With respect to safety concerns they are asked to go through the chain of command viz., foreman, superintendent, and finally project manager. (Tr. 60).

    7. Mr. Blackburn, while employed at Metric took courses on radiation and safety procedures. (Tr. 12).

    8. The term ALARA means that radiation exposure is to be as low as reasonably achievable. (Tr. 12). ALARA decisions are essentially cost benefit decisions. The objective is to minimize employee exposure while doing useful work. To get the work done some exposure is inevitable. Determining what is reasonably achievable is a subjective procedure. (Tr. 75).

    9. Shielding is one of the ALARA tools used to minimize radiation exposure. (Tr. 77). Distance from the source of radiation and limiting a worker's time in a radiation area are also used to minimize exposure. (Tr. 76).

generator replacement. (Tr. 87).

    21. The highest radiation dose picked up by other members of Mr. Blackburn's crew on September 4 and 5, 1984 was 75 millirem as compared to a dose of 1600 millirem per quarter. (Tr. 86).

III. Complainant's Discharge

    22. On September 4, 1984 Complainant read the safety report to the crew; among other things the report advised that a lot of shielding was being removed from the reactor building. The purpose of the shielding was to reduce radiation exposure. (Tr. 12-13).

not make him go in that work area but that he would discuss the matter with Horace Howell, the Superintendent. (Tr. 17). Mr. Young came back at 8:30 a.m. and told Complainant he would have until break time to decide what he wanted to do advising that Mr. Blackburn would be terminated if he refused the assignment. (Tr. 18.). Before the break was over Mr. Young returned. Complainant told him "Well if they put the shielding up and make it a safe job, I'll do it. But, if it's not, I won't." (Tr. 16). Mr. Young Left to discuss the matter with Horace Howell, the superintendent. On his return Mr. Young told complaint that he would be terminated at 10:00 which in fact occurred. (Tr. 18-19).

    28. Metric's termination report stated that Complainant could not be rehired at the Robinson site. (Tr. 61).

    29. Complainant states he tried to contact a representative of the Nuclear Regulatory Commission but could not do so because his clearance was taken away and "I was hustled out before I could talk to anybody." He contacted the NRC the following Friday, September 12, 1984. (Tr. 19). Mr. Blackburn was mistaken. Anyone, employee or not, could have gained access to the NRC by making a request at the Guard House. (Tr. 89).

    30. Complainant felt he was following the procedure set out in the manual. (Tr. 17).

IV. Mr. Blackburn's ERA Complaint

    31. A notice to employees from the NRC was posted stating in pertinent part that if an employee believed that he had been discriminated against because of protected activity that he could file a complaint within 30 days of the act complained of with the Department of Labor, Employment Standards Administration, Wage and Hour Division. (Tr. 49-50; RX 1 pp. 76-77).

    32. On September 12, 1984, Complainant called the South Carolina Department of Labor. He then saw Gaynelle Cook, an employee of the State Occupational Health and Safety Administration. Mr. Blackburn thereafter sent her his letter of complaint dated September 16, 1984. (Tr. 21; CX 3). This letter was received by the State Occupational Health and Safety Administration on September 19, 1984. (CX 4).

    33. Mr. Blackburn had also contacted the NRC on September 12, 1984. (Tr.

21; CX 2). On December 28, 1984 NRC advised Complainant in pertinent part as follow:

Your concerns were addressed during an inspection conducted at that facility during the period October 29 to November 2, 1984. Our inspector reviewed the facility's external exposure control and personal dosimetry practices and found them to be within regulatory requirements. In addition, the ALARA program was reviewed and found to be within acceptable limits and standards. She inspector could not substantiate your concerns. Let me explain that inasmuch as we could not substantiate your concerns it does not mean necessarily that we find the facts as you stated them to be untrue; rather, it means only that we were unable to obtain objective evidence to corroborate your statements through interviews, document reviews and/or direct observation. As a regulatory agency, objectivity is of utmost importance along with ensuring compliance with regulatory requirements. Objectivity ensures our decisions and conclusions are based on fact and that any action based on these facts can be legally enforced. This concludes the staff's actions regarding your concerns. (CX 6)

    34. South Carolina OSHA referred Mr. Blackburn's letter of complaint on October 4, 1984 to the U.S. Department of Labor/OSHA in Columbia, South Carolina. (Tr. 22; CX 4). At that point, Mr. Blackburn felt that his letter had been taken care of. (Tr. 23).

    35. Subsequently he received a letter dated October 11, 1984 from the U.S. Department of Labor's OSHA office in Columbia, South Carolina stating OSHA office in Atlanta, Georgia. (CX 5; Tr. 23). Complainant attempted to contact the OSHA Atlanta office many times and eventually received a call from Don Tuvell, an investigator from that office, who subsequently interviewed him. (Tr. 23-24). On July 31, 1985, the Atlanta OSHA office of the U.S. Department of Labor advised Mr. Blackburn that:

Your complaint alleging discrimination and termination from Metric Construction Co. had been forwarded to this office from the S.C. Department of Labor - OSHA.

Our investigator Don Tuvell has contacted you and many witnesses. After discussion with our legal staff, it has been determined that we do not have proper jurisdiction

at this office. The case is now being forwarded to

U.S. Department of Labor
Wage and Hour Division, Room 121
1371 Peachtree Street, N.E.
Atlanta, Georgia 30367
telephone- (404) 881-4801

You will be contacted by someone from that office, or you may wish to contact them in writing or by telephone. (CX 7)

    36. On September 6, 1985 the Area Director of the U.S. Department of Labor's Wage and Hour Division in Atlanta acknowledged receipt of the complaint on September, 6, 1985. (CX 8). By letter dated October 25, 1985, the Area Director advised that a finding of a violation of ERA had been made directing the initiation of various remedial measures. (CX 10).

    27. Complainant did not retain an attorney until after the decision of October 25, 1985. (Tr. 28).

    Paul A. Blackburn (the Complainant) was employed by Metric Constructors, Inc. (Metric or Respondent) as an electrician in the period March 28, 1984 to September 5, 1984. Metric is a contractor performing various kinds of construction work at the H. P. Robinson Plant in South Carolina of the Carolina Power and Light Company (CP&L). The work is subject to the licensing requirements and regulations by the Nuclear Regulatory Commission (NRC). Mr. Blackburn was discharged on September 5, 1984 for refusing the work in a reactor container area. He felt the assignment was unsafe because of additional radiation exposure resulting from the removal of lead shielding.

    The issues to be resolved are whether the complaint was timely filed, whether Mr. Blackburn engaged in protected activity within the scope of ERA and if so, whether the termination of his employment involved a discrimination violating the Act.

    Metric discharged Mr. Blackburn on September 5, 1984. On September 5,

Mr. Blackburn first contacted the South Carolina Department of Labor concerning his complaint. He subsequently mailed his letter of complaint dated September 16, 1984, which was received on September 19, 1984 by the State Department of Labor. on October 4, 1984, the South Carolina Department of Labor forwarded Mr. Blackburn's complaint to the U.S. Department of Labor (DOL)/OSHA in Columbia, South Carolina. That office by letter dated October 11, 1984 notified Complainant that his complaint had been forwarded to the DOL/OSHA office in Atlanta. That office investigated the complaint but then by letter of July 31, 1985 advised Mr. Blackburn that "we do not have proper jurisdiction at this office." DOL/OSHA Atlanta at that time forwarded the case to the DOL Wage and Hour Division in Atlanta. On September 6, 1965 the Area Director of the Wage and Hour Division, DOL acknowledged receipt of the complaint. On October 25, 1985, the Wage and Hour Division determined that Mr. Blackburn's discharge violated the employee protective provisions of ERA. (Findings 31-32, 34-36).

    On September 4 and 5, 1984, Mr. Blackburn was instructed to go into the reactor building to make some changes in the wiring. On September 5 Mr. Blackburn, after checking some surveys of radiation in the area, told his foreman he felt it was unsafe to go into the area because portable lead shielding to reduce radiation had been removed from the area. He also advised the foreman that he did not think it safe to go into the work area until the radiation shielding was restored. Complainant's foreman at 8:30 a.m. On September 5 advised Mr. Blackburn he had until break time to decide what he would do but that he would be terminated if he refused the assignment. Complainant's foreman returned before the break was over, and Mr. Blackburn stated he would perform the work if the shielding were put up but would refuse if it was not. His foreman after consulting with the superintendent told Complainant he would be terminated at 10:00. Mr. Blackburn was then discharged

for refusing the assignment. (Findings 22-27).

    In summary, complainant complained of a safety-hazard at work viz., acute radiation exposure coupled with the request that radiation shielding be replaced as a prerequisite to performing the assigned work.

    42 U.S.C. § 5851 ERA provides in pertinent part:

(a) Discrimination against employees

No employer, including a Commission licensee, an applicant for a Commission license, or a contractor or a subcontractor 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 [42 U.S.C.A. § 2011 et seq.], 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 purposes of this chapter or the Atomic Energy Act of 195.4, as amended [42 U.S.C.A. § 2011 et seq].

    Respondent urges that Mr. Blackburn's safety complaint and refusal to work was not protected activity witin the scope of ERA, since the actions could not be construed as motivated by an intent to initiate a proceeding against Metric. Respondent asserts this finding is compelled by Mr. Blackburn's failure to raise his safety concerns with any one outside Metric's organization prior to and at the time of his termination. Relying on Brown & Root v. Donovan, 700 F.2d 281 (5th Cir. 1985), Metric asserts that a complaint to a "competent agency of government" prior to the disciplinary action complained of is prerequisite to relief. Metric has correctly construed Brown & Root. However, that precedent, while dispositive in the Fifth Circuit, is not controlling here.

    There is a split in the Circuits on this question. The Ninth Circuit in Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984) held internal safety complaints to be protected activity. The Court relied on the District of Columbia Circuit decision in Phillips v. Department of Interior Board of Mine Appeals, 500 F.2d 772 (D.C. Cir.) (1974) cert. denied 420 U.S. 1975). Phillips held internal complaints protected under the 1969 Federal Mine Health and Safety Act. Significantly, Section 5851 of the ERA had been modeled after the analogous provision of the Mine Health and Safety Act reading as follows:

    The D.C. Circuit in Phillips held:

We believe that Phillips' notification to the foreman of possible dangers is an essential preliminary stage in both the notification to the Secretary (A) and the institution of proceedings (B), and consequently brings the protection of the Safety Act into play. (Ibid.)

Accordingly, the complaint to his supervisor was a preliminary step to instituting a "proceeding" within the meaning of the Act. See Mackowiak v. University Nuclear Systems, Inc., supra. Mr. Blackburn's safety complaint to his foreman on the morning of September 5, 1984 is protected activity within the scope of the Act.

    On its face, Mr. Blackburn's refusal to work way be considered as protected activity. That however does not end the matter. The question is whether Respondent discharged Mr. Blackburn because he participated or was about to participate in a proceeding within the scope of the Act. The presence or absence of retaliatory intent is a legal conclusion provable on the basis of the facts and circumstances surrounding the disciplinary action in issue.

    At the outset it should be noted that Mr. Blackburn's radiation exposure had he accepted the assignment would not have violated the applicable NRC regulations. (Finding 21). Moreover, the removal of the portable shielding of which Mr. Blackburn complained was prerequisite to safely hydrotesting the equipment in the reactor area. (Finding 15). Respondent's intent in discharging Mr. Blackburn must be construed in light of these facts.

    Mr. Blackburn acted on the belief that he would have been exposed to undue radiation had he gone into the reactor area as ordered. (Findings 22-27). Nevertheless, on the basis of his training and work experience he should have known that the means were available to him to determine whether his fears were founded in fact before he refused the assignment. Complainant, on the basis of the records pertaining to his prior cumulative exposure to radiation, the applicable surveys and radiation work permits and discussions with a Health Specialist could have ascertained that his exposure would not have exceeded NRC limits if he had complied with the order to go to work. (Findings 10-12, 17-20).

    Respondent, on the basis of employee training procedures, and the applicable safety procedures at the work site had reason to believe that complainant knew or should have known that the prospective radiation exposure on September 5 would not violate NRC regulations. As a result, Metric, on the basis of the information available to it, could reasonably infer that Mr. Blackburn's complaint was motivated by the desire simply to avoid further radiation exposure rather than to make a safety complaint preliminary to a proceeding for violation of NRC regulations. Some radiation exposure, provided that it is within NRC limits, is inevitable and permissible if the work of

nuclear plant construction is to be accomplished. Under the circumstances, the record does not support a finding that Mr. Blackburn's discharge was intended as retaliation against a safety complaint preliminary to an ERA proceeding. Rather the record compels the inference that Mr. Blackburn's discharge was a normal disciplinary measure for refusal of a work assignment which Complainant should have known would not violate NRC regulations. Complainant has not demonstrated a discrimination cognizable under ERA.

    IT IS ORDERED that the complaint of Paul A. Blackburn be, and hereby is, dismissed.

       Theodor P. von Brand
       Administrative Law Judge

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