EFiled: Jun 18 2015 02:03PM HAST Transaction ID 57429767 STATE OF HAWAII Case No. OSH 2011-10 HAWAII LABOR RELATIONS BOARD In the Matter of CASE NO. OSH 2011-10 JAMES P. STONE, DECISION NO. 28 Complainant, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION AND and ORDER HAWAII AIR AMBULANCE (HAWAII LIFE FLIGHT), Respondent, and DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Appellee. FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION AND ORDER Following a de novo proceeding before the Hawaii Labor Relations Board (Board), and for the reasons discussed below, the Board finds in favor of Complainant JAMES P. STONE (Complainant or Stone). Any conclusion of law improperly designated as a finding of fact, shall be deemed or construed as a conclusion of law; any finding of fact improperly designated as a conclusion of law shall be deemed or construed as a finding of fact. To the extent the parties' post-hearing briefs contain what may be construed as proposed findings of fact, any such facts submitted by a party that are not incorporated as a Board finding herein or that are clearly contrary to the findings herein, are denied. I. PROCEDURAL HISTORY On April 8, 2011, the Board received from Appellee DIRECTOR, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS (Director or DLIR), a Notice of Contest regarding a discrimination complaint by Stone against Respondent HAWAII AIR AMBULANCE (HAWAII LIFE FLIGHT)' (Employer) in Hawaii Occupational Safety and Health Division (HIOSH) Case No. 10-003. Stone appealed from the HIOSH determination that he was not discriminated against/terminated for his safety-related complaints to management, including an incident in 2008 where Stone claimed that pilots were operating fuel trucks without a Commercial Driver's License (CDL) or proper training required by the administrative rules of the Department of Transportation, State of Hawaii. On December 14, 2012, Stone filed a motion to stay proceedings in this case pending disposition of the Federal Occupational Safety and Health Administration (OSHA) proceedings. On January 8, 2013, Employer filed a memorandum in opposition to Stone's motion to stay proceedings. Also on January 8, 2013, the DLIR filed its response to Stone's motion to stay proceedings, stating its objections to the motion. On December 14, 2012, Stone also filed a motion for leave to file an Amended Pretrial Conference Statement. In the motion, Stone sought to include the following issue for trial: 1. Whether the Director lacked proper jurisdiction for this complaint due to federal preemption of Hawaii law and regulation by the Federal Aviation Act of 1958, 49 U.S.C. § 40103 et seq., the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, 49 U.S.C. § 42121, and the Surface Transportation Assistance Act, 49 U.S.C. § 31105. On January 8, 2013, Employer filed its statement of no position on Stone's motion for leave to file Amended Initial Conference Statement. Also on January 8, 2013, the DLIR filed its response to the Stone's motion for leave to filed Amended Initial Conference Statement, taking no position. On January 14, 2013, the Board conducted a hearing on the motions, and determined that the issue regarding jurisdiction should be addressed as a threshold matter, 2 and requested the parties to submit briefs regarding jurisdiction. The Board reserved the right to schedule a hearing on the matter, and denied both of the pending motions. On February 19, 2013, Employer filed a motion in support of the HIOSH's jurisdiction, and the DLIR filed its memorandum in support of HIOSH's jurisdiction to conduct its discrimination investigation. Also on January 19, 2013, Stone filed his memorandum regarding jurisdiction. On March 13, 2013, the Board conducted a hearing on the issue of jurisdiction, and the parties had full opportunity to present further evidence and argument to the Board regarding jurisdiction. On March 28, 2013, the Board issued Order No. 502, finding that on July 14, 2010, Stone filed a discrimination complaint with HIOSH alleging he was wrongfully terminated for reporting safety concerns to management, including an incident in 2008 where Stone claimed that pilots were operating fuel trucks without a CDL or proper training required by the State Department of Transportation, and that on July 16, 2010, Stone filed an identical complaint with OSHA alleging he was wrongfully terminated because of his reporting safety concerns. The Board found it had jurisdiction pursuant to Hawaii Revised Statutes (HRS) § 396-8(e) and § 396-11(e) and (g). The Board hereby incorporates Order No. 502, in which it found jurisdiction over this proceeding. On June 14, 2013, the Board issued a Stipulated Protective Order, Order No. 507, in this matter, in which the parties stipulated to provisions controlling the protection, use, and dissemination of Confidential Information and documents produced by the parties pursuant to the order. Trial in this matter was held before the Board on July 9, 10, and 11, 2013; August 19 and 20, 2013; and February 10 and 12, 2014. During the trial, the Board heard testimony from Stone; Craig Lyle Young; Monz David Hahn; Robert Bryan Darrow; Kelly Anderson; Tin Shing Chao; Joshua Martin Betof; Kevin Richard; and Harold Rodriguez, Jr. The Board received into evidence Board Exhibits 1 through 41; DLIR Exhibit 1; Complainant's Exhibits 1 through 62; and Employer's Exhibits 1, 2, 6, 8, 10 through 12, 14 through 28, 32, and 33. 3 On March 21, 2014, the parties filed their post-hearing briefs and memorandum in this matter. II. FINDINGS OF FACT 1. Stone's Background Stone began his airline career in 1988 as a ramp agent for Aloha Airlines. In 2004, after 15 years of service for Aloha Airlines, Stone became a pilot. He worked as a pilot for Aloha Airline for four years, from 2004 to 2008, when Aloha Airlines ceased its operations on March 31, 2008. During his employment with Aloha Airlines, Stone became familiar with the applicable rules and regulations for safe aircraft operation, piloting, and refueling. While at Aloha Airlines, Stone learned how to employ safe aircraft refueling practices, and obtained his CDL. When Aloha Airlines ceased its operations, Stone applied for a job with Employer. On July 2, 2008, Stone was hired by Employer as a pilot. He was stationed at Employer's Waimea base on the Island of Hawaii (Big Island). Stone was laid off by Employer on June 11, 2010, after Hawaii Air Ambulance merged with its competitor, Hawaii Life Flight Corporation. 2. Employer's Background Employe? is an air medical transport company for critically ill and injured individuals throughout Hawaii who need immediate transport to medical facilities. Prior to May of 2010, Employer operated under the name Hawaii Air Ambulance. In May of 2006, Eagle Air Med (now called Air Medical Resource Group), headquartered in Utah, purchased and began operating Hawaii Air Ambulance. Effective on or about May 1, 2010, Hawaii Air Ambulance merged with another air medical transport company, AirMed Hawaii. As a result of the merger, Employer's name was changed to Hawaii Life Flight Corporation. 4 Employer's operational headquarters is in Honolulu, and it also maintains one airbase on each of the islands of Maui and Kauai, and three bases on the Big Is land. - Employer operates seven aircraft in total, one for each base plus one spare for use when an aircraft is down for maintenance. There are two daily 12-hour shifts at each base, and there are two or three pilots on staff at each base. At Employer's Waimea base, the day shift runs from 8:00 a.m. to 8:00 p.m., and the night shift runs from 6:00 p.m. to 6:00 a.m. (there is a two hour overlap of shifts during the busiest evening hours). At Waimea, one pilot is on duty during each shift. 3. Aircraft Refueling Safety Complaints Within the first few months of employment with Employer, Stone was instructed on Employer's procedures for refueling planes. Stone was surprised to learn that Employer instructed its pilots to refuel planes without regard to state or federal requirements, such as the requirement to possess a CDL, along with an Airport Operations Area (AOA) badge and Motor Vehicle Operating Permit (MVOP) to operate aircraft refueler units."' None of Employer's other pilots had a CDL or MVOP. If a plane is refueled contrary to the CDL laws, it is the operator of the vehicle (in this case, the pilots), not the company, who is cited. At Employer's Honolulu location, where fuel prices were lower than they were on the neighbor islands, Employer had a fuel truck that was parked on the side, and the pilots were told by Employer to roll out the hose and fuel their planes. Later, the location of the fuel truck changed to the "ramp" and the pilots had to drive the truck around to refuel. Craig Lyle Young (Young), another pilot who worked for Employer for approximately two years beginning April of 2007, was approached one evening at Honolulu airport by a security officer who asked for Young's identification. The officer also asked Young if he had a CDL, which Young did not, and if Young had a permit to drive a truck onto the tarmac, which he did not. Young told the officer that his company (Employer) authorized Young to refuel the planes. The officer did not give Young a ticket, but did write a report. This incident occurred around July of 2008. The day after Young received the warning, he and Stone discussed the incident and that the pilots had to be careful not to do the refueling operation, and they both brought the issue up with Dawn Guillermo (Guillermo), who was Employer's Program Director and responsible for all business aspects of the company and supervision of the medical teams. Guillermo 5 replied that the issue was "dealt with." Guillermo also accused Young of having a bad attitude, and "got in his face" with Stone. Employer chose not to call Guillermo as a witness. After Guillermo's dismissal of Stone's safety concerns, Stone raised his concerns about the airport refueling trucks to Employer's Compliance Officer, Jason Nix (Nix). Nix replied that a CDL was not necessary, and told Stone and fellow pilot Monz Hahn (Monz) that they can drive the truck, because "it's perfectly fine." Stone was alarmed by this response from a Compliance Officer. At another meeting, Stone brought paperwork of the CDL regulations to Guillermo, to show her that a CDL was required, but was brushed off by Guillermo, who seemed "agitated" by it. Based on testimony at trial, the Board finds that Stone brought up the refueling safety violation issue to management "a lot" on behalf of the pilots. In March of 2009, Employer's lead pilot Dave Heck (Heck) told Stone that Guillermo had "cross-hairs" on Stone' s back because of the fuel truck situation which was costing the company money. In July of 2009, Young had a proficiency "check ride" with Heck, during which Heck mentioned the "cross hairs" on Stone's back. Heck told Young that if it were up to Guillermo, Stone would have been fired long ago, but because Stone's wife was an emergency room doctor, it would be "bad PR" for the company and they did not want to cause turmoil involving Waimea Hospital. Employer was concerned about the potential business consequences of terminating Stone because of the possibility that Stone's wife could divert business to Employer's competitor. The reason for wanting to terminate Stone was "his attitude." Heck was subsequently counseled by Employer for warning the pilots about the "cross-hairs" on their backs, and removed from his management duties. In November of 2009, more than one year after Stone brought his safety concerns to Guillermo, Employer received an exemption letter from the Oahu Airport Manager, exempting Employer's pilots from the CDL requirement to drive fuel trucks at Honolulu Airport, for pilots who have completed a fuel safety training program. After Respondent announced it had received an exemption letter, Stone requested that the pilots be allowed to see it and that a copy of it be placed in the fuel truck. Employer refused to place the exemption letter in the fuel truck, despite Stone expressing his understanding that such placement was required by law.'" Employer's Director of 6 Operations, Joshua Betof (Betof) told Stone that Employer did not want the letter in the fuel truck because its competitor would find out about it. Stone's requests that the exemption letter be placed in the fuel truck continued until February of 2010. When Stone again raised this issue in February of 2010, he asked if Employer could place the written exemption in the truck so the pilots who were refueling would have something to show to security if they were stopped while operating the truck, would know when the exemption expired, and would have it within arm's reach as required by Hawaii law. Betof refused. 4. Other Safety Complaints In addition to the refueling safety complaints, Stone raised other health and safety issues with Employer. In August and December of 2008, and early 2009, Stone raised the issue of Employer requiring pilots to exceed a safe number of consecutive on-duty hours. Stone also informed Employer about defective equipment on Employer's aircraft, including a broken battery caution light in late 2008; a door seal leak in November of 2009; a weight and balance issue in March of 2010; and an incorrectly located oxygen port in May of 2010. Generally, Employer maintained a work environment that discouraged employees from reporting safety concerns. Credible witness testimony described Guillermo as being agitated by safety complaints. Young testified about being targeted for being a whistleblower. One pilot was scolded for reporting mechanical issues in-flight over the company radio. Pilots referred to Employer's "safety meetings" as "free lunch" meetings because Employer was not interested in hearing about or discussing safety issues, but did provide a free lunch. On April 24, 2009, Federal Aviation Administration (FAA) Principal Operation Inspector Scott Hartley (Hartley) issued a letter to Betof with instructions that the letter be sent to all pilots. The letter warned pilots not to fly aircraft knowing there is a deficiency that had not been fixed or deferred properly, or the pilot will receive a violation notice and suspension of flying privileges. The letter further advised the pilots to contact Hartley "if [they] see anything questionable or are asked or pressured to fly an aircraft that hasn't been properly maintained or if [they] have any questions[.]" However, Betof did not send Hartley's letter to the pilots until forced to do so by Hartley in October of 2009. Betof testified that he had sent out his own "reworded" copy of the 7 letter by email to all pilots, but credible witness testimony showed that the pilots did not receive such an email, and Employer did not produce a copy of the reworded email. Additionally, the Board finds that Betof, who was Employer's primary witness at trial, was not a credible witness. Some examples include: Betof's testimony regarding Pilot Robert Darrow's employment in Waimea is contradicted by Darrow's testimony; Betof's testimony that Pilot Rodriguez was given discipline for the May 12, 2010, incident is contradicted by Rodriguez's testimony, and no copy of any such discipline was provided in response to Stone's discovery request; Betof testified that he never discussed Stone's discipline with Guillermo, yet email shows Betof solicited Guillermo's input prior to issuing the discipline; Betof testified that it was standard operating procedure to record all dispatch calls, yet when Stone suggested in an email that Betof listen to Stone's call with the dispatcher on May 12, 2010, Betof never responded to those emails and claimed that the system "got switched in June of 2010" so they were conveniently not available; although Betof testified that the issue with the CDL was resolved long before Stone's termination, Betof eventually admitted that Stone did continue to bring it up; and Betof failed to produce several documents in response to Stone's discovery request in this proceeding, such as Betof's email to the FAA Principal Operations Inspector that Stone only obtained from the FAA through a Freedom of Information Act (FOIA) request. It is possible that Young may have been retaliated against for making safety complaints about Employer to the FAA, as Young was also warned to watch his back because Guillermo "had it out" for him; Young was subsequently disciplined for a formation flight despite the other pilot involved not receiving any discipline; and Young was ultimately terminated for being an "unsafe pilot" despite receiving Employer's safety award the prior month for being their safest pilot, and despite the statements by Employer's chief pilot at the time to the Unemployment Insurance Division that Young "demonstrated nothing but professionalism from the very beginning" and Young being "the type of employee anyone would welcome." Betof disputes Young's version of his termination, but as stated earlier, Betof was not a credible witness, and the Board does not believe Betof's stated reasons for the termination. 5. Employer's Position on Stone Employer asserts that Stone was not a "team player" and placed his own needs ahead of the company's operation priorities. 8 In March of 2010, Employer received a complaint from its chief mechanic that Stone was unwilling to stay with his aircraft in Honolulu and insisted on flying back to the Big Island to avoid risk of delay in returning home. Also, in March of 2010, Stone objected to staying at the Employer-provided housing located near base if he could not meet the 20-minute response time (due to road work in Waimea) because it would be "unfair" to take Stone away from his home and family during his work shift of twelve to fourteen hours a day. On July 20, 2008, Stone was arrested for "DUI" and reported the matter to the FAA on July 28, 2008, as required by 14 C.F.R. § 61.15." However, Stone did not report the arrest to Employer until January 8, 2009. Stone expressed remorse and desire to comply with all FAA and State requirements, and assured Employer that his CDL, FAA physical and ATP & Instructors Pilots licenses remained valid. Employer took no action against Stone when it learned of the DUI arrest. Betof testified that Stone was very "rigid" about requesting days off and expected other pilots to change their schedules in order to accommodate his requests; that two pilots working with Stone in Waimea complained to Mr. Betof several times that Stone was not flexible in accommodating them and thus caused conflict; that Stone, because he was paid when on call regardless of whether he was assigned to fly, often wanted to get out of flying assignments. Also, Stone complained more than other pilots that his workload was heavier than other pilots, and that he was called more often to take flights than other pilots. Kevin Richard, a communication specialist with Employer, testified that on several occasions, Stone did not meet his estimated time of arrivals to the hospitals. Also, Stone did not make himself available to assist fellow pilots by "coming on shift" early to relieve other pilots, which resulted in other pilots not wanting to "come on shift" early to relieve Stone, making dispatch for Waimea difficult. Further, that Stone complained about his base being busier than others, and about being sent to Kona or Maui. Employer further points to Stone's "heated phone calls" with Rodriguez and Stone's unwillingness to work with anyone civilly, and references an email from Stone to Rodriguez sent on November 20, 2008, which included the following: 9 Don't act like you've done Mons or me any favors because you haven't. In fact even though you dont [sic] fly very much at night only once have you accepted a flight before your shift, probably to prove your point about moving the day shift to an earlier start. You don't want to work you just want to get paid. You think we all owe you because of all the time you had to take off, and you know how i [sic] know that, because you've said more than a few times that you need to make up pay and that's the reason why you should'nt [sic] be the one to take off on Christmas. Since all of this has happened, and since your wife is not going to be working, and since my wife is working, and since I don't have a baby sitter that I can count on all the time, I am going to let management know that from now on I am going to be the night pilot. Employer further points to Stone's contest of his disciplinary letter in May of 2010, which is discussed below, as evidence of Stone's insubordination towards his managers. 6. Employer Merges with Its Competitor On or around May 1, 2010, Hawaii Air Ambulance merged with its only competitor, AirMed Hawaii (AirMed). Shortly after the merger, Employer terminated Stone. 7. The May 12, 2010, Confusion Over Shifts On May 12, 2010, pilot Harold Rodriguez (Rodriguez)" was scheduled to work the day shift, and Stone was scheduled to work the night shift. This was Stone's first day back from vacation. It was Employer's procedure at the time to schedule which pilots would work a particular day, but not a particular shift, and leave it up to the pilots to work out who worked the day and evening shifts."" Rodriguez was scheduled for days and Stone for nights. However, Rodriguez was in the process of moving from Kona to Waimea at the time, and for that reason he needed to work nights. When Stone went on vacation, Rodriguez worked nights. At the end of Stone's vacation, the pilots were in the process 10