Case No. 85-ERA-17

In the Matter of

ROBERT L. SMITH
Claimant

against

NORCO TECHNICAL SERVICES GULF STATES UTILITIES CO.

    Robert L. Smith filed a complaint with the Department of Labor alleging that Norco Technical Services and Gulf States Utilities Company discriminated against him by discharging him for engaging in conduct protected by Section 210 of the Energy Reorganization Act, 42 U.S.C. §5851(a)(hereinafter the Act). The aforementioned complaint is identified in the record as ALJ Exhibit 1. On May 31, 1985, the Department of Labor issued the results of its investigation (AL3-3) to the effect that Smith was a protected employee engaged in a protected activity within the purview of the Act and that discrimination as defined by the Act was a factor in the actions which comprise the complaint.

    Gulf States Utilities (GSU) appealed the findings of the

Department of Labor to the Office of Administrative Law judges and Filed a motion to dismiss for failure to state a cause of action under the Act. A hearing on said motion was conducted in Baton Rouge, Louisiana, on July 26, 1985. GSU asserts that Smith was not an employee within the meaning of the Act and secondly that the action taken by Smith was an internal quality control report and not a proceeding protected under the Atomic Energy Act.

    Section 5851 of the Act prohibits employer discrimination against an employee who has:

(1) commenced . . . a proceeding under this chapter or the Atomic Energy Act of 1954 [together referred to below as "The Acts"] . . . or . . . for the administration or enforcement of the requirements of . . . [the Acts].

(2) testified . . . in any such proceeding

(3) assisted or participated . . .in any manner in such a proceeding or in any other action to carry out the purposes of . . . [the Acts].

42 U.S.C. § 5851(A).

    The United States Court of Appeals for the Fifth Circuit has held that the term "actions" in subparagraph (3), above, refers to something similar to the specific proceedings mentioned earlier in the same sentence. See Brown & Root, Inc. v. Donovan, 747 F.2d 1029, (5th Cir. 1984). Accordingly, the Court of Appeals held that "employee conduct which does not involve the employee's contact or involvement with a competent organ of government is not protected under Section 5851 ." Absent such contact or involvement, the employee does not make out a claim under that Section.

    The thrust of Smith's complaint is that he was fired after communicating a threat to go to the Nuclear Regulatory Commission with a complaint if certain corrective actions were not taken within a specified time frame. Specifically, Claimant testified that on March 29, 1985, he met with a Mr. Dunham, the lead engineer for Stone and Webster (a subcontractor) in the presence of Mr. Rusty West, GSU's supervisor overseeing the Stone and

Webster operation. According to Smith, he expressed dissatisfaction with a grounding problem and that they had one week from March 29 to initiate a study to correct the problem or that he would take the matter to GSU quality assurance. According to Smith, he further indicated at that meeting that if GSU quality assurance did not take action he deemed appropriate within one week he would go to the Nuclear Regulatory Commission. Smith further testified that he later met with Mr. West in a passageway and expressed his desire that something be done to cure the aforementioned defect.

    Ken Dunham testified that Smith never discussed going to the Nuclear Regulatory Commission with him in the presence of Rusty West and that he was never delivered an ultimatum by Smith (Tr. 76-79). Rusty West testified that Smith never came to him with a threat to go to the Nuclear Regulatory Commission or to discuss a grounding problem in the control room (%Tr. 52-53). West further testified that he was not present when Smith allegedly advised Dunham that he was going to the Nuclear Regulatory Commission.

    In addition to the denial of Smith's alleged ultimatum to Dunham by West and Dunham, there is no such allegation contained in Smith's written complaint filed with the Department of Labor. All of the allegations contained in that complaint (AL3-1) refer to a threat to go to GSU quality assurance/quality control with the problem. In its letter of May 31, 1985 (ALJ-2) the Department of Labor makes no reference to the alleged threat to go to the Nuclear Regulatory Commission.

    Smith also testified that he advised two co-workers of his alleged intention to go to the Nuclear Regulatory Commission eventually with his concerns.

    Under the circumstances as described above, I find that GSU had no knowledge of any alleged threat by Smith to go the Nuclear Regulatory Commission. I further find that Smith's statements that he conveyed a threat to go to the Nuclear Regulatory Commission to Ken Dunham, in the presence of Rusty West, not to be credible. In this connection, I credit the testimony of both Dunham and West. Moreover, the absence of any mention of the Nuclear Regulatory Commission in Smith's complaint to the Department of Labor and the Department of Labor's response, convinces me that the alleged threat to go to the Nuclear Regulatory Commission was an afterthought on Smith's part, put

forth only after GSU had filed its motion to dismiss herein. Even had such a threat been conveyed to either NORCO or Gulf States Utilities, such threat would not constitute an activity protected under the Act. See Brown & Root v. Donovan, supra.

    Because I have found that the subject activity was not protected within the meaning of the Act, it is not necessary to reach a determination on whether Smith was an "employee" of GSU within the meaning of the Act.

    For the reasons stated, Claimant has failed to state a cause of action and this claim is DISMISSED pursuant to the provisions of 29 C.F.R. § 24.5(e)(4).

       A.A. SIMPSON, JR.
       Administrative Law Judge

Dated: November 8, 1985
New Orleans, Louisiana

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