U.S. Department of Labor
Office of Administrative Law Judges
1111 20th Street, N.W.
Washington, D.C. 20036
Case No. 85-ERA-7
In the Matter of
JEFFREY JOHNSON
Claimant
v.
TRANSCO PRODUCTS, INC.
Employer
Steven N. Fritzshall, Esquire
For the Claimant
Irving M. Geslewitz, Esquire
For the Employer
Before: ANASTASIA T. DUNAU
Administrative Law Judge
RECOMMENDED DECISION AND ORDER
This is a proceding brought under the Energy Reorganization
Act of 1974 (ERA), 42 U.S.C. 5851 and the regulations promulgated
thereunder at 29 C.F.R. Part 24. These provisions, the "whistle
blower" provisions, protect employees against discrimination in
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employment for attempting to carry out the purposes of the ERA
and the Atomic Energy Act as amended 42 U.S.C. 201 et seq. A
hearing was held in Peoria, Illinois on February 13, 1985 at
which all parties were given the opportunity to be heard and to
present evidence. Both parties have filed briefs.
Findings of Fact and Conclusions of Law
I. Jusrisdiction
The Complainant was terminated by the Employer on November 2,
1984. He complained to the Department of Labor on November 16,
alleging that this termination was due to discrimination against
him by the Employer because he had complained to the Nuclear
Regulatory Commission (NRC) about certain of the Employer's
inspection procedures. On December 3, 1984 Area Director Estock
notified the Employer that he found merit in the complaint and
required that the Employer reinstate Complainant to his former
position with back pay and that it compensate him for any expenses
including any attorney fees he may have incurred.
In accordance with the appropriate procedures the Employer
by telegram requested a hearing before an administrative law
judge and on December 21, 1984, within 7 days of receipt of that
telegram, a hearing was set in Peoria, Illinios on February 13,
1985. The hearing was held on that date. The Employer now
takes the position that because more than 90 days have elapsed
since the complaint was filed and no final order by the Secretary
has yet been issued the Secretary no longer has jurisdiction
over this matter.
I do not agree with the Employer's view that the provision
in 42 U.S.C. 5851(b)(2)(A) and 20 C.F.R. 6(b)(1) that the Secretary
shall issue a final order within 90 days after receiving
the complaint deprives the Secretary of jurisdiction if no final
order is issued within the time limit set. Those provisions,
intended primarily to assure a complainant of a speedy decision,
are merely directions to the Secretary to act within a certain
time frame. These directions may be waived by either party to
the proceedings. Here both parties agreed to and appeared at a
hearing a mere three days before the final order was allegedly
due and both parties agreed to a briefing schedule which provided
for the filing of briefs after the 90 day limit had expired.
See Dean Darten v. Rack Company of Chicago, 82-ERA-2. I conclude
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that by this conduct both parties have waived the 90 day time
limitation and find that I have retained jurisdiction over this
matter.
II. The Question of Discrimination
A. Background. The Employer is a subcontractor of
Commonwealth
Edison Company of Illinois (Commonwealth) at its Byron,
Illinois site where Commonwealth is building a nuclear facility.
The Employer installs fire and radiation proof seals on various
conduits and pipes. The work force performing this work falls
into two categories, the crafts which perform the actual installation
work and the quality control inspectors who make sure
that the work is performed properly. The quality inspectors
must be guided by exact specifications and procedures required
by Commonwealth, monitored by NRC and set forth in a manual
which the inspectors must study before they begin their work.
The inspectors' work consists of three phases "marking",
"in-process" and "final inspection". "Marking" consists in
locating
from blue prints the sites where the seals are to be installed
and marking the site once found. "In-process" inspection consists
of examining 25% of the sites where the seals are in the process
of being installed to make sure that these seals comply with the
specifications. In "final inspection" all seals are subjected
to a final inspection. According to assistant division quality
assurance manager Ramon Tancino, quality inspectors are assigned
to any of these phases on an "as needed" basis.
The uncontradicted evidence establishes that Complainant
was recruited for the job of quality inspector by Thomas Hoff, a
product manager of the Employer, not directly connected with
quality control. Hoff still had a job application and resume of
Complainant on file which had been filed but not acted upon two
years earlier. At the time of Complainant's hire the Employer
was under a good deal of pressure to meet construction deadlines
and was hiring quality inspectors. Complainant reported for
duty sometime late in july or early August.
Initially Complainant was put to work on markings and worked
in that capacity for four to six 48-hour weeks. Thereafter he
was put on final inspection where he worked 12 hour days, 7 days
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a week.
Around the 14th or 15th of october he noticed that the final
inspection for seals being installed called for inspecting the
thickness and depth of the insulating materials covered by the
seals. As the seals were already installed and inspection was
by the naked eye the inspection called for by the procedure was
impossible. He brought the matter up to his immediate supervisor,
Quality Control Manager B.C. Machchhar, who told him he would
look into the matter. Because of this ambiguity Complainant
rejected all the seals he inspected that day and the next two
days. The other quality control inspectors passed those seals.
Complainant continued to discuss the matter with Machchhar and
Machchhar's immediate supervisor, assistant division quality
assurance manager Ramon Tancino. Tancino explained to Complainant
that the inspection requirement in question was intended to be
modified by adding the phrase "where practical" and gave him the
modification in writing. Complainant refused to accept the
modification because, in his view, Tancino had no authority to
modify the procedure. After rejecting the modification Complainant,
on October 16, went to the office of the site inspector of
the NRC, Hines, and expressed his concerns about the procedures.
He also brought to Hines' attention that the Employer was using
gypsum rather than silicone as required by the specifications in
the seals, which made them fire - but not radiation proof. Hines
told Complainant he would look into the matter.
As a result of Complainant's complaint to the NRC, an
inspection was conducted by the NRC on october 18-19, followed up by
further inspections on December 10 and January 4, 1985.
On leaving Hines' office Complainant was seen by an employee
of Commonwealth whom he knew and with whom he exchanged a few
words. Complainant did not tell anyone that he had talked to
the NRC inspector. However, all of the Employer's witnesses
acknowledged that there were rumors to that effect.
On October 18, 1984 Complainant was taken off final inspections
and assigned to in-process inspections. In that capacity
he worked 10 hours a day six days a week. On October 25, Commonwealth
approved revision of the procedures Complainant had questioned
and on October 27 Complainant was transferred back to final
inspections. On the evening of Friday, November 2, Tancino informed
Hoff that Complainant was being let go because of insufficient
production. When Complainant called in on Saturday November 3
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to report that he was ill with a cold Tancino informed him that
need not return at all, that he was being let go because of poor
production. However, when Complainant queried Hoff, Hoff told
him that he was being let go because of reduction in force.
On January 17, 1985 the NRC issued a report on the inspection
it had conducted on Complainant's concerns. While the report did
not mention Complainant by name it did mention that the matters were
being investigated because an individual had contacted the NRC and
voiced concern about them. (Exh. C-2, App. p. 8). The report
found that the concerns voiced by Complainant constituted safety
violations and concluded that the problems raised by Complainant
had been resolved by Commonwealth to the NRC's satisfaction.
B. Knowledge of Employer of Complainant's Contact with the
NRC. Initially it is the Employer's position that since it was
not established that it knew for a fact that Complainant had
complained to the NRC it cannot be charged with having fired
Complainant for making such a complaint. I find no merit in
this position. Not only had supervisors Machchhar and Tancino
heard the rumors that Complainant had complained to the NRC but
inspectors Alexander and Herbeg were also aware of them, i.e.
there must have been considerable talk about Complainant's visit
to the NRC. Such a rumor must be a matter of concern to personnel
in charge of the quality controls concerning which the questions
are raised, especially since they were aware of the fact that
the procedures they used were questionable and had themselves
sought clarification. Such concerns can only have deepened when
the NRC launched an investigation of the complaint on October
18, an investigation in which Tancino as well as his supervisors
were contacted. (Exh. C-2, App. P. 2). Therefore I find that
the testimony of Tancino and Machchhar that they paid no attention
to these rumors is not credible. Once Claimant's supervisors
had heard the rumors and had become concerned about the likelihood
that Complainant had raised the matter with the NRC, Complainant
was protected by the ERA against any reprisals that might be
taken because of these concerns.
C. Complainant's Termination and Surrounding
Circumstances.
It is the Employer's position that Complainant was terminated
because of poor production and because it was, in any event,
expecting to have to reduce the number of quality inspectors
due to work slackening off. To support its position, the Employer
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produced its Exhibit 7 which purports to show that during the
last five days of his employment Complainant completed only 16
inspections when 50 was the average for a five day period. To
lend strength to its allegation the Employer also attempted to
establish that Complainant's work performance had been poor
prior to the last week of his employment. Complainant denies
that his work performance was poor at any time, explains the
admittedly low production figures for the last week on the ground
that he had been given additional work not reflected on Employer's
Exhibit 7 and raises the possibility that the exhibit may not be
a complete record of all the inspections he performed during
the last week, all of which is denied by the Employer.
I do not credit or accept the Employer's charges that
Complainant was a poor employee before October 29, 1984. Machchhar's
testimony that Complainant was assigned to final inspection
because of his mismarking while performing markings was contradicted
by Tancino who had found Complainant's pre-October 15
inspection record satisfactory and by Tancino's testimony that
he assigned inspectors to that inspection phase which needed it.
This supports Complainant's testimony that he was moved from
markings to final inspection because construction had progressed
to the point where more final inspectors were needed. Moreover,
no confirmation of Machchhar's testimony that an inspector's
marking could be identified like handwriting was sought from the
two inspector's who testified at the hearing. Complainant, who
generally struck me as a credible witness, denied that such
identification could be made. Moreover I find it quite incredible
that a poor performance in marking, where any mistake will show
up when the seals are put in, would cause a transfer to final
inspection, where a mistake might not show up until the seal
malfunctioned with possibly extremely serious consequences.
Accordingly, I conclude that Claimant's performance while doing
markings was satisfactory.
The Employer in its brief for the first time characterizes
as insubordination Complainant's conduct in persistently refusing
to pass the seals where he had doubts concerning the proper inspection
procedure to be used. An inspector's job is to inspect, i.e.
to make sure that specifications are met. Unless his concerns
are irrational he cannot be ordered to pass an item which he
considers unpassable. Here the concerns were not only not irrational
but actually justified. It is significant that the reaction of
Complainant's supervisors was to transfer him without making any
charges of subordination or any attempt at discipline. Accordingly,
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I find that Claimant's conduct in failing to pass the
seals was not insubordinate and had not been treated as such by
his supervisors.
The only other incident of unsatisfactory alleged poor work
performance is the occasion when Claimant was allegedly able to
locate only six out of 49 seals to be inspected in the course of
one night shift. Complainant's explanations for this performance
were uncontradicted. I therefore accept Complainant's version of
the incident. However, even if I did not, poor work performance
on one shift in the course of a three month employment period
during much of which Complainant worked 12 hour shifts 7 days a
week hardly would justify classifying Complainant as a poor
employee.
The Employer also relates two incidents of allegedly reprehensible
personal conduct. In one of them Complainant kicked a
file cabinet in a fit of temper, in another he engaged in horse-
play with a fellow employee's flashlight. These incidents occurred
well before Complainant's communication with the NRC and apparently
were considered too minor to occasion any disciplinary action at
the time they occurred. They were clearly dredged up for the
purpose of this investigation. For the reasons set forth above, I
find that Claimant was a satisfactory employee whose work
performance and personal conduct were satisfactory before October 29,
1984.
This satisfactory employee was terminated on the basis of
allededly poor work performance two weeks after he had complained
to the NRC. The reasons advanced under such circumstances must
be carefully scrutinized to make sure that they are valid and
not a cover-up for violating the ERA. The reasons advanced by
the Employer cannot withstand such scrutiny. The Employer's
major item of proof is its Exhibit 7 which purports to show that
Complainant only completed 16 inspections in the last five days
of his employment. Complainant admits that the production logged
on that exhibit is low and states that he was assigned by Tancino
at the beginning of the week to help the craft people locate the
markings for the installation of seals. Both Tancino and Machchhar
deny making any assignment that Claimant was to assist the crafts.
Tancino testified that he mentioned Complainant's low number of
inspection completions to him every day and every day received
the same excuse that Complainant could not locate the seals to
be inspected and that by the end of the week, their patience
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exhausted, he and Machchhar decided to terminate Complainant.
Complainant admits that Tancino mentioned to him twice during
the last week that his production for the day was low and that
he should try to get it up.
Thus the question of the reasons for Complainant's termination
must be resolved on the basis of which which witnesses I
credit. I believe the Complainant for several reasons. His story
is much more likely than that given by Tancino and Machchhar. To
accept Tancino and Machchhar's version of events would require
believing that Complainant's production which, according to Employer's
Exhibit 6, had averaged 25.2 inpections daily for the last
five working days Complainant had worked prior to being transferred
to in-process inspection plummetted without reason to a total of
16 a week or an average of 3.3 a day for the five days following
his transfer back to final production. My credulity is further
strained by Tancino's testimony that Complainant was reproached
daily about his low production and that Complainant came up with
the same weak excuse day after day. Such conduct by Complainant
would amount to a desire to provoke a termination. There is
nothing in this record that would support a conclusion that
Complainant would indulge in that type of game playing. On the
contrary the record shows Complainant to be a hardworking young
man with a steady history of employment. He struck me as a
somewhat naive and unimagnative individual who still appeared
perplexed by his termination and seemed to have no reason for
wanting to join the ranks of the unemployed.
On the other hand, I have already indicated that I question
Machchhar's credibility because of what I have found to be false
testimony concerning the assignment of Claimant from in-process
to final inspections. Both Tancino and Machchhar appeared to
harbor considerable resentment toward Complainant. Both of them,
especially Tancino, appeared very production conscious. It was
evident from their testimony and demeanor on the witness stand
that they were irritated with Complainant's refusal to accept
Tancino's "interpretation" of the procedures and felt that
Complainant's persistence had "wasted" valuable production time.
Complainant's carrying his battle to the NRC was just one more
step in what Tancino and Machchhar quite evidently considered
not only a waste of production time but an attack on their authority.
Thus a desire on their part to rid themselves of Complainant's
trouble making is understandable and in character.
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Complainant's "low production" provided them with the
vehicle
for obtaining their ends. It is immaterial whether they deliberately
plotted Complainant's work assignment to show a low inspection
rate or whether, once they had given him his work assignment and
became aware of the low rate of inspections, deliberately refused
to acknowledge the validity of his explanation in order to create
a cause for justifying his discharge.
There is other evidence in the record indicating that in the
last week of Complainant's employment Tancino and Machchhar were
intent on documenting a cause for Claimant's discharge. Thus
Tancino contradicted himself when he first testified on Tr. pp.
134-35 that the production of each inspector was monitored on a
daily basis and on Tr. p. 151 he stated that he does not get an
inspection report daily and that reports like Employer's Exhibit
are only turned in when the work on them is completed. The
latter version agrees with Complainant's testimony that inspection
reports are usually turned in two or three days after receipt.
Tancino admitted to not collating the production figures of all
the final inspectors working between october 29 and November 2,
which collation constitutes Employer's Exhibit 8, until after the
litigation started, yet Complainant was allegedly terminated because
his production was the lowest. Thus it is evident that during the
week of October 29 Complainant's daily and weekly seal inspection
figures were given the type of scrutiny not commonly given. The
most likely explanation for such scrutiny is that the Employer
was in the process of documenting a cause for a predetermined
discharge.
The Employer did not deny that on occasion it assigned inspectors
to help the crafts locate the markings. It claimed that it
had assigned one Jim Pearson to that job the week of October 29.
Complainant testified that he had been assigned to help Pearson
with that task yet, although the Employer had other inspectors
testify, Pearson did not testify nor was his absence explained.
Similarly, if Complainant had "goofed off" for five full days, to
the extent that Tancino claims he did, someone should have seen
him do so. Yet there was no testimony to that effect from either
his allegedly concerned supervisors or from his fellow inspectors.
For the reasons set forth above, I accept Complanant's testimony
that Employer's Exhibit 7 does not show all of the work he did in
the five days preceding his discharge, that he had been assigned
to assist the crafts, that Tancino made the assignment that both
1 I do not accept the argument that
Complainant must be discredited
because he initially denied that Tancino had never complained
about his low production. It is evident that he did not consider
Tancino's inquiries after October 29 complaints.
Complainant only raised the possibility but offered no proof
that Exhibit 7 did not represent all the inspections he completed
in the last five days of his employment. While Tancino insisted
that it did, the fact that the covering sheet is not numbered,
represents work in a different fire zone from that shown on the
remaining sheets and shows no inspection at all for October 31
raises some suspicion that one or two sheets might have been removed
to make sure that Complainant's inspection figures appeared convincingly
low enough. However, such suspicion is not sufficient basis
for a finding of tampering. Accordingly none of my conclusions
herein are based on Complainant's testimony that Employer Exhibit
7 might not be a complete record of the inspections he completed
in the five days before he was terminated.
2 This exhibit was marked for
identification but was inadvertently
not admitted into evidence. It hereby is so admitted.
3 This finding is not intended to
imply that I consider Complainant's
concerns unjustified or approve of the Employer's action in
passing the seals in question.