Respondent received the aforesaid notification on February 25,
1984 and appealed the Decision on February 29, 1984. The case was
transferred by the Office of Administrative Law Judges from
Washington. D.C. to San Francisco, California on March 5, 1984, and
a hearing was scheduled pursuant to Notice issued May 11, 1984
Counsel for Claimant filed an appearance on June 8, 1984. The
hearing was held on July 11th and 12th, 1984 in San Luis Obispo
California.
The Recommended Decision and order was issued by the
undersigned on October 5, 1984. On September 12, 1985, the
undersigned received the Decision and Order of the Secretary of
Labor dated August 19, 1985 remanding the matter to the
undersigned for reconsideration.
The Decision of the Secretary, in essence, concluded that I
was in error in my initial finding that Steven Lockert, in raising
safety and quality questions internally to one's Employer, was not
engaged in protected activity under the Energy Reorganization Act
of 1974. The Secretary held that my conclusion, in this regard,
was inconsistent with the Decision of the Ninth Circuit Court of
Appeals, Mackowiak v. University Nuclear Systems. Inc. , 735 F. 2d
1159 (1984); Phillips v. Department of Interior Board of Mine
Appeals , 500 F.2d 772 (D.C. 4). Notwithstanding, my finding
that the aforesaid cases were distinguishable, the Secretary of
Labor held that the Administrative Law Judge was without authority
to disregard the holdings in said cases to the effect that a
Complainant, such as Steven Lockert, in raising safety and quality
questions internally to one's Employer is engaged in protected
activity under the Act. Such conclusion by the Secretary is within
his prerogative, and that issue is deemed resolved.
In the initial Recommended Decision and Order and in
anticipation that reasonable men might differ over the
applicability and precedential effect of the Mackowiak decision, I
addressed the question of the propriety of Complainant's discharge
on the assumption that Complainant had been engaged in protected
activity under the Act. The Secretary of Labor remanded the matter
[Page 3]
for a more detailed analysis of the protected activity engaged in
by the Complainant, and a discussion of the statements and actions
of the parties in connection with the protected activity. In
compliance with the terms of the remand, I submit the following
Recommended Decision and Order.
Steven Lockert was a Quality Control Inspector for Pullman
Power Products Corporation at the Diablo Canyon Nuclear Power
Plant, Avila Beach, California from July 25, 1983 to December 15,
1983. His duties consisted of performing inspection of welding
work performed by, craft workers, verifying hardware procedures and
work pursuant to appropriate required codes and standards.
Respondent had approximately 2,000 employees at the job site
of which 250 were involved in quality control and assurance work.
Approximately 120 to 125 of the employees, at the relevant times,
were quality control inspectors. The essential function of quality
control personnel is to perform visual examination of work to
assure correct installation. Personnel assigned to quality
assurance matters review the necessary paper work both before and
after the craft work. Complainant was one of the quality control
welding inspectors at the time of his discharge.
As part of his duties, Complainant was required to record and
report work which constitutes non-conformance in what are known as
Discrepancy Reports (DR). He also prepared Deficient Condition
Notices (DCN) identifying possible deficient conditions and
recommended Steps to Prevent Recurrence (STPR) of deficient
conditions.
Complainant was an employee paid to inspect welding craft work
and to prepare documents such as DR, DCN, and STPR as part of an
overall program of assuring quality control of the work at the job
site.
Complainant's immediate supervisor was James Cunningham. Mr.
Cunningham was responsible to Russell Nolle, who in turn was
responsible to Frank Lyautey. Harold Karner was the manager of all
the aforesaid, as he was field quality assurance and quality
control manager.
Complainant asserted and testified that he reported to his
supervisors a series of discrepancies in the course of his
inspection duties which resulted in adverse reactions of his
[Page 4]
supervisors, and argues that such was the motivation for his
termination.
The series of discrepancies referred to by Complainant
occurred between September 1, 1983 and December 14, 1983. There
were approximately eleven to twelve discrepancies which he alleged
resulted in adverse reactions on the part of his supervisors and
which he asserts was the basis for his termination. The
discrepancies included such matters as alleged failure of welders
to use and check the appropriate gas flow rates, failure of welding
equipment to meet specifications, improper welding procedures,
improper modification of "fill-it" welds, use of defective bolts,
inability to gain access to check full penetration welds, electrode
storage allegedly in violation of code, improper rupture
restraints, and alleged failure to provide appropriate quality
control coverage of welders certification testing. In connection
with these discrepancies which were limited to only the
discrepancies to which Complainant asserted that his supervisor's
reacted in an adverse fashion, the Respondent did not dispute their
occurrence and further acknowledged that such discrepancies were
not frivolous, but rather were of a substantial and serious nature.
It should be noted that Complainant had submitted twenty to twenty-
two discrepancies between July, 1983 and his termination, and as a
consequence approximately half of the discrepancies resulted in
differences of opinion, and what Complainant has described as
adverse reactions. The number of discrepancies which Complainant
filed with his supervisors was not unusual for this period of time.
Because of the acknowledgment of the Respondent at the hearing with
reference to the discrepancies resulting in an adverse reaction or
difference of opinion by Complainant's supervisors further analysis
is unwarranted because such matters were not disputed.
Since the discrepancies reported by Mr. Lockert which resulted
in adverse reactions were acknowledged, this evidence by itself is
sufficient circumstantial evidence to support a finding that the
Respondent had a retaliatory motive for discharging Complainant.
The presence or absence of a retaliatory motive is a legal
conclusion and is provable by circumstantial evidence even if there
is testimony to the contrary by witnesses who perceived lack of
such improper motive. Mackowiak v. University Nuclear Systems,
Inc., supra . The burden thereafter shifted to the Respondent and
detailed analysis is required to determine whether the termination
of Complainant was motivated by the undisputed protected conduct of
[Page 5]
Complainant.
The expressions of concern and reports of discrepancies
submitted by Complainant to his supervisory personnel was the very
function for which Complainant was employed as a Quality Control
Inspector. In essence, he was performing the job which he was
employed to accomplish. In addition, the nature of the reports
were not unique. It was repeatedly emphasized at the hearing from
a variety of witnesses that the Complainant was a qualified,
conscientious employee accomplishing his job in an expected manner
and was not engaged in any extraordinary, abrasive behavior or
otherwise involved in unusual personality conflicts at the job
site. The very nature of the work of a quality control inspector
may result in friction and differences of opinion between the craft
personnel (welders) and the inspectors who are paid to pass
judgment on the quality of work performed. Similarly, the
subjective nature of the work of a quality control inspector may
result in differences of opinion between an inspector, such as
Complainant, and his supervisory personnel. In his case, although
some of the discrepancies and/or deficiencies called to the
attention of supervisors by Complainant were disagreed with by such
supervisors, there was no evidence that the discrepancies, as
outlined by the Complainant, were unreasonable or of a frivolous
nature. Nor was there any evidence that the disagreements, as
expressed by the supervisors, were unreasonable. Complainant,
himself, acknowledged that in dealing with possible violations of
standards, reasonable men may have differences of opinion and such
matters are commonly subject to disagreement.
Of particular significance to the undersigned, and what is
felt as corroborative evidence of the fact that Complainant was a
conscientious, qualified employee performing his duties in the
manner expected of him, and viewed as such his supervisors,
Complainant was recommended by his supervisors for a merit increase
in pay in early December, 1983. All of the discrepancies reported
which resulted in an adverse reaction, with the exception of one,
on December 8, 1983, had preceded the Complainant's merit increase
in early December, 1983.
The award of the merit increase to the Complainant is
circumstantial evidence that the termination of Complainant on
December 15, 1983 was not related to their prior admitted
disagreements regarding discrepancies. It is unlikely that an
employer would award Complainant a discretionary merit increase in
[Page 6]
pay if it harbored a retaliatory motive against Complainant for his
reported discrepancies to which they disagreed and exhibited an
adverse reaction. It is essential to carefully weigh the
circumstances surrounding the termination of Complainant to
determine whether the Respondent's decision to terminate was
motivated by the admitted protected conduct of Complainant.
On October 17, 1983, the Complainant was observed by Mr.
Karner in Mr. Karner's office researching some material. Mr.
Karner asked Russell Nolle to check out where Complainant was
supposed to be, since Mr. Karner felt that Complainant being in his
office was unnecessary. Mr. Nolle and Mr. Karner had been
receiving complaints that the craft (welders) were being held up in
their work when inspectors, such as Complainant, were out of their
assigned work areas. Apparently, the craft workers cannot proceed
with their work unless an inspector is present to approve the
quality of their work as it progresses.
Mr. Nolle warned Complainant, at that time, that in being in
Mr. Karner's office, notwithstanding the reason, he was away from
his assigned work area and if it happened again he would be
terminated from his employment.
On December 14, 1983, at approximately 6:30 a.m., James
Cummingham, Complainant's lead man, told Complainant he was
assigned to "area ten" to work. Complainant requested and was
given permission to complete the appropriate paper work for two
STPR's and to go to containment two for such purposes. Mr.
Cunningham testified that he gave such permission as he estimated
it would take about half an hour for Complainant to complete such
paper work and that Complainant would be able to get to area ten by
7:15 to 7:30 a.m. Apparently, Mr. Lockert completed the two STPR's
and decided to accomplish some other administrative paper work and
duties and did not reappear at the quality control office until
approximately 9:20 a.m. Jeff Charbaneau, a supervisor, reprimanded
him for not being in his assigned work area ten and that his
absence had held up production. Complainant apologized for the
situation and left to cover area ten as assigned. Mr. Charbaneau
did not take any disciplinary action as he was not Complainant's
regular supervisor and Russell Nolle, who was, was not at work on
December 14, 1983.
The evidence established that the fabrication shop in area ten
needed a quality control inspector and Pat Watson arranged with
[Page 7]
Mr. Cunningham to have Complainant cover the situation on December
14, 1983. Area ten kept calling Pat Watson, almost every half hour
thereafter, that Complainant had not arrived and they needed
someone right away. Complainant's absence from area ten delayed
the work on a ruptured restraint project and no other qualified man
was apparently available.
At approximately 7:00 a.m., after the first inquiry by area
ten personnel as to the whereabouts of Complainant, Pat Watson
contacted Joseph Watson. Joseph Watson contacted James Cunningham
who told him that Complainant had some paper work to complete in
containment two and then would head-on down to the area ten
fabrication shop. At approximately 7:40 a.m. Pat Watson again
called Joseph Watson inquiring as to the location of Complainant,
and again at 8:10 a.m. a similar telephone call was made. Joseph
Watson contacted James Cunningham who replied that he was unable to
locate Complainant.
James Cunningham testified that if he had known that
Complainant was going to accomplish tasks other than the completion
of the two STPR'S, he would have told Complainant to do it at
another time or he would have gotten another man to cover area ten
on the morning of December 14, 1983. He further testified that
after 8:00 a.m., he went looking for Complainant because of the
urgency expressed by area ten personnel, but was unable to find
him. He later stated that he had seen Complainant between 7:30 and
7:45 a.m., but was not looking for him at that time, which is
curious, since he knew it was beyond the time that he orginally
expected Complainant to be at area ten. There is a serious
question as to how diligent Mr. Cunningham's efforts were in
attempting to locate Complainant during his absence from the
assigned work area ten. Mr. Cunningham's failure to leave a
message for Complainant, search for him or make inquiry of others
in containment two renders his testimony in this regard suspect.
Complainant's supervisor, Russell Nolle, was not present
during the events of December 14, 1983, but when he was informed on
December 15, 1983, he got particularly upset and he decided to
terminate Complainant from his employment and report the matter to
Harold Karner. Mr. Nolle apparently was upset that one of his men
had held up production by not being at his assigned work area and
particularly because Complainant was warned once before, by him, in
mid-October about the same behavior and. had been told at that time
that if it happened again he would be terminated from his
employment. The discrepancy reports of Complainant did not enter
[Page 8]
in his decision.
The rules in existence at the job site provide that an
employee who leaves assigned work areas without authorization is
subject to termination and is not eligible for rehiring. Although,
there was no evidence of any other employee being terminated for
such reason, there similarly was no evidence of any other employee
committing such a violation of an equivalent duration.
When Mr. Karner was told by Mr. Nolle of the events of
December 14, 1983, and of Mr. Nolle's recommendation that
Complainant be fired, Mr. Karner told Mr. Nolle to document the
events and he would utimately make the decision. such was done and
Mr. Karner, as quality control manager, made the decision to
terminate Complainant. The sole basis of the termination,
according to Mr. Nolle and Mr. Karner was Complainant's absence
from his assigned work area on December 14, 1983. The actual
decision to terminate Complainant for this reason was that of Mr.
Karner based upon the recommendation of Mr. Nolle.
A termination notice was prepared with a description of the
events and specifying that the reason for termination was failure
to appear at the assigned work area for approximately three hours
on December 14, 1983. At the trial, there was some confusion with
reference to the termination notice because of the location of
certain signatures on the document and the use of the pronoun "I".
Without explanation it is difficult to determine to whom the "I" is
referring. Testimony established that page one of the brief facts
on the notice of termination was written by Joseph Watson who
signed the document on page two and not Russell Nolle who signed on
page one as supervisor because Mr. Nolle was not present at work on
December 14, 1983. Page two of the termination notice was written
by Jeff Charbaneau.
Complainant never reported the discrepancies and deficiencies
previously referred to above, to any outside source beyond his
supervisors while in employ of Respondent. He never commenced,
caused to be commenced or threatened to commence a proceeding as
referred to in 42 U.S.C. § 5851(a)(1), testified or was about to
testify in any such proceeding or, assisted or participated or was
about to assist or participate in such proceeding or any other
action as referred to in 42 U.S.C. § 5851(a)(2)(3).
The denial of the motion of the Respondent to dismiss the
[Page 9]
matter for lack of jurisdiction was fully discussed in the original
Recommended Decision and Order and such discussion is incorporated
herein by reference as though fully set forth. I further note that
my conclusions in this regard were adopted by the Secretary of
Labor in his Decision and Order dated August 19, 1985.
Based upon the Decision and Order of the Secretary of Labor of
August 19, 1985, it is deemed determined that the discrepancies
reported by the Complainant between September 1, 1983 and December
14, 1983, heretofore referred to and acknowledged by the Respondent
as occurring, constitute protected activity under the Act. Since
the Complainant has been deemed engaged in protected activity under
the Act, then the evidence must be evaluated as a case involving a
"dual motive" discharge. Mt. Healthy City School District Board of
Education v. Doyle , 429 U.S. 2 4, 287 (1977). In such cases, the
employee first has the burden of showing that his conduct was
protected and that the protected conduct was a motivating factor in
the employer's decision to terminate him. Complainant has met his
burden, with circumstantial evidence. Thereafter the burden shifts
to the employer to show by a preponderance of the evidence that it
would have reached the same decision as to the employee's dismissal
even if the absence of the protected conduct. Consolidated Edison
Company v. Donovan , 673 F.2d 61 (1982). In the case at bar, the
Secretary of Labor has determined that Complainant's conduct was
protected and this Recommended Decision and Or er on Remand is
limited to the determination of whether the protected conduct was a
motivating factor in the Respondent's decision to terminate him and
whether the Respondent met its burden to show by a preponderance of
the evidence that it would have reached the same decision as to the
Complainant's dismissal even in the absence of the protected
conduct.
The question is not merely whether there exists independent
and proper grounds for the termination or whether the Respondent
had a legitimate reason for terminating the Complainant, but
whether the Respondent would have terminated him if only the valid
ground for discharge had existed. In other words, would the
employee have not been dismissed "but for" his engaging in
protected activity?
Applying the evidence to the aforesaid law, I find, that the
safety and quality questions reported by Complainant to his
supervisors is a protected activity under the Act, but I do not
find that the Complainant's accomplishment of the undisputed
[Page 10]
protected conduct was a motivating factor in the Respondent's
decision to terminate him. I further find that the Respondent has
shown by a preponderance of evidence that Complainant would have
been terminated for being absent from his authorized work place
even in the absence of such protected conduct. Certainly, a
fact-finder could determine the evidence in a fashion to come to
the opposite conclusions, as the evidence is subject to credibility
determinations. However, based upon my personal observations of
the demeanor of the witnesses and my evaluation of their
credibility I conclude in the manner stated. I cannot conclude
from the evidence that the Complainant would not have been
dismissed "but for" his engaging in protected activity as reported,
as such a determination would require the conclusion that Mr. Nolle
and Mr. Karner were less than truthful. The sole basis for
Complainant's termination was Mr. Nolle's recommendation to fire
Complainant for failure to appear at his assigned work area for
approximately three hours on December 14, 1983. Mr. Nolle was a
persuasive witness in this regard and he impressed me as an honest,
hard working foreman with perhaps a tendency to overreact, but who
testified regarding his actions without malice, duplicity, or
mendacity. Mr. Nolle was not above using abusive language towards
Complainant. He used such language towards all employees without
discrimination and therefore it was not reflective of ill will
towards the Complainant. A case such as this can never be
determined by the number of witnesses, but on the quality and
credibility of any one or a number of witnesses.
In this case, I believe Mr. Nolle and Mr. Karner as to the
reason for which the Complainant was terminated. The evidence
presented by the Complainant, on the other hand that the
Respondent's recited reason for the termination was an excuse in
order to fire him for the reasons that he had reported safety
discrepancies and deficiencies or that such activities were a
moving cause of the termination was not persuasive when evaluated
against the direct testimony of Mr. Nolle and Mr. Karner to the
contrary. As stated, perhaps another fact-finder would have come
to the opposite conclusions from those which I recommend, but my
obligation as an independent trier of fact is to draw conclusions
based upon the evidence presented and the credibility of the
witnesses who have testified and whom I have observed in such
proceedings. It is on this basis and in fulfilling the function to
which I have been assigned that I make these determinations.
The evidence demonstrates that Mr. Nolle and Mr. Karner
[Page 11]
terminated Complainant for the sole reason given, notwithstanding
conflicting circumstanial evidence which might support a finding to
the contrary. The credibility of Mr. Nolle and Mr. Karner was
unimpeached. One might well disagree with their decision to
terminate the Complainant as I am sympathetic with Complainant who
impressed me as a conscientious, qualified worker who was the
victim of a combination of circumstances the responsibility for
which must be placed at the feet of James Cunningham. Mr.
Cunningham authorized Complainant to go to containment two on
December 14, 1983 prior to his reporting to area ten where he was
assigned to work, as Mr. Cunningham anticipated that Complainant
would be able to go to the assigned area ten by 7:15 to 7:30 a.m.
Mr. Cunningham's testimony was unconvincing as to the efforts he
made to earnestly locate Complainant after area ten personnel were
frantically calling as to Complainant's whereabouts. I find Mr.
Cunningham's testimony unbelievable in this regard and my
observations of him lead me to conclude that he was less than
truthful in his testimony. Although I believe the penalty of
termination was unduly harsh in view of the surrounding
circumstances and the cavalier behavior of Mr. Cunningham, it is
and was a management prerogative and not my function to superimpose
my judgment to the contrary in the absence of a violation of the
Act. Pursuant to the directions of the Secretary of Labor as set
forth in his Decision and Order of August 19, 1985, I have
carefully reconsidered and applied the legal principles as directed
and submit this recommended decision.
RECOMMENDED ORDER
It is hereby recommended that the complaint of Steven Lockert
be dismissed with prejudice.
HENRY B. LASKY
Administrative Law Judge
Dated: 04 OCT 1985
San Francisco, California
HBL:bjh
[ENDNOTES]
1 The file reflects that Complainant
was representing himself
and did not secure the services of an attorney for the purposes of
filing his complaint. Consequently, the basis for the award of
attorneys fees is unknown.