the case was fully
heard on February 13th and
14th in Fort Worth, Texas. The record was closed upon the
filing of the last post-hearing brief on April 6, 1984. A
subsequent motion by Respondent to re-open the record for the
introduction of newly discovered evidence was denied
September 13, 1984.
By reason of requests from the parties for postponement
of the hearing, express stipulations of counsel filed
December 7, 1981 and December 12, 1981, and the decision and
order on pre-hearing motions dated January 10, 1984 herein,
the time constraints of 42 U.S.C. § 5851(b)(2)(A) and of 29
C.F.R . §24.5 and 24.6 have been waived.
Findings of Fact
Complainant William A. Dunham was first employed by
Respondent Brown & Root, Inc. in April, 1979, at the South
Texas Nuclear project near Bay City, Texas. He worked there
as a spray painter, coatings coordinator and in related
capacities. In November, 1981, he left his job at Bay City
and obtained employment with Respondent at the Comanche Peak
Steam Electric Station near Glen Rose, Texas, where he was
hired as a Quality Control Inspector in protective coatings.
In January, 1983, he was promoted to Lead Inspector in that
division.
Respondent is the prime contractor for the construction
of the nuclear power plant at Comanche Peak of which Texas
Utilities Generating Company (TUGCO) is the managing owner
and the Nuclear Regulatory Commissioner (NRC) applicant for a
license to operate the plant. The Quality Assurance (QA)
Organization there is divided into two groups, the ASME and
the non-ASME, the coatings department being part of the
latter group. Respondent's Site Quality Assurance Manager
(Gordon Purdy) directs the daily activities of the ASME
group but is also ultimately responsible for all personnel
actions involving Respondent's employees in the Quality
Assurance Organization, including those in the non-ASME
group whose daily activities are directed by TUGO and Ebasco
Services, Inc. Thus Complainant was assigned to work under
the direction of EBASCO's QA/QC Supervisor (C. Thomas Brandt),
but any personnel actions or decisions affecting his employment
status were in the hands of Purdy.
In January, 1983, as a result of statement made by
Complainant's immediate QC Supervisor in coatings
(Harry Williams) and objections thereto voiced by other
Quality Control Inspectors Complainant made a complaint to
the NRC, charging harassment and intimidation of inspectors by
Williams. During succeeding months, however, Williams
continued his efforts to restrict the freedom of the coatings
QC inspectors to point out quality deficiencies and to write
non-conformance reports. Complainant brought that matter to
the attention of Purdy, resulting on or about June 14, 1983,
in a meeting attended by the TUGCO Quality Assurance Manager
(Ronald Tolson), Purdy, Brandt and Complainant. At that
meeting Complainant reiterated his complaints about Williams
harassing QC coatings Inspectors, and Brandt promised to
investigate Complaint's concerns. During the following
week or two, Brandt interviewed a number of inspectors and
came to the conclusion that Williams was being overrun by the
Craft, that the inspectors had lost confidence in him as a
supervisor and did not feel that he stood up for their interests.
Consequently, he arranged to bring in Evert Mouser of be
trained to take over William's job as supervisor of the QC
Coatings Inspectors.
Effective July 10, 1983, Complainant was promoted from
Level C Inspector to Level B at the request of Williams,
authorized by Brandt and approved by Purdy. The promotion
was based on certifications and demonstrated proficiency.
In the latter part of July, 1983, Brandt was interviewed
by an NRC Investigator with respect to the complaint filed
the previous January concerning harassment and intimidation
of Coatings Inspectors by Williams. The Investigator did not
identify the inspector who had filed the complaint.
On August 18, 1983, EBASCO's Quality Engineering Supervisor
in the non-ASME group (M.G. Krisher) represented Tolson and
Brandt at a meeting involving Coatings QA/QC and Craft
personnel. At the conclusion of the meeting, in response to
Krisher's suggestion to discuss specific concerns relative to
the Coatings program, Complainant and several other inspectors
complained to Krisher about the harassment and intimidation
of inspectors. Krisher thereafter found no indications of any
intimation, harassment, threats or other excessive pressure
from Craft on inspectors.
On August 24, 1983, a meeting was held by two engineering
consultants who had come on site to make themselves available
for discussion with inspectors of the technical changes being
made in the Coatings program. Questions and comments having
been invited, Complainant participated actively in the
discussion. His comments were openly critical in tone and
content, and among other things, he reiterated his complaints
about harassment and intimidation of inspectors. Although
Complainant's conduct was characterized by Krisher and some
other witnesses for the Respondent as negative, disruptive
and obnoxious, I am satisfied that it may be more fairly and
accurately inferred from all of the evidence that Complainant
was persistent, noisy and no doubt argumentative. Krisher
and Mouser attended the meeting; neither Brandt nor Purdy
was present.
Immediately following the meeting, Krisher reported to
Brandt that Complainant had created a problem and that
something needed to be done about it. After Krisher had
described Complainant's attitude and performance, Brandt
spoke to one of the consultants who told him that the meeting
had not been too effective and mentioned Complainant's demeanor.
On the following day, Brandt spoke to Tolson about the
problem and suggested that Complainant be counselled and be
given three days off to think about it. Tolson concurred
and told Brandt to get in touch with Purdy about it. Later
in the day Krisher, Mouser, Williams and Brandt met with
Purdy in Brandt's office. They discussed Complainant's conduct
at the meeting and Purdy agreed with Brandt's suggestion to
counsel him and suspend him for three days.
The following morning, August 26, Tolson advised Purdy
and Krisher that to suspend Complainant would be inappropriate
due to the elapsed time since the August 24th meeting. He
directed them to limit disciplinary action to a counselling
session. Purdy then asked Krisher to prepare a counselling
report and schedule the session for 4:30 that afternoon.
Krisher prepared a draft counselling report, had it typed,
edited the draft, and had the final version typed on Respondent's
Employee Counselling and Guidance Report form. He directed
Mouser to bring Complainant to Purdy's office at 4:30, with
express instructions to refrain from disclosing to Complainant
the purpose of the conference.
At the appointed time, Complainant and Mouser appeared at
Purdy's office, joining Purdy and Krisher there. Purdy then
handed the counselling report (Respondent's Exhibit H) to
Complainant and asked him to read it and comment. The report
stated that the reason for the conference was "Attitude". It
referred to several occasions when Complainant expressed a
complete lack of confidence in the Coatings QC program, the
most recent of which was at the meeting of August 24th during
the open information exchange between the consultants and the
inspectors, his "continued dominance of the meeting" being
described as disruptive, counter-productive and unprofessional.
The report concluded with a warning that such attitude and
actions would not be tolerated and that further like
demonstrations would result in disciplinary action.
After briefly scanning the document, Complainant uttered
a vulgar, but impersonal, expletive and stated that he would
not change, so they "might as well walk him to the gate."
Saying in words or substance that the subject of the counselling
report was the real problem in the Coatings department, and
repeating his suggestion, he returned the report to Purdy. He
was not asked to sign the document. Purdy got up and left
the room, taking the report with him, and returned a few seconds
later, telling Krisher and Mouser to take Complainant to his
work area to collect his personal things and to meet him at
the time office.
Purdy went to the time office and stated he wanted to
terminate the Complainant as a result of which the latter's
personnel file was pulled and an Assignment Termination form
(Respondent's Exhibit K) was filled out. Purdy completed and
signed the form, checking off Complainant's performance
rating as "Fair" and checking the reason for termination as
"Insubordination." He added the following explanation:
Individual at the time of counselling for
attitude informed me to take him to the gate,
he wasn't changing - in a manner which I
consider insubordinate.
When Complainant arrived at the time office, he had to wait
for his checks to be prepared and then was asked to sign the
Termination form. Instead, in the space provided beneath
the printed statement that "the reason checked above is the
true reason for termination", he wrote the words "F -----g
Lie." Having turned in his badge, Complainant thereupon
left the site.
Of the six or seven counselling sessions conducted by
Purdy, five resulted in termination of the employees involved.
Early in September, 1983, Williams, was transferred to
another site.
Since September 19, 1983, Complainant has been employed
as senior coating inspector by EBASCO at its South Texas
Project near Bay City. His hourly wage is $2.90 less than
at Comanche Peak.
Under date of December 22, 1983, the NRC served upon
TUGCO a Notice of Violation and Proposed Imposition of Civil
Penalty stating that their investigation revealed that a
TUGCO Quality Control Supervisor at Comanche Peak and
intimidated Quality Control personnel working for him inspecting
paint coatings in violation of the provisions of 10 C.F.R.
part 50, Appendix B, Criterion I. TUGCO was further advised
of the proposed imposition of a civil penalty in the amount
of $40,000.00 for the violation categorized as Severity
Level III in accordance with NRC enforcement policy
10 C.F.R. Part 2, Appendix C. An appeal has been taken from
both the violation and the penalty.
The Issues
The issues presented are not complex and may be stated
as follows:
I. Did Complainant engage in a protected activity?
II. Was the protected activity a substantial or
motivating factor in his discharge?
III. Would Complainant have been discharged but for the
protected activity?
An ancillary issue of credibility was raised by Respondent's
impeachment of complainant's testimony by the introduction
of evidence of his felony convictions. As a result, factual
determinations have not been based solely upon Complainant's
unsupported assertions. Credibility, however, is a relative
concept, and the reputations of Respondent's principal witnesses,
Brandt and Purdy, for untruthfulness in relation to discharging
surbordinates is a matter of record. See Atchison v. Brown
& Root, Inc. , 82-ERA-9 (ALJ, December 3, 1982, and Decision
of the Secretary, June 10, 1983). Under all circumstances,
I find that their self-serving testimony is biased in the
extreme and is no more worthy of belief than that of
Complainant. Consequently the issues herein have not been
decided on the basis of credibility of witnesses, but on the
probity of the direct and circumstantial evidence adduced
and the inferences fairly and reasonably drawn therefrom.
Conclusions of Law
I. Protected Activity
Section 210 of the Energy Reorganization Act prohibits
discrimination against employees as follows:
Discrimination against employee
(a) No employer, including a Commission
licensee, an applicant for a Commission License,
or a contractor or a subcontractor of a
Commission licensee or applicant, may discharge any
employee or otherwise discriminate against any
employee with respect to his compensation, terms,
conditions, or privileges of employment because
the employee (or any person acting pursuant to a
request of the employee) -
(1) commenced, caused to be commenced,
or is about to commence or cause to be
commenced a proceeding under this chapter or
the Atomic Energy Act of 1954, as amended,
or a proceeding for the administration or
enforcement of any requirement imposed
under this chapter or the Atomic Energy Act
of 1954, as amended;
(2) testified or is about to testify in
any such proceeding or;
(3) assisted or participated or is about
to assist or participate in any manner in such
a proceeding or in any other manner in such
a proceeding or in any other action to carry
out the purposes of this Act or the Atomic
Energy Act of 1954; as amended.
42 U.S.C. 5851
In view of the protective purposes of the Act and the
broad language of subsection (3) above, application of the
section has not been confined to formal complaints to the
NRC. It has been expressly held that Section 210 protects
quality control inspectors from retaliation based on internal
safety and quality control complaints. Mackowiak v. University
Nuclear Systems, Inc ., 735 F.2d 1159, 1163 (9th Cir. 1984);
Atchinson v. Brown & Root, Inc., supra , Decision of Secretary
at pp. 12-13. To similar effect, see Phillips v. Department
of Interior Board of Mine Appeals , 500 F.2d 772 (D.C. Cir. 1974),
cert. denied , 420 U.S. 938 (1975); Donovan v. Stafford
Construction Co. , 732 F.2d 954 (D.C. Cir. 1984).
It is thus not necessary for Complainant to establish
that it was solely his complaint to the NRC in January that
was protected by the statute and that Respondent knew of it
when he was discharged. Of course, a fairly good circumstantial
case of retaliation therefor could be made out that in spite
of the June 14th meeting with Purdy, Brandt and Tolson regarding
harassment and intimidation of inspectors by Williams,
Complainant's promotion effective July 10th, and approved by
Brandt and Purdy, shows clearly that he was not then in
disfavor. But after Brandt had been informed by an NRC
Investigator at the end of July that a complaint had been
filed by an unidentified inspector involving harassment and
intimidation by Williams, it would not take a genius to put
two and two together and at least suspect that the NRC complaint
had been filed by Complainant. It was only thereafter that he
was found objectionable.
One need not depend, however, upon such inferences to
establish the requisite activity. As was pointed out in
Mackowiak (supra ), the NRC regulations require licensees and
their contractors and subcontractors to give inspectors the
authority and organizational freedom required to fulfill
their role as independent observers of the construction
process (10 C.F.R. Part 50, app. B. at 413), and inspectors
must be free from the threat of retaliatory discharge for
identifying safety and quality problems. The undisputed
direct evidence herein establishes that at the meetings of
June 14th, August 18th and August 24th, Complainant persistently
complained to management officials about harassment
and intimidation of Coatings Inspectors by supervisors. There
is not the slightest doubt that in so doing he was engaged in
a protected activity.
II. Retaliatory Motive
There is no need for any speculation as to the Respondent's
motives for counselling and discharging Complaint. They
are clearly expressed in a single document (Respondent's
Exhibit H), the contents of which are not altered in any
material way by the testimony of any witness. Because of its
prime importance in the resolution of the basic controversy
herein, a copy of Respondent's Exhibit H, designated as
Employee Counselling and Guidance Report, is annexed hereto
as Appendix A.
The typewritten portion of the report states plainly
and unequivocally the reason that Complaint was summoned to
the counselling session. The reference to several occasions
on which complainant verbally expressed a complete lack of
confidence is obviously direct to his complaints on June 14th.
and August 18th about harassment and intimidation of inspectors.
It also reflects the same condition which Brandt found had been
caused by Williams. Mention of the specific incident on
August 24th, of course, refers again to Complainant's vocal
objection to harassment and intimidation. Any possible doubt
as to Respondent's retaliatory intent is disspelled by the
last typewritten sentence, which states flatly that any
recurrence of such complaints (of harassment and intimidation)
will result in disciplinary action (i.e., suspension, demotion
or discharge). Thus, Respondent threatens to fire Complaint
if he continues to engage in the protected activity, thereby
providing him with documentary proof amply sufficient to
make out his prima facie case.
The same document also furnishes proof of another motive.
The handprinted postscript in the lower right-hand half of
the report is signed by Purdy and sets forth the facts which
he believed to warrant Complaint's discharge for
insubordination. Whether his version of what occurred at the
counselling session is accurate or not, there is no doubt
whatsoever that his explanation articulates a legitimate,
non-discriminatory reason for Complainant's termination. It
follows that we have a classic case of dual motive. See
Mt. Healthy City School District v. Doyle , 429 U.S. 274
(1977); N.L.R.B. v. Wright Line , 662 F.2d 899 (1st Cir. 1981).
III. The "But For" Rule
Under both of the above decisions, a violation of an
employee protection provision is established by proof that
the employee would not have been discharged but for the
protected activity, or is negated by proof that he would have
been discharged, even in the absence of the protected activity.
N.L.R.B. v. Transportation Management Corp. , ____U.S. _____,
103 S.Ct. 2469 (1983). Under the rule in Mt. Healthy (supra),
a constitutional rights case which has been held applicable
to violations of Section 210 of the Energy Reorganization
Act, the burden of proof shifts to the employer to prove by
a preponderance of the evidence that the employee would have
been discharged even in the absence of the protected activity.
Consolidated Edison Co. of N.Y., Inc. v. Donovan , 673 F.2d 61
(2nd Cir. 1982). Judge Campbell's opinion in Wright Line
(supra) clearly stated that upon the establishment of a
prima facie case, it is only the burden of going forward
with the evidence that is shifted to the employer, and that
the burden of persuasion remains with the complainant; yet
the Board's order shifting the burden of persuasion to the
employer was enforced, since there was substantial evidence
to support the conclusion that the employee was discharged
because of his protected activity. Consequently, Wright
Line is often cited in labor cases to indicate that the
burden shifts to the employer to prove by a preponderance of
the evidence that the discharge would have taken place in
the absence of the protected conduct. See, e.g., N.L.R.B.
v. Vincent Brass and Aluminum Co. , 731 F.2d 564 (8th Cir.
1984).
In the Fifth Circuit, in which the instant case originated,
it was held in a fairly recent decision under Title VII of
the Civil Rights Act of 1964 that the ultimate burden of
proof is on the plaintiff to establish that the termination would
not have occurred but for the protected activity, the Court
noting that the Mt. Healthy analysis has never been applied
to Title VII cases in that Circuit. McMillan v. Rust College,
Inc. , 710 F.2d 1112 (5th Cir. 1983). In cases under the
National Labor Relations Act, however, it is held in the
same Circuit that the burden of proof shifts to the employer
to establish as an affirmative defense that the same action
would have been taken in the absence of the protected activity.
See N.L.R.B. v. Associated Milk Procedures, Inc. , 711 F.2d
627 (5th Cir. 1983). I am not aware of any decision in the
Fifth Circuit that determines the application of either rule
to alleged violations of Section 210 Of the Energy Reorganization
Act. I thus find it in all respects appropriate to be guided
by the Supreme Court decisions in Mt. Healthy (supra) and
Transportation Management (supra) in requiring Respondent
herein to establish by a preponderance of the evidence that
the Complainant's employment would have been terminated even
in the absence of his protected activity.
The foregoing discussion of burden of proof is of
consequence in the resolution of the issue as to which
of the dual motives was controlling. Analysis of the facts
leading up to the discharge shows that the proscribed and
the permissible reasons were so closely intertwined as to
be almost inseparable. Bearing in mind that the express
purpose of the counselling session (in itself an adverse
personnel action) was to suppress the protected activity
(i.e., protesting harassment and intimidation of inspectors),
it is clear that when Purdy handed Complainant the counselling
report, Complainant read it correctly as a threat of discharge
if he did not change his attitude toward such harassment and
intimidation. The unmistakable substance of his reply was
that he would not change that attitude, so Purdy might just
as well "walk him to the gate" (i.e., discharge him right
then).
The assigned reason for discharge, however, is not
Attitude, but Insubordination. Though he unquestionably
refused to comply with Respondent's direction that he cease
and desist from engaging in the protected activity, I find no
evidence of any disobedience to a lawful order during the
counselling session. He did not refuse Purdy's request to
comment on it. He discussed it briefly and pointedly, albeit
profanely, negatively and belligerently. He did not refuse
to sign the report, because no one asked him to sign it.
purdy concludes his explanation of the discharge as follows:
Interpreting his response and the
response presentation as blatant
insubordination, I chose to accept
his offer and terminated him for
insubordination at 1630 on 8/26/83.
Respondent's proof falls short of establishing that
Complainant was terminated for insubordination in the sense
of refusal to obey lawful order. The ultimate question
is whether it proved by a fair preponderance of the evidence
that even in the absence of the protected activity, he would
have been discharged for insubordination in the broader
sense of defiance of authority.
When Purdy handed the counselling report to Complainant,
Respondent was providing the latter with an insurance policy
against retaliatory discharge. He could continue to complain
about harassment and intimidation of inspectors to his heart's
content, without fear of reprisal, because he had ironclad
documentation of his employer's intent to violate the
Act. All he had to do was to avoid any act or omission that
would provide Respondent with a legitimate excuse to fire
him. At that moment, he was in the driver's seat. But then
he blew it. He lost his "cool" and handed Purdy a colorable
excuse on a silver platter. It was not just the use of foul
language, for we can take official notice that a construction
site is not a mid-victorian drawing room, and using
four-letter words is as common as wearing hard hats. Nevertheless,
it cannot be gainsaid that he openly and vigorously defied
the authority of management, and in effect, told Purdy to
"take his job and shove it." Section 210 does not require
any employer to take that kind of abuse from an employee.
The evidence does not support Complainant's suggestion
that the counselling session was a "set-up," or the Area
Director's finding that he was scheduled for termination
before that session. The reasonable inferences to be drawn
from the facts in the record are that Tolson had cautioned
against drastic action, but Purdy became exasperated by
Complainant's response and fired him on the spot. The claim
of insubordination therefore is not pretextual, but provides
the genuine impetus for the discharge. That conclusion is in
accord with the express view of the Secretary of Labor to
the effect that once an employee by his own misconduct
provides the employer with a legitimate excuse to fire him,
little or no weight should be given to evidence that the
discharged employee was preliminarily disciplined in retaliation
for engaging in the protected activity. See Dartey v. Zack
Company of Chicago , No. 82-ERA-2 (Decision of the Secretary,
April 25, 1983 at p. 11); see also, Atchinson v. Brown &
Root, Inc. , supra, (Decision of the Secretary, June 10,
1983 at pp. 25-26).
Upon the foregoing analysis of the evidence, I am
constrained to conclude that Respondent has established by a
fair preponderance of the evidence that but for his
insubordination as above described, Complainant would not
have been discharged, and that therefore his termination was
not in violation of Section 210 of the Energy Reorganization
Act.
RECOMMENDED ORDER
In view of the foregoing, the above-entitled proceeding
is dismissed.
ROBERT J. FELDMAN
Dated: 30 NOV 1984
RJF/mml
[ENDNOTES]
1
