Petition for Writ of Certiorari — Keener v. Hoechst Celanese Corp.

/ Bunreme Court, U.S

Gy, es i)

91 -1988 JUN 10 1992

‘BrFIGEGF THE cus |

In The

Supreme Court of the United States

October Term, 1991

*

BERNARD KEENER,

Petitioner,

HOECHST CELANESE CORPORATION a/k/a

CELANESE PLASTICS COMPANY, a/k/a CELANESE

PLASTICS COMPANY, A division of CELANESE

CORPORATION f/k/a CELANESE CORPORATION

AND HOECHST CELANESE CHEMICAL GROUP,

INC. a/k/a CHEMICAL GROUP, f/k/a CELANESE

CHEMICAL COMPANY, INC. a/k/a HOECHST

CELANESE CHEMICAL COMPANY,

Respondents.

‘

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

¢

PETITION FOR A WRIT OF CERTIORARI

e —_

JOHN E. WALL, Jr.

3109 Carlisle

Suite 103 ";

Dallas, Texas 75204 .

(214) 871-8808

(214) 969-7629 (Fax)

Counsel of Record

for the Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 2256964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

Is “Garmon” pre-emption so expansive that it

requires an unlawfully terminated non-union

employee who worked in a non-union plant to file a

charge of unfair labor practice with the NLRB simply

because his after hours complaints to his personnel

director about the illegal disposal of carcinogenic

substances into the atmosphere were shared by and

discussed with co-workers.

If the conduct is “arguably concerted activity” does

the employee nevertheless have an independent

cause of action because the “arguably concerted activ-

ity” was of peripheral concern to the NLRA.

If the employee’s discussion with co-employees

regarding the employer’s commission of illegal acts is

“arguably concerted activity,” is the employee nev-

ertheless able to maintain a common law cause of

action against his former employer because of deep

rooted state concerns in protecting employees from

retaliation for refusing to commit illegal acts or

inquiring about the illegality of the employer's

unlawful contamination of the environment.

LIST OF PARTIES

The undersigned counsel of record certifies that the

following persons have an interest in the outcome of this

case.

(A) Petitioner, Bernard Keener;

(B) John E. Wall, Jr., Counsel for Petitioner;

(C) Hoechst Celanese Corporation a/k/a Cela-

nese Plastics Company, a/k/a Celanese

Plastics Company, A Division of Celanese

Corporation f/k/a Celanese Corporation

and Hoechst Celanese Chemical Group,

Inc. a/k/a Chemical Group, f/k/a Cela-

nese Chemical Company, Inc. a/k/a

Hoechst Celanese Chemical Company,

Respondents;

(D) J. Joe Harris, Matthews & Branscomb,

Counsel for Respondents.

John E. Wall, Jr.

ATTORNEY FOR PETITIONER,

BERNARD KEENER

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW.........-.

a iy aNusiveaveces see i

TABLE OF CONTENTS.............000.0000ccc0e0 iii

TABLE OF AUTHORITIES..............000+2020 5 iv

OPINIONS BELOW..............-0-2seeeeeeeeeeeees

Ne iv cinsseceesvascnenare 3

CONSTITUTIONAL PROVISIONS AND STATUTES

PRESENTED FOR REVIEW..........-200 2200005 3

STATEMENT OF THE CASE.............--000000 5: 4

REASONS FOR GRANTING THE WRIT ..........- 6

1. If the definition is so broad, then the only

employee complaints which would not be

pressed through the NLRB are those held by

deaf-mutes who do not know sign language. 6

2. Such an expansive concept of “arguably con-

certed activity” would prohibit employers from

prohibiting the discussion and comparison of

salaries by employees for fear of an unfair

labor practice charge.........----+++0+0+e00e: 8

3. Arguably concerted or not: Is anyone capable of

defining the ever elusive ephemeral enigma.... 9

4. The NLRB is not a vacuum designed to inhale

all state law protection afforded each state's

See te ee RTT ERA ETE CLE 12

5. The states of this Republic can provide their

citizens employment rights without having to

defer to NLRB jurisdiction................--. 14

MEME occa nk ceesevvenees sitet wares Sale wae 19

Nee ec Ui a Wie en NN See ne eceewsnesstes A-1

iv

TABLE OF AUTHORITIES

Page(s)

CASEs:

Amalgamated Association of Street, Electric R.R. &

Motor Coach Employees of America v. Lockridge,

GS US. 276, FHS Ft GER TOGP BSE). oon esse sy 14

East Line & R.R.R. Co. v. Scott, 72 Tex 70, 10 S.W. 99

1, A eRe ae: as Nem cree ye eS Ae ie 18

Farmer v. United Brotherhood of Carpenters and

Joiners of America, Inc., 430 U.S. 290, 97 S.Ct.

1056, 32 L.EG.28 Soe (8977)... 225-250 12, 13, 16, 17

Gray v. Local 714, Int'l Union of Operating Engineers,

eee Sg Oa | errr eT Ter er ire 14

International Longshoremen’s Ass‘n., AFL-CIO v.

Davis, 476 U.S. 380, 90 L.Ed.2d 389, 106 S.Ct.

| ee rr re er Terr rer er 7

Johnston v. Del Mar Distributing Co., 776 S.W.2d 768

(Tex. App. - Corpus Christi 1989, writ denied) .... 18

Jones v. Rodeway Express, Inc., 931 F.2d 1086 (5th

Tee ee ee ee T PETTITT eRe 19

Mannington Mills v. NLRB, 272 N.L.R.B. 176 (1984) ..... 9

Metropolitan Life v. Mass., 471 U.S. 724, 85 L.Ed.2d

ee A eer re rere 17

Meyers Industries, Inc., 281 N.L.R.B. 882 (1986)......

NLRB v. City Disposal Systems, Inc., 465 U.S. 822,

104 S.Ct. 1505, 79 L.Ed.2d 839 (1984) ........ 8, 9, 10

TABLE OF AUTHORITIES —- Continued

Page(s)

NLRB v. Esco Elevators, Inc. 736 F.2d 295 (5th Cir.

SOO o ince akc Wisessci tind ee 17

Rockwell International Corp. v NLRB, 814 F.2d 1530

CRU Cie. Focus cn ces eseuns ces caenperiees oes 9, 10

Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733

Ce er rs Te Corre or ree 18

San Diego Bldg. Trades Council v. Garmon, 359 U.S.

236, 3 L.Bd.20 775, 79 GAN. 779 CFS) ies ens passim

Smith v. Evening News Assn., 371 U.S. 195, 83 S.Ct.

DOT, D UGG BOO CEPR 6 os ven csedicnnseneewe ne 16

Union, United Automobile, Aircraft and Agricultural

Implement Workers of America v. Russell, 356 U.S.

GOR, FS SAA. Se CE < oi dae asat ncurses 15

Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903 (1967)....... 15

Walter Brucker & Co. v. NLRB, 273 N.L.R.B. 1306

PROGGD ox oewnd skeen cseuscasseencseinee cae 8, 9

Winters v. Houston Chronicle Publishing Co., 795

S.W2e FES (ee. TIPO. ova cieciasancecssseree 18, 19

STATUTES:

me UA. © SI in kk ees esis insansae eee 3

96 UGC. § PIES oo inccessccie eee 3

7 i

vi

TABLE OF AUTHORITIES - Continued

Page(s)

National Labor Relations Act

SP Us UO 68 68 NA ek 3

SP UGA. § UB ccc cccnseecnrccssnesetedevheveunn 3

rk a rere ee ae RAP Po 4

(Bok tae BAe rre reyes errs fr oe ts 16

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ES |

*

In The

Supreme Court of the United States

October Term, 1991

°

BERNARD KEENER,

Petitioner,

HOECHST CELANESE CORPORATION a/k/a

CELANESE PLASTICS COMPANY, a/k/a CELANESE

PLASTICS COMPANY, A division of CELANESE

CORPORATION f/k/a CELANESE CORPORATION

AND HOECHST CELANESE CHEMICAL GROUP,

INC. a/k/a CHEMICAL GROUP, f/k/a CELANESE

CHEMICAL COMPANY, INC. a/k/a HOECHST

CELANESE CHEMICAL COMPANY,

Respondents.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

e

PETITION FOR A WRIT OF CERTIORARI

¢

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit, was unreported under the provisions of

its Local Rule 47.5. This unpublished opinion is printed

here as Appendix D. Suit was premised on Petitioner’s

termination of employment with the Respondent. Peti-

tioner, Bernard R. Keener, originally filed suit in the 44th -

Judicial District Court of the State of Texas. The Respon-

dents, Hoechst Celanese Corporation a/k/a Celanese

Plastics Company, a/k/a Celanese Plastics Company, a

Division of Celanese Corporation, f/k/a Celanese Corpo-

ration of America, f/k/a Celanese Corporation and

Hoechst Celanese Chemical Group, Inc., a/k/a Chemical

Group, f/k/a Celanese Chemical Company, Inc., a/k/a

Hoechst Celanese Chemical Company (Hoechst),

removed the cause of action to the United States District

Court for the Northern District of Texas, Dallas Division,

on the basis of federal question. Respondents thereafter

moved for summary judgment on various theories. The

trial court ultimately ruled that Petitioner’s conduct

which preceded his termination of employment, was

arguably concerted activity falling under the provisions

of the National Labor Relations Act and because Keener

had not filed a claim of unfair labor practice with the

National Labor Relations Board, his claims failed as a

matter of law due to “Garmon” pre-emption.

Petitioner appealed the decision of the district court

to the United States Court of Appeals for the Fifth Cir-

cuit. On March 11, 1992, the Court of Appeals for the

Fifth Circuit, in its unpublished opinion, affirmed the

ruling of the district court. The Fifth Circuit stated that

under the Supreme Court’s very broad definition of “con-

certed activities”, Petitioner’s actions were required to be

pressed at first instance through the National Labor Rela-

tions Board. The Fifth Circuit did not address the excep-

tions to Garmon pre-emption of peripheral concern or

deeply rooted state concerns regarding the protection of

employees who report illegal activity or who refuse to

commit illegal acts.

JURISDICTION

This petition seeks review of the opinion of the

United States Court of Appeals for the Fifth Circuit made

and entered on March 11, 1992. Jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1). The Petition for Writ of

Certiorari is timely filed pursuant to 28 U.S.C. § 2101(c).*

+

CONSTITUTIONAL PROVISIONS AND STATUTES

PRESENTED FOR REVIEW

§ 7 of the NLRA provides in relevant part:

Employees shall have the right to self-organiza-

tion, to form, join, or assist labor organizations,

to bargain collectively through representatives

of their own choosing, and to engage in other

concerted activities for the purpose of collective

bargaining or other mutual aid or protection. ...

29 U.S.C. § 157.

§ 8(a)(1) of the Act provides in relevant part:

It shall be an unfair labor practice for an

employer to interfere with, restrain, or coerce

employees in the exercise of the rights guaran-

teed in section 157 of this title... .

29 U.S.C. § 158(a)(1).

§ 10 of the Act provides in relevant part:

The Board is empowered, as hereinafter pro-

vided, to prevent any person from engaging in

any unfair labor practice (listed in section 158 of

this title) affecting commerce. This power shall

not be affected by any other means of adjust-

ment or prevention that has been or may be

established by agreement, law, or otherwise. . . .

29 U.S.C. § 160(a).

STATEMENT OF THE CASE

Bernard Keener began his employ with Hoechst on

October 30, 1967. Keener had been working in various

clean-up and related tasks following a plant explosion,

which occurred November 17, 1987. He continued this

employment until June 14, 1988. On the day prior to his

termination of employment, Keener and other operators

at the Petitioner’s premises were working in the “bag

house” removing fly ash bags. Concerned that ash was

being released into the atmosphere, Keener asked his

supervisor, Don Elledge, if it should be done in the way it

was being performed. Keener having worked there for a

number of years (20+), knew that there was another avail-

able means of performing this task. On the day of the fly

ash removal, one of Keener’s co-workers had asked

Keener, “Should we be doing this, and should we be

doing it this way”? Keener suggested to Elledge, that it

be performed in another way. Elledge in turn replied that

it would not be done in any other manner.

One of Keener’s co-workers had asked him if the fly

ash was a health hazard. Keener replied that yes it was,

and in fact, the fly ash probably contained heavy metals,

chromium and cobalt. In fact, there was some concern

among the crew about their own personal safety in work-

ing with the fly ash. Keener, having been employed by

the Defendant longer, felt that he was looked to by one or

two of his co-workers to serve as a spokesman for the

group; however, this was merely an assumption on

Keener’s part.

While driving home after work that day, Keener was

covered with fly ash. After showering off at home,

Keener began to realize that other than the two on-site

managers, none of his supervisors who should have been

concerned about the fly ash problem, even knew about it

since their offices had been moved after the plant had

exploded. Keener became concerned because he recalled

seeing a film at work about the Resource Conservation

and Recovery Act which pointed out that he, as an

employee, could be fined and/or sent to jail for observing

a violation to the environment and not reporting it.

Keener then contacted the personnel manager, Jane

McBunch, at 9:40 p.m. at her home. Keener’s main con-

cern for contacting McBunch was Keener’s knowledge

that the environment was being contaminated and he

wanted to know who to report this to so as to satisfy his

duties as an employee under the environmental statutes.

Keener did not remember mentioning at any time to

McBunch a concern regarding exposure to himself and/or

his co-workers to the chemicals. The only concern that he

voiced was his concern that the ash was going into the

atmosphere. When Keener contacted McBunch about the

violations of law, McBunch immediately related “Well,

why don’t you quit?” Keener was terminated the next

day immediately upon reporting to work.

The district court determined that Keener’s cause of

action was arguably subject to the jurisdiction of the

National Labor Relations Board and since Keener had not

pr:

filed a charge of unfair labor practice, his cause of action

was pre-empted under the NLRA. The court of appeals

affirmed. The decision of the court of appeals should be

reversed and the cause remanded for trial on the merits.

¢

REASONS FOR GRANTING THE WRIT

1. Ifthe definition is so broad, then the only employee

complaints which would not be pressed through the

NLRB are those held by deaf-mutes who do not

know sign language.

= .100 meee

In affirming the trial court, the court of appeals

stated the following reason:

a

Under the very broad definition that the

Supreme Court has given the term “concerted

activities,” it is clear that Keener’s activities in

this case qualify. See Appendix D at A-22.

The appellate court in essence stated that this Court has

provided such a broad definition of “concerted activity”

that an individual in a non-union shop who is terminated

after informing management about illegal working condi-

tions, must seek a remedy through the National Labor

Relations Board. Apparently Keener had “arguably” par-

ticipated in “concerted activity” by merely having previ-

ously discussed the complaint with co-workers, who

were similarly concerned about the safety of their work

and the legality of the operation. The situation was dis-

cussed with Keener because he was a long term employee

who might provide insight. Because few work place com-

plaints are not deserving of at least a cursory discussion |

among co-workers and all generally are discussed to

EE

a

analyze the concern for validity, such a broad definition

would necessarily require all employee terminations fol-

lowing discussions of violations of the law to be pre-

sented to the NLRB. The only possible exception would

be concerns held by deaf-mutes who do not know sign

language and therefore couldn’t communicate.

Under San Diego Building Trades Council v. Garmon,

359 U.S. 236, 3 L.Ed.2d 775, 79 S.Ct. 773, 780 (1959) and

progeny, when an activity is “arguably ” regulated by

Section 7 or Section 8 of the Act, both the state and

federal courts must defer to the Board. (San Diego Building

Trades Council v. Garmon, 359 U.S. 236, 3 L.Ed.2d 775, 79

S.Ct. 773, 780 (1959).)

This Court has defined the term “arguably” as requir-

ing the party claiming pre-emption to demonstrate that

the case in question is one that the Board could legally

decide in that party’s favor, or in other words that the

argument has not been “authoritatively rejected” by the

courts or the Board. International Longshoremen’s Ass‘n.,

AFL-CIO v. Davis, 476 U.S. 380, 90 L.Ed.2d 389, 106 S.Ct.

1904, 1914 (1986). This standard coupled with Garmon

and others essentially compels the Board to hear any

grievance by an employee under the guise of protection

of “concerted activity,” if the employee had discussed the

issue or problem with any other co-workers.

This Court has repeatedly recognized that it is pro-

tection for joint employee action that lies at the heart of

the Act. (emphasis added) See Meyers Industries, Inc., 281

N.L.R.B. 882, 883 (Sept. 30, 1986). Conversely, this Court

has also stated that in certain situations, an individual

employee acting alone is deemed to have been involved

in “concerted activity.” (emphasis added) NLRB v. City

Disposal Systems, Inc., 465 U.S. 822, 104 S.Ct. 1505, 79

L.Ed.2d° 839 (1984). In City Disposal, this Court deter-

mined that where a collective bargaining agreement is

involved, the individual’s action is an extension of the

concerted action that produced the agreement; thereby,

reconciling the requirement that there be some linkage to

group employee action with the notion that an individual

employee is protected under the Act when that employee

asserts a right contained in a collective bargaining agree-

ment. NLRB v. City Disposal Systems, Inc., 465 U.S. at

831-833. This expanding dichotomy will eventually

innundate the NLRB and ultimately the federal courts

with unfair labor practice charges because of employee

discussions involving common concerns which may pre-

cede termination.

2. Such an expansive concept of “arguably concerted

activity” would prohibit employers from prohibit-

ing the discussion and comparison of salaries by

employees for fear of an unfair labor practice

charge.

In Walter Brucker & Co. v. NLRB, 273 N.L.R.B. 1306

(1984), “concerted activity” was found when a group of

employees discussed a common wage complaint, and one

employee refrained from making his complaint to man-

agement because he assumed that the first employee to

complain would obtain the information concerning the

wage dispute. The Board found concertedness even

though there was no specific authorization for the first

employee to represent the group and that the second

employee was only “generally aware” that the first

employee would take the necessary action. Walter Brucker

& Co. v. NLRB, 273 N.L.R.B. 1306. If this shall be the law,

then every employer engaged in interstate commerce

within the meaning of the NLRA had better brace them-

selves for a flood of unfair labor complaints if they pro-

hibit their employees from discussing and comparing

salaries.

3. Arguably concerted or not: Is anyone capable of

defining the ever elusive, ephemeral enigma?

If the dichotomy of Meyers and City Disposal is not

confusing enough for employer and employee alike, the

following decisions just infuse more complexity into the

ever elusive, ephemeral and confusing concept.

In Mannington Mills v. NLRB, 272 N.L.R.B. 176 (1984),

a case involving an employee who threatened a work

stoppage protest, the Board did not find “concerted activ-

ity.” The Board stated that there was no evidence to show

(1) that any employee had authorized or instructed the

employee to make a threat; (2) that any employee had

discussed the possibility of a work stoppage; or (3) that

any employee was aware of and supported the

employee’s threat. The Board then suggested that if any

of these facts had been present, then the threat may have

been “concerted.” Meyers Industries, Inc., 281 N.L.R.B. at

883, citing Mannington Mills v. NLRB, 272 N.L.R.B. 176.

The Board has also stated that one does not have to

be “specifically authorized” to speak on behalf of other

employees in order to qualify for protection based on

concerted activity. Id. at 886. A shocking example of this

occurred in Rockwell International Corp. v NLRB, 814 F.2d

10

1530 (11th Cir. 1987), where during a company lecture to

employees regarding radio headsets which were causing

too much noise in the work place, an employee stood up

and stated that she did not think that the radios were too

loud. When that employee was then terminated, it was

held that she had been engaged in “concerted activity,”

even though she had not been designated as a spokesper-

son, because the issue of radio noise was a common

employee concern. Id. at 1535.

Conversely, the Fifth Circuit in NLRB v. Esco Eleva-

tors, Inc., 736 F.2d 295 (5th Cir. 1984) declined to follow

City Disposal and find concerted activity even though the

terminated employee was the union president, subject to

a collective bargaining agreement, who had voiced safety

violations which affected employees who were subject to

a collective bargaining agreement. Apparently each

aggrieved employee on a case by case basis must first

bark and bite at the concerted activity souffle and then

gnash teeth to see if he/she has snapped at air or some-

how bitten into the Board’s jurisdiction. Concomitantly,

each employer can hire a legal staff to handle the uncer-

tainty of application of the Act.

Keener admits that he assumed his co-workers were

possibly looking to him to find out if what they were

doing was safe, although nothing of the sort was ever

seriously discussed, agreed to or planned. Keener also

admits that subsequent to these discussions, he spoke to

Elledge, the on-site manager, to see if the method was

safe or if there was some other method that could be

used. Elledge never threatened termination at the time.

eae ly

ne

rere oy yg

11

When Keener made the evening (9:40 p.m.) phone

call to McBunch at her home, he stated that his main

concern was the contamination to the environment that

was occurring as a result of the method he and his co-

workers had been ordered to use in cleaning up the fly

ash. Keener went on to state that he was afraid he would

be fined or put in jail by the EPA, if he, as an employee

who was aware of violations of environmental regula-

tions at the work place, did not report those violations.

Keener did not recall even mentioning his co-workers

during this conversation. Physically separated from the

work place at this point, Keener was acting on his own

behalf to exculpate himself from EPA criminal sanctions.

In spite of this, the lower courts held that Keener’s

actions are “arguably protected” under the Act. The fact

that the safety of the working conditions was a common

issue to both Keener’s previous discussions with his co-

workers, and his personal call to McBunch that evening

“arguably” somehow provide the necessary link to group

activity.

To characterize the “activities” in question in the

present case as “arguably concerted activities,” for the

Purposes of protection under the Act, is to essentially

throw the doors of the Board wide open to virtually any

disgruntled employee who happened to discuss his com-

plaint, no matter how casually, with another employee.

Such a broad interpretation of the meaning of “concerted

activities” basically negates the “in concert” requirement,

and is a drastic departure from the central purpose of the

Act.

12

4. The NLRB is not a vacuum designed to inhale all

state law protection afforded each state’s citizens.

Even if Keener’s conversations with his co-workers,

and subsequent conversations with his superiors, regard-

ing concerns about unsafe and illegal working conditions

could “arguably” be considered “concerted activity”

envisioned by Sections 7 and 8 of the National Labor

Relations Act, the act does not pre-empt his state law

cause of action for wrongful discharge.

The “arguably protected/arguably prohibited”

method for determining whether federal labor law has

pre-empted a state law cause of action was set out in San

Diego Building Trades Council v. Garmon, 359 U.S. 236.

Under this method, the initial inquiry is whether the

activity alleged to be regulated by the state is either

protected or prohibited by the Act or “arguably” so pro-

tected or prohibited. Id. at 245. The second and important

inquiry under Garmon is whether the activity is merely a

peripheral concern of the Act or touches interests so

deeply rooted in local feeling and responsibility that, in

the absence of compelling congressional direction, it can

not be inferred that Congress has deprived the states of

the power act. Farmer v. United Brotherhood of Carpenters

and Joiners of America, Inc., 430 U.S. 290, 296-297, 97 S.Ct.

1056, 1061, 51 L.Ed.2d 338 (1977), citing San Diego Build-

ing Trades Council v. Garmon, 359 U.S. at 243-244, 79 S.Ct.

at 778-779.

In this case, Keener was terminated from his employ-

ment of 20 plus years after reporting to management

unsafe and illegal working conditions, and inquiring who

13

to notify of this in order to exculpate himself from crimi-

nal sanctions. The court of appeals stated that Keener’s

conduct was arguably concerted activity, and that protec-

tion of concerted activity is one of the principle concerns

of the Act. The court went on to hold, that “[a]ny state

law claim premised upon arguably concerted activity

must give way [to the Act].” Clearly, the court erred in

making this conclusion. If any state law claim “arguably”

premised on concerted activity must be presented to the

NLRB, then the NLRB will soon become a vacuum which

will inhale every employment right conferred upon a

state’s citizens.

The Fifth Circuit completely bypassed the proper

method of determining whether or not this state law

cause of action is pre-empted by the Act. This is partic-

ularly obvious in light of this Court’s holding in Farmer

that the Garmon analysis is not to be applied mechan-

ically, but rather application of the second inquiry is to be

on a case by case basis. Farmer v. United Brotherhood of

Carpenters and Joiners of America, Inc., 430 U.S. at 297-301,

97 S.Ct. at 1061-1064. To determine whether a cause of

action which could arguably be considered an “arguably

concerted activity” should be pre-empted or not, the

court should balance the state’s legitimate non-labor

interests in regulating the activity in question against the

federal government’s interests in uniform labor regula-

tion, and the likely degree to which the state regulation

will interfere with those interests. Id. at 297-301.

The lower courts concluded Keener’s cause of action

was pre-empted because he was engaged in arguably

concerted activity and did not file an unfair labor practice

14

charge with the NLRB. Even if Keener were engaged in

concerted activity, “Garmon” preemption does not apply.

The Fifth Circuit reasoned that because Keener’s

activity or conduct was arguably concerted activity, “any

state law claim . . . must give way” (emphasis added).

This analysis other than the flawed assumption of con-

certed activity, failed to recognize the exceptions to Gar-

mon pre-emption.

5. The states of this Republic can provide their citi-

zens employment rights without having to defer to

NLRB jurisdiction.

This Court’s trend has been towards recognition and

non-preemption of state law claims which “arguably” fall

within the ambit of the National Labor Relations Act. See

Gray v. Local 714, Int'l Union of Operating Engineers, 778

F.2d 1087, 1090 (5th Cir. 1985). This Court’s recent deci-

sions have unsettled the previous outer limits of the pre-

emption doctrine. Id. at 1090.

The constitutional principles of pre-emption, in

whatever particular field they operate, are designed with

a common end in view; to avoid conflicting regulation of

conduct of various official bodies which might have some

authority over the subject matter. Amalgamated Association

of Street, Electric R.R. & Motor Coach Employees of America

v. Lockridge, 403 U.S. 274, 295 91 S.Ct. 1909, 1917 (1971).

In Garmon, this Court declared: When it is clear or

may fairly be assumed that the activities which a State

purports to regulate are protected by Section 7 of the

National Labor Relations Act, or constitutes an unfair

—

15

labor practice under Section 8, due regard for the federal

enactment requires that state jurisdiction must yield.

Supra, 359 U.S. at 244 and 79 S.Ct. at 779. However, this

Court in Garmon recognized permissible state law claims

to grant compensation for the consequences, as defined

by the traditional law of torts, of conduct marked by

violence and imminent threats to the public order. The

apparent point of Garmon concern is the possibility that

both the Board and state courts may have a conflict of

remedies. See Union, United Automobile, Aircraft and Agri-

cultural Implement Workers of America v. Russell, 356 U.S.

634, 644, 78 S.Ct. 932, 938 (1958). However, the thrust of

this Court’s concern has been that one forum would

enjoin, as illegal, conduct which the other forum would

find legal, or that the state courts would restrict the

exercise of rights guaranteed by the Federal Act. Id. at 356

U.S. 634, 78 S.Ct. at 938. In Russell, this Court concluded

there is no conflict even if one forum awarded back pay

and the other did not. Id. at 939. Just as in Russell, the

state law causes of action, applicable to this case, do

nothing to alter rights and duties affirmatively estab-

lished by Congress in the National Labor Relations Act.

The pre-emption doctrine, has never been rigidly

applied to cases where it could not fairly be inferred that

Congress intended exclusive jurisdiction to lie with the

NLRB. Vaca v. Sipes, 386 U.S. 171, 180, 87 S.Ct. 903, 911

(1967). (emphasis added). In fact, the Court noted a

number ¢f congressional exceptions to pre-emption.!

' Section 303 of the Labor Management Relations Act,

1947, 61 Stat. 158, 29 U.S.C. Section 187, expressly permits

(Continued on following page)

16

In addition to the congressional exceptions, this

Court has refused to hold state-law remedies pre-empted

“where the activity regulated was merely a peripheral

concern of the Labor Management Relations Act... or

touched interests so deeply rooted in local feeling and

responsibility that in the absence of compelling congres-

sional direction, this Court could not infer that congress

deprived the state of the power to act. Id. at 386 U.S. 171,

87 S.Ct. at 911 and See Farmer v. United Brotherhood of

Carpenters and Joiners of America, Inc., 430 U.S. 290, 97

S.Ct. 1056.

The National Labor Relations Act does not pre-empt

a state law cause of action for intentional infliction of

emotional distress. Farmer v. United Brotherhood of Carpen-

ters and Joiners of America, Inc., 430 U.S. 290, 97 S.Ct. 1056.

This Court has also refused to apply the pre-emption

doctrine where the particular rule of law sought to be

invoked before another tribunal is so structured and

administered that in virtually all instances, it is safe to

presume that judicial supervision will not disserve the

interests promoted by the federal labor statutes. Id. at

(Continued from previous page)

anyone injured by a violation of NLRA Section 8(b)(4) to

recover damages in a federal court even though such unfair

labor practices are also remediable by the Board; Section 301 of

that Act, 61 Stat. 156, 29 U.S.C. Section 185, permits suits for

breach of a collective bargaining agreement regardless of

whether the particular breach is also an unfair labor practice

within the jurisdiction of the Board (see Smith v. Evening News

Assn., 371 U.S. 195, 83 S. Ct. 267, 9 L.Ed.2d 246 (1962)); and

NLRA Section 14, as amended by Title VII Section 701(a) of the

Labor-Management Reporting and Disclosure Act of 1959, 73

Stat. 541, 29 U.S.C. Section 164(c).

17

10€2. This Court has consistently recognized the historic

state interest in such traditionally local matters as public

safety and order and its use of streets and highways. Id.

at 1063.

The court in Paige v. Henry J. Kaiser Co., 826 F.2d 857

(9th Cir. 1987) in holding that pre-emption did not apply

in a wrongful termination case where an employee had

complained about safety violations, stated that the state’s

OSHA laws were intended to benefit and protect all

employees as individuals irrespective of any labor agree-

ments. The court noted that the “[s]tates possess broad

authority under their police powers to regulate the

employment relationship to protect workers within the

state.” Paige v. Henry J. Kaiser Co., 826 F.2d at 864, quoting

Metropolitan Life v. Mass., 471 U.S. 724, 85 L.Ed.2d 728, 105

S.Ct. 2380 (1985). “Child labor laws, minimum and other

wage laws, laws affecting occupational health and safe-

ty... are only a few examples.” Id. (emphasis in origi-

nal).

Texas too has a compelling state interest in protecting

the health and safety of their workers. If a state has a

substantial interest in protecting its citizens from inten-

tional infliction of emotional distress, it likewise has a

more compelling interest in protecting its citizens from

being retaliated against for refusing to commit an illegal

act or for making good faith attempts to determine if a

requested act is illegal. State employment tort law, when

viewed in the light of the discrete concerns of the federal

scheme reveals that the potential for interference is insuf-

ficient to counterbalance the legitimate and substantial

interest of the state in protecting its citizens. Farmer supra

at 97 S.Ct. 1056.

18

Texas has exhibited deeply rooted local feeling and

responsibility with respect to its history of employment at

will. In Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733,

735 (Tex. 1985), the court declared: We now hold that

public policy as expressed in the laws of this state and the

United States which carry criminal penalties, requires a

very narrow exception to the employment-at-will doc-

trine announced in East Line & R.R.R. Co. v. Scott, 72 Tex.

70, 75, 10 S.W. 99, 102 (1888). The court noted the courts

of Texas have steadfastly refused to vary from that hold-

ing. Id. at 734. The Texas Supreme Court carved out a

very narrow exception which covered only the discharge

of an employee for the sole reason that the employee

refused to perform an illegal act. This clearly evinces

Texas’ deeply rooted interest in local feeling and respon-

sibility.

Following the Sabine Pilot reasoning, the Texas public

policy exception expanded slightly to provide protection

to an employee who was discharged in retaliation for a

good faith attempt to determine if an employer’s action is

illegal. Johnston v. Del Mar Distributing Co., 776 S.W.2d

768, 771 (Tex. App. - Corpus Christi 1989, writ denied).

The court of appeals concluded that “public policy”

demands that an employee be allowed to investigate into

whether actions are legal so as to determine what course

of action to take. Id. at 771.

More recently, the Texas Supreme Court has stated an

employer who uses hazardous chemicals may not dis-

charge an employee who reports a violation of the Haz-

ard Communication Act. Winters v. Houston Chronicle

Publishing Co., 795 S.W.2d 723, 724 (Tex. 1990). The Court

in its opinion delineates the very limited exceptions to

19

employment at will which exist in Texas. Id. at 724.

Clearly, the exceptions are interests deeply rooted in local

feeling and responsibility so as to avoid Garmon pre-

emption and are of peripheral concern to the federal law.

Recently, the Fifth Circuit refused to pre-empt a

Texas statutory exception to employment at will. Jones v.

Rodeway Express, Inc., 931 F.2d 1086, 1089 (5th Cir., 1991).

The court reasoned that the collective bargaining agree-

ment did not establish pre-emption even when the Plain-

tiff’s state law claims are intertwined with the collective

bargaining agreement. Id. at 1089. (emphasis added.) Devia-

tion from such a holding will inundate the federal court

system with removal and pre-emption claims in the face

of every state employment tort. In Keener’s case, there is

no union, no collective bargaining agreement, no bargain-

ing unit, no mention of group activity, no group remedy,

no group action. Of equal importance is Texas’ deep

rooted interest in protecting its citizens from unlawful

employment practices. The state causes of action do not

affect NLRA application and are of only a peripheral

concern to the Act. Clearly, pre-emption should not apply

here.

CONCLUSION

Although the National Labor Relations Act was

enacted to insure uniform application of labor law, it is

doubtful that its application and intent should be so

broad yet enigmatic. Keener’s actions were neither argua-

bly concerted activity nor should his cause of action be

the subject of Garmon pre-emption. More importantly, the

20

State of Texas has evidenced a deeply rooted interest in

carving out exceptions to the employment-at-will doc-

trine. The granting of summary judgment in this case was

improper.

WHEREFORE, PETITIONER, Bernard Keener,

respectfully prays that this Honorable Court grant Peti-

tioner’s writ of certiorari, reverse the judgments of the

Court of Appeals for the Fifth Circuit and the trial court

with instructions to remand the case for trial on the

merits.

Respectfully submitted,

JOHN E. WALL, Jr.

3109 Carlisle, Suite 103

Dallas, Texas 75204

(214) 871-8808

(214) 969-7629 (facsimile),

APPENDIX

A-1

APPENDIX A

CAUSE NO. 90-02816

BERNARD R. KEENER

V.

HOECHST CELANESE

IN THE

DISTRICT COURT

DALLAS COUNTY,

CORPORATION a/k/a TEXAS

CELANESE PLASTICS 44th JUDICIAL

COMPANY, a/k/a DISTRICT

)

)

)

)

)

)

)

CELANESE PLASTICS )

COMPANY, A DIVISION )

OF CELANESE )

CORPORATION, f/k/a )

CELANESE )

CORPORATION OF )

AMERICA, f/k/a )

CELANESE )

CORPORATION and )

HOECHST CELANESE )

CHEMICAL GROUP, INC. )

a/k/a CHEMICAL )

GROUP, f/k/a CELANESE )

CHEMICAL COMPANY, )

INC. a/k/a HOECHST )

CELANESE CHEMICAL )

COMPANY )

PLAINTIFF’S ORIGINAL PETITION

(Filed Mar. 9, 1990)

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Bernard R. Keener, Plaintiff, complain-

ing of Hoechst Celanese Chemical Group, Inc. and

Hoechst Celanese Corporation and for cause would show

the Court as follows:

A-2

I.

Plaintiff, Bernard R. Keener, is a resident of Pampa,

Gray County, Texas.

II.

Defendant, Hoechst Celanese Chemical Group, Inc.

a/k/a Chemical Group, f/k/a Celanese Chemical Com-

pany, Inc. a/k/a Hoechst Celanese Chemical Company is

a Texas profit corporation and may be served with pro-

cess by serving their registered agent: C.T. Corporation

System, 911 Dallas Avenue, Houston, Harris County,

Texas.

Defendant, Hoechst Celanese Corporation a/k/a Cel-

anese Plastics Company, a/k/a Celanese Plastics Com-

pany, A Division of Celanese Corporation, f/k/a

Celanese Corporation of America, f/k/a Celanese Corpo-

ration is a Delaware Corporation authorized to do busi-

ness in the State of Texas, has an agency or representative

in Dallas County, Texas and may be served with process

by serving their registered agent: C.T. Corporation Sys-

tem, 911 Dallas Avenue, Houston, Harris County, Texas.

Venue is proper in Dallas County, Texas, pursuant to Tex.

Civ. P. and Remedies Code #15.037 and #15.061.

Il.

On or about June 14, 1988, the Plaintiff was dis-

charged from his employment at the Defendant’s Pampa

LPO Butane Reactor Plant. The pretext for discharge was

insubordination.

A-3

IV.

Plaintiff had been employed by Hoechst Celanese

Chemical Group as a chemical and boiler operator from

October 1967, until he was discharged.

V.

Plaintiff began his employment as a helper in the

Operations department. He next worked for two (2) years

in Area II, running samples, gaging, mixing catalyst,

chromic acid and cobalt nitrate, general [sic] assisting the

operators and supervisors. The Plaintiff was then pro-

moted to operator, in Area II, a position he held for the

following four (4) years. Plaintiff then began to gain a

more extensive knowledge of the workings of the plant

by performing various duties in Areas I, IA, Ill and IV.

VI.

In the late 1970’s, the Pampa plant undertook a major

construction project known as the Pampa Fuel Conver-

sion Project. This involved replacing the plant’s eight gas

fired boilers with two coal fired boilers. Plaintiff began to

work with the coal fired boiler system during this time,

and then remained for the following five years.

VII.

On November 14, 1987, a series of devastating fires

and explosions severely damaged the plant and sur-

rounding community. After the destruction of the Defen-

dant’s plant and prior to the start of the rebuilding

process, the Plaintiff worked as a guard. As the recon-

struction of the plant began, Plaintiff was again assigned

to work in the area of the coal fired boilers.

VIII.

On June 13, 1988, Plaintiff and his co-workers were

ordered to remove the fly ash bags from their mountings

in the bag house.

IX.

Fly ash bags are used to catch the ash created from

the burning of coal in the boilers and are housed in a

facility known as the “bag house”. The bags are 8 to 9

inches in diameter and 30 feet in length. They are sus-

pended from a spring at the top and hooked around a

thimble on the bottom and each contain 75 to 110 pounds

of ash. The bags act as a filter, similar to a vacuum

cleaner bag. Without these bags, the fly ash, which con-

tains dangerous and hazardous chemicals (including car-

cinogenic and mutagenic materials), would simply flow

_ from the boilers into the air, polluting the atmosphere.

X.

These bags are an integral part of the plant’s ash

gathering system, a system which is required for the safe

collection and disposal of this hazardous material. With-

out this system, the ash would be released into the envi-

ronment in violation of Federal and State laws and in

violation of permits granted to the plant.

A-5

XI.

Plaintiff and his co-workers were moving about 8,000

of the bags, full of ash. They were told to cut the ash

loose from the bags in order to replace the bags with new

ones. The normal and safe procedure involved using the

ash collection system to contain the ash as it was

removed from the bags and collect it in a silo or vacuum

truck for safe and lawful disposal.

XII.

Plaintiff requested that his supervisor, Don Elledge,

start up the regular ash removal system. Mr. Elledge

refused, as the silo had just been cleaned and he did nct

want to get it dirty. Plaintiff suggested that a vacuum

truck or some other containment method be utilized to

prevent the toxic material from being released. Plaintiff

knew that such a release would be a violation of various

clean air laws, including the Occupational Safety Health

Act. Mr. Elledge refused, and ordered Plaintiff to con-

tinue to simply empty the bags outside the bag house,

scattering the ash into the surrounding ground and air.

XIII.

On June 13, 1988, at about 9:00 p.m. Plaintiff called

personnel manager of the company, Jane McBunch,

regarding this incident. Plaintiff was attempting to report

the dumping of fly ash into the atmosphere. Plaintiff told

her that such actions were in violation of the Occupa-

tional Safety Health Act and other laws. Plaintiff

explained to Ms. McBunch that there were other, more

ee ee

A-6

desirable and safer methods to dispose of the ash, and

that the method he was ordered to use would violate

laws, was an infraction of OSHA regulations and endan-

gered the health and safety of himself, his co-workers,

and the environment in general. Instead of taking actions

to prevent the further endangerment and harm to Plain-

tiff, his co-workers, and the environment, Plaintiff was

informed that he should continue to simply dump the ash

onto the ground, ignore the danger and disregard the

violations of the law. The only alternative given to him

was to quit his job.

XIV.

The following day Plaintiff was terminated for insub-

ordination.

XV.

As a direct and proximate result of said improper

and unjustified discharge, Plaintiff has lost earnings

which would have been earned had he not been unfairly

discharged. Although Plaintiff has tried diligently and

honestly to secure other gainful employment, he has been

unable to do so and has accordingly been unemployed

since his wrongful termination.

XVI.

As a direct and proximate result of Defendant's con-

duct, Plaintiff has suffered damages in excess of the mini-

mum jurisdictional limits of this Court. Those dariages

A-7

include past and future physical pain and mental

anguish, past and future lost wages and benefits.

XVII.

Plaintiff would further show that all of the above set

for [sic] acts on the part of the Defendants, raises a

presumption of conscious indifference to consequences of

their actions, to-wit: wrongfully discharging the Plaintiff

in violation of public policy with the intent to do harm.

The Defendant was engaging in illegal activities, and the

Plaintiff warned Defendants of such activity. By warning

said Defendants of such illegal activity, the Plaintiff was

discharged. “These acts were willful and wanton on the

part of the Defendant who was aware or should have

been aware that the Defendant was in fact violating fed-

eral law. Plaintiff, as a result of the willful, wanton, and

malicious treatment by the Defendant, seeks to recover

punitive damages in the amount of $1,000,000.00.

WHEREFORE, premises considered, Plaintiff prays

that the Defendant be cited to appear and answer herein

as the law directs, that upon final hearing hereof, Plaintiff

have and recover of and from Defendant, the following:

1. Reinstatement with no reprisal;

2. Back pay with interest from the time of the

wrongful discharge;

3. Actual damages in an amount in excess of

the minimum jurisdictional limits of this

Court.

4. Punitive damages in the amount of

$1,000,000.00 together with interest from

June 14, 1988, until the date of trial; together

A-8

with Plaintiff’s costs herein, and attorneys

fees in a reasonable amount, and interest on

said judgment from the date thereof until

paid at the legal rate, and for such other and

further relief, special and general, at law

and in equity, to which Plaintiff may be

entitled to receive.

Respectfully submitted,

/s/ John E. Wall Jr.

John E. Wall, Jr.

3109 Carlisle, Ste. 103

Dallas, Texas 75204

214/871-8808

State Bar No. 20756750

A-9

APPENDIX B

NO. 90-02816-B

BERNARD R. KEENER

V.

HOECHST CELANESE

IN THE

DISTRICT COURT

44TH JUDICIAL

CORPORATION a/k/a DISTRICT

CELANESE PLASTICS DALLAS COUNTY,

COMPANY, a/k/a TEXAS

CELANESE PLASTICS

COMPANY, a Division of

CELANESE

CORPORATION, f/k/a

CELANESE

CORPORATION OF

AMERICA, f/k/a

CELANESE

CORPORATION and

HOECHST CELANESE

CHEMICAL GROUP, INC.

a/k/a CHEMICAL

GROUP, f/k/a CELANESE

CHEMICAL COMPANY,

INC. a/k/a HOECHST

CELANESE CHEMICAL

COMPANY

MMMM MM MM UW) WM MM MM UW WU UW) UO) UD) UD) UL)» UW) WH

DEFENDANTS’ ORIGINAL ANSWER .

TO THE HONORABLE JUDGE OF SAID COURT:

Come now Defendants Hoechst Celanese Corpora-

tion and Hoechst Celanese Chemical Group, Inc., and for

their answer would respectfully show unto the court the

following:

A-10

I.

Plaintiff’s action is barred by laches and the applica-

ble statute of limitations.

II.

Plaintiff has failed to exhaust the administrative

remedies available to him.

II.

Plaintiff’s action is preempted by 29 U.S.C. § 151, et

seq.

IV.

Plaintiff’s action is preempted by 29 U.S.C. § 660(c).

V.

Plaintiff has failed to mitigate his losses, if any.

VI.

Defendants deny each and every, all and singular, the

allegations in Plaintiff’s original petition, and demand

strict proof thereof.

WHEREFORE, PREMISES CONSIDERED, Defen-

dants pray that judgment be entered for Defendants and

that Plaintiff take nothing by this action. Defendants pray

A-11

for the recovery of their costs herein, including reason-

able attorney’s fees, and for such other and further relief

to which they may show themselves to be justly entitled.

Respectfully submitted,

MATTHEWS & BRANSCOMB

A Professional Corporation

106 South St. Mary’s Street

One Alamo Center, Suite 800

San Antonio, Texas 78205

(512) 226-4211

/s/ J. Joe Harris

J. Joe Harris

State Bar No. 09062000

M. Colleen McHugh

State Bar No. 13674600

MATTHEWS & BRANSCOMB

A Professional Corporation

1800 First City Bank Tower

Corpus Christi, Texas 78477

(512) 888-9261

ATTORNEYS FOR

DEFENDANTS,

HOECHST CELANESE

CORPORATION

and

HOECHST CELANESE

CHEMICAL

GROUP, INC. °

A-12

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Defendants’ Original Answer has been for-

warded by certified mail, return receipt requested, on this

the 16th day of May, 1990, to Mr. John E. Wall, Jr., attor-

ney for Plaintiff, 3109 Carlisle, Suite 103, Dallas, Texas

75204.

/s/ J. Joe Harris

J. Joe Harris

A-13

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BERNARD R. KEENER,

Plaintiff,

VS. CA 3-90-1212-R

HOECHST CELANESE

CORPORATION a/k/a

CELANESE PLASTICS

COMPANY, a/k/a CELANESE

PLASTICS COMPANY, a

Division of CELANESE

CORPORATION, f/k/a

CELANESE CORPORATION,

f/k/a CELANESE

CORPORATION OF AMERICA,

f/k/a CELANESE

CORPORATION and HOECHST

CELANESE CHEMICAL GROUP,

INC., a/k/a CHEMICAL

GROUP, f/k/a CELANESE

CHEMICAL COMPANY, INC.

a/k/a HOECHST CELANESE

CHEMICAL COMPANY,

Defendant.

WMMMMM MMM MM MM WM WD MW) LM) WO) LM) WH) WH) sw

MEMORANDUM OPINION AND ORDER

(Filed June 30, 1991)

Defendants move for summary judgment pursuant to

Rule 56 of the Federal Rules of Civil Procedure against

Plaintiff Bernard R. Keener (“Keener”). For the following

A-14

reasons, this Court is of the opinion that Defendants’

Motion for Summary Judgment should be GRANTED.

BACKGROUND

This is a wrongful discharge case. Plaintiff alleges he

was discharged from employment because he reported to

senior management activities he believed to be a violation

of the Occupation Safety and Health Act (“OSHA”) and

other federal and state laws. The activity Keener com-

plained of involved the removal and disposal of fly ash

bags used in conjunction with coal fired boilers. Plaintiff

was terminated for insubordination on June 14, 1988.

Plaintiff originally filed this action in the District

Court, 44th Judicial District, Dallas County, Texas on

March 7, 1990. The case was removed to this Court on

May 22, 1990. Defendants move for summary judgment,

arguing (1) that Plaintiff lacks standing to sue under

OSHA, (2) that Plaintiff has failed to exhaust administra-

tive remedies, (3) that Plaintiff’s state law claims are

preempted by federal law, and that regardless, (4) Plain-

tiff was employed at-will and (5) failed to exhaust admin-

istrative remedies under state law.

ANALYSIS

Rule 56(c) of the Federal Rules of Civil Procedure

allows summary judgment only where there is no genu-

ine issue as to any material fact and the moving party is

entitled to summary judgment as a matter of law.' All

' Fed. R. Civ. P. 56(c).

A-15

reasonable doubts and inferences must be decided in the

light most favorable to the party opposing the motion.2

Indeed, as long as there appears to be some evidentiary

support for the disputed allegations, the motion must be

denied.3

OSHA

It is undisputed that Plaintiff’s allegations, if true,

would constitute a violation of section 11(c) of OSHA.4 As

the Act provides for original jurisdiction in United States

District Courts,> this court has subject matter jurisdiction

pursuant to 28 U.S.C. § 1441. Nevertheless, under OSHA,

only the Secretary of Labor is authorized to maintain an

action.© Accordingly, Plaintiff has no private tause of

2 Thornbrough v. Columbus and Greenville R.R. Co., 760 F.2d

633, 640 (5th Cir. 1985).

3 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986);

Coke v. General Adjustments Bureau, 640 F.2d 584, 595 (5th Cir.

1981 (en banc).

4 29 U.S.C. § 660(c). Section 11(c){1) reads in relevant part:

No person shall discharge or in any manner discrim-

inate against any employee . . . because of the exer-

cise by such employee on behaif of himself or others

of any right afforded by this chapter.

29 U.S.C. § 660(c)(1) (1985 & Supp. 1991). See also 29 C.ER.

§ 1977.9(c) (1990).

5 29 U.S.C. § 660(c)(2) (1985 & Supp. 1991).

6 29 U.S.C. § 660(c)(2) (1985 & Supp. 1991).

A-16

action under section 11(c)(1) of OSHA? and his claims

under that Act must fail as a matter of law.

PREEMPTION

Defendant contends that the conduct Plaintiff com-

plains of is arguably violative of the National Labor Rela-

tions Act, 29 U.S.C. § 151, et seq. (the “NLRA”) and

therefore, any state cause of action is preempted by the

Act.® Section 7 of the NLRA protects an employee’s right

to engage in “concerted activities for the purpose of

collective bargaining or other mutual aid or protection”

as well as employee participation in union activities.’

Section 8 prohibits unfair labor practices.'°

In San Diego Unions v. Garmon,"! the Supreme Court

determined that when an activity arguably falls within

7 George v. Aztec Rental Center, Inc., 763 F.2d 184, 187 (Sth

Cir. 1985) (finding grant of summary judgment for defendant

appropriate because “plaintiff had no private cause of action

under federal law for his employer’s retaliatory discharge in

violation of section 11(c)(1)”). Accord Taylor v. Brighton Corp.,

616 F.2d 256 (6th Cir. 1980) (finding that section 11(c)(1) does

not provide a private cause of action for aggrieved employees).

8 Although the conduct may be violative of the Toxic

Substances Control Act, 15 U.S.C. § 2622, and the Clean Air

Act, 42 U.S.C. § 7622, these statutes create only administrative

remedies that Plaintiff has apparently not invoked or

exhausted.

9 29 U.S.C. § 157 (1973 & Supp. 1991).

10 29 U.S.C. § 158 (1973 & Supp. 1991).

11 359 U.S. 236 (1959).

A-17

section 7 & 8, courts should defer to the NLRB for deter-

mination of the activity’s status.!2 In the instant case,

Defendants demonstrate that Keener’s activity “argua-

bly” falls within section 7 & 8 of the NLRB. Summary

judgment evidence established that in reporting to the

management, Keener was responding not only to his own

concerns, but to those expressed by his coworkers.!3 In

addition, although he denies that his conversations and

actions constituted “concerted activity” within the mean-

ing of sections 7 & 8 of the NLRA, Keener admits that he

assumed that he acted as a spokesman for the group.'4 As

Defendants contend, Keener’s conduct is arguably pro-

tected under the NLRA.'5 Consequently, as the deter-

mination of the status of the activity properly lies with

12 Id. at 245.

13 Kenner [sic] Deposition at 18-22.

14 Td.

1° Defendants also argue that regardless of whether

Keener’s claims are preempted, he was an employee at-will

and could be terminated without cause. Plaintiff argues that he

has a cause of action under Tex. Rev. Civ. Stat. Ann. art.

5182(b), § 15(b). Although that section was repealed, a compa-

rable provision appears in section 502.013 of the Texas Health

and Safety Code (the “Hazard Communication Act”). Among

other things, section 502.013(c) prohibits an employer from

discharging, disciplining or in any manner discriminating

against an employee who has filed a complaint under the Act

or exercised any rights afforded employees under the Act.

The Court notes, without comment, that in Winters v.

Houston Chronicle Publishing Co., the Texas Supreme Court

explicitly recognized state legislative exceptions to the employ-

ment at-will doctrine, including the Hazard Communication

Act. The Court stated:

(Continued on following page)

A-18

the NLRB, and as it is undisputed that Keener never filed

a claim with the NLRB, Keener’s remaining state law

claims must fail as a matter of law.'6

(Continued from previous page)

The legislature has also placed restrictions upon the

at will employment doctrine. In protecting

employees who report illegal activities in the work-

place, the legislature has enacted protection for a

limited class of employees. . . . An employer who

uses hazardous chemicals may not discharge an

employee who reports a violation of the Hazard

Communication Act., Tex. Health & Safety Code

Ann. § 502.13 (Vernon 1990).

Defendants do not dispute the relevance of the Hazard Com-

munication Act, however, they argue that the court is without

jurisdiction to hear Keener’s claim under the Act as primary

jurisdiction vests with the administrative agency charged with

the Act’s administration, or alternatively, because Keener has

failed to exhaust administrative remedies under the Act.

Defendants also argue that as a preliminary matter, all of

Plaintiff’s state claims are preempted by the NLRA.

As this Court finds that Plaintiff’s claims were more

appropriately within the jurisdiction of the NLRB, this Court

will not make a determination as to Keener’s state statutory

claim other than to recognize that the Hazard Communication

Act acts as an exception to the employment at will doctrine

under Texas law.

16 The Supreme Court stated:

When it is clear or may fairly be assumed that the

activities which a state purports to regulate are pro-

tected by § 7 of the National Labor Relations Act, or

constitute an unfair labor practice under § 8, due

regard for the federal enactment requires that state

(Continued on following page)

simi inde ana

A-19

It is therefore

ORDERED that Defendants’ Motion for Summary

Judgment is GRANTED.

SIGNED THIS 30 DAY OF JUNE, 1991.

/s/ Jerry Buchmeyer

UNITED STATES

DISTRICT JUDGE

JERRY BUCHMEYER

(Continued from previous page)

jurisdiction must yield. To leave states free to regu-

late conduct so plainly within the central aim of

federal regulation involves too great a danger of

conflict between power asserted by Congress and

requirements imposed by state law. .. .

San Diego Unions, supra, 359 U.S. at 244. The Court further

noted:

What is outside the scope of this Court’s authority

cannot remain within a state’s power and state juris-

diction too must yield to the exclusive primary com-

petence of the Board.

Id. at 245. The reporting violations of statutes such as OSHA,

or more generally, complaints that involve working conditions,

do fall within the Act. See Ewing v. NLRB, 861 F.2d 353 (2d Cir.

1988).

A-20

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-1792

BERNARD R. KEENER,

Plaintiff-Appellant,

y

HOECHST CELANESE CORPORATION a/k/a

CELANESE PLASTICS COMPANY, a/k/a

CELANESE PLASTICS COMPANY, A

Division of CELANESE CORPORATION,

f/k/a CELANESE CORPORATION OF AMERICA

and HOECHST CELANESE CHEMICAL GROUP,

INC., a/k/a CHEMICAL GROUP, f/k/a

CELANESE CHEMICAL COMPANY, INC.

a/k/a HOECHST CELANESE CHEMICAL

COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

(CA-3-90-1212-R)

cai iaaiaiatiia

A-21

(March 11, 1992)

Before KING, JOHNSON and DAVIS, Circuit Judges.

PER CURIAM:*

Bernard R. Keener, plaintiff-appellant, claims that he

was discharged from his employment in retaliation for

expressing concerns about working conditions. In his

deposition, Keener testified that his concerns were shared

by and discussed with several co-workers who looked to

him to “bring it up” with management. When Keener

approached his supervisor with his observations, he

advised the supervisor that his co-workers were also

concerned and asked if the manner in which they were

performing their work could be modified. Ultimately,

Keener reported the incidents of unsafe working condi-

tions to his employer’s personnel manager. Shortly there-

after, Keener was summarily discharged.

Keener filed suit in the district court alleging wrong-

ful discharge in violation of federal and state laws. The

district court concluded that Keener was arguably

engaged in concerted activity protected by the National

Labor Relations Act (the “Act”) and that the question of

whether Keener had in fact been discharged for engaging

in such conduct lay within the exclusive jurisdiction of

* Local Rule 47.5 provides: “The publication of opinions |

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal pro-

fession.” Pursuant to that Rule, the court has determined that

this opinion should not be published. ;

A-22

the National Labor Relations Board (the “Board”). Keener

appeals.

We agree with the district court. Keener, by his own

testimony, voiced concerns on behalf of himself and sev-

eral other employees. Under these circumstances, his con-

duct was arguably protected by §§ 7 and 8 of the Act, 29

U.S.C. §§ 157, 158. Conduct which is arguably protected

by §§ 7 and 8 of the Act lies within the exclusive jurisdic-

tion of the Board. Under the very broad definition that

the Supreme Court has given the term “concerted activ-

ities,” it is clear that Keener’s activities in this case qual-

ify. The protection of concerted activity is one of the

principal concerns of the Act. Any state law claim prem-

ised upon concerted activity must give way.

AFFIRMED.

A-23

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BERNARD R. KEENER

Plaintiff,

VS.

HOECHST CELANESE

)

)

)

) CIVIL ACTION

)

CORPORATION A/K/A ‘

)

)

)

)

NO. CA3-90-1212-R

CELANESE PLASTICS

COMPANY, A/K/A CELANESE

PLASTICS COMPANY, A

DIVISION OF CELANESE

CORPORATION, F/K/A

CELANESE CORPORATION OF ?

AMERICA, F/K/A CELANESE ?

CORPORATION AND HOECHST?

CELANESE GROUP, INC.,

A/K/A CHEMICAL GROUP, )

F/K/A CELANESE CHEMICAL )

COMPANY, INC. A/K/A )

HOECHST CELANESE )

COMPANY

)

Defendants.

aL LET

A-24

INDEX

DIRECT EXAMINATION

Re TT eT ETT ET TP eT eT TT TET 4

EXHIBITS

Keener Deposition Exhibit No. 1.................0008. 3

Keener Deposition Exhibit Nos. 2 through 39........ 49

Keener Deposition Exhibit No. 40.................04. 76

[p. 15] Q. Did you continue to drive for Waters

Livestock Company after you left the employment of

Celanese?

A. No.

Q. Why?

A. I’m pretty sure he’s out of business. I sort of lost

touch with him.

Q. Mr. Keener, when did you go to work for

Hoechst Celanese?

A. October 30, 1967.

Q. And you worked for Hoechst Celanese until

what date?

A. June 14, 1988.

Q. In your own words, would you please tell me

about the circumstances leading to your termination of

employment at Hoechst Celanese?

A. The day that -

A-25

Q. Actually I believe - and you correct me if I’m

wrong, but I believe the events actually occurred the day

before you were terminated.

A. Yes.

Q. If you would, please, just take me step by step

through the events that led to your discharge.

A. Oh. I had been assigned to Area 1-B, and I had

been there a week, maybe 10 days. We’d been doing odds

job [sic] around the unit, myself and several other opera-

tors. What had we been doing? We’d been repacking

valves. We had [p. 16] added some stuffing boxes to some

large valves on the top of the bag house. We had cleaned

out the fly ash silo, changed out the porous rock there in

the bottom of that to - that kept the ash from inter-

mingling with the air purge system in the silo. And then

on the day before I was terminated, we started work in

the bag house themselves.

Q. What specifically were you doing in the bag

house the day before your termination?

A. We were removing the bags. I assume we were

going to remove all of them, approximately 8,000 bags.

The bags are eight to nine inches in diameter, roughly 20

~ maybe 30 feet long, tall. And the number escapes me

now, how many there are in each compartment. | vaguely

remember there being 13 compartments per bag house.

They’re affixed to a thimble that sticks out of the floor

approximately four inches at the bottom. They’re affixed

at the top by another thimble aparatus [sic] and a spring-

loaded hook.

A-26

They’re very close together with, oh, a half inch

separating each bag, with rows inside the compartment

that you could walk down, and, if necessary, during the

downtime you could get to a bag that was torn or had a

hole in it or had just stopped operating properly.

It was quite a number of bags in each compartment.

Several hundred, let’s say. We were cutting them off from

the thimble at the bottom, going upstairs, lifting them off

[p. 17] the hook, and dropping them down to the floor,

which was making quite a dusty area inside the bag

house. We then threw them out of a manhole, which is 30

inches wide by three, four feet high, out past a walkway

and a rail roughly four feet away, over the rail onto the

ground below, another 20 feet down to-the ground.

There was a dumpster near, but we weren’t able to

throw them far enough to the dumpster, so therefore they

were hitting the ground and the ash that was inside them

was just going every place. The bags were quite heavy.

The explosion had occurred, and the boiler was shut

down, with nothing - The automatic procedure just

didn’t have time to get around to the compartments and

empty the ash out like it should have. So it had been

sitting there for six months.

Some of them were quite heavy. I remember standing

on the platform trying to lift the bags up in a position

that you have good force from, and some of them I could

just barely get them off the hooks. So 100 pounds possibly

of ash, maybe more, in each bag. You know, some of them

not quite as heavy. So we had quite a lot of ash.

We got a late start, started before first break. Six

hours of work, we'd finished maybe one compartment,

A-27

and had ash covering a lot of country, maybe a 100 by 200

- and possibly even 200 feet square of concrete several

inches [p. 18] deep, plus the bags lying in a pile. And I'd

asked my immediate supervisor, who at the time who

[sic] was Don Elledge, if we should be doing it that way.

(Ms. Owen entered the depostion

[sic] at this time.)

I think his answer at the time was just this is just the

only way to do it. Well, I had worked in the unit several

years prior, and | knew that wasn’t right, because they

had replaced bags during turnaround, and they had got-

ten large vacuum trucks in. They were - The name of

them was Super Sucker. And they had taken all the ash

out of the bags, or whatever was necessary. They didn’t

get ash outside the bag house.

As a matter of fact, the bag houses had been cleaned.

When we started that day they obviously, before I got

there, had cleaned the bag houses themselves out,

because they were just in, | remember thinking, almost

immaculate condition, so they had been cleaned before |

got there, by some vacuum system.

Around - Let’s say before lunch that day, Mr. Ellis

came by, and I mentioned some of my co-workers - they

were relatively new, and they were concerned, and they

had asked me, “Should we be doing this and should we

be doing it this way?” One gal I particularly remember

whose name was [p. 19] Kelly Freeman. | think she has

since remarried, and the name wouldn’t be the same. |

don’t know what it is. She seemed to be concerned about

it.

i

A-28

And I asked Mr. Elledge if he couldn’t start up the

vacuum system, the vacuum pump, which was the nor-

mal system for removing ash out of the bottom, bottom of

the hopper — of the bag house. At that he says, “No, you

dummy, we can’t do it that way. We just cleaned out the

fly ash silo last week,” which we had. We’d obviously

gotten the cart before the horse.

Well, we went to lunch. Keep in mind the plant was

blown up. It was pretty well demolished. The control

room in 1-B was gone. We had no water, no way to clean

up for lunch, so we just kind of ate the best we could.

After lunch we worked about an hour or so, and Mr.

Elledge came by again, and I asked him then, “Are we

supposed to be doing this this way?” I mean, we are

required by law and by permit for these boilers to collect

this ash inside this bag house and transport it —- At the

time they were transporting it to section 133, which was

our water well property section, and burying it.

I think there was another part to the question that

I’ve lost it. But he just looked at me for a couple of

seconds and turned around and walked off. Didn’t even

acknowledge that I had spoken to him.

[p. 20] Q. Mr. Keener, I’m going to interrupt you for

a few minutes and let’s try to clarify some of these things

that you've told us. You said that others on the crew that

you were working with that day had also expressed their

concern?

A. Yes.

Q. You mentioned specifically a Kelly Freeman.

What did she say to you?

A-29

A. She asked if we were supposed to be in this fly

ash and exposing ourselves. “Is there anything in there

that will hurt me,” I think is a quote. And I had to tell her,

“Yes, there is.” They burn - Let’s say all of the plant

residues, liquid residues, were burned inside the boilers,

which consisted of a lot of heavy metals, chromium,

cobalt.

It had been two or three years since I had worked in

the unit. I don’t know if when I worked there if I knew

which way the separation went. I was assuming that it —

some probably went down and some probably went up.

As it turned out, I think I was right. I think it’s a pretty

even cut, maybe fifty-fifty, goes to the bottom ash and 50

percent goes fly ash, roughly.

It’s - You know, heavy metals are not good for you.

We are learning more about them every day. I understand

recently the State of California has outlawed chromium in

the state. You’re not allowed to bring chromium into the

[p. 21] stay [sic] anymore.

Q. So there was some concern among the crew

about their own personal safety in working with the fly

ash?

A. I think so, yes. There was in mine.

Q. Welt, apparently, Ms. Freeman also had this same

concern. She was asking you -

A. I would say, yes.

Q. Who were some of the other people who were on

the crew that day?

A-30

A. Lonny Richie. I’m having a problem with the

names. | don’t do people’s names well.

Q. Okay. Well, let’s come back to those names in a

few minutes.

A. Larry Atchison.

Anybody else?

Yes. There were several more, and I’m just -

Take your time.

PrP Or

Kingery Nickerson.

MR. WALL: Do you know how to spell his first

name, or hers?

THE WITNESS: I'll take a stab at it. K-i-n-g-e-r-

y- And it definitely is not a her.

BY MR. HARRIS:

Q. Okay.

A. He’s a very large black guy, real nice guy.

[p. 22] Q. And his last name is Nickerson?

A. Nickerson. I don’t remember any more. Oh,

you've got Kelly. One, two, three, four. That may be all.

Q. During the course of the day, either while you

were working or at break time or during lunchtime, did

you have any discussions with any of these other individ-

uals about these working conditions that you were in that

day?

A. Lunch was rather quiet. Everybody was nasty

and filthy, and we didn’t even wash our hands. We

q

————————

A-31

weren’t talking at lunch. There wasn’t anything said at

lunch. It would have been - I don’t remember any of the

others. I remember Mr. Nickerson at one time saying that

it was up to me to take care of them because they didn’t

know what they were doing, and | had been there long

enough that I was supposed to know. I remember kind of

jokingly saying, “That’s an awful big order.”

Q. So he was suggesting to you that you kind of act

as spokesman for the group?

A. I felt that’s what Kelly Freeman was saying, too,

that both of them, and, since I’d been there longer than

they had, that possibly I should bring it up. That was the

assumption that | made.

Q. But that assumption was based upon what they

were saying to you?

A. Plus my own feelings. | —- Yeah, sure.

[p. 23] Q. But at least Ms. Freeman and Mr. Nicker-

son were kind of looking to you, because you had been

there longer, to serve as spokesman for the group?

A. Yes, | felt that.

Do you recall the name Ronnie Terry?

Yes.

Was he also on the crew that day?

Yes.

-> OY

Q. Were you wearing any type of protective

clothing or equipment that day?

A. We had scrounged up a pair of coveralls. We had

asked for gas masks with R21 - I specifically had asked

iii lll

A-32

for a gas mask with an R21 carbon filter on it. Sometime

Mr. Nickerson went after the gas masks, and when he

brought them back, he said all they would give him were

the gas masks body with the felt filter attached, that that

was a dust filter and that’s all we needed and that’s all

they’d used in the past.

And everyone - or | particularly — I can’t say “every-

one.” | was concerned that wasn’t going to be enough

breathing protection. | wanted a full face mask to protect

my eyes, and they gave us the little nose-mouth type

filters. And that was all we could get. I’m sure gloves. |

don’t remember gloves, but - We didn’t have rubber

boots. That’s about it. Hard hat and safety glasses.

[p. 24] Q. Did all of you wear the masks while you

were working in the bag house?

A. Qh, yes.

Q. The bag house where these bags hung, this is

where the fly ash was collected?

A. Yes.

Q. And the bags were attached to a vacuum system,

were they not?

A. The vacuum system was part of removing the

ash that had collected in the bag house, yes.

Q. And if we could draw an analogy, these bags

were like the bag in a vacuum cleaner?

A. More or less, yes.

Q. When you asked Mr. Elledge if these bags could

not be emptied and this residue vacuumed into the silo,

| anil

A-33

he told you what? That the silo had already been cleaned

up?

A. Yes.

Q. Isn’t it also true at that time, though, that the

vacuum system was down, was not working?

A. There was no reason for it to be running unless

we were going to use it to clean out the bag house.

Q. Do you know what the source of power was to

that vacuum?

A. It was electrical.

Q. Do you know whether or not it was in operation

at

[p. 28] remember.

Q. And on this particular day, June 13, 1988, when

you were working in the bag house, was that the first day

that you had been doing that particular task?

A. Yes.

Q. You have described your attempts to talk to Mr.

Elledge, Don Elledge. Was he the supervisor on that

crew?

A. I would say yes.

Q. Did you attempt to talk to anybody else in super-

vision during the course of the day?

|

A-34

A. No. Mr. Elledge was answering to McElliott, but

I didn’t know where Mr. McElliott was located. I proba-

bly — He and I didn’t get along very well, so i probably

wouldn’t have spoken with him anyway.

Q. Later that day after you had left work, did you

telephone Ms. McBunch?

A. Yes.

Q. And who is Ms. McBunch?

A. My words, personnel manager. They had a really

nice title. It escapes me what it is.

Q. But in your eyes she was the personnel manager?

Yes.

And is her name Jane, Jane McBunch?

Jane McBunch.

A

Q

A

Q. What time of day was it when you telephoned

[p. 29] McBunch?

A. 9:40 p.m.

Q. And why are you so certain of the time?

A. It’s in the tape that I got from the Texas Employ-

ment Commission.

Q. Why did you call Ms. McBunch?

A. I had thought continuously since leaving work,

driving home with ash all over me — I didn’t even want to

put my clothes on, just left my coveralls on. Took a

shower and cleaned up, and decided I’d better take a

bathe [sic], too. And when I finally got out of the tub, |

A-35

was probably over my anger at having the stuff all over

me and not really feeling like it was completely neces-

sary. And then I got concerned. | remember being very

concerned. And I thought that I should call someone.

Remember that the thing was blown up, the front

office was completely demolished, and all of the people

in the front office that you normally see from day to day

when you’re on daylight, they were housed in the

Hughes Building in downtown Pampa, nine miles away

from the plant. It finally kept getting bigger and bigger in

my mind, that the people that should be concerned about

this don’t know anything about it.

I could justify, or at least believe in my own mind,

that Mr. Elledge and Mr. McElliott were the only two [p.

30] people around, besides people that were driving up

and down the road and happened to see the ash blowing

~ these were the only two people that knew anything

about it. And I got more concerned when that idea hit

me.

And it obviously took me from - I got off work at

4:00 o’clock —- until 9:40 to get my nerve up to call some-

one. I can remember attempting to call Pam Shiflet. They

had two personnel representatives, one of them was -

How do you call it? - over, in charge of, the salaried

people, and the other one was - took care of the hourly

people. And I thought Ms. Shiflet was our hourly person-

nel representative, so I tried to call her.

I don’t remember whether I couldn’t find her number

in the book, but I remember getting the feeling that it was

an unlisted number. I found Ms. McBunch’s phone

number and called her to get Ms. Shiflet’s phone number.

A-36

Q. So during this period of time - You got off work

around 4:00 p.m., and from that point in time until about

9:40 p.m., the more you thought about what you had been

doing during the course of day, the more concerned you

became. Is that correct?

A. Yes.

Q. And part of your concern was the fact that, at

least in your eyes, this fly ash, the dust, was going into

the atmosphere; is that correct?

[p. 31] A. Yes.

Q. And would it be correct that part of your concern

was the fact that you and your co-workers were having to

work with this material and be exposed to it?

A. Part of the concern, yes, but my main concern was

that I knew that we were required, at least by permit, to

collect the ash, to keep it out of the atmosphere. And we

had — They had collected it, but now we are methodically

putting it back into the atmosphere.

Q. But you'd also said that during the course of the day,

I believe it was, Kelly Freeman and Mr. Nickerson had

expressed some concern to you. And my question is,

when you called Jane McBunch that evening, was this

part of your concern in notifying her or letting somebody

know as to what was going on down there?

A. I don’t remember menticning at any time to her

about exposure to myself or those people. The only con-

cern that I got out was the ash into the atmosphere. Is

that your question?

ee"

A-37

Q. No, my question is not just what you actually told

her, but, if you will, part of your motivation in calling

her. You’d said that Ms. Freeman and Mr. Nickerson were

kind of looking to you, because you’d been there longer,

to be a spokesman for the group. My question is, was this

‘part of your motivation in calling Ms. McBunch that [p.

32] evening?

A. I’m sure that it weighed to some extent.

Q. All right. Let’s get back to your conversation with

Ms. McBunch. What did you tell her?

A. I thought I had a real good rapport with her, and |

think I started out the conversation trying to crack a little

dry joke. I said, “What have you got to do to get in

trouble with this company real good,” and, you know,

“Just try to find out how to report a” — I think to EPA or

OSHA, the Evironmental [sic] - “an EPA violation.” |

didn’t get the sentence out completely. She broke in in

midsentence, which really got it out of context, and said,

“Well, why don’t you quit?”

Q. Let’s stop right there, Mr. Keener. Didn’t you, in fact,

say to her, “What do you have to do to get fired around

here”?

A. Yes, out of context.

Q. Okay. We’ll get to the context later. But, in fact, that

is what you said?

A. Comma.

Q. Comma, and then what was said?

A. “Why don’t you quit.” I was not allowed to finish my

sentence, which actually got it way out of context. The

A-38

finished - you know, “What do you have to do to get

fired around here,” is “Report an EPA violation,” didn’t

get out [p. 33] until she said, “Well, why don’t you quit?”

And I said, “Well, | was trying to crack a joke.” | really

thought she would understand that.

We had been - I was on the employee club board and

sat around a table, and we kind of talked and bantered

around back and forth on two or three different meetings.

And I thought I had a good enough rapport with the lady

that - I was in a little better mood, obviously, and I was

ready to try to joke about it and to get something done in

a lighthearted, diplomatic manner. And it went downhill

quickly.

I probably didn’t handle it very well after that. | was

shocked, | must say.

Q. After she said, “Why don’t you quit,” what did you

say?

A. I really - just fumbling with the words that “I don’t

intend to quit. That’s not my idea.” and I’m sure |

stumbled and fumbled with them pretty well, because |

was so shocked I’m not sure that | could carry on any

type of intelligent conversation after that. | was so

floored.

Q. Due to this feeling that you had, this shock and

dismay as to what she said, are you able at this point in

time to tell us what the rest of the conversation consisted

of?

A. I, at some point in time, got into the conversation [p.

34] of what I had intended to call about, you know, just

drop the initial things that turned out to be a very bad

A-39

joke, and told her what we were doing, as I pretty well

told you, pretty well through the spiel.

Q. Excuse me. I’m going to interrupt you just briefly.

And what you told her when you say you went through

the spiel, you told her what you and the other employees

on the crew had been doing that day in the bag house?

A. Yes.

Q. Okay.

A. And when I finished, | told her that I had - my main

concern was that I had remembered seeing a film shortly

before the plant blew up - When the plant blew up, I was

on vacation. Roughly a month before that, I distinctly

remember it was on a set of graveyard, 2:00 or 3:00

o’clock in the morning, they showed us a film about

RCRA.

Q. And when you say RCRA, R-E-C-R-A? Is that what

you're saying?

A. R-C-R-A.

Q. R-C-R-A.

A. Resource Conservation Recovery Act. I think it is the

enforcement arm of the EPA.

Q. Okay. And you saw a film?

A. Yes. And they pointed out at the end of this film that

I, as an employee, was responsible both for a fine and [p.

35] possibly - and/or possibly jail term for seeing a

violation to the air, water or any type of emissions, let’s

A-40

say, and not reporting it. And I had gotten really con-

cerned about, you know, is this what I’m doing and do |

remember this film correctly.

I was asking, “Do I have to report this to you? Who

do I report it to? I know we’re not doing it right.” This

I’m already convinced. “Now what do we do about it?”

And she asked again, “Why don’t you quit?” And I’m

sure there was a long silence, because by this time I really

don’t know what to say. This is not going well. You know,

my life is starting to flash before my eyes. My whole

‘twenty-some-odd years, it’s beginning to look like they’re

over.

So I asked her again, “Who do I report this to? I need

to report it to someone. Are you the” - “Is my respon-

sibility over when I report it to you?” She said again, “I

think that you need to quit.” And I’m telling her all this

time that I - By that time I think I was probably irritated a

little bit. By now — you know, maybe by now I’m starting

to get my back up against the wall saying, “I’m not

quitting. Whatever | do, I’m not going to quit.” Right now

I don’t recall what else was said.

Q. During the course of the conversation, did you tell

her that you would prefer not to quit, you’d prefer to be

[p. 36] terminated so you could draw unemployment

compensation?

A. No.

Q. Did you tell her that you would prefer not to quit

and would prefer to be discharged because you thought it

would help you find another job?

A. No.

A-41

Q. Did you tell her during the course of the conversa-

tion that if you were not discharged then that there

would be an incident that would result in your discharge

within four days? .

A. No, definitely not.

Q. Anything similar to that?

A. I said something that taken out of context could be

turned into that. Near the end of the conversation |

remember telling her that if we didn’t get some satisfac-

tion, that after I went to work in the morning I was going

to contact someone. I was going to get someone to tell me

that I was no longer responsible. And I told her that.

And I can’t remember exactly how it came out, but it

was in so many words that I will - I’m going to pursue

my idea of telling someone until in a few days you’re

probably going to have to fire me anyway. But | certainly

didn’t ask to be fired.

Q. During the course of the conversation with Ms. [p.

37} McBunch, did you describe to her the working condi-

tions that you and the others on the crew were having to

work in?

A. I think so, but I don’t recall. I think I told her the

story of the bag house.

Q. Did you describe to her, for example, that you all

didn’t have any rubber boots to wear?

A. I don’t recall.

Q. You may have, but you don’t recall?

A. I just don’t recall it.

A-42

Q. Did you tell her anything about the type of respira-

tors that you were wearing?

A. Probably. I was unhappy with the respirators since |

had asked for —- specifically for an R21 cannister.

Q. How long did the conversation with Ms. McBunch

last?

A. 20 minutes.

Q. Was your wife on the line for that entire 20 minutes?

A. She was [sic] wasn’t on the line. She was sitting next

to me.

Q. So she was only hearing your end of the conversa-

tion?

A. Right.

Q. And she didn’t hear anything Ms. McBunch said?

A. Right.

Q. Was she sitting there close to hear what you said for

that entire 20 minutes?

A. Oh, yes.

[p. 38] Q. When you called Ms. McBunch, had you been

drinking?

A. I had just finished a beer when I sat down and made

the telephone call.

Q. Had you had more than one beer?

A. No.

Q. Had you had any other type of alcoholic beverage

since leaving work at 4:00 p.m.?

3

A-43

A. No. She asked me if I had been drinking. I remember

that. I told her “No.”

Q. What time were you scheduled to report for work the

following day?

A. 7:30.

Q. And did you report at 7:30?

A. Yes.

Q. Did you clock in?

A. No.

Q. Why?

A. We didn’t have clocks.

Q. How did you register your reporting for work, or did

you?

A. We filled out a time card.

Q. Did you actually begin working on July 14th?

A. No. I had left my car in the parking lot and started

through the - About all that was left was a swinging gate

that during pre-explosion was where the trucks went [p.

39] through. And | didn’t actually get through the gate.

Mr. McElliott stopped me and said we had to go over to

the temporary offices.

Q. Is that Rick McElliott?

A. Yes.

Q. Did he tell you why you were going over to the

office?

A-44

A. They were going to fire me.

Q. And did he tell you why?

A. No.

Q. Was anyone with him?

A. No.

Q. So Mr. McElliott alone met you as you were coming

into the premises and escorted you to the office?

A. Yes.

Q. And whose office did you go to?

A. Ms. McBunch.

Q. This would have been shortly after 7:30 or around

7:30?

A. Oh, before, slightly before, a few minutes before 7:30.

Q. And we're talking about in the morning? This would

be 7:30 a.m.?

A. A.m.

Q. Were you present, then, during the meeting in [p. 40]

Ms. McBunch’s office?

A. Yes.

Q. And who all was present?

A. Ms. McBunch, Mr. McElliott, and Mr. Elledge.

Q. Now, earlier you’ve described to us that Ms.

McBunch was, in your eyes, the personnel manager, cor-

rect?

A-45

A. Yes.

Q. Mr. Elledge had been your supervisor the day

before?

A. Yes.

Q. On June 13th?

A. Yes.

Q. And Mr. McElliott was a supervisor who was over

Mr. Elledge?

A

Yes.

©

Mr. Elledge was your Supervisor on June 13th. Had

he been your supervisor on any days prior to June 13?

A. Just while I’d been attached to 1-A for the amount of

time I’d been there, seven, 10 days. I don’t recall exactly

how long.

Who conducted this meeting?

Ms. McBunch.

And was she the first person who said anything?

Yes.

And what did she say?

’? ? Oo > 2

- Mentioned that I had called her - asked me had I [p.

41] called her the night before, and | said, “Yes.” And,

“Would you recap what you told me?” | said, “Well, Mr.

McElliott has already told me you’re going to fire me.

Why should I waste my time recapping? You’ve already

taken everything I said out of context already. Nothing

I’ve said worked. What would you like me to say?”

A-46

She then told them what she thought - what she’d

decided that I said. And I was -

Q. Excuse me. If we could just interrupt, at that point

what was her version of what you had said the night

before? What did she say?

A. That I had called her and asked her to fire me. That I

remember distinctly. That I kept asking her to fire me. |

had made some half-hearted excuse of fly ash in the_

atmosphere. She obviously didn’t know what fly ash was.

She kind of got that fouled up a little bit.

I can remember sitting there thinking there’s got to

be some irony in here someplace and I just can’t find it

yet. What else? I don’t really — I don’t recall anything

more specific.

Q. That portion of your conversation the nigiit before

where you had told her that within at least a few days

you were going to report this and would probably be

fired, how did she characterize that portion of the conver-

sation?

A. I’m sorry. Could you -

[p. 42] Q. The night before when you talked with Ms.

McBunch, you did have some discussion with her regard-

ing the fact that you were going to report this to some-

body and that it would probably get you fired, right?

A. Yes.

Q. My question to you is, the next day, on June the 14th,

how did she describe that portion of your conversation to

Mr. McElliott and Mr. Elledge?

A-47

A. I don’t remember touching on that part of it at all.

you've got to kind of bear in mind my ~ after working in

that ash my eyes were swelled up, they were tremen-

dously bloodshot. They felt like two slits. I didn’t feel

very good. And after they’d already told me they were

going to fire me, I probably wasn’t in a very good mood

anyway. I am just not remembering that conversation

very well. To me it was already over with. I was fired.

I’m trying to figure out, you know, here I sit, I’ve got

five weeks of vacation. I carried over two weeks of vaca-

tion from last year because they kept saying they needed

help after the explosion, so I didn’t take my two weeks of

vacation I had left from last year. I’m sitting on seven

weeks of vacation. We’re talking approximately $4,000. If

they run me out, how am |] going to get that, you know.

There were several things going through my mind while

I'll [sic] trying to jisten to what she’s saying.

[p. 43] Q. So during the time that she was talking, these

were the thoughts that you were having?

A. I had myself convinced that they were goirg to fire

me, and as it turned out, I was right. There wasn’t any-

thing I could say.

Q. But these thoughts that you’re describing for us

today were the thoughts that you were having at that

time?

A. At that time, yes.

Q. The night before, do you recall making the comment

to Ms. McBunch that “shit happens”?

A. Did not at all that night.

A-48

Q. The next day, on June the 14th, do you recall her

making any comment in that regard and attributing that

statement to you?

A. I beg your pardon?

Q. On June the 14th when you were in this termination

meeting with Ms. McBunch and Mr. McElliott and Mr.

Elledge, did Ms. McBunch ever make the statement that

you had told her the night before that, quote, shit hap-

pens, unquote?

A. Definitely not.

Q. Okay. How long did this meeting with Ms. McBunch

and Mr. Elliott [sic] and Mr. Elledge —- how long did that

meeting on June the 14th last?

A: Five to 10 minutes.

[p. 44] Q. Were you given the opportunity to give your

version of what had happened?

A. Not that I recall, but it’s possible.

Q. How did the meeting conclude?

A. I was asked to go home. They would make their

decision and call me. Around lunchtime, I’d say, they

called me back to come back to the plant.

Q. Who called you? Do you recall?

A. I want to say Ms. McBunch, but | don’t recall who

actually called.

Q. And whoever it was who called, they called you at

your home?

SS

A-49

A. Yes.

Q. Did they say anything more to you at that time than

simply “Come back to the plant”?

A. No, that was it.

Q. When you went back to the plant, what happened?

A. They had a - Ms. McBunch had a letter typed up

lying on her desk and just went through what I assume to

be basic formalities of terminating someone. I think -

Either | read it or she read it to me. I don’t remember that

for sure.

Q. And was this a -

A. I was -

Q. - termination letter? Excuse me.

[p. 45] A. Yes. I was asked to sign it. And that was it.

Less than five minutes.

Q. Did you sign it?

Yes.

Who all was present?

Ms. McBunch, Mr. McElliott, and Mr. Elledge. -

> O >

Q. During the course of your employment with Hoechst

Celanese and prior to this incident, had you had any

problems with management or supervision?

A. I’d had problems with Mr. McElliott before, yes.

Q. And what were those problems? Can you describe

them?

A-50

A. Initially the one I remember kind of starting the

thing was some outside readings. It had happened about

six months, nine months later when it became appraisal

time and all this stuff came out of the file and went onto

my appraisal. | vaguely remembered the situation he was

talking about, but I couldn’t remember the particulars

until I had a few days to think about it. By then it was all

over.

He said that I had got up and just wrote down a set

of readings, outside readings, without ever leaving the

room. I was blank. I couldn’t remember what to tell him

at that particular time. As I thought back on it, | remem-

ber very well now that I had been out earlier actually

doing my co-worker’s job for him, setting up some stuff

on

,