and to tell him that
he was being suspended. (Tr. 332-333). After the suspension, Douglas
again contacted Endler and set up a meeting with Arthur Lundvall,
Douglass's vice-president. Douglass and Endler recommended to Lundvall
that Ledford be discharged and Lundvall agreed with their recommendation.
(Tr. 334). On December 27, 1982, Douglass telephoned Ledford
to tell him that he was being discharged. (Tr. 335).
Ledford testified on direct and on cross-examination about
several incidents that occurred while working for Calvert Cliffs.
On the day after Thanksgiving in 1981, Ledford along with a team
of quality control inspectors was sent by his employer to the
Timet plant in Steubenville, Ohio. Ledford had a shift at one
o'clock in the morning. On cross-examination Ledford testified
that he reported to work after having had one glass of wine.
(Tr. 131-132). The guard and foreman on duty at that time reported
him for drinking. A member of the quality control team also in
Ohio during November, 1981, testified that on two occasions Ledford
came to relieve him from his shift after he had been drinking. (Tr.
412). Wayne Wolfslager further testified that on both occasions
he felt that Ledford was able to his job. (Tr. 412).
Ledford testified about another incident that occurred during
his first trip to the Timet plant in Ohio. He rejected a large
number of titanium tubes because of excessive scratches. Ledford's
inspection report provided that no excessive scratches on titanium
tubes shall he accepted. Ledford pointed out the problem to his
supervisor, Jess Pence. Pence told Ledford that the tubes were
good and that he had disrupted the plant. (Tr. 67-69).
On the same trip, Pence found Ledford reading a Reader's
Digest .
Ledford testified that reading helped keep him awake during the night
shift and that he had nothing else to do. (Tr. 133). On another
occasion, Pence admonished Ledford for not wearing a hard hat. Ledford
testified that he was in a break area and that the company rules designate
[Page 6]
certain break areas where wearing hard hats are not necessary.
(Tr. 134).
Ledford was called back to Maryland in December, 1981, because
of these incidents. He asked to be allowed to return to Ohio to
clear his name. (Tr. 135). Ledford made two more trips to Ohio.
During his trip to Ohio in January, 1982, Ledford was asked
by another quality control inspector, James Shucker, to switch shifts.
(Tr. 129). Ledford had a shift that began on January 12 and ended on
January 13. To accommodate Shucker, Ledford worked one of the former's
earlier shifts, returned to Maryland on January 12 and reported to
work on January 14. (Tr. 146). When Ledford and Shucker submitted
their time sheets for the January trip, neither reported that they
changed shifts. (Tr. 130). (EX 1).
Ledford's immediate supervisor Strupp became aware of the switched
shift when Ledford returned to work at Calvert Cliffs. (TR. 147, 169-
170). Ledford testified that he was unaware switching shifts was a
violation of company policy until told on his return. He told Strupp
he would never do it again. (Tr. 131). Shucker testified that he
never told anyone about the switched shifts. He stated that sometime
in October, 1982, he was given a written warning about the January
switching. (Tr. 454).
Ledford testified about other incidents that occurred while
he was employed at Calvert Cliffs. During his tenure at the plant
he found over twelve different construction packages that were out-
of-date. (Tr. 47-49). He pointed out the condition to his employers
many times. Sometimes his supervisors or senior quality control
inspectors would tell him that he was nitpicking, sometimes they
would tell him that he was right. (Tr. 50-52). Ledford testified
about an incident that occurred in September, 1982. He found a
control cable violating procedures because it was running with power
cables. Thinking this created a hazardous condition, Ledford brought
the problem to the attention of a senior electrical quality control
inspector, Ken Pickering. Ledford states that Pickering threw a
pencil, got enraged, and told him that he was wrong. Ledford states
that he was taken off the job. (Tr. 53-55).
Another incident occurred during an outage at the plant. Ledford
testified that a foreman was doing a welding job for which he was not
qualified. Ledford informed his senior quality control inspectors
who stopped the job after the welding had been completed. A doctor
[Page 7]
of metallurgy, Dr. Pond, was brought in to examine the welding job.
He found it to be acceptable. (Tr. 56-57, 104-105).
Ledford testified that in April, 1982, he was handed a field
change request about installing lead shielding in a reactor. (Tr. 58).
Ledford pointed out a problem he discovered concerning the use of
too many bags causing overweight. He was praised by his supervisors
who asked him to write a nonconformance report. (Tr. 59). Nonconformance
reports once submitted are audited by the Nuclear Regulatory
Commission. Ken Strupp later told Ledford not to submit the report
because it would cause too many complications. Ledford stuck the
report in his desk. (Tr. 60).
Ledford testified that he complained about the frequent change
of quality control inspectors on the job. Each day the company
would change inspectors and Ledford felt this practice was unsafe.
(Tr. 70). He was told that the assignment of inspectors was none
of his business. (Tr. 71). Ledford further testified that he
frequently caused change notices to be written which resulted in
work stoppages. (Tr. 72).
In explaining the comment on his appraisal that he had contempt
for contractors, Ledford stated that one of the contractors was wearing
tennis shoes on the job although the company's safety rules required
that hard toe shoes be worn. Ledford went to a supervisor, Ken
Pickering, saying that it was about time the contractor was told
that he was violating safety procedures. Pickering told Ledford
that it was none of his business. (Tr. 115).
Ledford admitted on cross-examination that on August 29, 1982,
at 11:00 a.m., he was caught having breakfast at a restaurant off
the Calvert Cliffs property. (Tr. 138). After he was caught,
Ledford asked his manager whether he should dock himself for the
time but his manager told him not to and signed Ledford's time
sheet. (Tr. 139).
On cross-examination, Ledford stated that he had contacted the
Nuclear Regulatory Commission (NRC) two weeks before he was suspended
by Calvert Cliffs. (Tr 151). David Trimble, a resident inspector
for NRC at Calvert Cliffs since January, 1982, testified at the
hearing. Trimble testified that on December 16, 1982, he was
approached by Ledford who said that he was having trouble with the
supervisor and that he wanted to talk. Being busy at the time,
Trimble suggested that Ledford either talk to another NRC employee
[Page 8]
or wait until he was free later in the afternoon. (Tr. 478).
Trimble's next contact with Ledford occurred on December 21, 1982.
Trimble called Ledford and set up a meeting for December 22, 1982.
(Tr. 479). Ledford requested anonymity at the meeting and Trimble
testified that he honored the request. (Tr. 480). Trimble testified
further that he had not informed any representative of Calvert Cliffs
about Ledford's contact prior to the date of Ledford's discharge.
(Tr. 481).
Ralph Architzel, the senior resident inspector for NRC at Calvert
Cliffs since January, 1980, testified that on December 21, 1982,
Ledford approached him in the turbine hall at the plant. (Tr. 489).
Architzel testified that he did not inform anyone at Calvert Cliffs
about being approached by Ledford. (Tr. 489). On cross-examination,
Trimble and Architzel admitted that Ledford first approached them in
an area where both the employees and management of Calvert Cliffs
could have seen them talking together. (Tr. 482, 491-492). Upon
further questioning by Baltimore Gas and Electric Company, they
stated that it was not unusual for employees to be seen talking with
them in the turbine hall. (Tr. 486, 494).
Both Trimble and Architzel testified that they were aware
Ledford had asked to see them on December 21, 1982, and that someone
from Calvert Cliffs had denied Ledford access to them. (Tr. 483,
492). Architzel testified that he was unaware of other instances in
which Calvert Cliffs had denied an employee access to an NRC resident
inspector. (Tr. 494).
Issues
The issues are (1) whether Ledford engaged in activities
protected by the Act and regulations and (2) whether the adverse
actions taken against Ledford by Baltimore Gas and Electric Company
were discriminatory within the meaning of the Act and regulations.
Discussion
I
The employee protection provision of the Energy Reorganization
Act, 42 U.S.C. 5851, provides in part, that
[Page 9]
(a) No employer ... may discharge any employee or otherwise
discriminate against any employee ... because the
employee ... (3) assisted or participated or is about to
assist or participate in a proceeding [under this Act]
or in any other action to carry out the purposes of this
Act ....
Baltimore Gas and Electric Company is an employer subject to Section
5851.
Ledford contends that he was discharged for bringing too many
safety problems to the attention of his supervisors and for raising
questions about the safety of certain operating procedures. Baltimore
Gas and Electric Company alleges that the discharge was based upon
Ledford's demonstrated lack of judgment and integrity. A "dual motive"
case thus arises. A dual motive case exists when an employer may
have had valid and invalid reasons for taking adverse action against
an employee. The United States Supreme Court has held that in dual
motive discharge cases arising under Section 8(a)(3) of the National
Labor Relations Act, 29 U.S.C. 158 (a)(3), the "but for" test is
appropriate. See Mt. Healthy City School District Board of Education
v. Doyle , 429 U.S. 274 (1977). In Mt. Healthy an employee alleged that
the Board or Education had improperly failed to rehire him because he
had engaged in constitutionally protected conduct. The Supreme Court
held that the burden was on the employee to show that his conduct was
protected and that the protected conduct was a motivating factor in
the decision of the Board of Education not to rehire him. Once this
was established, the burden shifted to the Board to show by a
preponderance of the evidence that it would have made the same decision
not to rehire the employee, even in the absence of the protected
conduct.
In Consolidated Edison Co. of New York, Inc. v. Donovan , 673
F.2d 61, 62 ( 2d Cir. 1982), the United States Court of Appeals for
the Second Circuit held that the "but for" test adopted from Mt.
Healthy should be applied in Section 5851 proceedings. The test
as been adopted by administrative law judges in Liverett v.
Tennessee Valley Authority , 82-ERA-1 (1982) and Drew v. Jersey
Central Power & Light Co. , 81-ERA-3(1982). I conclude that the
"but for" test is appropriate here.
As I have adopted the "but for" test for use in dual motive
cases arising under the employee protection provision, Section 5851
of the Act, Ledford must establish (1) that he engaged in protected
activity at Calvert Cliffs, and (2) that the protected activity was
[Page 10]
a motivating factor in the decision to discipline Ledford. if
Ledford can establish that, the burden shifts to Baltimore Gas and
Electric Company to prove by a preponderance of the evidence that
it would have taken the same actions even had Ledford not engaged in
protected activity.
It should be noted at this juncture that the actions taken
against Ledford occurred in three stages. First, he was given a
"C" rating by his appraiser Ken Strupp in November, 1982. Second,
he was suspended on December 21 by Robert M. Douglass. Third,
Ledford was discharged by Douglass on December 27. Each of these
three actions must be examined in determining whether Ledford was
discriminated against by Baltimore Gas and Electric Company.
II
In determining whether Ledford was discriminated against, I will
first examine the contacts he made with NRC personnel. Contact with
NRC concerning safety violations is activity the Act is designed to
protect. For Ledford to establish a prima facie case, he must show
that his employer was aware of his whistleblowing contacts with NRC.
See Crider v. Pullman Power Products Corp. , 82-ERA-7 (1982). Without
prior knowledge, the employer's decision to discipline Ledford could
not have been motivated by his protected activity.
Ledford first contacted David Trimble on December 16, 1982, after
he received his "C" rating. Nothing was discussed during their brief
meeting in the turbine hall of Calvert Cliffs. Both Trimble and his
fellow NRC resident inspector were contacted by Ledford on December
21, 1982, the day Ledford was suspended. On December 22, 1982, Trimble
met with Ledford off the property of Calvert Cliffs. Both Trimble and
Architzel testified credibly that they did not inform anyone from
Calvert Cliffs that Ledford was talking with them. Ledford admitted
that he asked Trimble for anonymity. Based upon these facts, I find
that Baltimore Gas and Electric Company did not suspend Ledford on
December 21, 1982, because of his contacts with NRC resident inspectors
because no one was aware that Ledford had contacted them. Ledford
tried to establish that when he first approached Trimble and Architzel,
it was in an area of the plant where he was in full view of other
employees and management. However, both Trimble and Architzel testified
that it was not unusual for employees to stop and talk with them on
a daily basis in the turbine hall area. Finding their testimony
credible, Ledford's initial contacts with Trimble and Architzel would
not have appeared unusual and thus the contacts were not the reason
Ledford was given a "C" rating and later suspended.
[Page 11]
The testimony reveals that when Ledford met with Douglass and
Davis on December 21, 1982, and was told of his suspension, he asked
to meet with an NRC resident inspector but was denied access. I
believe the testimony of Douglass and Endler that Douglass recommended
discharging Ledford even before he was suspended but delayed acting
to allow further investigation and to discuss the situation with
other management officials. No testimony was elicited and no evidence
suggests that Ledford's subsequent discharge was based upon his request
to see an NRC inspector after he was suspended on December 21, 1982.
The discharge was based on events occurring before Ledford's suspension
and before Douglass's awareness that Ledford was attempting to contact
the NRC. According, I conclude that Ledford was not discriminated
against because of his contacts with NRC resident inspectors.
III
The next issue to determine is whether Ledford was discriminated
against for raising questions about the safety of the Baltimore Gas
and Electric Company's procedures and activities. In Cotter v.
Consolidated Edison Co. of New York , 81-ERA-6 (1981), the administrative
law judge held that the Act's employee protection provision
covers situations where an employee complains about safety violations
within the employer's organization. By affirming the administrative
law judge in Consolidated Edison Co. of New York, Inc. v. Donovan ,
673 F.2d 61 (2d Cir. 1982), the United States Court of appeals for
the Second Circuit has agreed that the Act protects employees who
"blow the whistle" within their organization as well as those who
instigate NRC investigations.
The Baltimore Gas and Electric Company argues in its post-
hearing brief that those responsible for disciplining Ledford did
not have knowledge of his whistleblowing activities and therefore
any adverse action taken could not have been a result of the
protected activity. Earlier I found that no one at Calvert Cliffs
was aware of Ledford's contacts with NRC. However, due to the
nature of his job as a quality control inspector, Ledford was
bringing safety violations to light at Calvert Cliffs. Theoretically,
the more vigorously a quality control inspector pursues
his job ferretting out potential safety hazards and bringing them
to his employer's attention, the more pleased his employer will be.
In effect, Robert M. Douglass acknowledged this during his testimony
when the following exchange took place:
[Page 12]
Mr. Blum: It's true, is it not, that the company's
procedures reflect the NRC regulations?
Mr. Douglass: Absolutely.
Mr. Blum: And the company tries to comply with
NRC regulations?
Mr. Douglass: We do comply.
Mr. Blum: Do comply. And part of that responsibility
falls on the quality control inspector; is that true?
(Tr. 392-393). Thus, an employer hires a quality control inspector
to bring safety violations to light. Consequently, by doing his
or her job, a quality control inspector is almost always engaging
in protected activity.
As counsel for Ledford has ably shown, the irony is clear. An
employer pays the quality control inspector to find possible safety
hazards; however, an inspector who is too effective will raise the
employer's immediate costs substantially. It may behoove the employer
to keep its inspectors submissive and docile. Ledford tries to
establish that this ironic situation was present here and that he
was penalized for zealously performing his duties.
Ledford testified about several incidents where he either caused
work stoppages or complained about safety problems resulting in his
supervisor's displeasure. For example, Ledford claimed that Strupp's
comment about his contempt for contractors referred to the time he
saw a contractor wearing tennis shoes on the job. According to
Calvert Cliffs safety rules, employees were required to wear hard
toe shoes. After seeing this contractor wearing tennis shoes
several times, Ledford told a senior quality control inspector that he
thought the matter should be brought to the contractor's attention.
The senior inspector told Ledford that it was none of his business.
Ledford argues that he was doing his job by ensuring company rules
were being followed. Baltimore Gas and Electric Company maintains
that Ledford's job did not include policing other employees about
tennis shoes. Although I can see how as a quality control inspector,
Ledford might feel that he was responsible for policing all aspects
of safety, I am inclined to agree with the Calvert Cliffs supervisors
that this was none of Ledford's business. Ledford was primarily
responsible for assuring that the nuclear plant was safe, that no
[Page 13]
disastrous accidents occurred because NRC regulations were not
followed or because of improper building, maintenance, or functioning.
He was not responsible for ensuring that every company rule, even
those pertaining to its employees's own safety, be followed by his
colleagues.
Another incident arose when Ledford questioned the Quality
Assurance Department policy of alternating on each day the quality
control inspectors working on a particular job. Ledford maintained
that the same inspector should be left on the job. Apparently, Ledford
informed his supervisors about his concern several times and was told
that it was none of his business. I agree with Baltimore Gas and
Electric Company that Ledford's disagreement with the manner in which
his supervisors in the Quality Assurance Department made work assignments
was not his concern. Without some proof that an employer is
actually trying to cover up safety violations, complaints about job
assignments from an entry level quality control inspector are not
activities the Act was designed to protect.
Other examples Ledford proffers to show that he was disciplined
for protected activity concern his rejection of titanium tubes due to
excessive scratches, his objection to a welding job being performed
by an unqualified foreman, and his objection to the decision not to
file a nonconformance report with the NRC. Speaking out about these
problems was part of Ledford's job as a quality control inspector and
thus, as indicated above, by its very nature was activity the Act is
designed to protect. If Ledford can show that his "C" rating, his
suspension, or his discharge were motivated by his activity of objecting
to the scratched tubes, unqualified welder, or the unfiled report,
he has established a prima facie case of entitlement.
A determination of whether Calvert Cliffs was motivated by
Ledford's protected activities rests largely upon the credibility of
the witnesses. Unfortunately, Strupp did not testify. Comments on
the appraisal indicate that Strupp's concern was not that Ledford
found safety problems but that he discovered them too late. Had the
problems been caught earlier, fewer work stoppages would have been
necessary. (EX 10, CX 19). Indeed, Ledford was praised for finding
the problem that led to the nonconformance report. (Tr. 59). No
evidence indicates that he complained when his supervisor told him
not to file the report he had written. Ledford raised the issue
about the decision of Calvert Cliffs not to file the report after he
received his "C" appraisal, or months after the incident occurred.
The following exchange took place at the hearing between Ledford and
[Page 14]
counsel for Baltimore Gas and Electric Company when the former
indicated that he had approached the NRC after having received his
appraisal:
Mr. Rosasco: In other words, two days after
you got suspended then you went to the NRC?
Mr. Ledford: I went to the NRC first. I didn't
realize I was going to be suspended so fast.
Mr. Rosasco: You were suspended on the 21st,
and two days later you went to NRC. So you were
already suspended when you went there. In fact,
that is why you went there isn't it?
Mr. Ledford: At that time, I went there to
inform them of the neglect of the lead
shielding [documented in the unfiled nonconformance
report].
Mr. Rosasco: You knew about it since April
or May, and you never did anything for all
those months from April or May to December.
Is it just a coincidence that two days after
you were suspended, you decide to go down and
tell the NRC something that you think is wrong?
Mr. Ledford: Well, I had a family to protect,
and people take offenses when someone speaks
out sometimes.
(Tr. 170-171). This exchange is indicative of two things. First,
it illustrates that rather than complain within the organization
about the decision not to file his nonconformance report, Ledford
kept quiet because he did not want to suffer the consequences of
speaking out. Thus, by his own admission, his supervisors were not
aware that Ledford was unhappy with the decision not to file his
report about the lead shielding problem and consequently his
unexpressed unhappiness could not have motivated his "C" appraisal.
Again by his own admission, the last word on the subject by his
supervisors was praise for a job well-done.
The above exchange also calls into question Ledford's credibility.
His statement that he went to the NRC after having been
[Page 15]
suspended because he did not realize he was going to be suspended
so fast indicates that his reason for going to the NRC lay with his
displeasure at receiving a "C" rating and his displeasure at the
consequences of his attempts to have the rating changed. He does
not seem to have been motivated by a concern about the lead shielding
safety problem as he professes. Ledford testified he did not mention
the lead shielding problem to the NRC representatives until December 23
or 24 even though he had contacted them earlier. (Tr. 155, 158).
Ledford's credibility was repeatedly called into question at the
hearing. For example, when testifying about his first trip to Ohio,
Ledford denies or skirts the issue about having had problems, having
been called back to Maryland, and having asked to return to Ohio to
clear his name. (Tr. 135-136). Later, Ledford clearly admits that
he was called back from Ohio because they said he had acted up.
(TR. 167). Ledford constantly appeared to be either avoiding direct
answers to questions put to him, indicating a lack of integrity, or
to be unable to understand simple direct questions concerning his
conduct, indicating a lack of judgment. On the whole, I found his
testimony lacked credibility.
On the other hand, I found both Endler and Douglass to be
credible witnesses. Neither Douglass nor Endler knew Ledford's
personnel history until they were asked to investigate the "C"
rating. After meeting twice with Ledford and receiving a report
from Ken Strupp, they felt Ledford should be dismissed. Douglass
was particularly concerned that Ledford switched shifts in Ohio,
absented himself from the work site, and falsely reported his time.
(Tr. 335). Douglass stated that his decision to fire Ledford had
nothing to do with allegations regarding the reporting of safety
problems or whistleblowing. (Tr. 338).
To show that Calvert Cliffs was motivated by his whistle-blowing,
Ledford tries to establish that the disciplinary actions
taken against him were extraordinary. Ledford argues that he was
treated differently from other employees at Calvert Cliffs. He
states that he was never informally or formally warned about the
problems Strupp raised on the November, 1982 appraisal. The employees
policies manual (CX 22) and employee handbook (CX 23) provide a
six-step disciplinary process that was not used in Ledford's case.
Baltimore Gas and Electric Company maintains that Ledford was informally
warned by Strupp. No further discipline was taken following
certain infractions because Strupp was a compassionate supervisor.
(Tr. 350). For example, Strupp did not insist that Ledford be docked
[Page 16]
pay for having breakfast off company property during working hours.
Also, Strupp signed Ledford's time sheet after learning about the
switched shifts in Ohio. On both occasions, Ledford was made aware
that he was acting against company policy. Ledford admitted that
he told Strupp he would never switch shifts again after having been
told that it was against company rules. (Tr. 131). For a man in a
professional position, being told that something he has done is wrong
constitutes informal warning.
I find nothing extraordinary or underhanded in the fact Ledford
was not given a formal written disciplinary action report for any
of his infractions at the time they occurred. Strupp was apparently
willing to let the incidents be reflected in warnings and a "C"
rating. Douglass, unaware of the specifics of Ledford's personnel
history until Ledford forced the issue of his "C" rating, was not as
lenient a supervisor as Strupp. Endler testified that the six-step
disciplinary process was not mandatory and that the employee handbook
provides that when appropriate, one or more of the steps can be
skipped. (Tr. 263).
Ledford tried to show that his treatment was unusual by comparing
himself with other employees who were fired by Calvert Cliffs over
the past two years. Endler testified that five people were fired
without having received earlier formal written warnings. Each of
the five were fired within days of the discovery of their infractions,
(Tr. 252-259), while Ledford's infractions occurred months before he
was fired. However, the testimony revealed that those responsible
for Ledford's discharge were unaware of his infractions months before
he was disciplined. When the infractions came to Douglass's attention,
Douglass recommended immediate action.
Another instance used by Ledford to show that his discipline
was unusually harsh concerns the events taking place during his
first trip to Ohio. Employees of the Timet plant reported to Calvert
Cliffs that Ledford had come to work having drunk alcoholic beverages.
Ledford seems to imply that any discipline for this infraction is
merely a ruse. He presents two occasions when the management at
Calvert Cliffs sponsored parties at which alcohol was served. At a
luncheon for an employee leaving the Quality Assurance Department,
quality control inspectors were allowed to have alcohol off company
property and were allowed to return to work for the rest of the
afternoon. On Christmas Eve in 1981, a party was held in the offices
of the quality control inspectors. Alcohol was served. I find
Ledford's comparison between the parties sanctioned by the Calvert
[Page 17]
Cliffs management and his showing up to work reportedly having had
too much alcohol completely farfetched. Almost every organization
sponsors parties to honor employees who are leaving or for special
occasions. Not infrequently, alcohol is permitted at these affairs
designed to improve employee morale, to give employees an opportunity
to mingle with each other, and to enhance the atmosphere of the work
place. I am totally unconvinced that by allowing alcohol at two
special events, Calvert Cliffs improperly singled Ledford out by
objecting to his reported arrival at work having had too much to
drink. The situations are not at all analogous.
The luncheon party was used again by Ledford to show that he
was treated differently from other employees. He implies impropriety
in the fact he was penalized for having breakfast off the Calvert
Cliffs plant during working hours, while the company sponsored a
luncheon off the premises during working hours. (Tr. 356-368). For
the same reasons set forth concerning the issue of alcohol, I am
unpersuaded that a company sponsored luncheon is comparable to Ledford's
unauthorized breakfast.
Although both improperly switched shifts in Ohio, Ledford points
to the disparate treatment accorded he and Shucker as proof that his
treatment was motivated by his protected activities. When the switching
of shifts became known to Douglass, a disciplinary action report was
placed in Shucker's file. Nevertheless, in May, 1983, he was promoted.
Shucker was promoted even though he had been charged by the police
for drug violations and Calvert Cliffs was aware of the charges.
The testimony revealed, however, that all charges against Shucker
were dropped by the police. (Tr. 381-385).5 Ledford has not
produced evidence that Shucker committed violations of company rules
other than switching shifts that one time. Given Douglass's and
Endler's statements that Ledford's discharge was based on his overall
performance, the evidence of the different treatment between Shucker
and Ledford does not show Ledford was penalized for being too effective
as a quality control inspector.
IV
In conclusion, I find that Ledford has not established a prima
facie case of entitlement. I do not find that the "C" rating, the
suspension, or the discharge were motivated by any activity protected
under Section 5851 of the Act. Even had Ledford been able to establish
that his activities as a quality control inspector were a motivating
[Page 18]
factor in the decision to discipline and discharge him, Baltimore Gas
and Electric Company has shown by a preponderance of the evidence that
it would have taken the same actions even absent the protected activity.
The evidence shows that Douglass and Endler honestly believed that
Ledford lacked the integrity and judgment necessary for a quality
control inspector. Baltimore Gas and Electric Company had ample
grounds to discipline and discharge Ledford. Accordingly, I conclude
that Ledford is not entitled to recover under the Act.
RECOMMENDED ORDER
It is hereby recommended that John M. Ledford's claim be denied
and that judgment be entered in favor of Baltimore Gas and Electric
Company.
E. EARL THOMAS
Deputy Chief Judge
Dated: 29 NOV 1983
Washington, D.C.
EET:ERE:jeh
[ENDNOTES]
1 The hearing was originally
scheduled for July 12, 1983
and the complainant moved for a continuance to allow his recently
retained counsel more time to prepare. The complainant agreed to
waive the requirement in 29 C.F.R. 24.6(b)(1) that specifies the
Secretary of Labor shall issue a final order within ninety days of
a complaint.
2 The complainant's and the
respondent/employer's exhibits
will be abbreviated as CX and EX throughout this decision. The
transcript shall be referred to as Tr.
3 Ledford denies that he
made the first anonymous telephone
call to Murphy. I credit Murphy's testimony on this factual dispute.
Notwithstanding his possible bias as an employee of the respondent
testifying on behalf of the respondent, I found Murphy's testimony
to be credible on the whole. I can find no reason why he would
falsely state that Ledford acknowledged calling him earlier, as there
is no substantive or procedural advantage to be gained from such a
statement.
4 Baltimore Gas and Electric
Company's employee policies
manual provides as one step in the disciplinary process that a formal
warning be issued called a disciplinary action. (CX 22). The
disciplinary action, according to the employee handbook, is a strong
warning against repetition [of the infraction] and of the
consequences, accompanied by a written report of the offense and action
taken. (CX 23).
5 A Calvert Cliffs senior quality
control inspector was also
charged with Shucker. The charges against this employee were not
dropped and Douglass testified that the inspector was demoted and
transferred. He was not fired because it was his first offense.
(Tr. 385).