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5 PEEBLES VS. TMX SECOND SESSSION
6 EDITED AND CERTIFIED
7 ROBERT L. STEELE, JR., TESTIMONY
8 AUGUST 13, 2019
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21 DATE TRANSCRIBED: 08/13/19
22 TRANSCRIBED BY: Nancy Pannell, CCR 30
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1 ROBERT L. STEELE, JR.,

2 being first duly sworn, was examined and
3 testified as follows:
4 DIRECT EXAMINATION
5 BY MR. CAMPBELL:
6 Q. Mr. Steele, Tom Campbell
7 representing the Peebles in this case.
8 Could you tell Mr. Hussey, our arbitrator,
9 what your full name is?
10 A. Robert Lynn Steele, Jr.
11 Q. What do you do for a living?
12 A. I am a service manager with
13 Terminix.
14 Q. And what office?
15 A. Mobile.
16 Q. Colleague of Mr. Ken Stroh?
17 A. Sir?
18 Q. Colleague of Mr. Ken Stroh?
19 A. Yes, sir, yes, sir.
20 Q. From 2014 forward have you been
21 the guy that supervises doing
22 re-treatments of infested houses like this
23 one?
 3

1 A. Yes, sir.
2 Q. Have sworn to other arbitrators
3 since you returned to Mobile in the
4 service manager capacity since 2004 that
5 you have made sure that each house that
6 was infested received a full conventional
7 post-construction termite treatment?
8 A. Yes, sir.
9 Q. And can you explain to Mr. Hussey
10 why that treatment didn't manage to get
11 done at the Peebles' house even after Joe
12 Debrow ordered you to do it in June of
13 2016?
14 A. The letter I got from Joe Debrow
15 was for corrections, and I actually met
16 the termite treater there at the time, and
17 we went over what needed to be done. And
18 once that happens, with an experienced
19 termite treater, I always with a 20-year
20 vet is leave him there by hisself. I
21 don't supervise him while he's treating
22 because I've got other obligations
23 somewhere else.
 4

1 Q. Did you or did you not tell our

2 experienced treater to do a conventional
3 post-construction termite treatment with
4 Termidor, yes or no?
5 A. No, sir. I told him to -- the
6 state letter required for the corrections
7 on the letter itself that they issued to
8 us.
9 Q. That was the first time that you
10 had an opportunity to treat this house
11 after it was discovered to be infested in
12 2016; correct?
13 A. Yes, sir.
14 Q. Then why did you not follow what
15 you said in your testimony to other
16 arbitrators that your practice was in
17 Mobile since your return in 2014 to do a
18 comprehensive post-construction treatment
19 with Termidor of every single house that
20 was determined to be infested after you
21 returned?
22 A. Well, I can't answer the question
23 because I don't know back -- that's two
 5

1 years ago, and, like I said, if I

2 overlooked it, it's my mistake, but I was
3 going off basically what the letter of the
4 state asked us to do.
5 Q. Did you read the letter in
6 preparation for your testimony today that
7 you sent to Joe Debrow certifying that you
8 had complied with what he told you to do
9 in his letter?
10 A. Under the letter itself, yes, sir,
11 as far as --
12 Q. In that letter you told him you
13 did two things. You did, number one, a
14 complete treatment of the house; and
15 number two, that you cleaned the wood
16 debris out of the crawl space; correct?
17 A. Either did the correction and
18 cleaned the wood out underneath, yes, sir.
19 Q. Have you come to learn that all
20 the wood wasn't cleaned out of the crawl
21 space?
22 A. No, sir.
23 Q. Have you come to learn that the
 6

1 complete treatment wasn't done of the

2 house after that?
3 A. No.
4 Q. That the Peebles had to go pay
5 somebody else to do the treatment?
6 A. Not until now, no, sir.
7 Q. The guy who did the treatment that
8 owns Bugs on the Bayou do you know where
9 he used to work before he opened his own
10 company?
11 A. No, sir.
12 Q. Do you know he was the manager at
13 the Mobile office for Terminix?
14 A. No, sir.
15 Q. Why did you send Joe Debrow a
16 letter telling him that y'all had done a
17 complete treatment if you didn't know
18 whether you had done a complete treatment
19 or not?
20 MR. KING: Mr. Hussey, I
21 object. I think that mischaracterizes the
22 letter. I would just ask that the witness
23 be shown the letter because it says what
 7

1 it says as opposed to the

2 characterization.
3 ARBITRATOR: I think that's
4 a reasonable objection. Go ahead and ask
5 the question, but if we have the letter
6 here, it would seem to be a good idea to
7 see it.
8 MR. CAMPBELL: Put it up.
9 Q. I did make a mistake. Your letter
10 was addressed to John Peebles, not Joe
11 Debrow; right?
12 A. Yeah, it doesn't say on there that
13 it was a full treatment. It said we
14 actually treated the area of Mr. Byrd's
15 request as of his letter. Also we have
16 moved the wood debris under the structure.
17 ARBITRATOR: I'm sorry,
18 could I get a document number?
19 MR. CAMPBELL: 322, I think.
20 ARBITRATOR: Thank you.
21 Q. (By Mr. Campbell) If you would,
22 Mr. Steele, look at the preceding letter
23 on page 321 of the document compilation in
 8

1 the green book.

2 A. What page number?
3 Q. The number's in the upper
4 right-hand corner, 321 to 322.
5 Have you now had a chance to read
6 both letters?
7 A. Yeah, I mean, yeah, I looked where
8 they --
9 Q. Let me see if this is the
10 scenario. The letter that's on page 322
11 is actually a letter that you sent to Joe
12 Debrow, you just didn't say "Dear
13 Mr. Debrow".
14 You just listed the name of the
15 property owner that the letter concerned,
16 right, because the letter talks about the
17 Peebles in the third person?
18 A. Yes, sir.
19 Q. And then Mr. Debrow forwards that
20 to my client saying, enclosed please find
21 the most the recent correspondence from
22 Robert Steele of the Terminix
23 International Company, LP, as a follow up
 9

1 in this case; right?

2 A. Yes, sir. And if you'll look it
3 there it says, on 7/30 we have treated the
4 area of Mr. Byrd's requested letter, and
5 that's the reason why they sent that
6 because we've actually went out and
7 treated the area they wanted to and we
8 assigned and opened a claim and assigned
9 them to -- we opened a claim.
10 Whereas once we go out and treat
11 those areas and do the corrections as to
12 the letter we actually assign it to a
13 termite -- I mean a contractor and then
14 that's when I went out.
15 Q. What was the last thing you said?
16 A. When I went out with the
17 contractor. Over here it says we will set
18 up -- you will be actually assigned to a
19 contractor for her residence.
20 Q. I want to establish two points.
21 Did you intend or did you not intend that
22 a full comprehensive re-treatment would be
23 done to the Peebles' house --
 10

1 A. At the time --
2 Q. -- where termite infestation was
3 discovered?
4 A. Yeah, at the time of the state
5 letter and everything, I was going based
6 off what John Byrd's finding and what his
7 request was for us to go back out and
8 treat, and I did not do a full treatment.
9 I did all the corrections he asked us to
10 do.
11 Q. I'm not asking you what John Byrd
12 found. I'm not asking you what Joe Debrow
13 told you to do. I'm not asking you what
14 you did. I'm asking what you intended to
15 do.
16 A. To go -- to follow up the state
17 requests.
18 Q. And to do a spot treatment instead
19 of a comprehensive?
20 A. A localized correction that they
21 asked us to go do and remove the wood
22 debris under the structure of the house.
23 Q. My second point is a spot
 11

1 treatment is a lot less than a

2 comprehensive post-construction treatment;
3 isn't it?
4 A. Correct, yes, sir.
5 Q. If your policy is you testified to
6 other arbitrators is that all the time
7 since 2014 when a home in Mobile County
8 was discovered to be infested you did a
9 comprehensive post-construction treatment,
10 why would you do less for the Peebles?
11 A. I can't answer that. Like I said,
12 I basically at that time made the decision
13 as far as off their letter, and I can't
14 give that answer.
15 Q. Isn't the answer, Mr. Steele, that
16 since 2014 y'all actually haven't done
17 comprehensive post-construction treatments
18 every time that termite infestation was
19 discovered in somebody's house; for
20 example, at Dr. Siegel's house?
21 A. I can't, I can't recall.
22 Q. Do you remember Dr. Siegel's house
23 resulted in a multi-million dollar
 12

1 verdict --
2 A. It was -- to my knowledge it was a
3 full comprehensive. I mean, I haven't
4 dealt with every bit of the claim itself.
5 I think there was somebody else in charge
6 of it at that time.
7 Q. Mr. Steele, one of the things that
8 was found at this house was that the voids
9 in the foundation weren't drilled and
10 treated. That's one of Mr. Byrd's
11 findings.
12 A. Okay.
13 Q. You recall that; correct?
14 A. Yes, sir, on his corrections.
15 Q. Were all of the voids in the
16 foundation wall treated with that
17 25-gallon treatment?
18 A. Well, I can't answer that because,
19 like I said, at the time I haven't been
20 out since the treater's been out there,
21 and as far as inspecting the house itself,
22 this is the first as far as the findings.
23 Q. Mr. Steele, you're a licensed pest
 13

1 control operator, are you?

2 A. No, sir, I work under a license.
3 Q. Okay. Whose license do you work
4 under?
5 A. Kevin Johnson's.
6 Q. When you wrote Joe Debrow telling
7 him that y'all had corrected the things
8 that Mr. Byrd pointed out in his letter,
9 why didn't you tell Mr. Debrow that you
10 really didn't know whether those things
11 had been done or not, that you delegated
12 it to one of your experienced treaters?
13 A. Because I was basing if off of the
14 report of the WDO off the treater, and I
15 got an experienced guy, you would think
16 experienced guy would do the following as
17 far as treatment. And, again, like I
18 said, I cannot go back behind every
19 treater when you've got an experienced
20 treater like that and knowing something's
21 not been done or not be corrected, you'll
22 have to have ask the treater why he didn't
23 do that.
 14

1 Q. Why can't you go and do that --

2 A. Because I've got an experienced
3 treater.
4 Q. Let me finish my question.
5 A. Okay, yes, sir.
6 Q. Why can't you do that even in
7 situations where what you're doing is
8 making a representation to the state
9 regulators dealing with compliance with
10 their direct re-treatment directive?
11 A. Well, I basically went off of his
12 inspection what was done and basically
13 when I got there discussed it with the
14 treater for the corrections itself. I
15 left the treater there and went to handle
16 other customers.
17 Q. Well, when you were there with the
18 treater did you crawl the entire house to
19 see how many drill holes he would need to
20 treat and how many linear feet he would
21 need to treat so you could make a judgment
22 when you got his paperwork as to whether
23 or not the scope of his treatment was
 15

1 appropriate?
2 A. No, I've actually crawled the
3 house myself. I was looking for activity
4 myself. I've actually crawled the whole
5 house.
6 As a matter of fact, I discussed
7 some of those findings with the homeowner.
8 Just like the garage area that was never
9 mentioned about the form boards that were
10 left underneath there when they added the
11 addition on, I discussed that with her --
12 Q. Mr. Steele, Mr. Steele, I'm going
13 to ask you to answer the questions that I
14 ask, okay?
15 A. Yes, sir.
16 Q. And you gave a long answer and I
17 want to make sure we get a direct, simple
18 answer to the only question that I'm
19 asking.
20 Prior to leaving that termite
21 technician there to do the treatment to
22 comply with the state directive, prior to
23 that time, did you crawl the house to see
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1 how many linear feet of the foundation

2 would need to be drilled and treated so
3 that you could evaluate whether the volume
4 listed on his treatment record would be
5 correct or not?
6 A. No, sir.
7 Q. So when you crawled the entire
8 house, you did so after that treatment was
9 done?
10 A. I crawled -- I crawled the house
11 before the treatment was done because I've
12 actually -- when they sent us out there to
13 do the correction, I crawled the house and
14 then sent the treater out there to treat
15 it and move the wood debris.
16 Q. I'm afraid we're miscommunicating
17 with one another because your answer to
18 that question was inconsistent with the
19 previous one.
20 You claim that you crawled the
21 entire crawl space of this house. Did you
22 do that before July 30, 2016, the date
23 that the treatment reflected on Ricky
 17

1 Pope, Jr.'s, WDO application record at

2 page 323 of the document compilation, or
3 did you do it after?
4 A. I think I was actually -- I did it
5 before. I can't recall. I mean, I mean,
6 I've been on the property and I think it
7 was because of the letter. I think I met
8 the technician out there to do the
9 inspection.
10 Q. Well, then why did you not measure
11 or make some judgment as to the linear
12 footage of the chimneys and foundation
13 walls that needed to be drilled so that
14 you could evaluate whether or not his
15 treatment paperwork showed a proper scope
16 of re-treatment?
17 A. I've never ever -- excuse me, I'm
18 getting hoarse.
19 I've never ever actually measured
20 a house to see if it was properly as far
21 as, you know, the linear footage or
22 anything like that. Not on any claim I
23 don't do that. I let them know what's to
 18

1 be done and they do it as far as the

2 treatment.
3 Q. You don't have to pull out a tape
4 measure to determine linear footage of
5 most houses if you go in the crawl space
6 because you can tell what the distance is
7 off center between the floor joists and
8 count the number of floor joists and
9 figure out what the distance is in crawl
10 spaces; correct?
11 A. Yes, sir. But like I said, I
12 don't -- I have never ever measured before
13 or after a treater to know the linear
14 footage and everything.
15 Q. You can measure the concrete by
16 counting the bricks and by counting the
17 concrete blocks and knowing that a brick
18 is 8 inches and the concrete block is 16
19 and you can determine the linear footage
20 that needs to be treated in that method;
21 correct?
22 A. Yes, sir. But as I said, I don't
23 measure the house. I leave it up to the
 19

1 treater when he's there. He measures the

2 house before and then he starts treating
3 and then he figures up my cancellation
4 sheet of what he needs to apply to solve
5 the issue.
6 Q. So just to make sure Mr. Hussey
7 understands it, and I'll try to speak over
8 this irritating machine and try to
9 restrain myself from going through those
10 doors and turning that guy's truck off.
11 ARBITRATOR: Probably not a
12 good idea. I imagine he's probably a
13 pretty tough guy.
14 MR. CAMPBELL: There's a
15 pretty good chance that he's tougher than
16 me.
17 ARBITRATOR: Or any of us in
18 here.
19 MR. KING: A bunch of
20 lawyers we can all --
21 MR. GREENE: I'll send
22 interrogatories.
23 MR. CAMPBELL: There's a
 20

1 pretty good chance that he's tougher than

2 me.
3 ARBITRATOR: Okay.
4 Q. (By Mr. Campbell) So just to be
5 clear, prior to 2014 when you joined the
6 Mobile office as the service manager, you
7 had had a long history for over two
8 decades of moving every year or two and
9 managing various offices for Terminix
10 across the southeast; correct?
11 A. Yes, sir.
12 Q. You're a very experienced termite
13 service manager for Terminix
14 International; correct?
15 A. Yes.
16 Q. One of the most experienced
17 service managers in the entire country
18 probably?
19 A. I --
20 Q. Probably in the top 5 percent of
21 experience for service managers probably;
22 right?
23 A. Yes, sir.
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1 Q. And nonetheless, what you have

2 done every single time there's been a
3 reinfestation of properties is you've met
4 a treater at the house and told them to
5 get it treated right and to comply with
6 the state directive and that's been your
7 only instructions to them?
8 A. Yes, sir.
9 Q. What kind of signal did you think
10 it was going to send to your treating
11 technicians that you weren't actually
12 auditing the work for five years?
13 A. That I put my trust in them as far
14 as treating and going out there. I've
15 worked with these treaters for the last
16 four years.
17 Q. Well, what is more important as
18 your -- in your job as service manager, to
19 make sure that you're making accurate
20 representations to state regulators of
21 compliance with their orders or to make
22 your subordinates think you trust them
23 implicitly?
 22

1 A. Well, I have to -- we're regulated

2 on what we can do and what we can't do,
3 and I basically go off the report that I
4 got from Joe Debrow and John Byrd's
5 stating the fact of what we had to do at
6 the house and to stop the issue and take
7 care of their damage and everything.
8 Q. And if I ask you to make a list of
9 every single thing you did to make sure
10 that the wood debris in the crawl space
11 was cleaned out before you sent that
12 letter, is it fair to say it would be
13 nothing on that list other than trusting
14 Ricky Pope?
15 A. Yes, sir. Using the judgment of
16 the treater, yes, sir.
17 Q. Have you ever been trained at
18 Terminix that it is impermissible to make
19 a representation of fact without knowing
20 one way or the other whether that
21 information is actually factual?
22 A. I don't understand on that
23 question. I don't know what you're
 23

1 saying.
2 Q. Have you been trained at Terminix
3 that you can't claim that something is a
4 fact unless you have personal information
5 to know that that's a fact or not?
6 A. No, sir, I basically go off -- go
7 off the report.
8 Q. Let me give you another example.
9 Do you understand you have an obligation
10 before you sell somebody a television set
11 and represent that it was manufactured in
12 2016 to know whether it was manufactured
13 in 2016 or not?
14 A. I really couldn't -- I mean -- I
15 don't know what you base -- I mean, I
16 don't know. I mean, I base my judgment is
17 strictly off the guys -- the treaters that
18 go out and treat the houses.
19 Q. Have your bosses at Terminix been
20 made aware that that's the way you're
21 supervising your technicians?
22 A. Yes, sir.
23 Q. Have you ever been disciplined,
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1 counseled, or docked in pay for doing it

2 that way?
3 A. No, sir.
4 Q. Did you make them aware that there
5 was some discrepancy about whether the
6 things that Ricky Pope did on July 30th,
7 2016, actually satisfied the directives in
8 the state's letter?
9 A. I basically -- I mean, as far as
10 not being done on the WDO, like I said,
11 without seeing the wood debris left
12 underneath there and doing an inspection,
13 I couldn't tell you what was there.
14 Q. Have you been disciplined,
15 counseled, or retrained by Terminix since
16 your letter was sent to Joe Debrow and
17 this lawsuit was filed?
18 A. No, sir.
19 Q. Has anybody at Terminix ever even
20 talked to you about whether or not wood
21 debris was left in the crawl space and
22 part of the foundation was left undrilled?
23 A. No, sir.
 25

1 Q. Have you talked to Ricky Pope

2 about it?
3 A. Not since this came up because
4 he's actually been injured and everything.
5 He's been out for a while.
6 Q. Could you -- even though you don't
7 have a license, are you generally familiar
8 with the company's regulatory
9 responsibilities to the state of Alabama?
10 A. Off the regulation off the reports
11 they require us to do if something -- you
12 know, as far as corrections I do.
13 Q. Would you expect me to have a
14 receipt for this red tie that I've got on?
15 A. Where you bought it at?
16 Q. Yes. A receipt showing where and
17 how much I paid for this tie and the
18 method of payment?
19 A. I don't -- I really couldn't tell
20 you because my receipts are thrown in the
21 trash can once I buy something.
22 Q. Do you recognize that Terminix has
23 responsibilities for recordkeeping that go
 26

1 beyond what a consumer may choose or

2 choose not to do as far as keeping
3 receipts for articles of personal
4 clothing?
5 A. Yes, sir.
6 Q. In fact, Mr. Steele, when it comes
7 to recordkeeping by termite companies in
8 the state of Alabama and puts -- back up a
9 minute.
10 2014 was not the first time that
11 you worked in the state of Alabama as a
12 bug man, was it?
13 A. No, sir.
14 Q. When did you first have experience
15 working in Alabama as a pest control
16 person --
17 A. I actually started with the
18 company in '88 and was a reinspector.
19 Q. And is it fair to say that the
20 entire time that you've been employed by
21 Terminix, whether it be in Alabama,
22 Mississippi, Louisiana, or Texas, that you
23 understood that in every one of those
 27

1 states that there were recordkeeping

2 requirements that required you to keep the
3 use of chemical each time it was used, the
4 name of the chemical, the property it was
5 located, the concentration used, and the
6 volume used?
7 A. Yes, sir.
8 Q. And did you understand the entire
9 time since going to work for Terminix in
10 1988 that in the state of Alabama if you
11 violate that recordkeeping requirement,
12 that it is actually punishable as a
13 misdemeanor criminal offense?
14 A. I'm not aware of that. I mean, I
15 -- I mean, it's been a while since I've
16 actually read the regulations and stuff.
17 I mean, you're talking about 30 years ago.
18 Q. The statute governing this is in
19 our pink book. If you can pull the hot
20 pink book from the bottom of that stack
21 out.
22 ARBITRATOR: I have mine.
23 MR. KING: Here's the
 28

1 witness'.
2 Q. (By Mr. Campbell) If you could,
3 turn behind tab that says 1975 code, the
4 very first tab in the book.
5 You'll want to go into the heading
6 that says 2-28-11. It's also on the
7 board.
8 A. I got it.
9 Q. Have you had a chance to read that
10 paragraph now, Paragraph A?
11 A. Yes, sir.
12 Q. Would it be fair to say, after
13 reading this now, that you do understand
14 that violating the pest control statute or
15 the regulations that are issued by the
16 Department of Agriculture in response to
17 that statute can be punishable as a
18 criminal misdemeanor offense?
19 A. Yes, sir.
20 Q. And based on your walking-around
21 sense in your life, is it fair to say that
22 you understand that that's the Alabama
23 Legislature telling your trade that
 29

1 compliance with the law in this area is so

2 important that the only way they could
3 make it more important would be making the
4 violation of that statute of the
5 regulations a felony?
6 A. Yes, sir.
7 Q. Are you surprised that you've
8 worked at Terminix for 30 years and have
9 just learned today that violating the pest
10 control regulations is a criminal offense
11 in Alabama?
12 A. No, sir. I mean -- I mean, I
13 haven't gone through the regulations in
14 there since, I mean, for a while. I mean,
15 I've been in four different states, so.
16 Q. So whether you knew it was a
17 misdemeanor or not to keep termite
18 treatment records that have to be kept or
19 not, you have always understood while
20 you've been employed at Terminix that
21 keeping those records in the customer file
22 is required by law and it's important?
23 A. Correct.
 30

1 Q. And since 2014, when you've been

2 back in Alabama, have you understood that
3 there is an incredible unprecedented or
4 almost unprecedented Formosan termite
5 pressure in Mobile County, Alabama?
6 A. Yes, sir.
7 Q. In other words, getting a termite
8 protection barrier put out correctly and
9 replacing it when it wears off is more
10 important in Mobile County, Alabama, than
11 it is anywhere else in the country that
12 you're aware of?
13 A. Yes, sir.
14 Q. So with that background, I want to
15 ask you this, have you been the supervisor
16 that has been responsible for doing the
17 termite re-treatments since 2014, the last
18 five years?
19 A. Not all the time. I was in
20 Baldwin County for eight months in 2015
21 but most of the time, yes, sir.
22 Q. And during that period of time,
23 almost five years.
 31

1 A. Yes, sir.
2 Q. Has it ever been the practice of
3 the company to go out and perform a
4 quality control check on termite -- liquid
5 termite treatments that are years old
6 without there being an infestation of
7 termites to determine either that the
8 termite treatment sold was nonexistent or
9 incomplete, or alternatively, that a
10 complete treatment had worn off and needed
11 to be reapplied?
12 A. No, sir, not my knowledge.
13 Q. Do you know why that has not been
14 the responsibility of the Mobile office at
15 Terminix?
16 A. Well, we're regulated what we can
17 do and what we can't do by the state as
18 far as the only time that we do a
19 re-treatment is when there's activity in
20 that area.
21 Q. And in that regard, you're careful
22 to train your employees that the only time
23 y'all are allowed to re-treat houses is if
 32

1 there's an active termite infestation;

2 correct?
3 A. Visible activity, yes, sir.
4 Q. And how long have y'all been
5 training employees that that's the case?
6 A. Well, I mean, since I've been
7 there, since 2014.
8 Q. How is that training done?
9 A. As far as the inspectors go out
10 and find visible activity for
11 identification.
12 Q. I'm not asking how is the
13 infestation discovered. How is the
14 training that you can only re-treat if
15 there's a reinfestation, how is that
16 training done?
17 A. An experienced -- in other words,
18 a termite treater, especially like Ricky
19 or another employee that's been there a
20 little while, or actually if we have any
21 new employees that come to Terminix, they
22 are sent to school and they do ride-alongs
23 training with experienced treaters that's
 33

1 been over there a year.

2 Q. So this training to employees to
3 talk just about one of the things you
4 mentioned, for the new employees that's
5 part of their formal training?
6 A. The ride-along, yes, sir.
7 Q. And is that written down anywhere
8 at Terminix that you're aware of, that the
9 state law prohibits re-treating a house
10 unless there's a reinfestation?
11 A. No, sir. When they find activity
12 that's the only time we can treat.
13 Q. In this book I want you to turn to
14 the last tab, 2012. I wish I had put this
15 in Santa Claus covered book instead of
16 this hot pink book.
17 I want you to turn to Section 21
18 of the regulations. And I want you to
19 take a moment, Mr. Steele, as much time as
20 you need, and I understand it's difficult
21 to read stuff when you're in front of an
22 audience, like having people watch you
23 eat. Read that and let us know when
 34

1 you're finished.
2 A. Which --
3 Q. Section 21 at the bottom of the
4 page.
5 A. Do you mean 10-9-19?
6 Q. 80-10-9-.22 at the bottom of page
7 10-9-22 and 23.
8 A. Okay.
9 MR. KING: Do you want him
10 to read what's on the next page?
11 MR. CAMPBELL: Yes.
12 THE WITNESS: Oh, okay.
13 MR. CAMPBELL: Through the
14 end of that section.
15 A. All right.
16 Q. After having a chance to read
17 that, Mr. Steele, do you recognize that
18 this re-treatment section only applies to
19 treatments, "after an initial treatment of
20 the structure"?
21 A. Yes, sir. In other words, after
22 the initial treatment, you know, as far as
23 -- I mean the structure says currently
 35

1 under contract or altered, so they add

2 addition on the house or if the soil's
3 been disturbed or anything like that after
4 the initial treatment.
5 Q. So if the initial treatment is
6 nonexistent or it's incomplete, this
7 section wouldn't prohibit you from
8 providing or finishing the initial
9 treatment; correct?
10 A. Well, I mean, I don't know as far
11 as if they ever -- I mean what do you mean
12 -- after the initial treatment what are
13 you talking about as far as the breakdown
14 of pesticide barrier in the soil?
15 I mean, I don't test the soil to
16 see if it's broken down or not. I
17 wouldn't know how as far as to identify
18 that unless there's activity at the time.
19 Q. I'm now not talking about the
20 instances where there has been a complete
21 initial treatment, but in instances where
22 there's not been any treatment at all at
23 the initiation of a contract or the
 36

1 initial treatment was incomplete for some

2 reason.
3 Do you recognize that there
4 wouldn't be any restrictions on doing the
5 initial treatment if for some reason it
6 was skipped or incomplete because of this
7 section?
8 A. Yes, sir.
9 Q. And do you recognize that in
10 Section E it expressly says that if
11 there's evidence of breakdown in the
12 chemical, that you can re-treat the house
13 without there being a reinfestation or a
14 disturbance of the soil?
15 A. Yes, sir. I mean, I don't know
16 anything about as far as why it would say
17 the evidence of breakdown so I couldn't
18 test the soil and see if it had broken
19 down or anything to know about that.
20 Q. Has anybody at the company ever
21 provided you information on when the
22 various chemicals that the company's used
23 in Mobile are known to wear off and break
 37

1 down?
2 A. No, sir.
3 Q. Do you know from your own
4 experience and study that in this industry
5 that there are both government and
6 university tests that have been done and
7 published that provide that information?
8 A. No, sir.
9 Q. If those studies exist, do you
10 think it would be a good idea for them to
11 be used so that Terminix could identify
12 when it needs to replace worn off termite
13 barriers?
14 A. Yes, sir. I mean, I mean, that's
15 strictly up to our corporate, you know, as
16 far as findings and our training and
17 everything, but as far as me making the
18 decision if a product's been broken down,
19 I couldn't make that decision.
20 Q. This policy that employees are
21 trained to tell customers that a
22 re-treatment can only be done where
23 there's a reinfestation, did you come up
 38

1 with that or did somebody higher than you

2 train you that that was the case?
3 A. It must have been higher up
4 because I'm not -- I don't train the guy
5 -- I mean, they're all trained the same,
6 saying if there's activity, that's what
7 they do at the reinspection once a year is
8 they look for activity.
9 Q. Are you familiar with the fact
10 that on almost an annual basis that the
11 company sends out an annual termite
12 bulletin that describes to the branches
13 when and how they should apply termite
14 chemicals?
15 A. I've seen them in the past, but
16 it's been ten years since I probably
17 looked at them.
18 Q. Then how do you get your
19 information on when chemical can be
20 reapplied if you're not reading the annual
21 termite bulletins from the home office?
22 A. Because since I've been with the
23 company we've never ever went out and
 39

1 tested soil as far as letting it -- being

2 break down or anything like that.
3 We actually rely on our inspectors
4 that go out and, two things, like you're
5 saying on this report is if the customer
6 adds soil on top of our treatment,
7 disturbs the soil, or finding activity, we
8 go back, and no matter if it's a landscape
9 or whatever, we go back and treat that
10 area to protect the customer.
11 Q. So if the soil barrier has been
12 disturbed or the house is reinfested,
13 those are the only times reapplications of
14 chemical are made?
15 A. That I know of, sir. And or if
16 it's a claim or something, yes, sir.
17 Q. Have you been aware while you've
18 been the service manager that the
19 contracts themselves like the Peebles'
20 contract say that Terminix will reinspect
21 annually and apply any additional
22 treatment found necessary?
23 MR. KING: Object. I don't
 40

1 think that accurately describes the

2 document, it absolutely doesn't.
3 And so I guess the objection
4 was we would ask that the witness be shown
5 whatever contract counsel's talking about
6 since, you know, there are a number of
7 contracts out there.
8 ARBITRATOR: I think that's
9 a good idea and/or you cover it on cross.
10 But go ahead with your
11 questions.
12 Q. (By Mr. Campbell) Let's start with
13 the contract from 1980 that Mr. King
14 claims was transferred to the Peebles, and
15 then we'll look at the one that was issued
16 to Ms. Thurber and see if it says the same
17 thing.
18 Do you see in this 1980 contract
19 that it says that the company will
20 reinspect periodically during the
21 protection period and any further
22 treatment found necessary will be
23 performed free?
 41

1 A. Yes, sir. That's as far as the

2 re-treatment and a reinspector goes out
3 annually. If activity is found at that
4 time, we'll go back out and re-treat those
5 areas and treat the house and if there's
6 any damage.
7 Q. And you understand that
8 periodically in Alabama has to mean at
9 least once a year because the pest control
10 statute requires the inspection, periodic
11 inspection, to be done at least annually?
12 A. Yes, sir.
13 Q. So getting back to my prior
14 question, you do recognize that the
15 company performed contracts, at least
16 until recently, within the last year, that
17 provided that what the company will do is
18 inspect annually and apply any additional
19 treatment deemed necessary without
20 additional charge to the customer?
21 A. Yes, sir.
22 Q. Let's look at the next contract.
23 Do you see in the second sentence of this
 42

1 contract that it provides the same pledge?

2 A. Yes, sir.
3 Q. Have you been familiar,
4 Mr. Steele, that while you've been
5 employed at Terminix between 2008 to 2012
6 the president of the company would send a
7 letter to customers in connection with
8 their renewal that repeated this
9 contractual pledge that is part of the
10 inspection process the company would
11 assess whether additional treatment was
12 necessary, and if it was, that they would
13 apply it at no charge to the customer?
14 A. I'm not aware of that.
15 Q. So just to make this clear to
16 Mr. Hussey, as far as you know, during all
17 the places you've worked at Terminix,
18 there's never been a procedure in place
19 anywhere, including in Baldwin County or
20 in Mobile, to assess on an annual basis
21 whether additional treatment is necessary
22 other than to see if the chemical has been
23 disturbed or whether the house is
 43

1 infested?
2 A. No, sir.
3 Q. Is that correct, that y'all
4 haven't had a practice of doing that?
5 A. We hadn't -- I mean as far as if
6 there's an infestation. But as far as
7 testing the soil, no, sir.
8 Q. And nor have the individual
9 branches kept up with degradation data to
10 see when reapplications are necessary?
11 A. No, sir.
12 Q. Have you ever asked the home
13 office to provide that information?
14 A. No, sir.
15 Q. In Terminix's structure, branch
16 service manager, sales managers, and
17 branch managers all can qualify for
18 bonuses under a bonus system; correct?
19 A. Yes, sir.
20 Q. And part of that bonus system
21 requires y'all to meet your budgetary
22 goals for the year; right?
23 A. Yes, sir.
 44

1 Q. And the budgets for the branches

2 are set above the branch level, meaning
3 the branch doesn't get to write its own
4 budget --
5 A. It's the higher up that makes
6 those decisions and goals.
7 Q. So if y'all implemented a process
8 in Mobile or Baldwin Counties where you've
9 worked where you went back and audited the
10 customer files and inspected the
11 properties to actually do this assessment
12 of whether additional treatment is
13 necessary, either due to incompleteness or
14 barrier wear-off, you would have to hire
15 so many people and add so many trucks and
16 so much overhead that it would affect the
17 manager's bonuses, wouldn't it?
18 A. I can't make that decision because
19 I don't know as far as, you know, when
20 some of the houses when they was treated,
21 how well it took to the soil, so I can't
22 answer those questions.
23 Q. If the chemicals used since 1988,
 45

1 all of them, wore off within a period of

2 months to seven years, would the size of
3 that task be so large that it would in all
4 likelihood work all the managers out of a
5 bonus?
6 A. Like I say, again, I really
7 couldn't answer that question.
8 Q. When you were at the Peebles'
9 house did you evaluate whether their
10 initial treatment was nonexistent?
11 A. No, sir.
12 Q. Did you evaluate whether it was
13 incomplete?
14 A. No, sir.
15 Q. If it was nonexistent, do you
16 think that would be an important fact that
17 Terminix should disclose to them?
18 A. Yes, sir.
19 Q. Why would that be an important
20 fact?
21 A. I mean, I mean without looking at
22 the file itself, as far as what it was
23 treated with and how long ago it was
 46

1 treated with, so I can't -- it's important

2 as far as, you know, follow up or anything
3 like that, but basically, like I said, I
4 was just going strictly off -- in
5 Mr. Peebles and them, just strictly off
6 the requirements the state told us to go
7 back out.
8 Q. If Arrow or Wayne's or Orkin
9 inspected the Peebles' house when you did
10 in 2016, would they have been able to
11 assess whether the initial treatment was
12 nonexistent without looking at Terminix's
13 proprietary records?
14 A. I couldn't answer those questions.
15 Q. Do y'all publish these records on
16 the internet for your competitors to see?
17 A. No, sir.
18 Q. Do you keep them locked in your
19 branch offices?
20 A. We call it PCI compliant, yes,
21 sir, it's secured.
22 Q. So to know whether the treatment
23 of this house in 1980 or 1981 was
 47

1 nonexistent, you would need to have access

2 to Terminix's records; correct?
3 A. Correct.
4 Q. And the only people that have
5 access to those records are Terminix
6 employees that have a need to look at
7 them; correct?
8 A. Correct.
9 Q. And within the branches, y'all
10 don't even let the technicians go into the
11 file room and pull these files, do you?
12 A. No, sir.
13 Q. And now those records have been
14 digitalized and put on computer; correct?
15 A. The new ones, the only records
16 when the salesman sell it it's in the
17 system. They can't -- still can't go in
18 there and view them.
19 Q. So the -- my point is the records
20 that are not stored on paper but they're
21 stored electronically, the technicians
22 can't go in there and look at those old
23 records either. Only the managers and
 48

1 clerks can do that; correct?

2 A. Correct.
3 Q. So when we talk about the people
4 that have the motive and the means and the
5 ability to assess whether a treatment was
6 skipped or not, the only people at
7 Terminix that can perform that task, based
8 on who has access to the records, are the
9 managers and the clerks who work for the
10 managers; correct?
11 A. Yes, sir.
12 Q. And the clerks aren't trained to
13 be able to assess whether those records
14 would show a proper treatment or not;
15 correct?
16 A. Correct.
17 Q. So at Terminix, the only group of
18 people that could potentially disclose to
19 customers like the Peebles the truth about
20 whether their houses have received their
21 initial termite treatment as pledged in
22 the contract are Terminix managers; right?
23 A. Yes, sir.
 49

1 Q. And do you know why Terminix

2 managers have not been assigned that task
3 despite the pledge in the contract that it
4 is going to be performed on an annual
5 basis?
6 A. No, sir.
7 Q. Can you think of any good reason
8 for not performing that pledge?
9 A. Not at all, no, sir.
10 Q. When you crawled the entire house
11 on Ryan Avenue at the Peebles' property,
12 did you look to see whether treatment
13 mechanics, drill holes where they should
14 be were missing?
15 A. No, sir. As I said before, I --
16 actually I was looking for activity not
17 for treatment specs or anything like that
18 because I knew my technician was going
19 behind me. So when I go I actually -- I
20 mean, I inspect the areas I can inspect
21 and then point him to my findings.
22 Q. So can we agree that to make an
23 assessment as to whether the initial
 50

1 treatment was nonexistent or incomplete,

2 two things at a minimum would need to be
3 done: Number one, the customer records
4 would need to be reviewed that only
5 managers like you had access to; and
6 number two, somebody who had reviewed
7 those records, meaning the manager, would
8 need to go to the property and actually
9 inspect it?
10 A. Yes, not -- like I said, when we
11 go out I went out to correct what the
12 state required us to do, not to see if the
13 house was, you know, properly treated or
14 anything like that.
15 I went to do corrections, and
16 that's one of the reasons, and to make
17 sure there's no other activity other than
18 the areas I found.
19 Q. I apologize. My question is not
20 designed to get you to tell me exactly
21 what you did do at the Peebles' house.
22 My question is designed to
23 identify the universe of Terminix
 51

1 employees who could perform the assessment

2 talked about in the contract and how they
3 would do it.
4 A. Well, I mean --
5 Q. Are we on the same page now?
6 A. Well, I mean, as far as -- are you
7 asking me about as far as inspecting it
8 for a full -- I mean as far as seeing it
9 was fully treated or not, no, sir, I
10 didn't do it at that time.
11 Q. I'm not asking you whether you did
12 it, sir. I'm asking you who at Terminix
13 could do it. Who has the ability to do it
14 based on your record access policies and
15 so forth?
16 A. Member of management.
17 Q. Is it accurate that only a member
18 of management could do that because y'all
19 are the only ones that have access to the
20 records?
21 A. Yes, sir, yes, sir.
22 Q. And if that had been done in
23 Mobile or Baldwin County during the time
 52

1 you were a manager in those two places in

2 the last five years, you would know about
3 it?
4 A. Yes, sir.
5 Q. Because you're the manager in
6 charge of re-treatments?
7 A. Correct.
8 Q. And so you know with 100 percent
9 certainty and can tell Mr. Hussey y'all
10 have never done that?
11 A. As far as looking and seeing --
12 no, sir.
13 Q. Is it okay to say you're going to
14 do something in a contract and then not do
15 it?
16 A. As far as -- I mean, as far as --
17 I mean, I'm honoring the contract as far
18 as treating the house and everything.
19 That's my obligation is to treat the house
20 and stop the infestation.
21 MR. CAMPBELL: I think
22 that's all I have.
23 MR. GREENE: Do you want to
 53

1 keep going or take a break? Quick break.

2 ARBITRATOR: Let's take a
3 quick break.
4 (Recess was taken.)
5 ARBITRATOR: Are we ready?
6 MR. GREENE: I'm ready.
7 CROSS-EXAMINATION
8 BY MR. GREENE:
9 Q. Robert, you talked about trusting
10 Ricky Pope, your treater. How long have
11 you known Ricky?
12 A. Since 2014.
13 Q. Okay. And why is it that you
14 trust Ricky Pope?
15 A. I've actually worked beside, along
16 with Ricky, and I've actually had to gain
17 their trust before as far as what they do
18 and knowing what they can do and what they
19 can't do, and I've actually worked beside
20 him doing treatments.
21 Q. Okay. So it's not just a blind
22 trust; you've watched him work, correct?
23 A. Yes, yes.
 54

1 Q. There seemed to be a lot of

2 questions about who had access to the
3 Peebles' file.
4 Do the Peebles have access to
5 their file?
6 A. If they request copies of it, we
7 would be -- we're required to give them a
8 copy of it.
9 MR. GREENE: Mr. Hussey, I
10 think that's all I've got for right now,
11 but during our case we may re-call him
12 depending on what comes up.
13 ARBITRATOR: That's fine.
14 Re-direct?
15 MR. CAMPBELL: I don't think
16 I have any.
17
18
19
20
21
22
23
 55

1 CERTIFICATE
2
3 STATE OF ALABAMA )
4 TUSCALOOSA COUNTY )
5
6 I hereby certify that the above and
7 foregoing proceedings were taken down by
8 me in stenotype, and the questions and
9 answers thereto were reduced in transcript
10 form by computer-aided transcript under my
11 supervision, and that the foregoing
12 represents a true and correct transcript
13 of the proceedings occurring on said date
14 at said time.
15 I further certify that I am neither of
16 counsel nor of kin to the parties to the
17 action, nor am I anywise interested in the
18 results of said cause.
19 Signed the 14th day of August, 2019.
20
21 /s/ Nancy W. Pannell
22 NANCY PANNELL, CCR
23 Alabama CCR #30 - Expires 9/30/20