1On April 17, 1996, the Secretary of
Labor delegated authority to issue final agency decisions under this statute and the implementing
regulations to the newly created Administrative Review Board (Board). Secretary's Order 2-96
(Apr. 17, 1996), 61 Fed. Reg. 19978, May 3, 1996. Secretary's Order 2-96 contains a
comprehensive list of the statutes, executive order, and regulations under which the Board now
issues final agency decisions.
2Houston Lighting and Power
Company (HL&P), the owner of the nuclear project, was originally named as a respondent in this
complaint but was dismissed based on Keene's motion filed at the commencement of the hearing.
See Secretary's Decision dated August 23, 1995.
3The burdens of production and
persuasion in whistleblower cases were laid out, as the ALJ indicated, in Dartey v. Zack Co. of
Chicago, Case No. 82-ERA-2, Sec. Dec., Apr. 25, 1983, slip op. at 7-9. R. D. and O. at 10.
See also Remusat v. Bartlett Nuclear, Inc., Case No. 94-ERA-36, Sec. Dec., Feb. 26,
1996, slip op. at 4-6; Carroll v. Bechtel Power Corp. Case No. 91-ERA-0046, Sec. Dec.,
Feb. 15, 1995, slip op. at 10-12, aff'd, No. 95-1729 (8th Cir. Mar. 5, 1996).
4Keene's immediate transfer to a
different project before his work on the demin skid project was completed indicates that the
complaints he raised were a "big deal" and caused the workers to become
uncomfortable. Douglas told Teague that Keene was transferred because his fellow workers did
not trust him. See CX 30 Tab 16.
5Ebasco had a shortage of certified
electricians. T. at 237 (Douglas), 92 (Keene), 41 (Renfro).
6Johnson denied starting the
investigation before Keene left, but he repeatedly stated in his deposition that he spent about two
weeks investigating the concerns brought to him by Riley. CX 31 at 20, 25, 41, 64. If so, Johnson
must have started the investigation before Keene left. Even though Riley did not reveal Keene's
name to Johnson until the day of Keene's termination, Riley had given Johnson a general
description of Keene's concerns on or about March 18. T. at 216; see also CX 12 at
K1177, K1267. The memorandum on a follow-up investigation conducted by Mike Head is dated
March 31, 1994, less than one week after Keene was terminated. Johnson testified that Head was
not advised of Keene's concerns until after he (Johnson) finished his investigation. CX 31
at 25, 65-66. We conclude that Johnson told Teague and Head on or about the day Keene was laid
off. See T. at 288.
7Appendix B establishes quality
assurance requirements for the design, construction, and operation of structures, systems, and
components that prevent or mitigate the consequences of postulated accidents that could cause
undue risk to the health and safety of the public.
8Teague understood the serious
implications of the charge. Upon learning of Keene's concern he ordered a formal review of the
facts "because of the type of allegations (falsification of records) which were brought forth .
. . . " See CX 6.
9Johnson's testimony raises
questions about Sciba's credibility in general. For example, in Sciba's interview with Teague,
Sciba claims that he asked Johnson to investigate Keene's concerns. CX 30 Tab 9. However,
Johnson testified that Sciba was angry that Johnson had undertaken an investigation without
advising him. CX 31 at 41. Johnson also testified that Sciba either lied or misrepresented to the
NRC concerning their conversation about Keene. CX 31 at 71-72; CX 14.
10Under the amended ERA, if
the complainant proves that both legitimate and illegitimate reasons played a part in the
respondent's decision, i.e., that the decision was based on "dual motives," then the
respondent may avoid the ordering of relief if it "demonstrates by clear and convincing
evidence" that it would have taken the same action in the absence of the complainant's
protected activity. 42 U.S.C. § 5851(b)(3)(D); Remusat, slip op. at 3; Yule v.
Burns Int'l Sec. Serv., Case No. 93-ERA-12, Sec. Dec., May 24, 1995, slip op. at 7-8.
11There is no evidence to support
a finding that Ebasco knew Keene met with a congressional investigator in April.
12The record does not show that
alleged discriminating officials had become aware of Keene's June 2 letter, but even if they had,
our conclusion would be the same.