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USDOL/OALJ Reporter
OFFICE OF ADMINISTRATIVE LAW JUDGES Suite 700-1111 20th Street, N.W. Washington, D.C. 20036 Case No. 81-ERA-5 In the Matter of
ROBERT N. JAENISCH
v.
CHICAGO BRIDGE AND IRON COMPANY
Complainant, Robert N. Jaenisch, was employed as a welder at the Vermont Yankee Nuclear Power Plant by the Chicago Bridge and Iron Company, on October 26, 1980, at which time he was terminated. Complainant alleges his removal was because he talked to a representative of the Nuclear Regulatory Commission, which is a protected activity under 42 U.S.C. § 5851. The Employer contends that Complainant was removed for a violation of work rules in that he failed to properly return a welding rod.
[Page 2] On May 18, 1981 this court recommended that the Secretary of Labor dismiss the complaint. The Secretary issued a Memorandum Decision on june 25, 1981 in which he followed the recommendation. The Court of Appeals for the Second Circuit vacated the Secretary's decision on June 23, 1982 in an unpublished Order and remanded the case to the Secretary. On March 30, 1983 the Secretary remanded the matter to the office of Administrative Law Judges. After correspondence with the parties an Order to Show Cause as to why this matter should not be decided on the existing record was issued. The parties made written argument. It is found that no good cause has been shown as to why this matter should not be decided on the existing record.
We did not intend our recommendation to the Secretary of Labor to be as interpreted by the Circuit Court. Apparently, it was not clear that "whistleblowing" was not considered to be involved in the removal. However, since the Circuit Court said the Administrative Law Judge correctly identified this case as one of "dual motive" discharge, the "but for" test of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), will be applied. As a dual motive discharge the burden is upon the Employer to show that it would have terminated Complainant even if the protected activity had not occurred. Chicago Bridge and Iron Company showed that failing to turn in weld wire was considered an offense for which an employee would be terminated and everyone knew this to be the situation. Lawrence R. Fortier, Complainant's witness who was the general foreman for the shift, testified that Howard Hook said he would not tolerate Complainant's leaving welding wire in the tank. He also stated that he had been told that the offense would result in termination and that the foreman under him so informed their workers, including Complainant. Stephen P. Crain, Contract Supervisor, pointed out the Special Job Rules for the Vermont Yankee Nuclear Power Plant Torus Modification, and the Quality Assurance Manual (based upon the U.S. Code provisions) were the guidelines under which all of the work was performed. These guidelines provided that [Page 3]
welding materials be stored in locked areas or locked electrode
ovens,1 with strict records of use and
return of materials so
that there would be official documentation that proper welding
material was used. The witness testified that another person
had been fired the day before the Complainant was terminated
for the same reason and, that while he could have overridden
Mr. Hook's decision to terminate Complainant, he did not do so
because he thought Mr. Hook had made a reasonable decision.
Joseph A. Bustido, a weld pusher at the time, said that
only he, the welder and the rod attendant were authorized to
touch the welding rods. The witness stated that when he saw
that a rod had been left by Complainant, he waited to see that
it was not improperly used. When he saw Complainant's helper
pick the rod up he took it from the helper and returned it.
Mr. Bustido then advised Mr. Hook of the events.
Howard Hook, Night Shift Superintendent, said that after
Mr. Bustido told him that Complainant left the welding rod in
the torus, he asked Mr. Fortier what he was going to do about the
situation. Together they talked to Dave Reardon the union
steward. The question of firing Complainant was discussed for
about an hour and a half. Mr. Hook testified that if he had
wanted to fire Complainant for talking to the Nuclear Regulatory
commission man he would not have waited ten days. The witness
said that the day before he had fired a pipefitter for the same
offense and that Complainant was one of his best welders, being
one of two stainless steel welders on the shift.
To show that his dismissal for failing to return a welding
rod was unusual, Complainant presented testimony that welding
rod stubs had often been left in the work area. There was no
showing that the identities of the culprits were known to
management, but most important, the evidence ignores the reason
for tight controls over rod use. The stubs were waste, while
the good rods could be used again. The controls were to insure
that proper materials were used on the welds and that the
materials had been property cared for to prevent later problems
with the welds. The evidence that another welder had failed to
bring out his welding rod when he was injured is also found to
not be persuasive. In that incident an authorized person
returned the rod.
In view of all the evidence, it is found that the Employer
has shown, by the preponderance of the evidence, that Complainant
would have been dismissed even if he had never spoken to the
Nuclear Regulatory Commission inspector. Chicago Bridge and
Iron Company would have terminated Mr. Jaenisch if only his
failure to return his welding rod had taken place.
It is recommended that the complaint of Robert N. Jaenisch
be dismissed with prejudice.
JOHN W. EARMAN
Dated: 11 JUL 1983
JWE:ka t
1 Some of the welding rods were
stored under heated conditions to avoid moisture from becoming a problem.
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