there. So, you know, it was a 23 great service for those who chose to use it. 24 Q. And one of the reasons you wouldn't, you 25 personally, and just in general, anybody, would not want Page 145 1 to take their PPE home to have it washed is because of 2 the chemicals, right? 3 A. Well, if there was a hazardous chemical, the 4 company wouldn't want you to take it home either. So, 5 there's, you know, those special situations we talked 6 about a little bit ago. You know, that would definitely 7 be an item where we would not want the employee to take 8 that home with them. 9 Q. Okay. Looking back at Mr. Barlow's declaration 10 he says, "After Ashland moved the time clocks, I would 11 clock in and still go to the bathhouse and put on my 12 PPE, after which I and my coworkers would congregate 13 around the Densmore building where we were required to 14 wait to badge in till just before the start of the 15 shift. During that time, I and others would talk about 16 our work for the day, and foreman would issue job 17 assignments and work for the day to my coworkers - a lot 18 of whom worked in production. I witnessed these foremen 19 lining my coworkers out for the day on a regular basis. 20 At the time I required in January 2016, Lion's foremen 21 were continuing to give out job assignments before we 22 clocked in at the Densmore building." Now, excluding 23 the time after you left the plant, you were no longer 24 there, the time you were there during, I guess it would 25 be during Ashland's ownership and Lion's ownership of Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 16 of 17 PageID #: 5203 COASTAL REPORTING SERVICE 713-224-1659 43 (Pages 166 to 169) Page 166 1 against Tom for the way he treated workers. 2 A. Okay. Is there an example of that? 3 Q. That he might retaliate against a worker 4 because of either something they did on the job or 5 because of their gender or race, anything like that? 6 MS. VALDERRAMA: Objection, form. 7 A. I would have to take a look at records to come 8 up with any answer on that. 9 Q. (BY MR. FRASHER) You don't remember anything 10 like that? 11 A. No. 12 Q. As you sit here today, you don't have any basis 13 or knowledge for that? 14 A. I'm sorry, basis or knowledge for what? 15 Q. That Tom had any sort of problem or complaints 16 of retaliation? 17 A. You know, I'd have to go back and take a look 18 at records to see, you know, if there is a retaliation 19 complaint. I know that there were complaints against 20 Tom. But, what were they? 21 Q. When you say you know that there were 22 complaints against Tom, can you give me any idea about 23 what the complaints were for? 24 A. No. I'd need to go back and take a look. If 25 I -- I know of one situation where one of the Page 167 1 committeemen was upset with Tom over an investigation. 2 I believe there was a complaint that came out of that. 3 I don't know that it was anything about retaliation; but 4 it was a complaint about, you know, Tom's behavior in 5 that meeting. 6 Q. Okay. And so, which committee meeting was 7 that? 8 A. I believe that was K.C. Colone. 9 Q. And what was the outcome of the grievance? 10 A. I think that that was dismissed. 11 Q. Do you kind of have any recollection about what 12 the time frame is on that? 13 A. No. 14 Q. Other than that one, do you recall any other 15 complaints against Tom for retaliation or picking on 16 coworkers? 17 A. No. 18 Q. What about in terms of the production manager's 19 responsibilities, what -- you have the plant manager and 20 just below the plant manager who -- if you had to write 21 out a chain of command, what would it look like? 22 A. There's, you know, below the plant manager -- 23 and it depends on the organization that we're working 24 with. It's typically the maintenance manager, the 25 production manager, the HR manager. Those guys are at Page 168 1 the same level, right. Typically the production manager 2 is going to be responsible for the plant when the plant 3 manager is gone, because the plant is being run by him. 4 It makes sense from that standpoint. 5 Q. Was that chain of command the same between 6 Ashland and Lion? In other words, plant manager, under 7 that is production manager? 8 A. Yes. 9 Q. And then Human Resource manager, would that be 10 on the same line as production manager? 11 A. No. Now, Human Resources at that point 12 reported to the Lion HR organization. I guess that 13 would be Paula. 14 Q. Right. And under Ashland, as I remember 15 Trudy's testimony, she testified that she reported, I 16 think, to Jodi? 17 A. Yes. So, she was then the business partner was 18 the new designation for her. So, under ISP she was the 19 HR manager. 20 Q. Okay. So, during Ashland's ownership and 21 Lion's ownership of the plant for the time frame that 22 you were the plant manager, Tom Rogers was the 23 production manager, right? 24 A. Not the entire time, no. 25 Q. During, let's say during the time of the Page 169 1 payout? 2 A. Yes. 3 Q. During the time of the payout, September of '13 4 through the time that Lion purchased the facility and a 5 little bit thereafter, Tom Rogers was the production 6 manager, right? 7 A. Yes. 8 Q. Okay. And you were the plant manager? 9 A. Yes. 10 Q. And Trudy was the HR manager? 11 A. No. She was at that point the HR director -- 12 oh, I'm sorry. During Ashland period? She would have 13 been the HR business partner. 14 Q. Okay. Her function stayed the same, right? 15 A. They were making changes to that function as to 16 how that worked. So, the day-to-day issues would be a 17 1-800 line. So, she didn't have the day to day that she 18 had before. So, it was a different organization and a 19 different way of doing things -- 20 Q. Okay. 21 A. -- than what it was under ISP. 22 Q. At the local level, and when I say the local 23 level, at the plant level, from the time of the payout 24 until the time after Lion purchased the facility -- 25 strike that. Case 1:14-cv-00173-RC Document 146-4 Filed 06/27/17 Page 17 of 17 PageID #: 5204