Other complaints about Foreman Garver were made to Charlie Turkovac, the carpenters' union's business representative. Garver often climbed on or stood on pipes and the Complainant believed this was not supposed to be done, because the pipe brackets were there to stabilize the pipe and these were not strong enough to carry the weight of a person climbing on them. Also, on another occasion Garver, the Complainant and the latter's son were working in the reactor. Garver asked the Complainant's son to tear off the insulation from a pipe. The insulation was asbestos and tearing it off would have created asbestos dust loose in the air which could be breathed by the workers, none of whom had proper face masks on to protect them from that hazard. A third complaint made to Mr. Turkovac, and to Foreman Garver as well, involved the dust on some scaffold planks in the controlled area. The Complainant and others sometimes had to go in and dismantle the scaffolding which had dust on it. The dust was usually either asbestos dust, or dust made from cutting pipe, which could be radiation contaminated dust. The Complainant was concerned about this because when he was dismantling the scaffolding the dust would get into the air and be breathed by, or fall upon, the workmen below. The Complainant thought the proper procedure was to have the dust checked by a RADCON man and to have it vacuumed off before the scaffolding was dismantled.

    The Complainant referred another complaint to the night shift shop steward. This involved a load of scaffold planks from Duquesne Light that came to their work site for use by the Respondents' employees in the containment area. These planks were not standard 2 inch scaffold planks; they were only 1 1/2 inch thick. The Complainant brought this to the attention of the steward, telling him the planks were unsafe. When Foreman Garver heard of this complaint, his comment was that those were the planks they had and those were the ones they were to use. The Complainant could not say definitely whether those planks were actually used or not.

    About February, 1980 the shop steward came to the Complainant and told him the company wanted to lay him off due to a cut in work force. The Complainant couldn't understand this because another carpenter, Bob Horner, had just been hired for their crew of carpenters. It was rumored that the company was going to hire more laborers. Foreman Garver said that if they were hiring laborers he wasn't going to get rid

of his carpenters and he also said that the Complainant and his son were the best qualified carpenters to work in the containment area at that time. The layoff was cancelled temporarily. The containment section was shut down for about 10 days. When it was reopened, 2 more carpenters, Tom Goucher and Jim Banana, were hired. From February 18, to 22, 1980, the Complainant was in the hospital. When he returned to work the steward wanted to transfer him and his son to daylight work again. The Complainant, however, having just come out of the hospital, did not want to do heavy work outside in the cold February weather, so he took sick leave, and his son worked on the daylight shift until February 28, 1980 when they were recalled to night duty indoors in the containment area.

    On March 14, 1980, the Complainant, his son and the steward were assigned to work in the containment area where the reactor was. There was airborne contamination in the reactor and this meant that anyone in that portion of the containment area had to wear a gas mask or respirator. The steward, Jerry Chiufo, told the Complainant that the job would run into overtime. The Complainant said he was not concerned about the overtime; he was concerned about their safety. The Complainant said he wanted to be sure their respirators fit right and that he and his son had not had the proper training for fitting and wearing a respirator. According to the Complainant, the training consisted of a booth test and a banana test. The latter test involved smearing banana oil around the mask the person is wearing and if he can smell the banana oil the mask is not sealed properly. The Complainant called a RADCON night supervisor, Ken Petrovsky, and explained to him that they had not had the fitting tests and they were being sent into the containment area. Mr. Petrovsky said he would be right over to administer a test. The Complainant took and passed the banana test.

    A problem arose in administering the test to the Complainant's son. He had a thin face and they kept trying to get the respirator to fit him by pulling on it. The boy was becoming frightened about going into the containment area. Finally they had to take the mask off and bend it to try to fit his face. Meanwhile, Foreman Garver was concerned about the delay of two hours or so in going into the containment area and wanted to know why the Complainant had waited until the last minute to get this testing done. There was an argument and

the Complainant felt the foreman was rushing the safety precaution. Also, Jerry Chiufo, the steward, who was supposed to be concerned with the employees' safety, remarked that if the respirator made it hard to breathe, this could be remedied as he had done to his mask, just hit it against your shoulder so that you crack the seal. Of course, this meant the respirator would be no good for the purpose it was used for. The Complainant was angry after the argument and concerned about his son, so he went to the superintendent and told him about the argument. The foreman and steward came in during the discussion with the superintendent and joined in. Finally the carpenters went into the containment area with their protective clothing and respirators on and dismantled the scaffold, working about 2 hours overtime before going home.

    The next day, Saturday, Foreman Garver gave the Complainant a job the latter thought was a punishment job, working by himself wrapping 20 foot planks. Normally two carpenters were assigned to that type job. The following Monday, March 17, 1980, the Complainant was informed by the steward that he was laid off. The stated reason was a cut in the work force. The Complainant's son was out of town that day, but when he returned on Tuesday he was laid off, also, for the same reason, lack of work. The Complainant was concerned about the layoffs because he heard that 2 more carpenters had been hired for the night shift about a week before the layoffs. He also heard later, after he was laid off, that other carpenters were hired to replace the carpenter that were on the job that he and his son had been on. Mr. Garver and the shop steward both told the Complainant that he and his son would be rehired, but, to the date of the hearing, that had not been done.

    The Complainant consulted his union officials about his layoff and was advised to contact OSHA. OSHA told him it was out of their jurisdiction, but to try the National Labor Relations Board (NLRB). He filed a Complaint with the NLRB but subsequently withdrew it. Finally he was steered to the Wage and Hour Division office of the U.S. Department of Labor in Pittsburgh where he filed his complaint being considered here.

    The Complainant, having subsequently learned that the Respondent's stated reason for discharging him was due to his attendance, said that he thought his attendance was no

better or worse than that of other workers. He recalled that he was in the hospital 3 to 4 days from February 18, to 22, 1980 and on sick leave from February 23, until he was recalled on February 28, 1980. He also took a few days off around Christmas and an extra day at New Years. He had never been reprimanded for absenteeism by the Respondent. He said that when he worked on a previous job for the Respondent at Jones and Laughlin Steel (J&L) in Aliquippa from September to November, 1979 he lost only 13 days and his son lost 10 days, while Mr. Chiufo, the steward, who also worked for J&L then, lost 22 days. He thought his attendance on that job was no worse than anyone else's and he said four of the 13 days he was absent involved union business. On the J&L job he had once been laid off due to a cut in work force for about 2 days, then rehired by the Respondent after he had complained to his union business agent. He quit the J&L job in November 1979 because he couldn't stand working in the cold weather. About a week or more later he was rehired by the Respondent for the Beaver Valley job and between these jobs he worked for Townsend and Bottum at a coal fire plant.

    The Complainant said he had heard while he worked at the Beaver Valley project that Duquesne Light, but not the Respondent, was once cited by one of the safety regulatory agencies for a safety violation. The Complainant said he had been informed on June 12, 1980 by an NRC investigator that the safety complaints he had made to OSHA were legitimate, they had been investigated and rectified. This included changes in training for employees in handling and fitting face masks. As a result of his complaints neither the Respondent nor Duquesne Light were cited for any violations, however.

    The Respondent presented the testimony of Ray Caldwell, a superintendent of unit one at the Atomic Energy Power Plant, Shippingport, Pa. where the Complainant had most recently been employed by the Respondent. Mr. Caldwell had worked for the Respondent since 1959. He had been assigned to the Beaver Valley power plant for several years. He described the job at unit one as being a construction job with enormous added radiation problems, security problems and extra paper work. Before any workmen could go into an area to work a RADCON technician had to go in, take a "swipe" with a cloth and then

analyze the results to find out how much radiation there was there. Workmen had to have access passes and badges to get from one area to another. According to Mr. Caldwell, if there was any chance whatsoever of danger, all required precautions were taken, including the wearing of 3 shoe covers if necessary, other protective clothing and respirators. The Respondent took no chances with the safety of its employees. Mr. Caldwell's duties included manning the project, selecting when and where particular crafts and tradesmen were to work on each job, and the materials and equipment needed for each job.

    Mr. Caldwell explained that on many occasions it paid the employer to keep workmen in its employ even if there was little if anything for them to do for a day or two. The first work day for these employees was not productive because they had to get a temporary badge and a security surveillance letter had to be written on them. The next day or two the employer would try to set up a training center and have training sessions. Another day was taken up with a physical examination. Meanwhile the new employees had to be escorted wherever they went. Thus, a great deal of money was spent before the workmen came to a point where they could begin working. If there was a day or two layoff it usually paid the employer to keen an employee on the payroll and try to find something for him to do. The Respondent had tried to keep its employees on the job as long as it could, but if projected work schedules indicated extended layoffs, some workmen in the trades that were idle had to go.

    In laying off the Complainant Mr. Caldwell learned that carpenters for the night shift had to be cut back, so he went to Harry Nagy, the night superintendent, and Rick Garver, the foreman, about it. Mr. Caldwell was trying to keep from laying off any employees, but at a meeting with all the top construction specialists he was told that the client could not absorb the cost, that the paperwork that would allow the work to proceed would be a long time coming and that the layoffs had to be made. He was told to lay off 30% of the crew. At that time, the week of March 12, 1980, there were 7 working carpenters plus Foreman Garver and Superintendent Nagy.

    According to Mr. Caldwell, the reason the Complainant was laid off was his attendance. Mr. Caldwell said that any

Mr. Caldwell explained that they were not new hires; they had been working for the Respondent for the past 4 years at the Shippingport power plant.

    Mr. Caldwell thought that Rick Garver was a capable safety man. Previously, when he worked in a gang, he had asked Mr. Caldwell a lot of questions. Mr. Caldwell liked that and he said it was part of the reason he made Mr. Garver a foreman.

    According to Mr. Caldwell the booth test had been eliminated because it was not effective. The banana oil test is being used now for face mask fitting.

    The choice of laying off the Complainant and his son in March 1980 was made by Superintendent Nagy and Foreman Garver. When asked why the Complainant and his son, practically the only carpenters who were qualified to work in the reactor with respirators on, were laid off, Mr. Caldwell replied that the foreseeable work to be done for at least the 3 weeks after that had nothing to do with respirators and was not even in the containment building. However, he said that sometime after the Complainant was laid off all the night carpenters did work in the reactor from time to time. If an occasion ever arose which required work in the reactor and no qualified night shift man was available, they would either do the work on the day shift or transfer someone from the day shift to night, but such an occasion did not arise and normally Mr. Caldwell would know ahead of time about this situation so that he would have time to have the workmen trained and qualified. Mr. Caldwell said that if an occasion arises where a workman reaches the maximum allowable limit of radiation exposure he is not laid off for that reason, but is given other work to do outside the controlled area.

    When asked about the situation where the Complainant was required to take down scaffolding planks that had dust on them, Mr. Caldwell suggested that it could be that the person who told him to do that job had already checked with a RADCON technician to find out whether this dust was contaminated before having the Complainant take down the planks.

    Mr. Caldwell explained the difference in the information the Complainant had as to the amount of milliroentgens allowable. He said the NRC set a limit that it feels can be

safely allowable, then Duquesne Light, in an effort to be much more safe, set its own limit, which was about 40% of the NRC limit. The Duquesne Light limit could be exceeded and the workmen could work in the range in between, but they must be advised of this. According to Mr. Caldwell, "There's no restriction on anyone as far as safety goes. If there is any question--believe me, there is no place in the world that is safer than this." Mr. Caldwell said he could see nothing wrong with the Complainant asking a lot of questions about safety. When asked if he had ever said to anyone that if there were any more complaints about radiation exposure he would lay the man off, Mr. Caldwell emphatically denied having made any such statement. He also said that Rick Garver had never told him that the Complainant and his son had been caught sleeping on the job.

    With reference to the Complainant's attendance on the job, Mr. Caldwell said he was not as concerned about whether there was a legal excuse for the absence as he was about whether the Complainant was there on she job or not regardless of the reason. He said the Complainant was hired to perform a duty, that thousands of dollars had been invested in him for physicals, training, etc. and if he wasn't there on the job, no matter what the reason, the work suffered. Mr. Caldwell also took a dim view of employees who left work early or who left for home after taking a physical exam rather than going back to work for the rest of that day. He felt that every workman should be there and do his job. He checked the timekeeper's records and the payroll periodically . According to Mr. Caldwell, of the 7 carpenters on that job, the Complainants' record of absenteeism was the worst. In Mr. Caldwell's opinion Garver's part in the decision to lay off the Complainant was made without any knowledge of the Complainant's conduct on the J&L job, because Garver was never on the J&L job. Mr. Caldwell said that Lou Keppel, a carpenter on the day shift, was laid off about March 19, 1980 because he was missing too much time, also.

    The statute which authorizes this proceeding, 42 USC 5851, provides, in pertinent part, as follows:

complaints about the Respondent's lack of certain safety precautions, I find the evidence insufficient to prove such an allegation. The burden of proof is on the Complainant to establish the facts alleged and his entitlement to the relief requested. In my opinion the Complainant's case established no more than a mere possibility that he might have been discharged for the reason he claimed and it appears that he reached the conclusions he did by making assumptions without any real proof. On the other hand, I find that the evidence of Superintendent Caldwell presented by the Respondent was more than enough to rebut any adverse inferences that could be drawn from the Complainant's evidence. Mr. Caldwell, who was in a position to know, stated unequivocally that the Complainant was not discharged because of any complaints he had made about safety; he was discharged due to a layoff for lack of work and he was chosen to be one who was laid off because of his record of absenteeism. I find this to be a fact supported by the evidence of record and I conclude that no improper discrimination was involved in this case.

    It is therefore recommended that the complaint filed by Rocco R. Colonello against the Dick Corporation be dismissed.

       ROBERT S. AMERY
       Administrative Law Judge

Dated: August 1, 1980
Washington, D.C.

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