Date Issued: NOV 8 1985
Case No. 85-ERA-20

In the matter of:

TOM TUTTEROW,
    Plaintiff,

    v.

BALDWIN ASSOCIATES,
    Respondent.

Appearances:

Ronald Barnett, Esq.,
    For the Plaintiff

John B. Lashbrook, Esq.,
    For the Respondent

Before: Richard E. Huddleston
    Administrative Law Judge

    This is a proceeding under the Energy Reorganization Act of 1974, as amended (hereafter called the "Act"), 42 U.S.C. § 5851

and its implementing regulations, 20 C.F.R. Part 24. The Act in § 5851 (a), generally prohibits a Nuclear Regulatory Commission (NRC) licensee from discharging or otherwise discriminating against an employee who has engaged in protected activities as set forth in the Act.

    The Plaintiff, Tom Tutterow, filed a Complaint on May 8, 1985, with the Office of the Administrator, Wage and Hour Division, Employment Standards Administration (ESA), U.S. Department of Labor. His complaint alleges he was terminated by Baldwin Associates (hereafter "Baldwin") due to "reasons other than those given to me". His complaint then states that he has "documented evidence of my lead (foreman) covering up deficiencies and transmitting these cover ups to IP (Illinois Power)". On June 5, 1985, the Plaintiff was notified by Mr. James D. Stanley, Area Director, ESA, Wage and Hour Division, that his Complaint had been investigated, but that it was determined that discrimination was not a factor in his case, and that he had been terminated from employment due to misconduct. The Plaintiff, by telegram, on June 17, 1985 requested a hearing before the Office of Administrative Law Judges to appeal the determination of ESA on his Complaint.

    Pursuant to a notice of hearing issued on June 21, 1985, a bearing was held on August 21, 1985 in Augusta, Georgia. All parties were afforded full opportunity to be beard, to adduce evidence and to examine and cross-examine witnesses. Testimony from witnesses called by both the Plaintiff and the respondent was produced. The Plaintiff offered 4 exhibits which were admitted into the record as Plaintiff's Exhibits 1 through 4 (PX 1-4). The respondent offered 6 exhibits which were admitted into the record as RX 1-6. At the close of the hearing, all parties, including the Plaintiff, agreed to waive the 90 day time limitation of 29 C.F.R. § 6.

    Counsel for the Plaintiff submitted on October 4, 1985 proposed findings of fact and conclusions of law. On October 7, 1985 Counsel for the Respondent submitted a post-trial brief and proposed findings of fact and conclusions of law.

    The Respondent has filed a motion to dismiss prior to the hearing; his motion was renewed at the conclusion of the Plaintiff's

evidence; and again the motion was renewed at the conclusion of the hearing. The Respondent has also argued in his brief that this complaint should be dismissed as there is no evidence of discrimination or retaliation because of protected conduct. On each occasion, I have taken under advisement the motion to dismiss. After carefully considering the Respondent's motion and based upon my observation of the appearance and demeanor of the witnesses who testified, and upon an analysis of the entire record, including all documentary evidence provided, statutory provisions, regulations, case law and arguments of the parties, I find that the motion to Dismiss should be granted.

    The ultimate issue to be determined is whether Baldwin Associates discriminated against Tom Tutterow due to his engaging in activities which are protected under the Energy Reorganization Act. The activities' in question here are the activities of the Plaintiff in reporting to Illinois Power Company what he believed was a cover up of deficiencies by his lead or foreman. Although there are other issues which have been raised, such as timeliness of the request for hearing and whether the Plaintiff was an employee of Baldwin, in view of my decision herein, those issues are rendered moot and are not addressed.

    The Respondent's motion for a summary decision is based upon several grounds. The motion that I consider at this time is based upon the contention that the Plaintiff has not alleged in his complaint that he was engaged in any activity protected by the Energy Reorganization Act; at the conclusion of the Plaintiff's evidence, that no evidence has been offered to show that the Plaintiff was engaged in any protected activity prior to his termination from employment; and that in any event, his termination was based solely upon misconduct, and his other activities were not a factor in his termination from employment.

    Under the Energy Reorganization Act, 42 U.S.C. § 5851, the Plaintiff must prove that: (1) the party charged with discrimination is an employer subject to the Act; (2) that the complaining employee was discharged or otherwise discriminated against with respect to his compensation, terms, conditions or privileges of employment; and (3) that the alleged discrimination arose because the employee commenced or was about to commence, testified or was about to testify, assisted, participated, or was about to

assist or participate in any proceeding, or in any other action to carry out the purposes of 42 U.S.C. § 5851 (Energy Reorganization Act) or 42 U.S.C. § 2011 (Atomic Energy Act). See, DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

    The party charged with discrimination in this case is the Respondent, Baldwin Associates. Baldwin is in the business of constructing the Clinton Nuclear Power Station for Illinois Power Company at Clinton, Illinois. The Plaintiff was employed in the Document Review Group to review documentation, called "travelers", submitted by Quality Control Inspectors to determine whether there was proper documentation and whether proper procedures were followed in construction of cooling pipe hangers. His job did not involve physical examination of the hangers, but simply review of the paper documentation.

    If, in reviewing travelers, the Plaintiff found deficiencies, he was required to prepare a document exception list (del), to state what is deficient with the particular traveler. Mr. Tutterow testified that two particular individuals whose travelers he reviewed had many instances in which he had to return the travelers with dels. Due to the numerous errors found from these two employees, he discussed this situation with his supervisor, Mr. Lebkeucher. On one occasion he had 5 travelers which he believed contained deficiencies, which he took to Lebkeucher, and asked if he (Lebkeucher) wished to deal with these or if he wanted him to prepare dels. Mr. Tutterow testified that Lebkeucher told him to send them on through to Illinois Power as they were. Tutterow refused, and indicated he would discuss the matter with Mr. Royster, Lebkeucher's supervisor. In Tutterow's absence, the travelers were sent by Lebkeucher to Illinois Power.

    It is clear that the Plaintiff disagreed with his immediate supervisor, Mr. Lebkeucher, over disposition of these 5 travelers, and that he genuinely believed that Mr. Lebkeucher had deliberately submitted documentation to Illinois Power Company, knowing the same to be deficient (whether the travelers were, in fact, deficient or not). As a result of his beliefs, Mr. Tutterow went to an official of Illinois Power Company, Mr. Hill, to advise him of these deficiencies.

    The Plaintiff has argued that his action of reporting what he believed was a cover up of deficiencies to Illinois Power Company constitutes a protected activity within the meaning of the Energy Reorganization Act, and further that his subsequent

action of going to the NRC is a protected activity, as he intended to go to NRC if Baldwin did not take care of the problem.

    However, Mr. Tutterow has acknowledged in his testimony that to his knowledge, no one at Baldwin was aware that he had spoken with officials of Illinois Power Company about this matter, and that he told no one that he was going to report to NRC with his concerns (Tr. page 71). Mr. Tutterow, in fact, did not go to NRC with these concerns until after his termination from employment.

    I find that it is clear from Mr. Tutterow's own testimony that his action of reporting to Illinois Power, and his complaint to NRC, subsequent to his termination, played no role in his termination, as no one was aware of these actions until after his termination.

    The issue is then raised as to whether the Plaintiff's actions in his disagreement with Lebkeucher, his reporting what he described as a "cover up" to Royster, and his attempt to report these matters to Alice McDonald (Royster's supervisor), constitute protected activities within the meaning of the Act; and if so, whether he was terminated as a result of these activities.

    Mr. Larry W. Osborne, Manager of Quality and Technical Services, for Baldwin Associates, at the Clinton Power Station, testified that sometime near the first of May he was advised by Alice McDonald that employee Richard Pinonni had complained of someone placing "loads" into his cigarettes which would explode as the cigarette was smoked. He stated that at the same time Ms. McDonald had given to him a counseling and guidance report for Tom Tutterow relating to a cigarette load incident. The report contained a statement signed by Tutterow that he had placed loads into fellow employees cigarettes. Mr. Osborne then testified that he discussed the issue with his superiors, and further discussed the matter with his assistants. He acknowledged that at least one of his assistants felt he (Osborne) was overreacting to the incident. Mr. Osborne then testified that he made the decision himself, without any discussion with either Lebkeucher or Royster, that Tutterow should be terminated for horseplay involving cigarette loads.

    Mr. Osborne testified credibly that he was not even aware of the issue regarding the deficiencies maintained by Tutterow or of

any reports to Illinois Power until after Tutterow was discharged from employment. He testified that his sole motivation in discharging Tutterow was that he felt that the placing of loads into cigarettes was dangerous to employees as well as a fire hazard, and as such could not be tolerated.

    The Plaintiff has testified that his meeting with Lebkeucher and Royster regarding the cigarette loads was about the same time as his disagreement with Lebkeucher over the "covered up" travelers. He admitted placing cigarette loads into fellow employees' cigarettes in the past, and signed a statement to that effect, but denied placing the load in the present instance on which the complaint was based. The employee who made the complaint, Richard Pinonni, was also one of the two individuals whose travelers were the subject of the "cover up". He stated that both Lebkeucher and Royster were aware of the cigarette load jokes that were being played by employees, and had laughed at the incidents. Thus, Mr. Tutterow argues that the whole process of the cigarette load complaint was a conspiracy by Pinonni, Lebkeucher, Royster, and Osborne, to fire him because he maintained that Lebkeucher had covered up deficiencies in travelers submitted to Illinois Power Company.

    I find that the evidence in this case simply does not establish such a conspiracy. In fact, the counseling and guidance report given by Royster to Mr. Tutterow was only a reprimand, and did not recommend termination. The decision to terminate was made solely by Mr. Osborne. There is absolutely no evidence in the record that Mr. Osborne was even aware of the alleged cover up, and he has testified credibly that he was not aware of such. Thus, even assuming that there was a conspiracy by Pinonni, Lebkeucher and Royster, there is no evidence which has been offered to show that Mr. Osborne was aware of such, or that it had any relationship to the decision to terminate Mr. Tutterow.

    I find that the Plaintiff's internal actions at Baldwin to report what he believed were cover ups of deficiencies by Lebkeucher, played no role whatever, in the decision by Mr. Osborne to terminate him. For this reason, it is not necessary to address the issue of whether his actions constituted protected activity within the meaning of the Act, or the other issues which have been raised in these proceedings.

    For the foregoing reasons, I conclude that even if the Plaintiff was engaged in protected activity, the evidence clearly establishes that his activity in reporting an alleged cover up of deficiencies was not a factor in his termination from employment, and that he was terminated due to misconduct. Thus, it follows that Mr. Tutterow's termination did not violate the provisions of the Energy Reorganization Act or the implementing regulations.

    It is hereby Ordered that the Respondent's Motion to Dismiss is granted and the complaint is dismissed in its entirety. Pursuant to 29 C.F.R. § 24.6 this recommended decision shall be forwarded to the Secretary of Labor for a final order.

       RICHARD E. HUDDLESTON
       Administrative Law Judge