However, this has not worked to the detriment of the Complainant
since he obtained other employment some five days after being
terminated by Respondent.
Insofar as the Employer's Motion for Summary Judgment is
still viable, it is denied.
The Complainant, Robert N. Jaenisch, alleges that he was
illegally discharged by his Employer for reporting a possible
safety violation of the Act. The Employer appeals the Director's
decision awarding Complainant back wages.
The parties stipulated that the Complainant was employed as
a pipe-fitter-welder at a salary rate of $13.38 per hour; and was
terminated on October 26, 1980.
I
The Complainant, was employed by the Respondent, Chicago
Bridge and Iron Company, on September 15, 1980 to work on the
Vermont-Yankee nuclear power plant. The Complainant welded and
fitted pipe inside the plant's cooling system. A changing area
was located just outside the work area, where the workers changed
to protective clothing before entering the job site. On October 17,
1980, the Complainant and others questioned an inspector from the
Nuclear Regulatory Commission at the plant, concerning radiation
exposure in the changing area. The Complainant testified that
subsequently he was told by both his foreman, and the union
steward that the night supervisor, Howard Hook, wanted him fired
for speaking to the government safety inspector. The foreman
verified Complainant's testimony while Hook denied that allegation.
As a result of the employees speaking to the inspector a survey
was conducted by the government during the period of October 17
thru the 21st. The inspection revealed that radiation in the
changing area was within acceptable limits but a protective
covering was put on a pipe.
On approximately October 26, 1980 Complainant finished
working and began to change clothes in the changing area when
[Page 3]
he remembered leaving a welding rod in the work area. Complainant
was about to go back for it when his helper volunteered to
retrieve the rod because he was still dressed in protective
clothing. The helper retrieved the rod, but was stopped from
returning it to its proper station by a weld pusher, who informed
him that he was not authorized to return the rod. The pusher
took the rod and returned it to the rod station attendant.
The pusher testified that only the welder, the rod station
attendant and himself were authorized to touch the wire. Subsequently,
Complainant was informed by his foreman that he had
been fired for leaving his rod in the work area. Howard Hook,
the night supervisor, made the decision to fire Complainant.
The parties agreed that there was a general problem with
leaving weld wire in the work area. The Complainant testified
that he received instructions to make sure he brought the welding
rod out of the cooling system and not to leave it laying around.
He was aware of an NRC rule requiring that the wire he accounted
for. The day before Complainant's termination, Charles McCroy,
a boilermaker was fired for failing to return his welding rod.
Howard Hook and Stephen Crain, the Employer's contract supervisor,
both testified that failure to follow the established safety
procedures would jeopardize their license.
II
The Respondent first alleges that the Complainant has failed
to state a proper cause of action for which relief may be granted
under 42 U.S.C. 5851. Section 5851 states, in pertinent part,
that no Employer may discharge any employee because that employee
"(1) commenced, caused to be commenced, or is
about to commence a proceeding under this
chapter ... or a proceeding for the administration
or enforcement of any requirement imposed under
this chapter...."
The record reflects that Complainant spoke to an inspector of the
Nuclear Regulatory Commission (N.R.C.) concerning possible safety
violations at his work site. In response to the Complainant's
concerns, an inspector of the nuclear plant was made by the N.R.C.
Complainant asserts that he was discharged for voicing his concerns.
[Page 4]
For the purposes of § 5851, Complainant is found to have "caused
a proceeding to be commenced" by having caused an NRC inspection
of the nuclear plant.
Proof of discrimination, in violation of the Act involves
a two-step process. The employee must first show a discriminatory
act by the Employer. The essence of discrimination is treating
like individuals differently. Once discrimination is proven, the
employee must show discriminatory animus or intent.
Complainant has failed to show that his termination was
discriminatory in that he was treated differently from other
individuals. The Employer alleges that Complainant was terminated
for leaving his welding rod at the job site. Another employee,
Charles McCroy failed to return his welding rod after use and was
also terminated. There is no evidence that McCroy spoke to the
inspector. Thus, the record reflects that Complainant was treated
no differently than the other individual in a similar position.
While testimony indicated that many employees were leaving welding
rods at the work site, there was no evidence that these individuals
were specifically known to Employer. There is no evidence that
these individuals would not have been fired if they had in fact
been known to Employer. Again, another employee, known to the
Employer to be guilty of such conduct, was terminated also.
Furthermore, Employer is found to have had a legitimate purpose
in terminating Complainant. Regulations at 10 C.F.R. Part 50,
App. B require that quality assurance criteria be set up for all
nuclear power plants. The regulations make clear the need for
stringent guidelines to adequately protect against the potential
dangers of nuclear radiation. The regulations require that
measures be established for identification and control of materials
to prevent the use of incorrect or defective parts. Measures must
also be taken "to assure that special processes, including
welding...are controlled and accomplished by qualified personnel
using qualified procedures..." 10 C.F.R. Part 50 (IX). Stephen
Crain, the contract supervisor for Employer testified that the
company drafted a Quality Assurance Manual in accordance with
the requirements of 10 C.F.R. and it is made a part of their work
contracts. The Complainant knew that he was required by regulations
to return his equipment. He neglegently failed to return his
welding rod, which could clearly be deemed a serious breach of
control and identification requirements, warranting dismissal.
Thus, the Employer had a legitimate reason for terminating the
Complainant.
[Page 5]
Lawrence P. Fortier, Complainant's foreman, testified that a
short time after Complainant spoke to the NRC inspector, Howard
Hook, the night supervisor, spoke to Fortier about wanting to
terminate Complainant. Howard Hook denied that allegation, but
even accepting it as true, Complainant would still fail in this
complaint. In Mount Healthy City School District Board of
Education v. Doyle , 429 U.S. (1977), the Supreme Court established
a causation test in alleged dual motive cages. Where, as in the
instant case an employee engages in protected behavior (conversation
with the NRC inspector) and is subsequently terminated, that termination
will nevertheless be justified if there exists independent
and proper grounds for said termination. Otherwise, the employee
will be placed in a better position for having in the
protected behavior. An employee "ought not to be able, by engaging
in such conduct (protected behavior) to prevent his Employer from
assessing his performance record and reaching a decision...on the
basis of that record, simply because the protected conduct makes
the Employer more certain of the correctness of its decision. Id
at 286. As previously mentioned, Complainant's failure to return
his equipment to its proper station gave the Employer justifiable
grounds for his termination. Therefore even if Howard Hook's
actions were in part motivated by Complainant's conversation with
the NRC inspector, his termination is nevertheless nondiscriminatory
and the complaint must fail.
Since Complainant did not prevail no attorney's fees or
costs are assessed.
RECOMMENDED ORDER
It is hereby recommended that the complaint of Robert M.
Jaenisch be dismissed with prejudice.
JOHN W. EARMAN
Administrative Law
Judge
Dated: 18 MAY 1981
Washington, D.C.
JWE:kat
[ENDNOTES]
1 The Complaint was made on
November 24, 1980 and the
Director issued a decision on December 19. That decision was
appealed on December 23 being received by the Department of Labor
on December 24, 1980. For unknown reasons the case was not assigned
for hearing until January 14, 1981. The following day a notice of hearing for January 28 was
issued. The delivery of the notices was delayed which resulted in the hearing
being rescheduled by mutual agreement on March 26, 1981. However,
it was not until May 4, 1981 that the transcript was obtained from
the reporting service.