Date Issued: April 12, 1984
In the Matter of

Case Nos. 84-ERA-9 84-ERA-10 84-ERA-11 84-ERA-12

DONALD RICHTER
WILLIAM J. JOHNSON
RONALD D. LEHMAN
DALE R. MURPHY
    Complainants

    v.

BALDWIN ASSOCIATES
    Respondent

Appearances:

Patricia Benassi, Esq.
    For the Complainants

John Lashbrook, Esq.
    For the Respondent

Before: Daniel J. Roketenetz
    Administrative Law Judge

    Statement of the Case:

    This matter arises under the Energy Reorganization Act of 1974, as amended (42 USC §5851, et seq.), hereinafter called the Act. The Act prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or otherwise discriminating against an employee who has engaged in activity protected by the Act. The Act designed to protect so-called "whistleblower" employees from retaliatory or discriminatory actions by their employer, is implemented by regulations found at 29 CFR Part 24. An employee who believes that he or she has been discriminated against in violation of the Act may file a complaint with the United States Department of Labor within 30 days after the occurrence of the alleged violation.

    The Complainants in this matter were all supervisory or managerial employees of Respondent Baldwin Associates. Respondents engaged in the construction of a nuclear power plant at Clinton, Illinois, pursuant to a contract with the Illinois Power Company. Illinois Power Company is an NRC licensee for the construction of this facility.

    Donald Richter and William J. Johnson filed complaints on January 12, 1984; Ronald D. Lehman filed a complaint on January 24, 1984; and Dale R. Murphy filed a complaint on January 30, 1984. Upon the conclusion of the investigations by the Employment Standards Administration, Wage and Hour Division of the Department of Labor, all of the complaints were found to be without merit. Thereafter, each of the Complainants made timely requests for a hearing. Upon motion filed by counsel for the Complainants, all of the complaints were consolidated for hearing.

    Subsequent to the Notice of Hearing, which issued on February 16, 1984, counsel for Respondent filed a Motion for Summary Decision on March 13, 1984. Complainants, through counsel, filed their response on March 27, 1984, and a Reply Memorandum from Respondent was filed on March 30, 1984. By order dated April 4, 1984, the hearing previously scheduled was cancelled, and parties were advised of my intention to grant Respondent's Motion for Summary Decision.

    In essence, Respondent's Motion for Summary Decision avers that there is no dispute to the material fact that none of the Complainants engaged in or were about to engage in any activity protected under §5851 of the Act. Therefore, Respondent contends, as a matter of law it is entitled to an order of dismissal.

    A review of the Respondent's motion, the Complainants' response thereto and the Respondent's Reply Memorandum reflects that the principal issues to be resolved are:

    1. Whether the Complainants engaged in any activities applicability of §5851 of the Act;

    2. Whether the Complainants engaged in any activities protected by the anti-discrimination provisions of the Act; and,

    3. Whether the Complainants were unlawfully terminated for the reasons proscribed by the Act.

    Summary Decision Procedure:

    The Respondent has filed its motion pursuant to the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges found at 29 CFR Part 18. Section 18.40(d) provides that the Administrative Law Judge may enter summary judgment for either party if the pleadings, affidavits, material obtained by discovery or otherwise, or matters officially noticed show that there is no genuine issue as to any material fact and that a party is entitled to summary decision. The most compelling reason for use of the summary decision procedure is where the facts, when viewed in the light most favorable to the complaining party, simply do not support a claim upon which relief could be granted. In such circumstances, the granting of a motion for summary decision avoids unnecessary, often protracted and expensive litigation.

    After careful consideration of the Respondent's motion, the complaints filed by the respective Complainants, as well as other documentary evidence submitted with numerous pre- hearing motions (to which specific reference will be made), the arguments and legal memoranda of the parties, I hereby make the following:

    Statement of Facts:

    As earlier noted, on a motion for summary decision the facts must be viewed in the light most favorable to the Complainants. Moreover, there must be no dispute as to the material facts which would affect the ultimate disposition as opposed to collateral facts which, even though disputed, would not in any event affect the ultimate outcome. The events immediately preceding the terminations of the four Complainants are related by Complainants' counsel in her response to the motion for summary decision as follows:

    In October, 1983 and NCR (nonconforming (sic) report) was written by a new inspector who had been certified for approximately six weeks. It should be noted that literally hundreds of NCR's are written every week. The NCR was processed in accordance with proper procedure. When it was reviewed by the Engineering Department, it contained what appeared to be obvious errors and mislabeling and was sent back to the inspector (Mike Eshelman) to be reviewed and corrected, if necessary. Eshelman reviewed the NCR and in which he correctly identified other nonconforming hardware, but concluded that he had not made a mistake in his initial NCR and that rather unauthorized work had been performed. When the superceding NCR reached Engineering, it was investigated by Mr. [Complainant] Lehman and Mr. Bowers, as well as some others, all of whom investigated Eshelman's assertion that unauthorized work had been performed. Mr. Eshelman's immediate supervisor, [Complainant] William Johnson, spoke with him concerning the NCR. The contents of that conversation and the inference which is to be drawn therefrom are strongly in

dispute; however, it is Complainants' position that Johnson asked Eshelman to recheck the NCR and hanger to assure that he was correct because of the seriousness of his charge, since if Eshelman's assertions were inaccurate, an innocent person could lose their job. Eshelman maintained his position that unauthorized work had been performed. Johnson, who after inspecting the hardware, concluded that he could not definitely prove Eshelman wrong, allowing the NCR to be processed without changing it even though he had authority to do so. [Complainant] Richter, who was Johnson's immediate supervisor, was requested by Johnson to investigate the situation. Eshelman's lead man, Gary Blotke, also asked Richter to check into the matter. Contrary to Illinois Power's contention, at no time did Blotke indicate to Richter that there had been any intimidation of Eshelman by Johnson. Richter conducted an independent investigation, reviewed the hardware and concluded that Eshelman's assertion of unauthorized work could not be disproved, and the NCR was sent back to Engineering where it was processed in complete accordance with procedure. Neither Richter, Murphy, nor Lehman ever spoke to Eshelman at any time. Id., pp. 5-6. (Bracketed material added.)

    Appended to a motion for a protective order filed by

Illinois Power Company relative to a notice of deposition served by the Complainants on Donald Hall, vice president, is a statement of Inspector Eshelman relating his version of the above events. (See Tab F of Memorandum in Support of Motion for Protective Order, filed with the undersigned on March 16, 1984, a copy of which was served on all parties to this proceeding.) Eshelman relates in his statement that on Thursday, December 8, 1983, he was called into the Senior Lead Inspector's office (Complainant William Johnson) with his immediate supervisor, Gary Blotke. Eshelman relates that he was requested to consider invalidating the second NCR prepared by him in order to eliminate the unauthorized work portion and only to report the current condition of the hanger. According to Eshelman, Johnson stated that Resident Engineering was "hot over this NCR" and that if he did not invalidate it, the superintendent who signed off the "work complete" block would probably lose his job.

    In his statement, Eshelman reports statements purportedly made by Complainant Richter to Gary Blotke the following day, December 9, 1983. According to Eshelman, Blotke reported that Richter told him that Complainant Johnson is "construction oriented" and that he "just wants to get the place built". With regard to Eshelman's refusal to invalidate the NCR, Richter purportedly said that it was going to be a long, hard battle and that Eshelman would probably lose in the end. Finally, Eshelman relates that:

Statements like these I feel have an undertone of intimidation and the impression left on me was that I could not count on any backing or support from my own department which I also feel is very intimidating in itself. I have not talked this over with Mr. Richter due to the results that Gary had in his conversation with Don concerning this matter. I have not and decided against discussing it any further within the Quality Control Department of Baldwin Associates due to possible consequences that may be bestowed upon me in the future.

Company, Quality Assurance Department, for their review and "to utilize as they may deem necessary".

    Following receipt of Eshelman's statement, the allegations made by him were investigated by Illinois Power Company Vice President Don Hall. In his final report, entitled "Evaluation of Nonconformance Reports on Electrical Hangers", Mr. Hall concluded, among other things, that Complainants Richter, Johnson, Lehman and Murphy should be terminated. (See Tab I appended to Illinois Power Company's motion for protective order.) On January 5, 1984, the terminations of the Complainants were effected by the Respondent at the request of Illinois Power Company. This request was in accordance with paragraph 14 of the contract between the Respondent and Illinois Power, which provides:

Purchaser's Rules and Regulations:

Contractor (Baldwin Associates) shall abide by any and all rules Purchaser (Illinois Power) may have in effect or hereafter put into effect at the site of the work pertaining to workmen, safety, use of cameras, security procedures or requirements, lighting of fires, and to the handling of equipment, materials or any other part of the work. If in Purchaser's judgment it is desirable, Contractor shall at Purchaser's request remove any employee from the work. (See p. 3, fn. 2, Respondent's memorandum in support of Respondent's Motion for Summary Decision.)

According to their respective complaints, Complainant Richter was told that he was being terminated because it had been determined that there was intimidation, and while he did not intimidate anyone, he allowed it to continue; Johnson was told that he was being terminated for failure to prevent intimidation of a QC inspector; and Richter and Murphy were terminated because of allegedly mishandling the disposition of the NCR's prepared by Inspector Eshelman.

    Following the investigation by the Department of Labor,

each of the complaints was found to be without merit for the same reasons. Specifically:

(1) You had not contacted the Nuclear Regulatory Commission prior to your termination.

(2) Based on the information you provided and in my review of company records, it is indicated that your termination was based on your failure to provide adequate support for a lower level employee.

    Contentions of the Parties:

    Respondent contends in its Motion for Summary Decision that since none of the Complainants complained to the Nuclear Regulatory Commission prior to their termination, they were not engaged in any activities protected by § 5851 of the Act. While initially stating that the Complainants did not go to the NRC prior to their terminations, counsel in her response to the Motion for Summary Decision now asserts that three of the four Complainants spoke with NRC personnel during an investigation in October 1983. Counsel further states that although Complainants did not initiate complaints themselves, they fully cooperated and assisted the NRC in its investigation. (See Complainants' response, p. 4.) Therefore, Complainants contend that they did engage in protected conduct even within the narrow interpretation Respondent seeks to impose upon §5851. (Complainants' response, pp. 9-10)

    Prior Contact with the Nuclear Regulatory Commission Is Not a Prerequisite to Protection under § 5851:

    In support of its contention, Respondent relies principally upon the holding of the Sixth Circuit in DeFord v. Secretary of Labor, 702 F.2d 281 (1983). However, Respondent's reliance upon this case is clearly misplaced. The Court was not confronted with the question of whether DeFord engaged in any activities protected by the Act. Clearly, the facts reflected that he had participated in an NRC investigation several days prior to his discharge. The question before the Court then was not whether DeFord's activity was protected

but whether he was discharged because he engaged in protected activity. Thus, in outlining the elements necessary to prove a violation of the Act, it is not surprising that the Court only included those most obvious elements of proof as reflected by the facts before them. Accordingly, I find that the Court's decision in DeFord is not controlling.

    In furtherance of its contention, Respondent also argues that in Information Notice No. 84.08; 10 CFR §50.7, entitled, "Employee Protection" (February 14, 1984), the Department of Labor "makes clear" that Congress intended to provide protection "from discharge or any other acts of discrimination for contacting the NRC". Respondent further points out that the information notice states that the Act prohibits covered employers from "discharging or otherwise discriminating against any employee who contacts or seeks to contact the NRC. . . ." The information notice referred to by the Respondent in its Reply Memorandum is correct as far as it goes. However, it is not all inclusive, nor dispositive of the question that Respondent now raises before me.

    The anti-discrimination provisions of the Act are remedial in nature, and like other remedial statutes, they must be broadly construed. The narrow construction of the Act as suggested by the Respondent would place employees who would otherwise be entitled to the protection of the statute in the position of either formally commencing an action with the NRC or, at the very least, manifesting an expression of their intent to do so. As pointed bout by Complainants in their response memorandum, §5851 also includes employees who engage "in any other action to carry out the purposes of this Act or the Atomic Energy Act of 1954". Undeniably, one of the purposes of the Energy Reorganization Act and the Atomic Energy Act is to insure compliance with safety regulations. Permitting an employer to discipline or terminate an employee for expressing safety considerations simply because the employee has yet to formally communicate with the NRC or has not expressed an intent to do so would emasculate the purposes of this remedial legislation, frustrate the intent of Congress and be contrary to public policy. A Broad interpretation of the application of §5851 of the Act is supported by recent holdings by the Secretary of Labor in Pennsyl v. Catalytic, Inc., 83-ERA-2, Final Order of the Secretary, January 13, 1984, where it was held that an employee protesting safety conditions

was entitled to the protection of the Act, and Landers v. Commonwealth Lord Joint Venture, 83-ERA-5, where the filing of an NCR was found to be activity protected by the statute. (Final Order of the Secretary, September 9, 1983)

    As earlier noted, Complainants, in their response to the motion for summary decision, now contend that because three of the four Complainants cooperated in an investigation being conducted by the NRC in October 1983, they were engaged in protected activity. Complainants' approach in this regard is somewhat Procrustean and is rejected for the following reasons. Initially, I note that which Complainants cooperated in the NRC investigation are not clearly identified. Moreover, none of the Complainants alleged in their initial complaints that their terminations were in any way related to their cooperation with the NRC in October 1983. Statute of limitations considerations aside, there is no alleged nexus between the cooperation of the Complainants with the NRC in October 1983 and their terminations, which occurred several months later based on events clearly not related to the earlier NRC investigation, the purpose of which remains unspecified. Simply because an employee has at some point in the course of his or her employment cooperated with the NRC does not provide the employee with blanket protection forever after. There is no question that those Complainants who cooperated with the NRC in October 1983 were engaged in protected activities at that particular time. The Act clearly identifies such activity as protected. However, the Complainants neither allege nor provide any evidence whatsoever that their terminations were in any way linked to those earlier protected activities.

    Whether the Activities of the Complainants Are Entitled to the Protection of the Statute:

    In essence, the Complainants assert that they were engaged in protected activity in that they carried out their duties in connection with the nonconformance reports in question in a manner identical to all other employees, who were not disciplined, and that they were treated differently than other employees charged with similar or more serious misconduct and that the reasons asserted for their terminations were a pretext.

    The scope of the anti-discrimination provisions of the

Act is to provide protection to so-called "whistleblowers". While there is no legal definition for this term, it seems that it has come to mean a person who protests alleged improper or unlawful conduct by his or her employer. Because of the broad construction of the statute, a protest may include the reporting of such activities to governmental authorities or some other outside sources, or it may take the form of some internal protest. Thus, the term "whistleblowing" implies some action adverse to the interests of some other person. The appropriate inquiry is whether the Complainants were engaging in or about to engage in some activities in the nature of a protest of some alleged improper or unlawful activity of the employer.

    Complainants argue that they were performing their job functions in accord with established procedure, which procedures are approved by the NRC. Because such procedures concern quality assurance and control, which are safety related, any activities performed in that context entitle them to the protection of the statute. This argument appears to be the other extreme of that earlier advanced by the Respondent. The construction of a nuclear power facility is highly regulated. Such regulation reaches to every job function and affects every employee to varying degrees. In essence, Complainants suggest that because they were acting in accordance with procedure or at least believe they were so acting, and since all procedures relate ultimately to safety considerations in construction, they are ipso facto entitled to the Act's protection. Clearly, the anti-discrimination provisions of the Act are not intended to usurp the management prerogatives of an employer. An overly broad interpretation of the statue would make it one where an employer would have to demonstrate a nondiscriminatory motive for each and every termination of an employee who claimed that he was acting in accordance with regulations.

    The Complainants in this case were all in supervisory or Managerial roles. That fact alone sets them apart from rank and file employees who are charged with actual inspection duties in quality assurance. In performing their respective functions, it was their duty to review and disposition documentation generated by subordinate personnel, including inspectors such as Eshelman. In attempting to effect a resolution of Eshelman's NCR pertaining to allegedly unauthorized work, there is no question that all four Complainants were

involved to some degree. In his complaint, Complainant Johnson states that he did express concerns to Eshelman that such an allegation could lead to the termination of another employee; Complainant Richter acknowledges that he was aware that Johnson was going to speak to Eshelman; Complainant Lehman reviewed both NCR'S; and Murphy was involved only in signing off on the NCR at some point. Significantly, whatever the extent of their respective involvement, there is no evidence that any of them were about to engage in or that they were engaging in any activities protected by the statute (i.e., "whistleblowing"), even by the most liberal interpretation.

    The evidence does reflect that the project owner, Illinois Power Company, was confronted by an allegation of intimidation of an inspector by persons who were charged with implementing corrective measures on the heels of a stop work order for that very reason. Even assuming that Inspector Eshelman overreacted, overemphasized or misrepresented the extent of the Complainants' involvement in resolving the NCR's in question, there is absolutely no evidence that either Illinois Power or the Respondent terminated the Complainants for unlawfully motivated reasons. Indeed, a failure to have addressed Eschelman's allegations may have resulted in a complaint by him under this same Act.

    It is unfortunate when an employer decides to terminate an employee. However, the employer's right to do so is unlimited except to the extent prohibited by law. That the terminations of the Complainants may have been without due process, may have been unfair or that they may have been simply victims of circumstances does not afford them a remedy under this statute. There must be a showing that they were discharged for engaging in protected activity. Here, there are no indications that the Complainants were doing anything other than performing their assigned job duties. The project owner, following its investigation, concluded that those job duties were performed improperly; and pursuant to their contract with the Respondent, requested that the Respondent discharge the Complainants. Moreorver, it is clear from the facts viewed most favorably to the Complainants that they were not engaged in any activities which could be remotely construed as protesting unlawful or improper practices of their immediate employer or Illinois Power Company. Therefore, the issues of due process, fairness or unjust discharge are not litigable under the anti-discrimination

provisions of this statute. The Act does not confer authority on an administrative law judge to substitute his judgment for that of management.

    Conclusion:

    For the foregoing reasons, I conclude that the Complainants were not engaged inprotected activity. Therefore, it follows that their discharges did not violate the Act or the regulations.

    IT IS RECOMMENDED that Respondent's Motion for Summary Decision be granted and that the complaints be dismissed in their entirety.

       DANIEL J. ROKETENETZ
       Administrative Law Judge