At the close of Mr. Priest's proof, at the hearing, Baldwin moved for dismissal alleging that Complainant had

failed to make out a prima facie case. The motion was taken under advisement and Baldwin proceeded with its evidence.

   Baldwin contended that Complainant's proof failed because it did not prove that he contacted or was about to contact the Nuclear Regulatory Commission (NRC) prior to the alleged discriminatory acts. In fact, the evidence shows that Complainant did not contact the NRC until after his employment with Baldwin had been terminated. (PL. Exb. 10)

   I reject Baldwin's argument and deny its motion to dismiss. I think that the applicable statutes and regulations should be read broadly enough to include activities by an employee which are likely to result in an investigation and possible disciplinary action by NRC, even if NRC does not initially get involved. Mr. Priest's complaint to the Illinois Power Company (IPC) could have resulted in NRC intervention. In fact, Complainant and his three co-workers discussed going to NRC (T.184-185). And I think it would have been reasonable for Baldwin to have assummed that pursuit of the matter by Complainant could have lead to NRC intervention.

   I conclude that Complainant's evidence does establish a prima facie case. He presented sufficient facts to establish that he was engaged in a protected activity, that Baldwin was aware of his conduct and that adverse action was taken against him by Baldwin. He also raised the inference that the protected activity was the likely reason for the adverse action. Dartley v. Zack Co., 82-ERA-2 (Decision and Final Order, 4/25/83)

   The nuclear power plant involved in this proceeding is the Clinton Power Station being constructed by Baldwin for the Illinois Power Company.

   On March 24, 1984, and for some time prior thereto, Jack D. Priest was employed as an electrical foreman by Baldwin. Mr. Priest shared an office located on the 828 level of the control building with two other foremen, Bob McGee and Ken Tilford, and with their general foreman, Eugene O'Dell, all of whom testified at the hearing.

Kammerzind called Mr. Kracht, who stated that the missing travelers were in Complainant's office in a file cabinet. (T.275-276). Mr. Kammerzind then instructed superintendent Rich Hilliard to retrieve the travelers from the file cabinet. When Mr. Hilliard reported back that the file cabinet was locked, Mr. Kammerzind authorized him to break into the desks in the office in search of the filing cabinet keys and to break into the filing cabinet, if necessary . (T.277) The breakin was accomplished under Mr. Hilliard's supervision and the travelers were found.

   On March 26, 1984, when Complainant, Mr. Tilford and Mr. O'Dell arrived at their office, they discovered that it had been entered over the weekend. (T.39,88) Mr. McGee arrived a short time later. They inventoried the office to determine if anything was missing (T.42,90) They found a note from Mr. Hilliard stating that money that was in Mr. Tilford's desk could be found in another desk in the office. Mr. Tilford's money was recovered, but a set of tools he had in the office were missing. Three travelers assigned to Mr. McGee were also found to be missing.

   Since none of the men knew that the break-in had been authorized by Mr. Kammerzind, Mr. O'Dell called his immediate supervisor, Mr. Kracht, to report the incident. Mr. Kracht told Mr. O'Dell that he had been called over the weekend by plant personnel in search of the keys. (T.149) Shortly after Mr. O'Dell's call to Mr. Kracht, Tim Yoch told Mr. O'Dell and Complainant that he was present during the break-in and identified some of the other employees involved including Rich Hilliard. (T.120,151-152,163) During a subsequent conversation, Mr. Kracht told them that he had

authorized one of the superintendents to take the travelers. (T.158) As a result of these conversations, Complainant knew that the break-in had been authorized to gain access to the missing travlers. (T.171, 208-209) Complainant called company security to report the break-in.

   That same morning, one of Mr. McGee's workers reported that material installed on one of the hangers, during the weekend, was not the material ordered for the hanger. The ordered material was still locked up in a gang box. Complainant and his three co-workers then became concerned with the possible falsification of safety related material. (T.159) They examined the material installed on the hanger and found that the numbers stamped thereon coincided with the original numbers. However, knowing that the fabrication shop had not received an order for duplicate material for this hanger, they were suspicious as to whether the material was correct for the job (T.159-160)

On the same day, Complainant called his union representatives, Mr. Brilley and Mr. Bopp, and told them of the break-in and his concern for the integrity of the work performed on the hanger during the weekend, requesting that they obtain a release from Baldwin to absolve Complainant and his three coworkers of responsibility for the weekend work. (T.160,161,171)

   On March 27, 1984, after security had not responded, Complainant called security again. Complainant also called Messers. Bopp and Brilley. He was advised by Mr. Brilley that he and his three co-workers would not be fired because of the break-in. A security officer arrived later that morning and took a report of the break-in. A second report was taken by security some three or four weeks later. (T. 177-179)

   Knowing what had happened on March 24, 1984, but not having received what Complainant considered a full explanation from a superintendent or other employee of Baldwin, Complainant, after discussion with his three co-workers, called Illinois Power Company and reported the break-in, missing travelers and his concerns about safety of construction and traceability of the the construction materials used during that weekend. (T.180; Res. Exb. 1) An employee of IPC met with Complainant and Mr. O'Dell on April 10, 1984 to discuss the matter. (T.181)

Complainant went over and met his new foreman, Dale Thompson, later that afternoon. Complainant then left work early, with no objection from Mr. Thompson. (T.196) Complainant requested and was given permission by Mr. Thompson to take the next three days off. (T.197) Complainant called in to work on the next day to be sure they knew he wasn't coming to work. (T.198, 396)

   Complainant reported to work on Monday morning, April 23, 1984. He completed a vacation request for the next 4 days and gave it to Mr. Thompson. Then, at approximately 8:10 a.m., receiving permission from Mr. Thompson to see the union steward, Complainant left his work area. After talking to the union steward briefly, Complainant returned to his work area at about 9:10 a.m. Complainant then requested permission from Mr. Thompson to leave work for the rest of the day. He wanted to discuss matters with the union representative and with personnel from IPC and then go home. Permission was granted and Complainant left work. (T.198-201; P1. Exb. 9) That night, Complainant received a telegram stating that he had been terminated from his employment at Baldwin. (T.201) A subsequent notice of termination gave the reasons for termination as out of assigned work area, excessive absences and leaving work early. (pl. Exb. 6)

   Inasmuch as Complainant had permisssion from his foreman for his absences and for the times he left work early, the only valid reason for his termination would have been his absence from his work area on April 23, 1984. In this regard, Complainant was observed out of his work area, on elevation 762 of the control building, at about 8:10 or 8:15 a.m. talking to Dick Hyland, Perry Pickens and another unidentified Baldwin employee. (T.385, 391, 392) About 20 to 25 minutes later, Complainant was again observed in the same place engaged in conversation with Dick Hyland. (T.386)

   Mr. Robert Fritz, Complainant's superintendent, was contacted at about 8:40 a.m. on April 23, 1984 and advised that Complainant was out of his work area and interferring with the completion of work by other Baldwin employees. Mr. Fritz went to Mr. Thompson's work area. At about 9:10 a.m. Complainant returned to Mr. Thompson's area. At about 9:15 or 9:20 a.m., Mr. Fritz observed Complainant leaving the work area again and upon inquiring was informed that Complainant was leaving to visit union and IPC personnel. Mr. Fritz verified that Complainant had seen the union steward for about 10 to 15 minutes that morning, leaving at about 8:25 or' 8:30 a.m. On the basis of these facts, Mr. Fritz decided that Complainant should be terminated. Complainant's employment with Baldwin was terminated that day.(T.396-405)

    The employee protection provisions of the Energy Reorganization Act, herein referred to as the Act, embody the following prohibition [42 U.S.C., §5851]:

(a) Discrimination against employee:

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 priviledges of employment because the employee (or any person acting to a request for 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 54, 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 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.A. §2011 et seq.].

   The issue to be determined is whether, within the meaning of the above provision, Complainant was harassed and ultimately discharged by Baldwin as a result of his conduct in reporting the office break-in, missing travelers and related construction safety concerns.

   As stated previously, Complainant's evidence was sufficient to establish a prima facie case. Baldwin then had the burden of producing evidence to rebut the presumption of disparate treatment by presenting evidence that the alleged disparate treatment was motivated by legitimate, non-discriminatory reasons. This, to my mind, Baldwin has done.

   Let me say at this point that I do not consider Complainant's telephone calls and reports to plant security, regarding the office break-in, as coming within the purview of the Act. Baldwin directs employees to report unusual incidents in its Project Work Rules booklet. (P1. Exb. 3) Moreover, Mr. Beach testified that break-ins should be reported and other testimony established that it was recognized office procedure to report break-ins and thiefs of property (such as Mr. Tilford's tools). (T.347,375,146-148). I do consider the complaint to IPC as being of such magnitude as to potentially lead to NRC intervention and to come within the Act. In fact, Complainant did contact NRC after his job was terminated. (PL. Exb. 10)

   In any event, I can find no convincing evidence of retaliation by Baldwin against Claimant for reporting the break-in to plant security. His demotion from foreman to wireman was at his own request and the attempt to move his desk from the office on

It is ORDERED that the complaint be and hereby is DISMISSED.

      David A. Clarke, Jr.
      Administrative Law Judge

DATE AUG 22 1984

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