CASE NO: 85-ERA-33

In the Matter of

LLOYD MARTIN McQUAY, JR.
    Complainant

    v.

THE WALDINGER CORPORATION
    Respondent

Rosemary Cook, Esquire
3300 North Central Avenue
Suite 1400
Phoenix, AR 85012
    For the Complainant

James R. Swanger, Esquire
Rogers, Phillips and Swanger
510 Hubbell Building
Des Moines, IA 50309
    For the Respondent

Before: HENRY B. LASKY
    Administrative Law Judge

    Complainant, Lloyd M. McQuay, commenced this proceeding under the Energy Reorganization Act of 1974, as amended (42 U.S.C. § 5851), hereinafter referred to as the Act. He initially filed a complaint with the secretary of Labor on June 26, 1985, within the required thirty days.

    On July 25, 1985, the Department of Labor, Employment Standards Administration, Wage and Hour division notified the Respondent, Waldinger Corporation, that their investigation revealed that the Act was violated when Complainant was terminated from his employment with Respondent on May 29, 1985 and indicated that Complainant is entitled to reinstatement to his former position, and reimbursement for all lost wages and all expenses he incurred in bringing this action.

    Respondent received said notification on July 31, 1985 and appealed the Decision on August 2, 1985. The case was then transferred by the Office of Administrative Law Judges from Washington, D.C. to San Francisco, California on August 5, 1985 and a hearing was scheduled pursuant to a notice issued August 20, 1985. At the request of both parties, an Order of Postponement of the hearing was issued on September 20, 1985.

    The hearing was rescheduled and held on February 4th and 5th, 1986 in Phoenix, Arizona. At the hearing, Respondent's Exhibits 1-13, 14 pages 36 and 37, 15, 16, 18, 19, 22, 23 and Complainant's Exhibits 2-19 were admitted into evidence. The matter was submitted subject to an Order allowing the parties to file proposed findings of fact and conclusions of law by March 1, 1986. Said Order was conformed to by both parties.

    Lloyd M. McQuay worked as a sheet metal journeyman and/or foreman for Waldinger Corporation at the Palo Verde Nuclear Generating Station, Wintersberg, Arizona from July 24, 1979 through May 29, 1985, with the exception of the period from January 29, 1985 through March 14, 1985 when he was unable to work due to a non-industrial injury. (Tr. 167-169). It was stipulated that the undersigned has jurisdiction over both parties, who are covered under the Act. (Tr. 8-9). It was further stipulated that on May

29, 1985 Complainant was laid off along with six other co- employees. (Tr. 9). Of the seven employees laid off, five were either re-hired or requested back by Respondent within two months of the layoff. (Tr. 347-349). One other ex-employee got a position with another employer and only Complainant was not requested back. (Tr. 349).

    Complainant' s immediate supervisor was James Hill [foreman], who was responsible to Gale Reynolds [project superintendent of craft]. Reynolds, who had two assistants, Larry Landes and John Fitzpatrick, was responsible to John Ciminski [project manager].

    Complainant alleges that the Act was violated when he was laid off one week after having been observed by his supervisors and other employees talking with a Nuclear Regulatory Commission [NRC] agent. (Tr. 176, 210).

    On January 22, 1985 the NRC received a telephone call about possible safety/quality violations at the Palo Verde Nuclear Plant, by a person purporting to be Complainant. (Tr. 199). In response to this call , on May 21, 1985 NRC agent Mr. Hernandez entered a safety meeting held at the Palo Verde Plant, which was being conducted by Complainant's foreman Mr. Hill . (Tr. 176). The NRC agent requested to speak with Complainant and everyone present saw Complainant move into a semi-secluded area with the agent. (Tr. 176). When the NRC agent questioned Complainant about the January call, Complainant denied any knowledge of said call. (Tr. 176). Nonetheless, Complainant did actually participate in this NRC investigation by verifying the phone call's two allegations concerning improperly stored valves and an improperly cut safeing plate at the nuclear plant. (Tr. 177-178). When Complainant professed an inability to have made the call since he was in the hospital, the NRC agent set up another meeting for May 23, 1985. (Tr. 176-180).

    Five minutes after the May 21 meeting Complainant approached superintendent Reynolds, who had observed this meeting taking place. (Tr. 195-196, 210). Complainant felt that he had to explain his participation in said meeting and told Reynolds about the January NRC phone call by someone falsely purporting to be Complainant. Complainant also asked if his being demoted in March 1985 to a journeyman had anything to do with the January call and any subsequent investigation by the NRC instigated by said call. (Complainant was unable to work due to a non-industrial injury from

January 29, 1985 through March 14, 1985; prior to the injury he was a foreman, when he was re-hired it was as a journeyman). Reynolds responded by denying any influence of the NRC investigation and instead cited excess usage of phone and radio as the motivation for the March 1985 demotion. (Tr. 196). Reynolds also allegedly stated that if Complainant "wasn't such a valuable employee, [he'd] already have been down the road." (Tr. 196).

    Later, in the evening of May 21, 1985 project manager Ciminski was informed that Complainant had been called out of a safety meeting by an NRC agent and that someone had called the NRC using Complainant's name. (Tr. 290). The following day Complainant called Ciminski and requested a meeting with him since Ciminski was Respondent's most senior employee at the jobsite. (Tr. 290; Rx. 23). Ciminski and Complainant met on May 23, 1985 and discussed rumors concerning Complainant's allegedly poor work performance and Complainant's NRC meeting. (Tr. 291-292; Rx. 23).

    On this same day, May 23, 1985, Complainant also met with the NRC agent again. (Tr. 198). The meeting took place on the jobsite about fifty feet from the initial NRC meeting - but Complainant is unaware if anyone observed this conversation. (Tr. 198). Apparently the NRC agent became satisfied that Complainant had not made the January phone call, even though he had verified some of the phone call's allegations. (Tr. 199, 292).

    On May 28, 1985 Complainant worked twelve and one-half hours and left shortly after he injured his back. (Tr. 212-213). Nevertheless, he returned to work the next day, and was immediately told he was going to be laid off that day. (Tr. 52-53, 194, 219-220). Apparently on the morning of May 29th Mr. Reynolds and his assistant Mr. Landes discussed and selected seven employees to be laid off that day, which according to Reynolds stemmed from a "lack of work." (Tr. 322).

    A few days after Complainant was laid off, he participated in an exit interview conducted by Bechtel's quality coordinator, Rex Condie. (Tr. 406). (Respondent is a subcontractor for Bechtel Corporation, which has a policy of performing exit interviews whenever employees are terminated). (Tr . 407-408). Complainant told Mr. Condie about his NRC meetings and made some accusations concerning the integrity of Bechtel employees and his co-workers. (Tr. 410-416). Said accusations were investigated and turned out to be unfounded.

    The day after Complainant was laid off he went to his union's hiring hall and placed his name on a list for available work. (Tr. 184). Suspecting improper motivation for his layoff Complainant was advised by a business agent at the hiring hall to file an action with the Department of Labor. (Tr. 186).

    Filing of the complaint on June 26, 1985 prompted a Department of Labor Compliance Officer, James Greene, to begin an investigation in July 1985. (Tr 101-102). Mr. Greene had a meeting with Ciminski, Reynolds, and Respondent's financial administrator and asked if they would consider reinstating Complainant. (Tr. 103). Reynolds responded that if Greene thought they would consider reinstatement after all the trouble Complainant had caused Respondent with his complaints to Bechtel and the NRC, then Greene simply didn't understand the situation. (Tr. 104-107). At this meeting Greene,s suspicions increased when he was told that Respondent had a policy of automatic reinstatement if an employee was off work only if due to illness for less than three weeks. Instead, Respondent affirmatively made a decision to re-hire Complainant in March 1985 following a six week absence due to an injury, even though Respondent was under no obligation to re-hire Complainant. (Tr. 104-105). From these statements Greene inferred that Complainant had been a good employee or else Respondent would not have re-hired him in March 1985 (Tr. 105, 109), which of course cast more doubt on Respondent's motivations for the layoff.

    Further circumstantial evidence of Respondent's motivation for the layoff revealed that although Reynolds had allegedly first decided to get rid of Complainant in July or August 1984 (Tr. 355), he nonetheless failed to do so for eleven months, during which time he had laid off numerous employees. (Tr. 328, 345). Additionally, of the seven employees who were laid off in May 1985, only Complainant had an "ACAD" security clearance - an admittedly valuable employee credential. (Tr. 45-48). Furthermore, even though Complainant had more experience as a sheet metal worker than some of the other laid off employees, only Complainant was not requested back by Respondent (with the exception of one ex-employee who was working for another employer). (Tr. 53, 334-338).

    Reynolds alleges that he did not re-hire Complainant along with the other laid off employees because he wasn't satisfied with Complainant's work. (Tr. 325). But Reynolds very tellingly

admitted at the hearing that Complainant's layoff was principally related to work habits exhibited by him prior to January 1985, when Complainant was acting as a foreman, and not to his work performance as a sheet metal worker between March and May 1985. (Tr. 354).

    Additionally, although Reynolds claimed his motivation for the layoff was also due to a "lack of work," Complainant's swing shift often worked many hours overtime during 1985. (Tr. 55-57, 302; Cx. 18, 19). Moreover, after Complainant and the other employee who worked on the swing shift were laid off, two other employees were transferred to the swing shift. (Tr. 304). Also, between June 3, 1985 and July 19, 1985, Reynolds hired twenty-one more sheet metal workers. (Cx. 12-17).

    Although Respondent asserts that its motivation for Complainant's layoff was partially due to his poor work habits (Tr. 354), numerous witnesses testified about Complainant's skill as a sheet metal worker. Compliance Officer Greene testified that he interviewed various employees at the jobsite and it was "pretty unanimous that [Complainant] was a competent mechanic." (Tr. 125). Complainant's foreman Hill testified that Complainant was a good sheet metal worker who had a good attitude and exceptional knowledge of the plant layout and duct system. (Tr . 44-45). Supervisor Reynolds testified that he never spoke to Hill or Complainant about Complainant's poor work performance between March and May 1985. (Tr. 333, 346). Landes (Reynolds' assistant) testified that he never received a bad report about Complainant from Hill (Tr. 360) and never observed Complainant's work performance on the swing shift. (Tr. 364). Fitzpatrick (Reynolds' other assistant) testified that he never observed bad work performance by Complainant between March and May 1985. (Tr. 375). Lastly, Complainant testified that he has never been disciplined, suspended, reprimanded or counseled for poor work performance. (Tr. 170). From all of this I must conclude that Complainant performed his work as a journeyman competently.

    Respondent asserts that the testimony of four management or quasi-management employees, Ciminski, Reynolds, Landes, and Fitzpatrick, demonstrates its lack of improper motivation. Intially, Ciminski basically testified that he doesn't take part in the layoff decisions (Tr. 286), but knew that Reynolds did not "care very much for" Complainant. (Tr. 296). Hence any motivational factors were allegedly not those of Ciminski's but of

Reynolds'.

    Reynolds testified that he and his assistant Landes make the layoff decisions. (Tr. 314). He stated that Landes suggested Complainant be included in the May 1985 layoff. (Tr. 321-323). He further stated that they did not discuss Complainant's NRC meetings nor his ACAD security clearance, nor did they contact foreman Hill to determine the work performance of Complainant before deciding to lay him off - contrary to his standard policy. (Tr. 323, 332). Lastly, when asked why he had even let Complainant return to work in March 1985 when he was already supposedly dissatisfied with Complainant, Reynolds responded that he had heard about Complainant's many lawsuits and was afraid that Respondent would get stuck with another lawsuit if he didn't bring Complainant back. (Tr. 318-319). This alleged reason is not credible.

    Landes testified that he had suggested Complainant be laid off since he knew that Reynolds "hadn't been real happy with" Complainant. (Tr. 358-359). Landes denied knowing about Complainant's NRC meetings when he made the layoff suggestion, despite the fact that Reynolds, Ciminski, Hill and numerous other employees had seen one of the NRC meetings taking place. (Tr. 359). I am somewhat skeptical about this denial since so many other people admitted knowledge of the NRC meeting, which actually took place on the jobsite. Furthermore, since Landes admitted that he had never received a bad report from Hill about Complainant's work and had never actually seen Complainant work and did not discuss ComPlainant's work with Hill before the layoff, Complainant's work performance apparently could not have motivated Landes to suggest Complainant's layoff. (Tr. 360, 364). I am unable to determine any proper motive Landes could have had when he allegedly suggested Complainant's layoff.

    Fitzpatrick (Reynolds, other assistant) testified that Complainant was a "bullshitter" and had a reputation for dishonesty. (Tr. 367-369). He clarified these statements by saying that Complainant overstepped his authority by making suggestions to Bechtel employees about time schedules and Complainant had not gone through proper Respondent channels to talk about safety and quality of work. (Tr. 377-378, 381-382). Neither of these examples was cited by Reynolds or Landes as motivating factors for the layoff.

    Complainant brought this action under 42 U.S.C. §5851 , which provides:

"(a) no employer, including a commission licensee, an applicant for a commission license, or a contractor or a sub- contractor of a commission licensee or applicant, may discharge any employee or otherwise discriminate against any employee with respect to his compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to a request of 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 1954, as 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 a proceeding or in any other manner in such a proceeding or in any other action to carry out the purpose of this act of the Atomic Energy Act of 1954 as amended."

"By its terms, Section 5851(a) prohibits certain employers from discriminating in practically any job related fashion against an employee because the employee

participated in NRC investigations or enforcement proceedings. The particular elements of a valid discrimination claim would appear most obviously to include: (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; (3) that the alleged discrimi- nation arose because the employee participated in an NRC proceeding under either the Energy Reorganization Act of 1974 or the Atomic Energy Act of 1954."

    Since it was stipulated that Respondent is subject to the Act and that Complainant was laid off , the first two above elements have been met. Respondent asserts that the third element has not been met since Complainant did not initiate any contact with the NRC, or participate in a NRC investigation or file a complaint with the NRC. (Tr. 464-466). The Act applies to Complainant since he participated in a NRC investigation of the January phone call's allegations concerning improper equipment, by actually verifying said allegations. As the Court in the Deford case explained:

"The purpose of the Act is to prevent employers from discouraging cooperation with NRC investigators, and not merely to prevent employers from inhibiting disclosure of particular facts or types of information. Under this anti-discriminatory provision, as under the NLRA, the need for broad construction Of the statutory purpose can be well characterized as "necessary" to prevent the [investigatory agency's] channels of information from being dried up by employer intimidation . . . ." Deford v. Secretary of Labor, supra, at 286.

It is irrelevant that Complainant did not actually "blow the whistle"; he became protected under the Act when the whistle [the NRC] came to him and he provided verification to the NRC.

    Since Complainant has been deemed engaged in protected activity under the Act, the evidence must then be evaluated as a case involving a "dual motive" discharge. Mt. Healthy City School District Bd. of Educ. v. Doyle, 429 U.S. 27 , 287 (1977). In such cases, the employee first has the burden of showing that his conduct was a motivating factor in the employer's decision to terminate him. The presence or absence of a retaliatory motive is a legal conclusion and is provable by circumstantial evidence even if there is testimony to the contrary by witnesses who perceived lack of such improper motive. MacKowiak v. University Nuclear Systems, Inc., 735 F.2d 1159 (1984). Here Complainant has met his burden, with circumstantial evidence.¹ Thereafter the burden shifts to the employer to show by a preponderance of the evidence that it would have reached the same decision as to the employee's dismissal even in the absence of the protected conduct. Consolidated Edison Co. v. Donovan, 673 F.2d 61 (1982).

    The question is not merely whether there exists independent and proper grounds for the termination or whether Respondent had a legitimate reason for terminating Complainant, but whether Respondent would have terminated him if only the valid ground for discharge had existed. In other words, would the employee have not been dismissed "but for" his engaging in protected activity?

    Applying the evidence to the aforesaid law, I find that Respondent has not met its burden of showing that it would have laid off Complainant even if the NRC contact had not occurred. The following facts were particularly influential in coming to this conclusion: (1) the layoff took place only one week after the NRC meeting, which was observed by Reynolds; (2) Reynolds admitted to a very credible Compliance Officer Greene that they would not even consider reinstating Complainant because of the trouble he had made with the NRC; (3) of the seven laid off employees, only Complainant was not requested back; (4) the fact that Complainant was re-hired when Respondent was not required to re-employ him in March 1985 strongly implies that Respondent thought Complainant was a good worker; (5) numerous credible witnesses testified as to Complainant's competence as a sheet metal worker; (6) Reynolds admitted that Complainant had been a good journeyman after he was re-hired in March 1985, and (7) Complainant's swing shift often worked overtime when the layoff occurred, which implies that there was not a "lack of work" as Reynolds alleged. Most significantly, if Respondent was dissatisfied with Complainant for over eleven

¹ Complainant's own testimony was substantially impeached during cross examination with reference to some variations between his deposition and his testimony, inter alia, but the evidence herein supports a violation nonewithstanding such impeachment.