The Respondent agrues that the Complainant was discharged solely for business reasons, a planned reduction in force, and not because of activity protected under the Act.

Elements of a Valid Claim

    A discrimination claim under § 5851 must include proof:

(1) That 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 participated in an NRC proceeding. . . .

DeFord v. Secretary of Labor, 700 F.2d 281, 286 (6th Cir. 1983).

    As a subcontractor of an NRC licensee, Baldwin Associates is an employer subject to the Act. 42 U.S.C. § 5851(a). It is also undisputed that the Complainant was discharged from his position with Baldwin. The question is whether the Complainant was discriminated against because of contacts with IP and NRC regarding safety concerns.

    The Employer argues that the Complainant raised no safety concerns directly with the NRC, only personal grievances, and therefore no violation of the law is shown. According to the Complainant's testimony, he raised safety concerns with his supervisor, the NRC, and IP. (T. 128, 134, 140, 142-143, 145, 147, 129, 177) While the evidence conflicts as to whether Complainant reported safety concerns to the NRC (T. 81), I conclude that contacts with IP regarding safety concerns are activities which come within the protective scope of the statute. Courts have differed on what activities are protected. I am more convinced, however, that the statute should be read broadly "to prevent the channels of information from drying up ..." and to include activities likely to lead to an investigation by NRC. Mackowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (9th Cir., 1984); and Paul v. Baldwin Associates., 84-ERA-30 (Recommended Decision and Order 8/22/84, Clarke, ALJ)

Complainant's Cases

    The complainant called Inspector Love, as a witness. Inspector Love stated that he interviewed six engineers on October 2, 1984, though he did not recall if the Complainant was among the six. (T. 72-73) The purpose of the meeting was to ascertain if the engineers felt free to initiate field change requests, in light of the recent firing and re-hiring of an engineer. (T. 73-74) He stated that he recalled no safety concerns being raised at the meeting. (T. 74) He testified that after this meeting, he received an anonymous call to the effect that a supervisor had inquired as to what was said at the meeting. (T. 75) Inspector Love testified that a letter of reprimand was issued to the supervisor involved. (T. 78) Inspector Love testified that the Complainant contacted him in January 1985, and told him that he, the Complainant, was told to look for another job because of a bad attitude, exemplified by the meeting with NRC. (T. 80) He also testified that Complainant never raised any safety concerns with him. (T. 81). Inspector Love had had one later contact with the Complainant, but he did not remember when and did not recall any safety concerns being raised. (T. 62)

    The Complainant testified that he had noted several safety concerns regarding construction practices. He testified that the numbers on hilti bolts were not recorded, so that if one of the bolts failed, it would be impossible to locate the other bolts in the same batch. (T. 118, 121). He spoke with his supervisor, Billy Carson, about the problem around November 1983, and talked to Inspector Love about the problem around October 26 or 27, 1984. He spoke with Fred Page of IP in December 1984, and Mr. Gwynn of NRC on March 6, 1985. (T. 125-128)

    The Complainant testified that he had received a good performance rating on November 17, 1983. (T. 128-129)

    He further testified that he was transferred to the instrumentation department on August 27, 1984. (T. 129) He stated that in instrumentation, pipelines were installed with temporary supports and then inspected. (T. 132) When the permanent supports were installed, the slopes of the pipes were not re-inspected. (T. 132) According to Complainant, slopes are very important, and incorrect positioning can cause negative slopes, resulting in serious problems. (T. 132, 133). He testified that he spoke to his supervisor, Joe Mack, about the problem in September 1984 (T. 134), to Inspector Love on October 2, 1984 (T. 135), to

Peter Seidel (T. 138), to Fred Page, an investigator from IP in January 1985 (T. 140), to Chip Hill, and to Pat Gwynn of the NRC on March 6, 1985. (T. 141)

    The Complainant testified that he called the hot line in December 1984, about the supervisors lacking technical knowledge. (T. 142-143). He also testified that he spoke with Fred Page and Chip Hill about this. (T. 143-144)

burden shifts to the employer to produce evidence that the action taken in regard to the Complainant was motivated by valid, nondiscriminatory reasons. The ultimate burden of persuasion of intentional discrimination, however, remains with the Complainant. Dartley, supra; N.L.R.B. V. Webb Ford, Inc., 689 F.2d 733 (7th Cir. 1982).

Baldwin Associates' Case

    Baldwin Associates produced the testimony of the following witnesses:

    Joe Mack, the lead engineer in the instrumentation department, testified that the Complainant was transferred to TPRG in October of 1984 because of his low productivity. (T. 276) He stated that he did not know of complaints to NRC or to IP from Complainant. (T. 278)

    James D'Entremont, senior field engineer for the piping department, testified that Complainant was transferred to TPRG because of problems with his attitude and motivation. (T. 366) He also testified that a memo, signed by four engineers including the Complainant, clearly indicated that Complainant did not understand the scope of his job responsibilities. (T. 367)

    John DeVine, resident engineer for piping, testified that the Complainant was transferred to TPRG in October 1984 pursuant to a plan made prior to Complainant's October 1984 meeting with Inspector Love and because of Complainant's failure to understand the proper role of a filed engineer. (T. 404-408)

    Steve Clary, who supervised Peter Seidel in 1983, testified that Complainant was under the impression that he had been hired as a design engineer, and not a field engineer. The Complainant, Mr. Clary stated, went directly to the Illinois Power Manager, twice, to express his preference for design engineering; for which he was reprimanded. (T. 326-330) Mr. Clary testified that Complainant would spend time on design work and that he would have to remind Complainant of his job duties as a field engineer. (T. 340) Mr. Clary also testified that Complainant had been given a good job performance evaluation in 1983 because Complainant had not been in the position very long, they believed he deserved the benefit of the doubt, and it would be a motivational tool. (T. 349-350)

    Thomas Murphy, Complainant's final supervisor was Baldwin Associates, testified that he had requested additional workers prior to Complainant's transfer to the subcontracting department. T. 422) He also testified that he had no problem with Complainant's work. He stated that he was requested by management, in April 1985, to reduce staff in his department. He then terminated Complainant's employment and that of one other employee. (T. 423-424) This was, he testified, part of a sitewide reduction in force. (T. 427) He stated that they were the last brought into the department, and because their salaries were higher than other employees doing the same work. (T. 425) He also stated that he was not aware of any safety complaints raised by Complainant. (T. 425)

Discussion

    The circumstances of Complainant's job transfers and ultimate dismissal are suspicious. However, based upon the record of this hearing, Complainant has not carried his burden of proof. The weight of evidence suggests that legitimate business decisions and Complainant's poor job performance resulted in his ultimate dismissal.

January 1985. It does not appear from the record that any other supervisor knew of contacts with IP until sometime after Complainant was dismissed from his job, by Mr. Murphy, on May 31, 1985. There is no evidence of any supervisor knowing of contacts by Complainant with NRC. Mr. Seidel did not participate in terminating Complainant's employment. Therefore, it is not established that Complainant's dismissal was motivated by his contacts with IP or NRC.

    I find from the evidence that Complainant was given an acceptable initial performance rating because he was a new employee who had worked for only four months as a field engineer. He was given the benefit of the doubt and hopefully motivated by the rating.

    I find also that Complainant was not particularly happy with his job as a field engineer and harbored desires to become a design engineer. Complainant exhibited a poor attitude toward his field engineering duties and did not fully perform within the scope of those duties. Complainant's productivity was low. For these reasons, he was transferred to TPRG.

    Complainant was not happy with his job in TPRG. He exhibited the attitude of being over qualified for the position and habitually wandered off the job site. For these reasons, he was transferred to the subcontracting department when a need for additional employees arose in that department.

    Complainant was dismissed from the subcontracting department because of a general reduction in force. Complainant was one of the last persons hired in that department and also one of the highest paid employees in that department. Thomas Murphy, Complainant's supervisor, did not know of contacts by Complainant with IP or NRC. He terminated Complainant's employment as part of an overall employee reduction plan.

    Inasmuch as the evidence does not establish discriminatory action against Complainant by Baldwin Associates for expressed safety concerns to IP or NRC, the claim must be dismised.

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

       DAVID A. CLARKE, JR.
       Administrative Law Judge

Dated: 3 FEB 1986
Washington, D.C.

DAC/JL/tt