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| September 23, 2008 DOL Home > OALJ Home > Whistleblower Collection |
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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. 83-ERA-3 In the Matter of
WALLACE ROYCE,
v.
BECHTEL POWER CORPORATION,
James L. Leather, Esq.
Stephen D. Butler, Esq.
Before: RENO E. BONFANTI
This matter arises from a complaint pursuant to the Energy Reorganization Act of 1974, 42 U.S.C. 5851, and regulations in [Page 2] 29 CFR Part 24. Following a determination by the Employment Standards Administration, Department of Labor that the complainant was entitled to relief, and, thus should be reinstated to his former job, the Respondent-Petitioner requested a formal hearing on the matter. The hearing on this "whistle-blower" case was held on January 27th, 28th, and 31st, 1983.
(1) Whether Wallace Royce was an employee of Bechtel Power Corporation for purposes of being entitled to the protection of the Energy Reorganization Act of 1974. If so: (2) was Royce engaged in protected activity at the time he was terminated by respondent, (3) was the protected activity a motivating factor in his job termination, and (4) would the release have occurred in the absence of the alleged protected activity.
Complainant was an "employee" of Respondent "employer" for purposes of the protection provisions of the Energy Reorganization Act of 1974. Title 42 U.S.C. 5851 reads as follows:
I find that the complainant's concern about coercion, quality, quantity and duplication of testing expressed in the Royce memo caused a proceeding to be commenced under the Act. The threshold question of whether he is entitled to the [Page 3] protection of the Act hinges on whether he was a worker whom congress intended to be protected from employment discrimination for blowing the "whistle". The text of the Act includes a congressional declaration of policy for development and utilization of energy sources, as well as advancing the goals of restoring, protecting, and enhancing environmental quality, and to assure public health and safety. In 1978 Congress amended the Energy Reorganization Act by enacting the above employee protection provision. The purpose was to protect employees who make public information regarding safety hazards at nuclear power plant construction sites. The legislative history of Section 5851 expresses the concern that:
Although Section 5851 does not define "employee" it must be given a broad interpretation in order to carry out the legislative purpose which includes the assurance of health and safety of the public. Workers such as the complainant in the instant case, in positions to protect the health and safety of the public, should be protected from all forms of job discrimination for reporting hazards. The Respondent had a substantial number of such workers working alongside its regular employees. To protect a co-worker-employee and not one in complainant's position would appear to weaken the primary purpose of disclosure to the public. Further, to deny protection to a person in complainant's category of workers would provide a means for employers to avoid the sanctions of the law, at the expense of the public health or safety. Therefore, I conclude that complainant was an "employee" for purposes of protection under the Act and was engaged in protected activity at the time of his discharge.
The complainant, Wallace Royce, began working as a start- up electrical test engineer for Bechtel Power Corporation, respondent, on August 3, 1982. To perform the start-up services [Page 4] at the Palo Verde Nuclear Project, respondent utilized the services of temporary contract workers (job shoppers) in addition to its regular employees. Royce was supplied to respondent by International Staffing Consultants (ISC), a job shop agency. Respondent's agreement with ISC states that such individuals are employees of ISC and not Bechtel Power Corporation. The job shoppers are expected to be fully trained and highly competent, for which they are compensated at a higher rate than the regular employees of Bechtel Power Corporation. They are subject to release if their performance does not meet the high standards expected. The services of a job shopper are terminable at will 2nd there is no obligation to retain any even if performance is satisfactory. In return for the lack of employment security, they are compensated at a rate well above the compensation of respondent's employees in similar capacities. Wallace Royce was terminated from the job by respondent on November 18, 1982. Royce contends that he was fired because he wrote a memorandum about coercion at Palo Verde Nuclear Plant and sent it to various agencies. Respondent contends that Royce was terminated because of poor performance and productivity, including not utilizing his time nor the time of his craft workers effectively, and that the memorandum did not motivate the termination. Royce testified as follows: David Bucholz became his supervisor in early October 1982. Between that date and November 12, 1982, Bucholz brought the matter of low productivity to his attention 4 times. (TR-132) The first time was prior to the "bean count" system. The bean count was a management tool to determine productivity, and all workers were to produce one complete electrical test package per shift or else lose their jobs. Royce was concerned that the quality of the tests might be compromised for quantity and felt coercion since the "bean count" began. Royce admitted he had productivity problems and that he probably would have performed better if he had gotten along better with Bucholz. Mr. David Bucholz, complainant's supervisor, wrote the following memorandum:
[Page 5]
This will be referred to as the Bucholz memo, and is identified in the record as CX-2 Mr. Wallace Royce responded with the following memorandum to David Bucholz
[Page 6]
[Page 7]
The above is an extract of the more significant portions of the memo. The complete document is identified as CX-3 in the record, and hereinafter will be referred to as the Royce memo.
Upon testifying Royce admitted to some inacuracies in his
memorandum: bean count was in effect 6 weeks (not 3 weeks);
there was an objection to his productivity prior to the bean
count copies had already been sent to NRC, APS, etc; that
he knowingly falsified production report entries to take a
bean count.1 As to why he wrote the
memo, Royce stated "my
position was in jeopardy," "if I were to be terminated for
productivity or because I wrote this letter, now was the time
to say it". The reason he initiated the memorandum at that
time was because of the fear of losing his job. (TR-222 to
257)
The crux of this case is that if Complainant was discharged
because of his memo, he will prevail in this action; but if the
respondent proves that he would have been discharged even in
the absence of this protected activity, the complaint will
fail.
David Bucholz testified that shortly after he became
Royce's supervisor in September 1982 he noted his poor production
and lack of effort. The basis of his opinion was from observations,
such as: lack of effort, socializing in the area,
permitting his craft (labor electricians) to lounge in the
trailer. Also Bucholz's former supervisor noted that Royce was
not where he was supposed to be working. He spoke to Royce once
before the "bean count" began and 3 times thereafter concerning
his job performance. He was not completing his test packages and
not utilizing his time and his craft time efficiently. Bucholz
brought the matter to the attention of the next higher supervisor.
Royce was seen socializing too often and his craft were
not working. No improvement in performance was noted and Bucholz
wrote a memorandum on November 12, 1983, and gave it to Royce
that date. A copy was given to Mr. Parenteau. Bucholz testified
that he did not recommend termination. He intended the memo to
motivate Royce to improve or that he be transferred to another
group. In any event he had no authority to transfer or terminate
him.
Parenteau was employed by respondent on October 19, 1982
and became electrical group supervisor on November 1, 1982.
He testified that he made the decision to terminate Royce on
November 12, 1982 (Fri), the date Bucholz gave him the memorandum.
He discussed job shoppers with Mr. Jeffers, the personnel
representative and told him to release Royce. On the following
Monday morning November 15th, Royce handed him his memo. Because
of the possible adverse publicity from this memo noting that
copies were sent to the new media, he tried to contact Jeffers
but was unable to reach him until November 16th. Jeffers, who
had not yet terminated Royce, decided to contact upper management.
Parenteau could have transferred Royce but decided against
it. Parenteau testified that he could have done something if
the matter had been brought to his attention prior to the Bucholz
memo not the Royce memo. He contradicted testimony of Duty and
Nakarski concerning a conversation in the cafeteria to the effect
that the Royce memo caused the termination. Jeffers testified
that he became Personnel representative on November 5, 1982. On
November 12, 1982 Parenteau brought the Bucholz memo over and
directed me to release Royce. Jeffers explained that memos are
not written to "job shoppers" because if not performing they are
released. He was unable to handle it that date and planned to do
it on Saturday. (13th). He arrived late 2nd Royce had left. On
the following Monday morning an urgent matter prevented him
from seeing Royce. On Tuesday (16th) he received a call from
Parenteau, went to his office 2nd read the Royce memo. He told
Parenteau that there might be a problem releasing him so he had
to inform management of the contents in the letter. Jeffers
called Mr. Zerucha who suggested they proceed. On Wednesday
(17th) a controversy developed with APS as to the proper
procedure for terminating a job shopper. It was resolved that
respondent's procedure was agreeable, and Royce was released on
November 18th. Mr. Zerucha, start-up manager for the respondents
Palo Verde project, became aware in mid October 1982 of a problem
with Royce. On November 16, 1982 he became aware of a problem
concerning a job shop employee, a complication had arisen
concerning termination, and, discussion with APS concerning
procedures to terminate. He corroborated Jeffers testimony.
Nakarski and Duty were electrical start-up engineers.
Nakarski was terminated for other reasons and Duty still works
there. Nakarski testified that during the conference in the
cafeteria Parenteau said that Royce would probably still have
his job if Royce had come to him. Duty testified that Parenteau
received both memos at the same time, and he considered the
Royce memo as a threat and acted immediately.
I have carefully evaluated the evidence in this case along
with my assessment of demeanor and credibility of the witnesses.
I fully credit Bucholz's testimony as to the timing and circumstances
leading to the issuance of the productivity memorandum.
I find that the Royce memo was motivated primarily by fear
of losing his job, but such does not preclude him from the
protection of the Act. I note the admitted "inacurracies" of his
memo. I fully credit the testimony of Parenteau and Jeffers.
I find that the decision to terminate complainant was made on
November 12, 1982. The fact that it was not communicated to
complainant until November 18, 1982 is supported by a rational
explanation as testified to by Parenteau, Jeffers, and Zerucha.
The decision to terminate was made before the Royce memo of
November 14, 1982 was distributed. Testimony from Duty and
Nakarski was unpersuasive in rebutting the more credible testimony
of the circumstances. The Respondent has met his burden of
proving by a preponderance of the evidence that complainant was
terminated from employment for a non-discriminatory reason.
The evidence establishes that complainant's job performance
(productivity lack of effort, too much socializing on the job,
and inefficient utilization of his craft employees) was below
average in the opinion of his immediate supervisor Bucholz and
next to immediate supervisor Parenteau. Whether their opinion
was based on documented evidence is not crucial. I fully credit
Bucholz's testimony. Complainant himself acknowledged he had
productivity problems. I have discounted the post-termination
production analysis in R 6(A) which reveals a far lower
production than shown by preexisting records. Whether complainant's
performance was objectively unsatiffactory is irrelevant. "Job
shoppers" were terminable at will by respondent, even if they
performed in a satisfactory manner. Complainant was compensated
at a rate above the compensation of regular employees of
Respondent, in return for lack of employment security. Absent a
showing that the worker was discharged for exercising a right
under the Act, an employer may discharge a worker for any reason
and not violate the Act. Thus I find that the respondent had a
legitimate non-discriminatory reason for terminating complainant.
Complainant contends that he was terminated because of
engaging in protected activity. He has established coverage
under the Act and that he was engaged in protected activity
at time of his discharge. The facts indicate a dual motive
discharge situation. The applicable case law is: Mt Healthy
City School District Board v. Doyle 429 U.S. 274 (1977); Wright
Line Inc., 251 NLRB 1083 aff'd NLRB v. Wright Line 662
F.2d 99 (1st Cir. 1981); and NLRB V. Nevis Industries; Inc., 647
F.2d 905 (9th Cir. 1981). Complainant has made a prima facie
case sufficient to support the inference that protected conduct
was a motivating factor in the respondent's decision. Under the
Wright rule, the burden shifts to the employer to demonstrate
that the same action would have taken place even in the absence
of the protected conduct. This rule originated in Mt Healthy,
supra, wherein the court stated that the employer must show by a
preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct. In order
to satisfy this "but for" test the employer has the burden
to prove that he would have acted the same way if only the valid
ground had existed. The 9th Cir. applied the Wright rule in
Nevis Industries, supra.
It is my conclusion that: (1) complainant was an employee of
Respondent for purposes of the protected conduct provisions of
the Act, (2) complainant was engaged in protected activity at the
time of discharge, and (3) the Respondent has sustained his
burden of persuasion that termination would have occurred even in
the absence of the protected conduct. Relief for complainant is
denied.
It is hereby recommended that the complaint of Wallace Royce
be dismissed with prejudice.
Reno E. Bonfanti
Dated: 24 MAR 1983
REB/det
Royce memo - The memorandum on "Coercion at Palo Verde
Nuclear Plant" from Wallace Royce to David Bucholz dated November
14, 1982 (CX 3)
1 Respondent Exhibit 6(A) shows
that Royce claimed 25
tests completed in 29 workdays. There are 7 duplicate entries.
He completed only 18 tests in those 29 days.
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