be generated to
initiate a change." (Exhibit C-4). Mr. Francis marked this
disposition acceptable on February 13, 1985.
Although the MCC problem was not
rectified immediately,
Mr. Francis took no further action until August, 1985. At
the hearing, Mr. Francis explained why he took no action
between February and August. Ed Rush told the Claimant that
the SDR should be written by the engineer, not by Mr. Francis.
(Transcript 274). Mr. Francis was also told that an SDR was
being generated. (Transcript 275). Finally, Mr. Francis took
the field questionnaire "to the electrical inspector that
was
responsible for this, presented him with a copy. He took it
to Bechtel and later, through a phone conversation, he assured
me it was being worked on." (Transcript 275).
In the middle of August 1985, Mr.
Francis "noted that
they were starting the testing on this particular MCC and
I knew that somewhere along the line I had to bring it to
someone else's attention." (Transcript 42).
During a GET training session, Mr.
Francis went into the
instructor's office to seek advice on solving the MCC problem.
Mr. Francis testified that the instructor told him "at that
time that -- he was a little hesitant as to what I should do
after he found out all I had done but he said that if I
mentioned it to an NRC inspector, then I would get some action
taken on it. And I asked him if they had -- if those people
were assigned there to the plant and he said, yes, there were
two or three on site all the time, and their offices were in
the Administration Building." (Transcript 42).
The next day, August 23, Mr. Francis
"approached Ed Rush
up in the supervisors' offices and told him that we were
going to have to take further action on this, and nothing was
being done on it." (Transcript 43). Mr. Francis testified
that he had "really decided I just couldn't let this go, I
made that clear back when I wrote the field questionnaire,
that this one had to be fixed. And I would have taken
it to the NRC. I intended to take it to their safe team [sic]
in the NRC." (Transcript 43; Transcript 106).
Mr. Francis was demoted the following
day, August 24,
1985. Robert Class, the site project manager, (Transcript
241), informed Mr. Francis that he was being demoted. He
gave the following account of the conversation he had with
the Claimant at that time:
Al, there is no easy way of doing this or saying
this, so I'll just say it. You are being demoted
from a supervisor back to a technician at the end
of your shift today, you will no longer function
as a supervisor. Monday you will report on the
day shift in the tagging crew.
And his response was, okay, but why. And I
says, well, because of low productivity, you don't
have control of your people, they seem to run you.
Too many packages being returned, and not being --
being returned to start-up. Too many packages on
hold. Just did not seem to be with the program.
And his statement at that point was, well, you
know, this isn't the end of this, And I says,
well, Al, I would caution you as to what you do.
Be very careful. Don't go out and stir up the
technicians or anything like this because it
could possibly cost you your job.
And he says, oh, no, no, no, no. I wouldn't do
that. And he says, I am going to go to the NRC.
And I says, what's the NRC got to do with all
of this? And he says, well, I am going to bring
some charges up to the NRC. (Transcript 245-246).
On August 26, 1985, Mr. Francis went to
the SAFETEAM,
which "is an independent group that is on site, supposedly
to
allow workers or anybody to raise safety questions that would
effect the plant." (Transcript 46). The SAFETEAM responded
to Mr. Francis' concerns in a letter dated October 28, 1985.
(Exhibit C-6). This letter discussed the Claimant's concerns
about test packages, as well as his concern about the MCC
problem. With respect to the MCC problem, the SAFETEAM letter
stated "SAFETEAM performed an initial walkdown with PSE&G
Quality Assurance Personnel to identify the location and
unique identity number for each MCC in question." "The
interfering supports were cable tray and conduit unistrut
supports, not pipe supports as mentioned in the concern."
(Exhibit C-6).
With respect to Mr. Francis' concerns
about the test
packages, the SAFETEAM performed an analysis of each package
the Claimant mentioned. For package # GKC-D176 the SAFETEAM
found that "the procedure was improper" and "the
required
data sheets did not accompany the package." (Exhibit C-6).
For package # GJC-0062, the SAFETEAM noted "the responsible
Startup Test Engineer voided the package on September 12,
1985 because the calibration values did not agree with the
calibration requirements." (Exhibit C-6). For package #
AFC-0027 the SAFETEAM noted that Mr. Francis had correctly
recognized that two transmitters originally had been tagged
incorrectly. This problem had been identified in an SDR.
The test package Mr. Francis mentioned, however, was not the
package for testing the two transmitters in question. (Exhibit
C-6). For package # GSC-0194, the SAFETEAM noted that an SDR
had been generated to deal with the problem that Mr. Francis
had identified. (Exhibit C-6). For package # GKC-0044, the
SAFETEAM noted that the package had been voided on August 5,
1985 because, as Mr. Francis had noted, the instruments could
not be calibrated with the required accuracy. (Exhibit C-6).
For package # ORB FT-N12O the SAFETEAM noted "This is
not a test package number, it is a component number." The
SAFETEAM also noted "This test package (HBC-0424) has been
completed and final review was accepted and signed off
September 13, 1985." (Exhibit C-6).
The SAFETEAM also responded to other
concerns raised by
Mr. Francis. Mr. Francis "stated that all Westinghouse
Controllers are equipped with input/output conditioners that
require an accuracy measurement of +/- 0.016 Milliamps.
You stated these conditioners were calibrated with equipment
that did not meet specifications. You felt the accuracy level
was too high anyway." The SAFETEAM reported "the I & C
supervisor for PSE&G informed the SAFETEAM that SDR GK-0206
was issued on July 25, 1985 to resolve this condition. The
SDR stated that the available test equipment was adequate for
calibration adequacy." (Exhibit C-6).
On August 27, 1985, Mr. Francis took
his concerns to the
NRC. (Transcript 44). The NRC, in a letter dated September 6,
1985, informed Mr. Francis that it would investigate his
concerns and allegations. (Exhibit C-5). Mr. Jack Strosnider
of the NRC, in testimony at the hearing, stated that the NRC
was still "preparing some comments" as a result of its
investigation. When asked "in light of the fact that some
packages had to have calibration changes made in them, would
you say that Mr. Francis' concerns as were raised here, were
reasonable?" Mr. Strosnider replied "Yes".
(Transcript 164).
CONCLUSIONS OF LAW
The Energy Reorganization Act of 1974,
as amended,
provides, in pertinent part:
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.
Section 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 1954, as
amended [42 U.S.C.A. Section 2011 et seq.]
To establish a prima facie case
of unlawful discrimination,
a Claimant must prove "(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 under either the Energy Reorganization
Act of 1974 or the Atomic Energy Act of 1954." DeFord v.
Secretary of Labor , 700 F.2d 281,.286 (6th Cir. 1983).
The parties stipulated at the hearing
that the employer
is a covered employer under the Act (Transcript 5) and that
the employee is a covered employee under the Act. (Transcript 5).
Based on an examination of the record, I find these stipulations
to be reasonable.
There is no doubt in this case that the
employer changed
the Claimant's compensation or conditions of employment by
demoting him from supervisor to technician. The issues in
this case are (1) whether Mr. Francis engaged in statutorily
protected activity and (2) whether Bogan's decision to demote
Mr. Francis was motivated by his participation in protected
activity.
The Claimant argues that the language
of subsection
(a) (3), which prohibits employers from discriminating against
employees who assist or participate "in such a proceeding or
in any other action to carry out the purposes of this
chapter"
(emphasis added), protects employees who file internal corporate
safety-related complaints. The Respondent argues that the
protection afforded by the statute is triggered by participation
in an NRC proceeding; filing a purely internal corporate
safety-related complaint is not a protected activity under the
statute.
On the facts of this case, I find it
unnecessary to
reach the issue framed by counsel. Subsection (a)(1)
clearly prohibits discrimination against an employee who
"is
about to commence or cause to be commenced a proceeding under
this chapter or the Atomic Energy Act of 1954" (emphasis
added).
The Claimant stated that he was "determined" to get the
MCC
problem fixed, and that he "would bring that forward to the
NRC or the OSHA" - even at the cost of his own job.
(Transcript
114). Mr. Francis also stated at the hearing that on August 22,
he was told that he should go to the NRC to get action on the
MCC problem. On August 23, Mr. Francis told Ed Rush --
the PSE&G supervisor on the walk-down crew (Transcript
43) -- that further action needed to be taken to correct the
MCC problem. On August 24, immediately after being informed
of his demotion, Mr. Francis clearly stated that he was going
to go to the SAFETEAM and the NRC. (Transcript 245).
At the hearing, Mr. Davis testified
that he believed "Al
Francis would have definitely taken some other action, some
corrective action. Yes, I think that he would have approached
OSHA or some other governmental concern." (Transcript
138-139).
Based on my observation of the
witnesses' demeanor at
the hearing, I find the testimony of Mr. Davis and Mr. Francis
to be credible. I find that Mr. Francis was a dedicated,
competent individual who testified and reported safety-related
problems. The SAFETEAM report and the testimony of Mr.
Strosnider, as well as the testimony of Mr. Davis, indicates
that many of the problems Mr. Francis reported were, in fact,
reasonable and valid concerns. I therefore give the Claimant's
testimony considerable weight.
Based on the foregoing and considering
the record taken
as a whole, I find that the weight of the evidence shows that
Mr. Francis, at the time of his demotion, was about to go to
the NRC personnel on the Hope Creek site to get action on the
MCC problem. Because subsection (a)(1) clearly protects
employees who are about to commence an NRC action, I find
that Mr. Francis was engaged in statutorily protected activity.
In order to prove a discrimination
claim under the Energy
Reorganization Act of 1974, as amended, a Claimant must also
show that the employer's action occurred because the
employee engaged in a statutorily protected activity. The
analysis
adopted by the United States Supreme Court in Mt. Healthy
City School District v. Doyle , 429 U.S. 274, 97 S. Ct. 568,
50 L.Ed.2d 471 (1977), has been applied in discrimination
cases under the Energy Reorganization Act of 1974.
Consolidated
Edison Co. of NY, Inc. v. Donovan , 673 F.2d 61 (2nd Cir.
1982);
Mackowiak v. University Nuclear Systems, Inc. , 735 F.2d
1159
(9th Cir. 1984. Under the Mt. Healthy analysis, a
Claimant
must show that protected activity was a "motivating
factor'"
in the employer's decision.
Mr. Francis admits that no
representative of Bogan, Inc.
ever told him that he was demoted because of his intention to
go to the SAFETEAM or the NRC. (Transcript 94). Bogan, through
Dave Davis - Mr. Francis' supervisor between May and August
1985 - knew that the Claimant intended to go to the NRC.
The timing of the events in question - the GET training
on August 22, the conversation between the Claimant and Ed
Rush on August 23, and the demotion on August 24 - certainly
supports the inference that Mr. Francis was demoted because
he was about to go to the NRC. That inference is further
supported by the statement of Robert Class that "if you go
to those people and stir up any problems, you will lose your
job." (Transcript 69). Mr. Francis believed that Mr. Class
was referring to his intention to go to the NRC people on
the construction site. (Transcript 69).
Based on the foregoing and considering
the record taken
as a whole, I find that the Claimant has produced sufficient
evidence to show that he was demoted, at least in part, because
he engaged in a statutorily protected activity.
Under the Mt. Healthy analysis,
once a Claimant proves
that he suffered an adverse personnel action because he
engaged in a statutorily protected activity, the burden shifts
to the employer to show by a preponderance of the evidence
that the same decision would have been made even in the
absence of the protected conduct. Mr. Douglas Campbell, who
became the Claimant's supervisor just three weeks before Mr.
Francis was demoted, (Transcript 240), testified that he made
the demotion decision. (Transcript 223). He stated the
decision was based on "productivity, continuing or solving
problems that were arising and holding test packages, observation
or knowing where his technicians were, working close in band
with his technicians, coordination with the coordinators and
the start-up engineers." (Transcript 204). Mr. Campbell
admitted that he performed no written analysis comparing the
productivity of different supervisors' crews (Transcript
212), and in fact, performed no written analysis at all of the
productivity of claimant's crew; his testimony indicated that
he assessed productivity based on his experience in the
industry. (Transcript 221). Considering the safety concerns
surrounding the construction of nuclear power plants, it is
difficult to believe that instrumentation and control
supervisors are demoted based on the impressionistic evaluation
of a new work coordinator. In any case, I give Mr. Campbell's
testimony little weight. His willingness to deviate from
procedure (Transcript 210, 235) is inconsistent with the
company's policy of following established procedure (Transcript
20; Exhibit C-3); his testimony that he warned Mr. Francis
about his low productivity (Transcript 205) conflicts with
the Claimant's testimony (Transcript 70, 109, 110); and his
testimony that he made the decision to demote the Claimant
(Transcript 223) conflicts with the testimony of Robert Class
(Transcript 244). These contradictions, together with the
witness' demeanor, lead me to conclude that Mr. Campbell's
testimony is not credible.
Mr. Robert Class, a Bogan senior
representative on the
Hope Creek site, (Transcript 242), stated that he made the
decision
to demote Mr. Francis. (Transcript 244). Mr. Class had been
I & C coordinator on the day shift until August 8, 1985, when
he became site project manager. (Transcript 247). Mr. Class
specifically denied that Bogan's action was motivated by
the Claimant's intention to take his concerns to the SAFETEAM
or the NRC. (Transcript 246). Mr. Class stated he talked
with Campbell (Transcript 248) and Davis (Transcript 257,
258) about Francis' crew's work, but Davis denied having any
such conversation. (Transcript 264). Mr. Class' testimony
also conflicts with that of Mr. Davis in that Mr. Davis stated
that the Claimant's crew's productivity was not "low or
below
standard." (Transcript 135). Mr. Davis, who assigned work to
Mr.
Francis' crew, was asked "Do you have any reason to believe
that the productivity of [Claimant's] crew was, at any time,
below that of any crew on the night shift?" Mr. Davis
responded "No, I don't." (Transcript 133). Mr. Davis
was
also asked "Do you believe, based on having been on the
night
shift from May of 1985 to August 1985, and having direct
contact with Al, having reviewed his work, if there was any
justification for him being demoted because of low
productivity?"
Mr. Davis responded "None to my knowledge." (Transcript
135).
Mr. Campbell admitted that "most of the time' Mr. Davis
would
have "substantial knowledge of what work was being done on
the night shift." (Transcript 209).
From a consideration of all the
evidence, giving particular
consideration to the inconsistencies in the testimony of
Bogan management and the demeanor and manner of the witnesses,
I find that the employer's proffered justification for demoting
Al Francis is a pretext; Mr. Francis was demoted because he
engaged in a statutorily protected activity, and the demotion
would not have occurred in the absence of that activity. Mr.
Francis is therefore entitled to compensation.
DAMAGES
Mr. Francis seeks back pay,
reinstatement to his former
position as a supervisor, and reasonable costs and attorneys'
fees. Because the Claimant was unlawfully demoted, he is
entitled to the difference between his pay as a supervisor
and his pay as a technician. Mr. Francis agrees that he
should receive the pay of a night shift technician (Transcript
76).
The following table shows the weekly
wages of night
shift supervisors and night shift technicians at the Hope
Creek site:
Technician
$22.74 per hour X 40 hours = $909.60
$22.74 per hour X 20 hours
at time and one-half = 682.20
Total 1,591.80
Supervisor
$24.46 per hour X 40 hours = $978.40
$24.46 per hour X 20 hours
at time and one-half 733.80
$24.46 per hour X 12 hours
at double time 597.04
Total 2,399.24
The differential between the compensation of a supervisor
and a technician is therefore $707.44 per week.
Mr. Francis is therefore entitled to
$707.44 for each
week that he would have been employed as a supervisor rather
than a technician if he had not been demoted unlawfully. In
August 1985, Mr. Francis considered asking to be relieved of
his supervisory duties. He discussed this intention with Mr.
Davis. (Transcript 104). Mr. Francis stated that he was
considering stepping down voluntarily because of "the
pressure
to do the work." (Transcript 107). Mr. Francis also stated
that
he wanted to step down because he had to attend to business
matters in Virginia. (Transcript 272). Mr. Davis also told
Mr. Bob Class "You know, if you had just waited a week or
two,
Al was going to ask you to go back as a technician, and step down
from the supervisor's position." (Transcript 258).
Because I find that Mr. Francis would
have voluntarily
left his supervisory post, he is not entitled to reinstatement;
such a remedy on these facts would constitute an unjust result.
Although the Claimant did not indicate when he would have
asked to be relieved of his supervisory duties, Mr. Davis
believed Mr. Francis would have stepped down only one to two
weeks
after the date of his actual demotion. (Transcript 258).
Moreover, Mr. Francis was demoted because of his determination
to go to the NRC to get action on the MCC problem - a problem
that was rectified two to three weeks after the SAFETEAM and
the NRC were contacted. (Transcript 46). Based on the
foregoing, and considering the record taken as a whole, I
find that the Claimant is entitled to the difference between
his pay as a night shift supervisor and his pay as a night
shift technician for two weeks. That is, Mr. Francis is
entitled to the sum of ,414.88.
In addition, Mr. Francis is entitled to
reasonable
attorney's fees under the Act. 42 U.S.C. Section 5851 (b)(2)(B).
No award of attorney's fees is made herein because no
application has been received from counsel. Counsel may
submit such an application, and a reasonable counsel fee
will be set in a supplemental decision and order.
ORDER
Based on the foregoing, and considering
the evidence
taken as a whole, I find that Bogan Inc. unlawfully demoted
Mr. Albert L. Francis from supervisor to technician because
he was about to commence or cause to be commenced a proceeding
with the Nuclear Regulatory Commission.
IT IS HEREBY ORDERED that:
1. Bogan, Inc." pay to Mr. Francis the sum
of ,414-88.
2. Bogan, Inc., pay to Mr. Francis a reasonable counsel
fee to be set in a supplemental decision and order.
Paul H. Teitler
Dated:
Philadelphia, PA
NOTICE: Pursuant to 29 C.F.R Section 24.6(a) this recommended
decision shall be forwarded, along with the record, to the
Secretary of Labor for a final order.
[ENDNOTES]
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