Free Motion to Certify Class - District Court of California - California

Case 3:07-cv-04956-SI

Document 29-4

Filed 08/01/2008

Page 1 of 22

Exhibit B


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Case 3:07-cv-04956-SI

Document 29-4

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GERALD LEE and STEVEN TAYLOR,
individually and on behalf of
all others similarly situated,
Plaintiffs, vs. CONAM INSPECTION AND ENGINEERING SERVICES, INC. Defendant. CASE NO. 3:07-CV-04956-SI

DEPOSITION OF
DENNIS BERTOLOTTI
July 15, 2008
10:02 a.m. 555 South Flower Street, Forty-Second Floor Los Angeles, California

Debra M. Nakano Perry, CSR No. 6627

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Case 3:07-cv-04956-SI Document 29-4 Dennis Bertolotti
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Filed 08/01/2008

Page 3 of 22 15, 2008 July
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A
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No. Did they ask any questions about it? No. In preparation for the deposition, did you look None. And did you bring any documents with you today Just the employee manuals. MR. TINDALL: Let's mark as Exhibit 6 a document

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Yes, I do. Okay. Can you tell me briefly your work history I started in the industry '81 and came to Conam

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with MISTRAS or Conam. A approximately '91, ten years later, still doing other things in the industry in that period, but came to Conam in '91, been with Conam since. I have been anything from various corporate roles through local, regional management to vice-president to recent position as president.
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for any documents in your possession? A
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concerning this litigation? A

entitled "Notice of Deposition of Defendant Conam Inspection and Engineering Services, Inc." (Exhibit 6 marked.)
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And if I could walk you through that just a When you first came to Conam, you say it was

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little bit. 1991; is that correct? A
Q

BY MR. TINDALL: Mr. Bertolotti, can you review Yes, I have. What do you understand it to be? A deposition notice for today's meeting. And you understand that you are appearing here Yes. Do you understand that you're being put forth as Yes, I do. And for the record how do you pronounce the name

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this document and let me know if you've seen it before. A
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Yeah. And was the name of the company -- what was the It was Conam. I'm sorry. Let me finish the question. Okay. What was the name of the company at that time? It was Conam. And was it Conam Inspection and Engineering Conam Inspection.

name of the company - A
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in response to this deposition notice? A
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the person at Conam most knowledgeable about two topics? A
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Services. Inc.? A

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of the company? A
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What was your title when you first began with Special applications, which meant I did a lot of

MISTRAS. MISTRAS. How do you pronounce the name of C-o-n-a-m? Conam. Conam. If you look on the second page of that document,

Conam? A new technology and anything else that needed to be done at the corporate level.
Q

A
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And approximately how long did you hold that

position? A A year or two. And then I took a job in Columbus, Ohio, as a local manager.
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there's two topics with numbers 1 and 2 about a third of the way down the page. The first topic after the number 1 says: "Any and all alternative workweek schedule elections that Conam has held involving or affecting Conam's California employees." Do.you see that? A
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And did the Columbus, Ohio, location have a Just Columbus, Ohio. It was a Conam Inspection And how long were you in Columbus at that In Columbus, about eight years. I was going to

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name? A
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in Columbus. position? A school at the time and getting different jobs, going from local to regional and to actually vice-president just before I moved back to Chicago. So during the course of the eight years, I held different jobs progressing.
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Yes. Do you understand that you're the person most Yes, I do. And same thing with -- same question with regard

knowledgeable at the company about that topic? A
Q

to No.2, "Conam's policies in California regarding overtime, meal breaks, and the payment of wages to its California employees." Do you understand that you're the person most knowledgeable at Conam with regard to that topic?

Okay. So, just briefly, you were a local Correct. - is that correct? And then from the regional manager position,

manager, and then you were a regional manager - A
Q

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The name was Frank Peck, P-e-c-k. And what was his title? West Coast regional manager. In addition to the California locations, did

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Has that -- the number at Signal Hill -- you

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said recently there was an acquisition, and it went up to approximately 150. Let me take you back to 2003. So about five years ago. Do you have an idea as to approximately how many employees -- Conam employees worked at the Signal Hill office? A My guess would be in the 40 range, 50. And you suggested earlier that until recently it Until two months ago. A month - I - a month And what was the -- was there a company that you Yes. What company is that? South Bay Inspection. To the best of your recollection, that was in Yes. And same question with regard to Benicia.

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Mr. Peck have any other -- have authority over any other Conam locations? No. Was -- other than Mr. Peck, were there any other

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California regional managers in the 2002 to 2005 or '6 time frame? No. So as far as you know, he was the only Yes. At any time were you based in California - No. No. You indicated that you oversee the operational

was in the range of 70 to 80; is that correct? and a half. It's something like that.

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California regional -- or West Coast regional manager?

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acquired recently?

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a -- while working for Conam?

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approximately May of 2008?

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duties of Conam locations. What are the Conam locations in California that you oversee? The actual buildings in California, the property And do you refer to the - I'm sorry. You say that we have, are in Signal Hill and Benicia.

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Approximately five years ago, in 2003, how many employees do you think were employed there, Conam employees? 35,40, guessing. And the employees at the Signal Hill office-

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that's the property that Conam owns?

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are these employees who are inspectors for Conam?

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Not that they own - MR. TORRANO: I'll object. Calls for a legal

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Predominantly, yes. There will be And I won't ask you about the 150, but in the -

administrative as well.

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conclusion. Go ahead. THE WITNESS: Not that they own it. Those are two offices. We can work in different parts of the country, but that's the two offices.

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until about two months ago, of the people in the sort of 70 to 80 employee range that you said worked there until approximately two months ago, about how many do you think are -- of the employees were inspectors? A Probably all butten roughly. Is the same true of the Benicia office? Probably less administrative. Maybe only eight And the remaining 42 to 44 would be inspectors? Yes. Okay. You indicated that you had - that you

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BY MR. TINDALL: Okay. And are there -- and

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Signal Hill -- where is that located approximately? I don't know where Signal Hill is as a city. Long Beach area. Right next to Long Beach. And at Signal Hill - is that - what offices Every Conam location has an office that does And are there employees assigned to work at the Yes. Currently how many Conam employees work there? Guessing right now, it would be somewhere in the

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or six. Probably closer to six.

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are located there? Are they the administrative offices? administrative, technical support. It's all one.

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were overseeing the California operations. Are there - other than Signal Hill and Benicia, do I understand correctly that there aren't other locations that you consider sort of Conam-run locations? A Yes, that's true. Correct. Okay. But is it correct that the inspectors

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Signal Hill office?

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90 - well, actually it would be quite a bit bigger because we just had an acquisition. So 150.

working for Conam are often working at refineries in California? Yes. When an employee -- strike that. Are inspectors generally assigned to a

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And what about Benicia? Currently how many 50.

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Conam employees work there?

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particular location where they'll be working? A That varies. They can be scheduled by the day, by the week, and sometimes they do get assigned to a particular location, but even that moves around. It depends on what the customer is looking for or - Q A And how is it communicated to the inspectors They normally report -- if they are always going where they will be working on a given week? to the one location, then they're dealing with the owner's representatives and the Conam representatives. If they're scheduled out daily on call-out type of work, they would have a supervisor, what we would call a field supervisor, that works for Conam, one of the administrative people, doing the scheduling. Q Let me -- it sounds like you sort of categorized two different workings. One you said some people are dealing with the owner representative and the Conam representative? A If they're assigned to the -- if they're assigned to a refinery or utility or something of that nature orthey're going to the owner's facility as a first call, then there's going to be an owner and a Conam supervisor that they deal with. Q And by "an owner," you're referring to the owner of the -- say, the refinery where they're working?

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Yes. And currently where are -- at what refineries or MR. TORRANO: When you say "representatives,"

power plants are Conam representatives assigned? you mean the lead person? MR. TINDALL: Correct. THE WITNESS: In Califomia only?

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BY MR. TINDALL: In California. In Signal Hill it would be bp Carson; Exxon

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Torrance; ConocoPhillips, two facilities, two sites, now because of the acquisition. And over the course of the years, there could have been other ones where people were there for a while, and then the work wasn't necessary or the situation changed. I'm giving you -- I might be missing one or two, but I'm giving you predominantly what we have right now.

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Okay. And you mentioned that that was the Shell Martinez, Dow. Is that Dow Chemical? Chemical. Valero in Benicia. Mostly I think that's it.

Signal Hill locations. What about the Benicia?

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There may be a couple where we've got a few here and there, but it moves around.

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Okay. You'd mentioned Valero in Benicia. Is

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Yes.

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Q And in that instance there would also be a Conam representative assigned to that location as well? A There will be a lead person assigned to that facility as well. Q A Q A lead Conam person. Yes. And, then, I couldn't tell from your previous

there Valero in another location? A Valero owns 1310- -- yeah. They own 13 refineries across the country, but specifically the one in Benicia right by our office is - Q The one where you have a representative; is that correct? A Yes. Q Is there another Valero refinery or location in California where Conam inspectors work? A Not all -- not assigned to -- permanently to that. Q Okay. And over the past five years, other than the locations you've identified - and I'll list them for you. bp Carson, Exxon Torrance, ConocoPhillips -- you said there were two -- Shell Martinez, Dow Chemical, and Valero. Over the past five years, were there other locations where Conam had sort of field representatives, field supervisors as you were describing before? A Probably, yeah, for smaller periods of time, but off the top of my head, I don't -- sometimes a utility for shorter periods, though. Q Okay. I'm going to ask you about a couple such locations. Oh, first of all, you said ConocoPhillips - there are two locations. What are those two different

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answer. Were you distinguishing that between the situation which a person is assigned to a refinery as their first - I think you called it report or first place that they go? A Q A What do you - I'm sorry. You referred to a field supervisor.
If they have no schedule -- they don't know for

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the five days ahead Where they're going -- then they would be reporting to the Signal Hill or the Benicia field supervisor, asking them what the schedule would be for that particular week. Q Okay. And has that been the structure that you just described where inspectors report either to a location, a refinery, for example, or to a field supervisor at Signal Hill or Benicia -- is that the sort of way the inspectors had been assigned for the past five years?

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Case 3:07-cv-04956-SI Document 29-4 Dennis Bertolotti
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locations? A
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facility -- would that person also be in charge of the sort of Conam Inspection employees at the bp Pipeline as well? MR. TORRANO: I'll object. It assumes that there are more than one employee. But you can go ahead. Or that there are any employees. THE WITNESS: bp sometimes has the Carson facility doing work at, like, terminals or pipelines, and other times it's a separate contract. So bp Pipeline per se is a separate contract that we don't do any work for, but there has been times when we've supported parts of the rest of the bp structure in the Los Angeles area out of Carson. Q BY MR. TINDALL: Okay. A
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Yeah. I don't remember off the top of my - I Okay. And is there a separate -- and I want to

think it's Rodeo and -- they're in the Los Angeles area. make sure my terminology is right. Do you call it a Conam field representative is the person who sort of is located at the location where Conam inspectors report? A
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Field or lead person at that site. Okay. Has there been a lead person -- during

the past five years, has there been a lead person assigned to the bp Pipeline, the bp Pipeline refinery? A No. Because if I understand you correctly, that's a split-off of what used to all be the bp complex. bp's changed their corporate structure. Now there's bp, bp Pipeline, INEOS. No.
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Okay. Are you saying that there wasn't -

So it gets -- it gets a little difficult. And you referred to the -- to INEOS, I-N-E-O-S; Yes. A few years ago bp decided to break up

that -- strike that. There was a Conam field representative, lead person assigned to bp Carson; correct? A
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is that correct? A some of its holdings and form a new company from the chemical side, and mostly when you hear 'INEOS," that was an old bp chemical facility. Q And does Conam have a - strike that. In the past five years, has Conam had a lead person assigned to INEOS?

Yes. Was that me -- was there no additional person Correct. Okay. Would the bp Carson field representative

assigned to the bp Pipeline? A
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have sort of authority or be the Conam assigned person

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with regard to the bp Pipeline as well? MR. TORRANO: I just want to object. And I don't think you're doing it intentionally, but you keep saying "field representative," and I think the witness has said it's a lead person. MR. TINDALL: Okay. Or he said it's both. MR. TORRANO: I think he said - I think he said lead person or field - or field supervisor. But, anyway, I think lead person has been the primary. Maybe we should nail it down as to what these persons are actually called. THE WITNESS: Let's call it a lead person. BY MR. TINDALL: And is the lead person an inspector himself or herself? A Yas. He may not be doing actual inspection at the time, maybe doing more administrative, but background is an inspector. Do you know if the lead person is paid differently from the inspectors? And by that I mean salaried as opposed to hourly? A
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Prior to the breakup the portion that was now -

that is now INEOS was part of bp Carson. Q And so at that time the lead person -- the Conam lead person assigned to bp Carson also had -- was the person assigned as far as the INEOS facility is concerned? A Before it was considered INEOS when it was still a part of the bp operating facility. Q Okay. Since it's become INEOS, has there been a separate Conam lead person assigned there? A I think currently we only have one person assigned to the entire INEOS facility. Q Okay. I'm going to ask you about a couple other locations. Were there -- and this is all relating to the past five years. At any point in the past five years - and specifically September 23rd of 2003 to the present. So it's approximately five years -- was there a Conam lead person assigned to the Wood Group in Vernon, California? A Possibly. I'm not familiar with it unless it's a different name.
Q

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Generally not, no. Generally they're paid hourly? Yes. And so the - going back to the bp Carson

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Okay. You're not familiar with that - No. Same question with regard to - strike that.

question. So the lead person at the bp Carson

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Are you familiar with the term "MBS"? A No. Is there an MBS facility in Signal Hill, Not that I -- I am aware of, no. Okay. You referred to ConocoPhillips. Is one

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Conam had a lead person assigned to the Thums Corporation, a sort of pumping facility in Long Beach? A We used to work there, but with Thums it's a little different because you're almost on a call-out basis. They can call you out a lot, or they can call you out a little. Being that you're on platforms, it's not like you're there all the time. You're there as needed. We do less now than we did in the past.

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California?

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of the locations where there is a lead person assigned by Conam the ConocoPhillips refinery in Wilmington? MR. TORRANO: I'll object that it's vague as to time. Do you mean after the acquisition or before the acquisition? BY MR. TINDALL: At any time since the past -

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Okay. Was there at some point in the past five

years -- strike that. I'm just trying to get a sense. You said you did more in the past at Thums. In the past five years, was there a time period in which you were doing more work at -- in which Conam was doing more work at Thums than they are now? A Now we do very, very little. In the past they would call us up more, but, again, it was just based on their need. Right. And I understand. I'm just trying to

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in the past five years. A There is since the last two months. In the last two months, there is a lead person assigned to ConocoPhillips in Wilmington? A Yes.

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Was there a lead person assigned to

ConocoPhillips at any time before the past two months? A I'm guessing. I would say no, but there could have been some small projects there for a while but - Okay. Is the Wilmington refinery the - separate from the Rodeo refinery? A Yes. Okay. Is that the other that you were referring

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get a sense of in the past. Would it be -- in the past five years, during that time period, was there a time' period in which it was more frequent that you -- that Conam did work for Thums? A Within the last year we have done very little. Maybe one to two years ago or one to two and a half years

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to? A
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ago or something. But within the last approximate year, we've done very little. And just so I understand your response, one to

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Wilmington is, yes. So there's Wilmington, and there's Rodeo. I believe Rodeo is the other name, yes. Okay. In the past five years, has Conam had a

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two and a half years ago, you did more than you've been doing in the past year or so at Thums. A
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lead person assigned to the Chevron refinery in EI Segundo? A I don't think so. We have done sporadic projects there, but I don't think we've been there what we would call on an ongoing basis. And to the best of your recollection, of these

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Yes. And you said it works a little different, that

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there's -- the work is sort of assigned on a call-out basis; is that correct? A Yes. Q Can you explain how that works. What do you mean that the Thums work is done on a call-out basis? A Thums are offshore platforms. So you have to be transported out to the facility. So they will call you hopefully a few days ahead of time and tell you here's what we have for next week or the next couple days, and we will need people working on Tuesday or Wednesday or - it's not like you know you're going to go there X amount of times in a given week. Q And that's different -- for the most part that's different from the other locations where Conam works? A The ones where we have people full time there, people know they'll be there for those five days ahead of time, right.
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sporadic projects, was there - in the past five years, were Conam people there for longer than six months at any stretch? A I would guess no. Okay. In the past five years, has Conam had a lead person assigned to the Texaco refinery in Wilmington? A
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Again I would guess no. Do you believe, similar to the Chevron EI

Segundo refinery, that at times Conam did work at the Texaco refinery in Wilmington? A Truthfully I think we've done very little there, if at all.

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Has -- at any time in the past five years, has

At some point over the past five years, was a

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Conam lead person assigned to the ARCO Pipeline in Long Beach? A ARCO is now bp. bp bought ARCO a while ago. So it goes back to those original questions. Probably not. There might have been some work from Carson for bp Pipeline, but I think bp bought ARCO more than five years ago.

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election in early 2000? A I don't remember exact numbers. I know it was for the Shell Martinez. So it was whatever that group was at the time.

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So it was -- the election was specifically with

regard to Conam employees who were working at the Shell Martinez refinery; is that correct? Correct. And your understanding is that the number of

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At some point was the bp Carson facility owned

by ARCO? A Prior to bp buying that facility, it was ARCO, and it may have been something before that but -- yeah.

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people who voted was -- strike that -- that only the people who worked at the Shell Martinez refinery voted in that election in early 2000? A That I know of, yes.

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And that's the Carson facility that you're Correct. Okay. So if I asked you about the ARCO Pipeline

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referring to?

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clear, is that in the -- what we referred to as the Benicia election, that the Conam employees who voted in that election were only the employees who were assigned to the Shell Martinez refinery; is that correct? A That I know of, yes, it is. And you referred to an election that - I

in Long Beach, do you believe that that is just the earlier name of the bp Pipeline? A Yes, I do. Okay. Are you familiar with the term Yes. What's your understanding of that term?

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"alternative workweek schedule"?

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believe you said you were informed that there was an election in Signal Hill in 2000. Is that correct? Yes. We still have many people that work for us presently from that time period, and many people do - have approached me telling me that they were part of that 40

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Reference to California work rules to work a shift other than a traditional 40-hour shift.

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And by "a traditional 40-hour shift," what do

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you understand that to be? A Eight hours a day, five days a week. In the year 2000 are you aware of whether Conam held any alternative workweek schedule, which I'll call "AWS," elections during that year of 2000? A Yes.

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election. Okay. So you don't have any independent

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recollection of that election; is that correct? A I -- I was not out here. No. Okay. Who is it that told you that there was an election in Signal Hill or regarding Signal Hill in 2000? A I can give you a few names. People who are still at the refinery, and some are still in the office.

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How many did they hold? How many such elections

in 2000? A I know for sure there was one conducted in Benicia, and I'm being told there was one conducted in Signal Hill, and that's the two I knowof. And do you have a sense of when the Benicia election was held? A

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Okay. At which refinery? bp Carson.

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And who are those people? A Off the top of my head, I can go through a few. Sergio Gomez, G-o-m-e-z, I believe, was one who said he was at that time. Wendy, our administrative assistant, who is in the office and was in the office then, was part of that, remembers it. Wendy Myers. Pete Guevara, who is now our office salesperson, I believe, was actually working at the refinery at the time, remembers that. I believe Tom Schindler, who is now at the refinery. That's -- off the top of my head, that's - there are a few more I don't remember.

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Early 2000. DO'you know what sort of alternative workweek For Benicia? For Benicia. What they refer to as a 9/80. And what's your understanding of what a 9/80 is?

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schedule was being sort of"voted on at that time?

0
A

18 19 20 21 22 23 24 25

0

A You accumulate -- in a two-week period, you accumulate your 80 hours which provides you for a - every other Friday off.

o

Okay. And your understanding from speaking with

these people is that they understand that there was some sort of AWS election with regard to the bp Carson refinery in 2000?

0

And do you recall how many people -- or

approximately how many people voted in the Benicia

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Case 3:07-cv-04956-SI Document 29-4 Dennis Bertolotti
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Filed 08/01/2008

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43

A
Q

Yes.
Have you seen any written documents relating to
Myself personally, no.
Do you know if any such documents relating to an
I am told they do exist, yes.
And who told you that?
Wendy and Pete that I mentioned earlier who are


1 2 3 4 5 6 7 8 9 10
11

Q

Okay. So between -- let me see if I could

short-circuit this. You refer to the one that was held. Is it your understanding that between 2000 and, say, 2007, that the election that you referred to in early 2000 at the Shell Martinez refinery was the only alternative workweek schedule election held at that facility? A
Q

that -- to an election held in 2000 at bp Carson?
A
Q

election in 2000 at bp Carson exist?
A
Q

That I know of. Yes, that's the only one you know of? Yes. That I know of, yes. Other than that election, the -- I believe it is

A

still in the office and others have said that they remember writing and doing this. So my assumption is we still have it somewhere. Our business is to retain records, and I would assume we would have it somewhere.
Q

A
Q

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the February 2000 Shell Martinez alternative workweek schedule election, do you know of any other alternative workweek schedule elections that were held at any place in California between 2000 and the end of 2007? A
Q

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21

Do you have any sense whether the results of an

14 15 16 17 18 19 20 21 22 23 24 25

election that was held in the bp Carson facility was ever reported to the DIR, the Department of -- I believe that's Industrial Relations. A
Q

Personally I do not. Anywhere in California; is that correct? Correct. Have there been alternative workweek schedule Yes. Okay. At what locations? Both Signal Hill and Benicia. And approximately when was the 2008 election in

I don't know that part. Again that preceded me If there were documents relating to an election

A
Q

being out here. held in 2000 at bp Carson, you believe it's the company's policy to retain such documents? A
Q

elections held in California in 2008? A
Q

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It should have, yes. Okay. Do you know where they would be located? No. Because of the acquisitions and everything

A
Q

A

Signal Hill?

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else, sometimes those things were sent to corporate, which would have been with the preceding company. Sometimes they would be retained locally. That's between the local office and HR.
Q

A
Q

I think Signal Hill and Benicia are 2008, June, And the -- let's talk about the Benicia June

roughly. election. Did that relate to the employees of a particular -- I'm sorry -- the Conam employees assigned to a particular facility? A I believe the two we did were Shell Martinez and Dow. HR was involved and would know for sure, but I believe that's the two we did.
Q

Do you have any knowledge of the number -

assuming there was an election regarding the bp Carson facility, do you have any knowledge of how many people voted in that election? A
Q

Not firsthand. My assumption would be -- would You don't know one way or the other?
No.
In 2000 do you know approximately how many Conam


have been the entire group, but I don't know.
A
Q

Shell Martinez and Dow Chemical? Dow Chemical. Do you know approximately how many people voted Whatever the group is. I'm guessing. 14,16, I And do you know approximately how many people Very small. Very small. Three or four, I Do you know if in those elections the employees Yes. I'm told both groups overwhelmingly. And the Signal Hill election in 2008 -- did

A
Q

12 13
14

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in the Shell Martinez election in June 2008? A
Q

employees worked at the bp Carson facility? And if
you -- I dan't want you to guess if you don't know.
A The majority of the office at the time. So
whatever the office -- I forgot what number I gave you,
but it would be 80 percent of the office at the time
probably.

Q

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think, is the present head count. I don't know. voted in the Dow Chemical election in 2008? A
Q

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think, is - voted in favor of the alternative workweek schedule? A
Q

Other than -- strike that.
At the Shell Martinez refinery, are you aware of


any alternative workweek schedule elections that were
held in 2001?
A 2000.
No. I was told the one that was held was in


that -- was there - how many elections are you referring to when you refer to the Signal Hill sort of election in

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2008? A bp Carson, both ConocoPhillips, Mobil Exxon - And when did these elections - I - -- take place? Oh, go ahead. A I may be wrong on the two ConocoPhillips. There was some talk about we were going to have to do that. Then I think at the last minute they determined that they were actually going to stay to a normal workweek. So I'm not 100 percent sure of which ones on those. There's- I'm trying to figure out which ones had AWS versus a standard workweek. Exxon in Torrance.

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Conam employees voted in the 2008 election? A Again I think it's the entire group, but I don't remember what the group is there. Closer to a dozen or -

Q
A

Q

Q And do you have an understanding as to whether the employees at these two locations, bp Carson and Exxon
Torrance, voted in favor of the AWS election? A Yeah. Again it was very, very overwhelming. They - Q Approving it. A -- positively approved the election, yes. MR. TINDALL: Can we take a quick break. MR. TORRANO: Sure. That's fine. (Recess.) MR. TINDALL: Back on the record. Q Mr. Bertolotti, do you understand you're still under oath? A
Q

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Q A

Okay. And the customer was driving that and was

looking to move that and change that.

Q At the ConocoPhillips location is what you're referring to?
A Locations, possibly both.

Yes. We're back after a short break. We talked about the AWS elections in 2000. Do

Q And just so I can clarify, to the best of your recollection, you believe that there may not have been an
AWS election with regard to the ConocoPhillips Conam employees? A It was originally intended, but I believe

you have any knowledge of any AWS elections in California that were held prior to 2000? A
Q

Not personally, no. Let's mark as -- let's see -- Exhibit 7 a

document that's been Bates stamped CO 019342 through

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11

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they -- Conoco was talking about moving it back to a normal AWS -- or never moving it from AWS is what it was. They had talked about changing it, and then they weren't sure.
Q So as far as you know, to the best of your recollection - I realize you're not certain. A Yeah. Q -- there have not been -- there has not been an AWS election with regard to the ConocoPhillips locations? A I don't think it happened. It was originally

CO 019346. (Exhibit 7 marked.)

Q BY MR. TINDALL: Mr. Bertolotti, can you review this and let me know if you have seen it before. A No, I haven't. Q A Q A
Do you know who Chuck Penley is? Yes. Who is he?

12
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intended, but I think last minute Conoco decided it wasn't what they wanted to do. Q Okay. Do you know approximately when the 2008 election with regard to the bp Carson facility occurred? A Also June.
Q

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The former manager of Benicia. Q And by "the former manager of Benicia," he's the sort of -- he was a Conam manager; correct? A Yes. Q And he was the manager of the Conam operations in Benicia? A Correct. Until what time? 2000 -- late 2004, early 2005. That's your best estimate? Yes.

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Do you know approximately how many people voted

in that election? A I think the present work group right now is around 60, 66.
Q

Q A Q A

And do you believe approximately that many

voted? A I think attendance was very close to 100 percent the day they voted, yes.
Q Okay. How about with regard to the Exxon Torrance facility? Do you know approximately how many

Q I'll direct your attention to the first paragraph on the first page of that document. It says:
"The Martinez Refining Company operates on several work schedules, inclUding the 9/80 and 4/10 alternate workweek schedules. These alternate workweek schedules are a

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A

Correct. The last -- about a third of the page up from

1

a 5/8 40-hour week as opposed to a 4/10 or a 9/80 altemative workweek schedule? A Yes. Okay. Do you have an understanding of whether

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a

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the bottom, there's sort of a one-sentence paragraph beginning "Personnel not assigned at the site." Do you see that? A Yes, I do.

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a
well? A

that's the case at other California Conam facilities as Yes, that is. Okay. And by that, I mean the employees who are

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It says: "Personnel not assigned at the site and called in occasionally will revert to the Conam Inspection standard workweek." Do you see that? A Yes. Do you have an understanding of what is referred to as the "Conam Inspection standard workweek"? A Yes. What is that? A It starts at 12:01 Monday and goes through the following 12:00 a.m. Sunday. a And do you have an -- do you have an understanding of whether it refers to an alternative workweek schedule or a 5/8 schedule or anything like that? A Unless you're specifically assigned to an AWS, it refers to a 5/8 schedule. This goes to something that we were discussing

a

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a

assigned to a site where there's an alternative workweek schedule -- the ones who are assigned at the site work the alternative workweek schedule; is that correct? A If that's the preference at the site, yes. Okay. Whereas is it your understanding that

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a

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a

people who are called in occasionally to work at such a site where there's an alternative workweek schedule, that those employees are working a 5/8 schedule as opposed to the AWS? A Yes. Because there's no prediction of how long or how many days they may work the site. So they may come in for one eight-hour day or longer or shorter, and it may only be one day, or it may be many.

a

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a And is that your understanding that that's the way the schedules have worked at the various sites for
the past five years or so? A Yes.

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earlier. This paragraph refers to personnel not assigned at the site and called in occasionally. Do you see that? A Yes.

a

I've reviewed some of the time records, and I'll

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represent to you that some of the employees appear to be working 4/10 altemate workweek schedules at that work site whereas another employee during the same week is - appears to be working a 5/8 schedule. If that's the case, does that suggest -. and I'm asking you to assume that what I just said is correct. In that instance would -- the person working a 5/8 would likely be somebody who was assigned as sort of an occasional employee to that work site? Yes. Whereas the person working the alternate workweek schedule would be someone that's assigned on a A

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a

And it's correct that certain Conam employees

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are assigned to a particular site, such as the Martinez refinery; correct? A Yes.

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a Okay. And occasionally other employees -- it suggests here that occasionally other Conam employees are
called in to work at the site; is that correct? A Yes.

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a

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a And is it your understanding with regard to the Martinez refinery that those employees at least in 2000 were assigned a 5/8 work schedule?
MR. TORRANO: I'll object. That's vague. I'm sorry, Steve. Can you say that one more time. MR. TINDALL: Sure.

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more ongoing basis. A Correct.

a

Do you have any -- you indicated that you didn't

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have knowledge of whether this document, referring to Exhibit 7, was distributed to the Conam employees working at the Martinez site; correct? A Correct. Do you have any knowledge of whether the document was translated into Spanish or any other language other than English at any point? A No personal knowledge.
Okay. Has anyone informed you that it was


a
says:

I'm just trying to understand this sentence. It "The personnel not assigned at the site and called in occasionally will revert to the Conam Inspection standard workweek."

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a

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Is it your understanding that that means that Conam personnel who are only called in occasionally work

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a

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translated into Spanish? A No. 0 I'm marking as Exhibit 8 a document, Bates Nos. CO 06156 through 6161. (Exhibit 8 marked.)

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A I was told by Mike Price, yes, it was given to the employees. o Do you know if it was given to employees before the election? A I would assume. I don't know logistics or anything like that, but I would assume, yes. Do you know if this memo was translated into any

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0 BY MR. TINDALL: Can you review this document, let me know if you've seen it before.
A Yes. I've briefly seen this at the Benicia office. When did you see it at the Benicia office? A I -- I don't know. I do remember seeing it, just -- I remember seeing it because I remember it's from Mike Price, who is now our -- Mike Price is the manager. I remember he was the one at the site. So I remember seeing it, but it was probably six months or more ago. 0 Do you remember if it was in connection with this lawsuit in any way that you reviewed it? A I don't remember why I -- I don't remember why I was there. It was just going over just the administrative duties. 0 Okay. On the first page of the document, the document -- well, strike that. You said you've seen it. To your understanding, what is this document? A To my understanding, this is what Mike Price

o
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other language?

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No, I don't know. You don't know one way or the other? No, I don't. Do you have any reason to believe that it was?

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I -- I was not told about it, no. You were not told that it was ever translated. A No. Is th at co rrect? A Correct. MR. TORRANO: Just so the record is clear, I think the testimony is he wasn't told one way or another. He has no information about it. I think that's what he

o

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said. MR. TINDALL: Okay. Well, let me clarify. Do you have any basis for believing that it was translated into Spanish? A I was never told. I don't know. If there was

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used, who was at Shell Martinez, for the information for the vote. 0 And "the information for the vote" -- by that, you refer to the alternative workweek schedule election at the Shell Martinez refinery in 2000? A Correct. 0 Tell me again who is Mike Price. A He was the lead person at Shell Martinez. 0 What was his title? A Lead - lead person, Shell Martinez. 0 And was he an inspector, or was he a supervisor over inspectors or - A His background is inspection, but in that position at that facility, he was doing more supervision than actual inspections. 0 Okay. In this document -- I believe in the other one as well -- there are times when the letters "MRC" are used. Do you understand that that stands for "Martinez Refining Company"? A Yes.

Spanish-speaking people there. he may have done that, but no, I don't have any knowledge that he did do it or that it was -- I've never seen any alternate language document at all.

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a

Can you turn to the second page, which is

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0
A

Is that a commonly used term, calling it MRC? That Shell uses, yes.

Do you have any understanding of whether this document, Exhibit 8, was made available to Conam employees at MRC?

0

CO 006157. A (Complies.) a About hallway down the page, there's a note where it says "Note" in bold. Do you see that? A Yes. a I'm going to read it -- paraphrase and read it. "An employee already voluntarily working a valid alternative workweek schedule as of JUly 1, 1999, may continue that schedule after January 1, 2000, without overtime premiums if the employer approves a written request by that employee to do so." Do you see that? A Yes. a Are you aware of any documents indicating that an employee -- any employee at Conam made a written request to continue working an alternative workweek schedule? A I don't have any of the details of how this

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Case 3:07-cv-04956-SI Document 29-4 Dennis Bertolotti
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A

Correct. You identified Diane Morelli. Is she the Correct. How long has she been the HR director? Guessing, only a year, plus or minus. And is she HR director for all of the Conam MISTRAS, which encompasses Conam, correct. So she'.s not specifically affiliated with Not specifically, no. But is the HR director for all of MISTRAS? Correct. Who was the HR director before Ms. Morelli? Anne, A-n-n-e, W-i- -- Winski, W-i-n- - maybe Approximately how long was she in that position? Probably early 2004. Okay. And do you know who was the HR director Yes. It was a male, and I can't think of his Okay. If you think of it at a later time - Yeah.

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A

Yes. Do you have a sense of -- so what was your - Did you have any role in the creation of this

a
A

a

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director of human resources?

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strike that. document? A Yes. What was your role? Truthfully I don't remember if I was part author

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company?

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or I had seen it and reviewed it before I put it out, but I don't remember how it came to be, who originally wrote it.

a
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California.

a
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Do you have any idea of when this document was In that form? Uh-huh. Probably early after the acquisition. So in So to the best of your recollection, Exhibit 9 Yes. And I'm going to ask you some questions about

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a
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produced, created, in this form?

a
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a
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two N's -- s-k-i. I don't remember exactly.

late 2003.

a
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a
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was created sometime in 2003?

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before Ms. Winski? name right now. I'll think of it.

a
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this document, but can you look at Exhibit 3 briefly and let me know if you've seen that before. Yes. What is this document?

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a
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a -- I may ask you.
(Exhibit 9 marked.)

So let us know.

The Employee Policy Manual written with the Did you have any role in the creation of this Probably not. Okay. I'll direct your attention on the first

2

We'll mark two documents as Exhibit 9 and 10. Exhibit 9 is Bates stamped CO 19347 to CO 19378. MR. TINDALL: And actually since I'm on the ball, what I previously said would be Exhibit 10 is what we marked previously as Exhibit 3. MR. TORRANO: Right. MR. TINDALL: So do you just want to continue referring to it as Exhibit 3? MR. TORRANO: I think that's great, yeah. I think that's a really good idea.

MISTRAS Group for MISTRAS Group.

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document?

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7

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a

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page to the one written textual paragraph. It says "This manual specifically supersedes and replaces all previous employee manuals" and then, skipping to the end of the sentence, "effective August 1,2006." Do you see that?

8 9

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Yes. Do you have an understanding of whether this

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a a
A

BY MR. TINDALL: So this will be Exhibit 3. (Exhibit 3 previously marked.) BY. MR. TINDALL: Mr. Bertolotti, can you first

a
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Employee Policy Manual went into effect on or after August 1, 2006? By the way it's written, my guess would be Okay. I don't want you to guess. I mean does that's when it got put in place is -

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review Exhibit 9 and let me know if you've seen it before. Yes. Can you tell me what this document is. Employee Manual for Conam Inspection and And I'll direct your attention to the second

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it seem -- does it make sense that that is when this document would be put into place? Yes. Okay. And to the best of your knowledge, was

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Engineering.

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a

a
2oo6?

page. At the bottom it says "Sincerely, Dennis Bertolotti." Do you see that?

Exhibit 9 -- the Employee Manual marked as Exhibit 9 the employee manual regarding Conam from 2003 to August 1 of

25

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A
Q

To the best of my knowledge, yes. Okay. But this was -- Exhibit 9 was the Yes. As far as you know, other than these two

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11

is going to get assigned or scheduled? A Combination of the employee and the Conam supervisor. They look at their skills and tell them you could fit to this or this role, and then the employee and the supervisor will determine what's best generally.
Q

employee manual that was in effect at that time? A
Q

documents, are you aware of any other employee manual that has been in effect for Conam employees who worked in California since 2003? A
Q

And by "the supervisor," in California who is

that person? I don't mean in particular. I mean what is their position? A Either the lab manager or the field supervisor who schedules the work.
Q

No. As far as you know, these are the only two? As far as I know, yes. And is there only one employee manual that Yes. If I could ask you to turn in Exhibit 9 to page

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A Q A

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A

And you said the lab manager? Yes.

rel.ates to the employees in California at one time?
Q 14 of that exhibit, which is Bates No. 19360.

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Q What is the lab manager? A Chuck Penley from that memo in early 2000 for Benicia. Whoever was assigned. Q And so the lab manager, as far as you recall -

A (Complies.) Q In the paragraph that has the subheading "A. Work Schedules" -- do you see that paragraph? A Yes.
Q Can you read that -- just the first part of that paragraph before the indented portion and let me know

was there a lab manager in Benicia and another one in Signal Hill? A
Q

Yes. Okay. And by "field supervisor," are you

referring to someone who's assigned -- a Conam employee who's assigned to a particular refinery? A No. Field supervisor would be somebody working either in Signal Hill or in Benicia that is scheduling the rest of the call-out-type work.

when you're finished. A Done.

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Q

Okay. The first sentence says: "Your work schedule is determined at the time that you are hired and may change depending on your department's business needs." Do you see that? Yes.

Q A Q

But that's different from the lab manager - Yes. -- the field supervisor position?

A Yes. Q If you'll take a look at the section that's marked "Breaks." Do you see where it says bold letter "B. Breaks"? Can you read that subsection to yourself and let me know when you're finished. A Done. Q To the best of your knowledge, is the break policy that's laid out here -- was it the break policy for Con am's California employees in 2003? A Should have been for Conam company-wide, yes. Q Okay. And from 2003 all the way up until now, is this the policy that's been in effect? A Well, the 2006 one would probably have a similar reference. I'd have to look to see if it's the same. Q Actually you're making me be very careful, which I appreciate. From 2003 until August 1, 2006, is it your understanding that the break policy as stated in Exhibit 9 in the paragraph you just read -- that that is the break policy for Conam's California employees? A Yes.
Q

A
Q

At the lime Conam inspector employees are hired, this sentence suggests that they are given a work schedule at that time; is that correct? A Yes. They're assigned either to a call-out schedule, which can vary during the week -- it could be eight hours or less or more -- or they're assigned to one of these facilities we've been talking about, and then they know-what their set hours are unless that facility changes those hours.
Q

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Okay. So -- and this is something that we've

talked about earlier, and I appreciate your telling me about it. When an employee is hired, what you just said, I believe, is that usually they are either assigned on a sort of call-out schedule, or they're assigned to a particular facility; is that correct? A Correct.
Q

Who is it that decides how a particular employee

Okay. If I could ask you to turn to Exhibit 3,

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Case 3:07-cv-04956-SI Document 29-4 Dennis Bertolotti
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and this .- it's on page 13. A
Q

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Clarkson, who's the predominant coordinator for the Carson facility. Q And Ron Clarkson is a Conam employee? A
Q

(Complies.) Do you see Section B where it says 'Breaks'?

Could you read that to yourself and let me know when you're finished. A
Q

bp. I just want you to sort of educate me a little

Done. Okay. Is it your understanding that this was Yes. And it would apply to the California Conam Correct. Okay. 11 appears -- I looked at it pretty

about this. The "Employee Name" - it says "Steve Taylor." That would be the tech submitting the time; is that correct? A
Q

the break policy for Conam beginning on August 1, 2006? A
Q

Yes. And it says "Work Description: RT ASST: Do "Radiographic"- I'm sorry. I'm going across the top of the "Radiographic technician assistant." And does that refer to .- what does that refer A skill type. The technicians all have various

employees; correct? A
Q

you know what that means? A
Q

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carefully. It appears that it's word for word the same as the previous one. Do you have any understanding of whether the policy with regard to breaks changed in any way in 2006? A If the wording is identical, then, it may have been the same at that time, yes.
Q

document. A
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to? A

Okay. If the wording is identical, do you have

different skills that they're using, and that means he's performing radiography, but he's not the -- what we would call the lead. He's not the person -- of the two-person-or-more team, he's not the person in charge of that team. He's helping. Q Okay. And your understanding is that when it appears in the location that it appears on this sheet,

any reason to believe that the policy would be different at all starting on August 1, 2006? A No. MR. TINDALL: Could we go off the record for a sec.

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(Discussion off the record.) MR. TINDALL: I'm going to mark as Exhibit 10 a one-page document marked with Bates No. CO 15192, I believe. (Exhibit 10 marked.) BY MR. TINDALL: Can you take a look at this and let me know if you've seen a document like this before even if you haven't seen this exact document before. A Yes, I have. Q Can you tell me what it is. A Time sheet for the technicians to report their hours upon. Q And this specifically -- it says at the top "bp West Coast Products LLC." Do you see that? A Q A Yes. What does that refer to? It's showing that the physical location this
Q

it's referring to the employee's position? A Yeah. Skill set that they're doing for that particUlar day or week. Q Okay. And the "Job Number." There's some digits after the "Job Number." I don't - I don't mean to ask you what exactly these job numbers refer to, but what does that reference, these two numbers? A It's just bp's way of tracking where the charges belong to. Inside a given refinery they may have dozens of charge numbers for their accounting system. So it's kind of telling bp where inside the refinery the work was being charged because inside that refinery there's different managers that have different budgets, and they track them separately. Q Okay. So these are bp numbers rather than Conam numbers? A They could be a Conam number, but it's referring to a bp charge so that bp could understand how they break up their different kingdoms and their bUdgets.
Q

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time sheet was used for was Carson bp West Coast Products -- yeah. Probably Carson, yes.
Q

It's to relate to bp's information system. Yes. Okay. On the - one more sort of data question:

Your understanding is that bp West Coast

Products is bp Carson? A Yeah. They -- again, it may have been - sometimes you get involved in the pipeline or something like that but - and this one is by the coordinator Ron

A Q

It has -- the second column has "Charge/AFC Number" in the second column. Do you know what that refers to? A No. Every refinery's got nuances of how they

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want the charges, and my total guess it's like an authorization for charge. They use different acronyms for that. Again it's sub-breaking out the way that they budget inside bp I think is what that's referring to.
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why the total hours is listed as 10 as opposed to 10 and a half? A A half hour for lunch.

a
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Okay. And then the "ST Hours." Do you know "Straight time." And then the next two columns -- I believe I

And by "they," you mean bp? Yes. The other -- the other thing it could be is

what the "ST" refers to?

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actually that could be what we're charging that employee out as.
Q

understand these. There's "OT" and "DT." Do you have an understanding as to what those letters refer to? A "Overtime," "Double Time." Okay. And so if an employee reports time in at

Okay.

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A That could be our charge code that they were using, which it's just a way of us knowing what rate and bp knowing what rate they're being charged at. Okay. And then the second to last column on the right-hand side -- it says "Name Tech/Assistant." Do you know -- and it looks like the name Richard Garcia or Gitrch or something. What does it mean that there's a tech/assistant listed there? A In that case they're just saying who is the other person working as the team. Q Okay. In this, if you look at the first line, there's a column listing "Time in," another column listing "Time Out." Do you see that? A Yes.
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6:00 o'clock, time out at 1630, the total hours that are being .- and reports total hours of 10, they would be paid for 10 hours of work as opposed to 10 and a half hours; is that correct? A

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a

In this case, yes. The way it's shown, yes. Okay. And then if you look two lines down, the

date that's listed as January 26th of '05, time in is listed at 3:00 o'clock and time out at 7:00 o'clock. Do you see that? A Yes. Total hours there is listed as four, and if you go from 3:00 o'clock to 7:00 o'clock, that's four hours. Do you have an understanding as to why the total hours is the same in that instance as opposed to, you know,

a

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What is your understanding as to what the

employee is to fill in in those two columns? A What they call gate time. When he checked into the refinery and when he checked out. Q So it appears from this -- and I'm not asking you to give testimony as to whether it actually occurred on this date, but from this document it appears that Mr. Taylor checked in at the gate at 0600, which would be 6:00 a.m.; correct? A Correct. Q And then "Time Out," would have checked out at the gate at 1630, which, I guess, would be 4:30 p.m.; is that correct? A Correct. Q And then it lists "Total Hours" and "ST Hours." Do you see that? Yes. Q "Total hours," it says "10." And what's your A understanding of what that "10" refers to? A Under "Total Hours"?
Q

subtracting a half hour? A For some reason they were only required to work four hours that day. I don't know Why. But they only worked four hours in the gate. Don't know if he went somewhere else and did other duties that day, but it was only four hours inside the gate. Okay. And so -- but it doesn't reflect -- these numbers here would not suggest that he had a lunch break; is that correct? A Correct.

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a Okay. Can you take a -- let's see. We'll mark as Exhibit 11 a document, Bates stamp No. CO 14412. (Exhibit 11 marked.) BY MR. TINDALL: Can you take a look at this document. Does it look familiar to you? This type of

a

document. A Yes, this type. Is it -- it's a similar type of document as the

a
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one we were just looking at; is that correct?

Uh-huh. Yes.

a

Yes. Do you know why some .- the one we just looked

10 hours worked at site, inside the gate. Okay. If you calculate the time between 6:00 in the morning and 4:30 in the afternoon, I believe that's
Q

A

at was handwritten, and this appears to be typed. Do you know why that might be? A No, I don't. I would -- I thought most would have been handwritten. I'm not sure why this one was

10 and a half hours. Do you have an understanding as to

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typed out. a Yeah. I mean do you know -- is the employee the person who fills out the time sheet, to the best of your knowledge? A Yes, it is. a Both if it's handwritten or if it's typed? A Yes. Yes. My·· our assumption is that they have the employees fill out the sheets to turn in. Okay. And I'll ask you a similar question. If

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them to -- yes. We tell them to make sure that they take their lunch break. And that is communicated with, in this case, bp or whoever the owner is to coordinate so they know when it is. And I in person am not there, but the assumption is that everyone is taking their -- their breaks - Okay. A -- and generally with -- coordinated with -- at the same time or close to with bp so they know about what's going on too. a And that's -- let me ask you about that last part. So you want to coordinate it with bp, and by that you mean is there -- in this instance they're working at bp Carson, it looks like. The employee is sort of coordinating their lunch break so that it comes at the same time as the bp Carson employees; is that correct? A Just so they know - it doesn't always have to be the same time as bp Carson. Just so that they know when they're breaking because bp has to know when we're inside their units and doing work. So they generally have to tell bp ahead of time what's going on and when they're going to be breaking and so that the guys know when they're in or out. They have to announce it or

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you look at the line where it say~ -- it looks like June 6th,2005. Do you see that line? A Yes. a Time in is listed as 6:00 o'clock. I assume that's 6:00 a.m. Time out at 1630, which would be 4:30. Do you see that? A Yes.

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a If you subtract those two, it's 10 and a half hours; yet the total hours are listed at 10, straight-lime hours listed at 10. A Yes.
Do you know why that would be? A Again, assumption is half-hour lunch. a Okay. And if you look at the line below, the same question. Time in is 6:00 o'clock; time out is 1800

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hours, which would be 6:00 o'clock p.m. It's correct that if you were working from 6:00 a.m. to 6:00 p.m., that would be 12 hours of lime passage; correct? A Correct. The total hours are listed as 11.5. Do you see that? A Yes. Do you have an understanding as to why the work hours are listed as 11.5 if the time in and time out - there's 12 hours in between? A Assumption of only